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EVIDENCE Introduction Definition the means, sanctioned by these rules, of ascertaining in a judicial proceeding, the truth respecting a matter of fact. (Rule 128, Sec. 1.) Scope of applicability rules of evidence shall be the same in all courts and in all trials and hearings, except as otherwise provided by law or these rules. (Rule 128, Sec 2.) Notes: The Rules on Evidence apply only when there is going to be a trial. Note that there can be a judgment on pleadings, by confession, consent and compromise etc. IN CIVIL CASES. Mere denial in the answer in a CIVIL CASE will not present a probandum hence no need for the court to try the case. Such general denial will be considered as an admission. In CRIMINAL CASES, We have to wait until the accused enters a plea. This time a general denial is allowed. If the accused enters a plea of guilty there is no probandum. However in CRIMINAL CASES, the court could still try the case if the case involves a heinous crime. The Rules on evidence are not selfexecuting. So the rule is any evidence submitted will be admitted so long as there is no objection. This principle is only for the purpose of admissibility. It does not mean that the court will take these irrelevant evidence in evaluating on the merits of the case. DIFFERENCE IN RULES ON EVIDENCE IN CRIMINAL CASES AND CIVIL CASES BASIS Criminal Civil Case Case Quantum Proof Beyond Prepond of Proof Reasonable erance of Doubt evidence Denial General Must be Denial Specific Allowed Denial Withdrawal Withdrawn Judicial of plea is Admissio Plea/Admis inadmissible n sion withdraw n becomes an extrajudi cial admissio n Cross Applicable Not Examinatio applicabl n in e

Summary Procedure Equiponder ance Rule

Accused acquitted

Presence of Circumstan tial Evidence Priviliged Communic ation- Dr.Patient Compulsio n as a witness

More one required

is Party who loses is the one who has burden of proof than One is suffices

Not applicable

Applicabl e

Cannot No compel prohibitio accused to be n, rules a witness provides only limitation s

Evidentiary Privilege- entitles the privilege holder to withhold competent evidence and, in some circumstances, to prevent others from revealing such evidence. The privilege is granted when the protected interest is considered important enough to outweigh the concern with determining the truth. The privilege holder need not be a party to the proceeding in question. Unlike a disqualification, a privilege can be waived. Privileges are often intended to preserve confidential relationships. Executive Privilege- members of the executive branch of government cannot legally be forced to disclose their confidential communications when such disclosure would adversely affect the operations or procedures of the executive branch. FACTUM PROBANDUM vs. FACTUM PROBANS Factum Probandum-proposition to be established. The fact/s in issue. Factum Probans- materials evidencing the proposition Notes: 1. In both CIVIL and CRIMINAL cases, the probandum contained in the pleadings could be changed in the pre-trial order. However, with respect to CRIMINAL CASES, the pre-trial order SHOULD NOT substantially change the accusation/indictment contained in the

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information, otherwise the case will be dismissed. 2. A court can validly try a fact in issue not raised in the pleadings or pre-trial order. Rule 10 provides that a fact in issue may be raised with the express or implied consent of the parties during the trial (Amendment to conform to evidence) 3. Ascertainment of probandum does not apply in special proceedings. (i.e. If there is a petition for probate of a will, even if there is no opposition the petitioner is still required by law to prove that the will has been duly executed in accordance with the Civil Code) EVIDENCE vs. PROOF Proof- is the effect of evidence. It is the probative effect of evidence and is the conviction or persuasion of the mind resulting from a consideration of the latter. Evidence- is the cause necessary to establish proof. I. Admissibility A. Relevance The evidence has such a relation to the fact in issue as to induce belief in its existence or non-existence. Evidence on collateral matters shall not be allowed, except when it tends in any reasonable degree to establish the probability or improbability of the fact in issue. (Rule 128, Secs. 3 and 4.) - In conclusion, relevancy is not determined by law nor the rules of court. It is determined purely by LOGIC. B. Competence The evidence is not excluded by the law or the rules (Rule 128, Sec. 3.) Do not confuse COMPETENT WITNESS from COMPETENT EVIDENCE. The COMPETENCY TEST of evidence applies to the TESTIMONY of the qualified witness. Since admissibility of evidence is determined by its relevance and competence, admissibility is therefore an affair of logic and law. On the other hand, the weight to be given to such evidence depends on judicial evaluation within the guidelines provided in Rule 133 and the jurisprudence laid down by the court. (People vs. Turco, 2000) Relevant evidence is one that has any value in reason as tending to prove any matter probable in an action. Evidence is said to be material when it is directed to prove a fact in issue as determined by the

rules of substantive law and pleadings, while competent evidence is one that is not excluded by law in a particular case. (Bautista vs. Aparece, 1995) Exclusionary Rules under the 1987 Constitution 1.1 Secs. 2 & 3, Art. III The right of the people to be secure in their persons, houses, papers, and effects against unreasonable searches and seizures of whatever nature and for any purpose shall be inviolable, and no search warrant or warrant of arrest shall issue except upon probable cause to be determined personally by the judge after examination under oath or affirmation of the complainant and the witnesses he may produce, and particularly describing the place to be searched and the persons or things to be seized. The privacy of communication and correspondence shall be inviolable except upon lawful order of the court, or when public safety or order requires otherwise as prescribed by law. Any evidence obtained in violation of this or the preceding section shall be inadmissible for any purpose in any proceeding. 1.2 Sec. 12, Art III Any person under investigation for the commission of an offense shall have the right to be informed of his right to remain silent and to have competent and independent counsel preferably of his own choice. If the person cannot afford the services of counsel, he must be provided with one. These rights cannot be waived except in writing and in the presence of counsel. No torture, force, violence, threat, intimidation, or any other means, which vitiate the free will, shall be used against him. Secret detention places, solitary, incommunicado, or other similar forms of detention are prohibited. Any confession or admission obtained in violation of this or Section 17 hereof shall be inadmissible in evidence against him. Sec. 17, Art III No person shall be compelled to be a witness against himself. This right is recognized under he Rules on Evidence, which provides that, it is the right of a witness not to give an answer which will tend to subject him to a penalty for an offense unless otherwise provided by law. [Sec. 3 (4), Rule 132, ROC) NOTES AND COMMENTS: The human body could be used as evidence without violating the right. Mechanical acts without the use of intelligence do not fall

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within the scope of the protection. Some of the acts which are not covered by the right of self-incrimination are the following: a. Fingerprinting, photographing nd paraffin testing, physical examination. (U.S. v. Tang, 23 Phil. 145_) b. Physical examination of a woman accused of adultery to determine if she is pregnant. (U.S. v. On Suy Hon, 36 Phil. 735; Villaflor v. Summers, 41 Phil. 62) c. Undergoing ultra-violet rays examination to determine presence of flourescent powder on the hands. (People v. Tranca, 35 SCRA 455) d. Subpoena directing government officials to produce official documents or public records in their custody. e. Fitting the accused foot over a foot print, putting on a pair of trousers, etc. 2. Statutory Rules of Exclusion 2.1 Sec. 201, NIRC An instrument, document or paper which is required by law to be stamped and which has been signed, issued, accepted or transferred without being duly stamped, shall not be recorded, nor shall it or any copy thereof or any record of transfer of the same be admitted or used in evidence in any court until the requisite stamp or stamps shall have been affixed thereto and cancelled. 2.2 R.A. 4200 (Wire-tapping Act) Sec. 1. It shall be unlawful for any person, not being authorized by all the parties to any private communication or spoken word, to tap any wire or cable, or by using any other device or arrangement, to secretly overhear, intercept, or record such communication or spoken work by using a device commonly known as a Dictaphone or dictograph or detectaphone or walkietalkie or tape recorder, or however otherwise described. x x Sec. 4. Any communication or spoken word, or the existence, contents, substance, purport, effect, or meaning of the same or any part thereof, or any information therein contained, obtained or secured by any person in violation of the preceding sections of this Act shall not be admissible in evidence in any judicial, quasi-judicial, legislative or administrative hearing or investigation. An extension telephone cannot be placed in the same category as a Dictaphone, dictograph or the other devices enumerated in Sec. 1 of RA 4200 as the use thereof cannot be considered as tapping the wire or cable of a telephone

line. (Gaanan vs. IAC, 1986) RA 4200 expressly makes tape recordings of tapped conversations inadmissible in evidence absent a clear showing that both parties to the phone conversations allowed the recording. (Salcedo-Ortaez vs. CA, 1994) EXCLUSIONARY RULES RULES OF COURT 1. Best Evidence Rule 2. Parole Evidence 3. Hearsay Rule under the

Wigmores Axiom of Admissibility None but facts having rational probative value are admissible- ILLUSTRATION: In a trial for homicide, the fact is offered that the accused was requested, with others, to touch the corpse of the murdered man to see if blood flowed, but that he refused to do so; this is admissible, not because the flowing or retention of the blood at the guilty mans touch would be rationally evidential of his guilt, but because his refusal to do could constitute a link to the chain of evidence necessary to produce a moral conviction of guilt. Any fact having rational probative value is admissible, unless some specific rule forbids its admission- ILLUSTRATION: In an issue involving forgery, the disposition of the persons character as to acts of honesty or dishonesty is of some rational probative value towards showing that he did or did not do the act; it is therefore admissible, but this can only be done if the accused steps forward first and adduces evidence of his good moral character. Irrelevant vs. Incompetent vs. Inadmissible vs. Immaterial Evidence Irrelevant- no probative value; No tendency in reason to establish the probability or improbability of a fact in issue. It does not directly relate to a fact in issue. N.B. All facts and circumstances which afford reasonable inferences or throw light upon the probability of matter or matters contested are admissible in evidence, UNLESS excluded by some established principle of evidence, such as HEARSAY EVIDENCE RULE, RULE ON PAROLE EVIDENCE and BEST EVIDENCE RULE. Collateral Matters- matters other than the facts in issue and which are offered as a basis merely for inference as to the existence or non-existence of the facts in issue. These are not allowed unless satisfy

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ALL the requirements of relevancy. ILLUSTRATIONS: a. finger marks, foot prints and a bat left by the accused in the place of the crime b. The resemblance of a child to his alleged father to prove paternity of the latter c. Bloodstains on the clothing of the person charged with a crime d. The destruction or fabrication of evidence e. Flight of the accused. (N.B. Nonflight is not conclusive proof of innocence) f. Delay in the identification of victims assailant Incompetent- excluded by the rules or any law Inadmissible- not competent and irrelevant Immaterial- the offered evidential fact is directed to prove some probandum which is not properly in issue. (N.B.- The rules on substantive law and of pleading determine immateriality) Material evidence- proves a main fact which is the subject of the inquiry or any circumstance which tends to prove that fact or any fact or circumstance which tends to corroborate or strengthen the testimony relative to the subject of inquiry or which legitimately affects the credibility of any witness who testifies. Direct vs. Circumstantial Evidence Direct- Evidence that directly proves a fact without need to make inference from another fact Example: The testimony of the prosecution witness claiming that he saw that it was actually the deceased who attacked the accused without the latters provocation is a direct evidence. Circumstantial- Indirectly proves a fact in issue through an inference which the fact finder draws from the evidence established Example: The testimony of the victim that he dreads the mere presence of the accused is direct evidence that the statement was made. It is likewise circumstantial evidence to show that this fear prevented the victim from attacking the accused without provocation. IN CRIMINAL CASES, circumstantial evidence is sufficient for conviction when: a. There is more than one circumstance b. The facts from which the inferences are derived are proven c. The combination of all the circumstances is such as to

produce a conviction beyond reasonable doubt (Sec. 4 Rule 133) Cumulative v. Corroborative Cumulative- evidence of the same kind that tends to prove the same fact Ex. Two or more witnesses testify that they saw the event which the first witness claimed he saw, the subsequent testimonies are cumulative Corroborative- evidence which tends to confirm, validate or strengthen evidence already presented. Evidence may be of the same kind or different kind and tends to prove the same fact. Ex. A witness claims that he saw Mr. X sign the document subject of the action. Mr. X denies the authenticity of his signature. Evidence by a handwriting expert is corroborative. Positive v. Negative Evidence Positive- A witness affirms in the stand that a certain state of facts do exist or that a certain event happened Negative- A witness states that an event did not occur or that the facts alleged to exist did not actually exist. (Denial) Derivative Evidence- type of evidence that is inadmissible as proof because of the application of the fruit of the poisonous tree doctrine, which treats the original evidence and any evidence derived from it as tainted because of the illegal way in which it was obtained by agents of the government. Rebuttal Evidence- offered to contradict other evidence or to rebut a resumption of fact.

Admissibility v. Weight - Evidence is ADMISSIBLE when it is relevant and is not excluded by any rule. - Probative value or WEIGHT is to be determined by the court when it decides the case MULTIPLE ADMISSIBILITY Evidence is admissible for two or more purposes. The rule is when a fact satisfies all rules applicable to it when offered for that purpose, its failure to satisfy some other rule which would be applicable to it if offered for another purpose would not exclude it.

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ILLUSTRATION: An extrajudicial confession may be inadmissible as against a party who did not subscribe to it, yet such party may use said document as evidence of lack of guilt. CONDITIONAL ADMISSIBILITY GR: The time for determining the admissibility of a particular fact is ordinarily the time when it is offered to the court. Exception: When some facts depend on some other facts needed to be established first in order that said former evidentiary facts would be admissible. ILLUSTRATION: Mr. P files an action for recovery of ownership of a parcel of land against Mr. D. The complaint alleges that Mr. P is the owner of the property. During the trial, Mr. P testifies and adduces evidence that a certain O bought the property from D. The testimony of O may be allowed if it would be shown the chain of events that led to the ownership of P of the land. CURATIVE ADMISSIBILITY There is curative admissibility when a party offers an inadmissible fact which is received because there is no objection by the other party. The other party does not acquire the right to introduce in reply to the same kind of evidence, EXCEPT whenever it is needed for removing an unfair prejudice which might otherwise have ensued from the original evidence. ILLUSTRATION: In an action for damages arising from a car accident, the plaintiff introduced evidence to show that on several occasions the defendant in the past had injured pedestrians because of his negligence. (This is inadmissible under Sec. 34 Rule 130- Prior acts as evidence). Under the concept of Curative admissibility the court must give the party against whom the evidence was admitted the chance to contradict or explain the alleged past acts he committed to counteract the prejudice which the improperly admitted evidence may have caused. II. What Need Not be Proved a. Facts which a court shall or may take judicial notice. (Secs. 1 and 2, Rule 129, ROC) b. Judicial admissions. (Sec. 4, Rule 129, ROC) c. Conclusive presumptions d. Disputable presumptions not disputed

Distinguish mandatory judicial notice from discretionary judicial notice. a. For mandatory judicial notice the court is compelled to take judicial notice because of the use of the word "shall" in Sec. 1, Rule 129, ROC WHILE for discretionary judicial notice the court is not compelled because of the use of the word "may" in Sec. 2, Rule 129, ROC. b. Mandatory judicial notice takes place at the court's own initiative WHILE discretionary judicial notice may take place at the court's initiative, or on request of a party. c. Discretionary judicial notice requires a hearing and presentation of evidence WHILE mandatory judicial notice does not require hearing and presentation of evidence.

A. Judicial Notice Rule 129, Secs 1-3;

Rule 10, Sec. 8 1.When Mandatory [EPF-SLAP-OL-MG] -Existence and territorial extent of states -Their political history -Forms of government -Symbols of nationality -Law of nations -Admiralty and maritime courts of the world and their seals -Political constitution and history of the Philippines -Official acts of the legislative, executive, and judicial departments of the Philippines -Laws of nature -Measure of time -Geographical divisions 2.When Discretionary -Matters of public knowledge -Matters capable of unquestionable demonstration -Matters which ought to be known to judges because of their judicial functions. 3.When Hearing is Necessary - During the trial: the court, on its own initiative, or on request of a party, may announce its intention to take judicial notice of ANY MATTER and allow the parties to be heard thereon. - After the trial, and before judgment or on appeal: the proper court, on its own initiative or on request of a party, may take judicial notice of any matter and allow the parties to be heard thereon if such MATTER IS DECISIVE OF A MATERIAL ISSUE in the case.

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MUNICIPAL ORDINANCES Courts are not mandated to take judicial notice of municipal ordinances unless the charter of the concerned city provides for such judicial notice. (City of Manila vs. Garcia, 1967). But INFERIOR COURTS sitting in the respective municipalities or cities are MANDATED to take judicial notice. The reason is that violations of the ordinances are usually vested to the inferior court EXCLUSIVELY in the exercise of their original jurisdiction. IF inferior court took judicial notice and there was an appeal, such court taking the appeal should likewise take judicial notice. (U.S. v. Blanco, 37 Phil. 126) COURT RECORDS: -Courts may take judicial notice of its own records of cases pending before it. (Ex. Pleadings; period of perfecting appeals.) -Records of preliminary investigation shall not form part of the record, however the court on its own initiative or that of any party may order the production of the record or any part thereof whenever the same shall be necessary in the resolution of the case or any incident therein or shall be introduced as evidence by the party requesting for its production. -Courts are not authorized to take judicial notice of the contents of the record of other cases pending or heard before them notwithstanding they are pending before the same judge. Exceptions: 1. In the absence of objection from the adverse party, with the knowledge of the adverse party; or at the request or with the consent of the parties, the case is clearly referred to or the original or part of the records of the case are actually withdrawn from the archives and admitted as part of the record of the case then pending. (Tabuena vs. CA, 1991) 2. The other case is so closely connected or interdependent 3. When interests of the public in ascertaining the truth is of paramount importance 4. In cases seeking to determine what is reasonable exercise of discretion 5. The finality of judgment in a case FOREIGN LAWS In general, courts may not take judicial notice of foreign laws, EXCEPT in a few instances where, in the exercise of sound discretion, they may take judicial notice of

such foreign laws of which they are evidently familiar. (Delgado v. Republic, L2546, January 28, 1950; Pardo v. Republic, 85 Phil. 323) When foreign laws may be the subject of judicial notice. a. When the local court is evidently familiar with the foreign law. b. When the foreign law refers to the law of nations. (Sec. 1, Rule 129, ROC) c. When the court takes judicial notice of a published treatise, periodical or pamphlet on a subject of law as a learned treartise. (Sec. 46, Rule 130, Ibid.) d. When the foreign statute is acepted by the Philippine governemnt. (Republic v. Guanzon, 61 SCRA 360) e. When a foreign judgmen containing foreign law is recognized for enforcement. (Sec. 48, Rule 39, ROC) f. If the foreign law refers to common law doctrines and rules from which many of our laws were derived. (Alzua v. Johnson, 21 Phil. 308) Doctrine of Processual Presumption: Foreign law is the same as the law of the forum. It arises if the foreign law, though properly applicable is either not alleged or if alleged is not duly proved before a competent court. Judicial Admissions Rule 129, Sec. 4 -Definition: admissions, verbal or written, made by the party in the course of the proceedings in the same case -Proof is not required. -How contradicted: ONLY by showing = That it was made through palpable mistake or = That no such admission was made Having been amended, the original complaint lost its character as a judicial admission, which would have required no proof and became merely any extrajudicial admission requiring a formal offer in order to be admissible. (Torres vs. CA, 1984) FORMS OF ADMISSIONS: 1. Implied admissions of allegations of usury and in actionable documents if not specifically denied under oath (Sec. 11 & 8, Rule 8) 2. Admissions in pre-trial of civil cases and criminal cases (In criminal cases the admission must be reduced in writing and signed by accused and counsel- Sec. 4 Rule 118) 3. Implied admissions in the modes of discovery (Depositions;

B.

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Interrogatories- Rule 23; Failure to specifically deny under oath w/in 15 days a Request for Admission in a pending case- Rule 26; ) 4. Admissions in amended pleadings (Sec. 8 Rule 10) [N.B. Admissions in superseded pleadings are extrajudicial admissions which must be proven. Dismissed pleadings are likewise extrajudicial admissions] 5. Plea of guilt in criminal case (N.B. A withdrawn plea of guilt is inadmissible, unlike in civil cases where a withdrawn judicial admission is considered an extrajudicial admission) 6. Admissions by counsel are generally conclusive upon a client absent any gross negligence which deprives counsel of due process of law or there is outright deprivation of property or liberty. Note: Admissions in pleadings may not always be considered as judicial admissions because there are hypothetical admissions in civil cases. (i.e. Affirmative defenses in an answer; Motion to dismiss, where defendant admits allegations but sets up grounds such as lack of jurisdiction etc.) Notes: 1. It is not essential that an admission is contrary to the interest of party at the time it is made. It is enough that it be INCONSISTENT with the position a party takes in his pleadings or at trial. 2. Averments in pleadings not deemed admissions even if there is failure to make a specific denial: a) Immaterial allegations; b) Conclusions and nonunltimate facts; c) Amount of unliquidated damages. Adoptive Admissions A partys reaction to a statement or action by another person when it is reasonable to treat the partys reaction as an admission of something stated or implied by the other person. Adopted Confessions A co-accused impliedly acquiesced in or adopted the others confession by not questioning its truthfulness, as where it was made in his presence and he did not demonstrate against his being implicated therein III. Rules of Admissibility A. Object (Real) Evidence Rule 130, Sec.

1. - Evidence addressed to the senses of the court. - When an object is relevant to the fact in issue, it may be exhibited to, examined or viewed by the court. AUTOPTIC PROFERENCE (VIEW OF AN OBJECT) - Where the object in question cannot be produced in court because it is immovable or inconvenient to remove, the natural recourse is for the court to order an ocular inspection and go to the object in its place and observe it there. Is there an exclusionary rule when it comes to object evidence? There is none. However, the court is given enough discretion to determine which object evidence should be presented, upon determination whether or not it will result to scandal or it does not work any additional benefit to the plaintiff or that it will give undue prejudice to the defendant. ILLUSTRATIONS: Footprints A bloody foot print was found upon a floor near the dead body of a person. Upon being arrested, the accused was taken to the house where the incident happen. Upon placing his foot over the foot print it was found that his foot corresponded exactly to said footprint. HELD: Proof of this circumstance is admissible, notwithstanding that no photograph of the footprint was submitted in evidence and that the board itself upon which the footprint was made was not produced in court. (US v. Zara, 43 Phil. 308) Resemblance, Race, Age or Parentage -To determine whether a person is alien or not, his personal appearance, ethnological and racial characteristic, language, customs, dress and manners may be taken into consideration. -In determining the age of the accused who had no positive information on the subject, the court took into account his appearance and judged that he was a youth of 18 or 19 years of age. -A physical comparison may be made between a minor Chinese applying for admission into the country with his alleged father. Photographs - Where deposition of subscribing witnesses

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to a will are taken, a photographic copy of the will may be presented to the witnesses on their examination and they may be asked the same question with respect to said copy as if it were the original will and testimony as to the identity of the photographic copy shown to the witnesses is admissible in evidence. -Photographs may be admissible upon proof of their exactness and accuracy by the photographer himself who can testify of his personal knowledge of the correctness of the representation. (Tan It v. Sun Insurance Office, 51 Phil. 212) NOTES: The photographer is not the only witness who can identify the pictures. The faithful representation of the photograph may be proved prima facie by the testimony of those who were present at the time it was taken, or by any other competent witness who can testify as to its exactness and accuracy. Once proved, the court may admit it subject to impeachment as to its accuracy. The value of a photograph lies in its being a correct representation or reproduction of the original, and its admissibility is determined by its accuracy in portraying the scene at the time the picture was taken. (Sison v. People, 250 SCRA 58, 75-76) Photocopies or xerox copies of signed documents are not duplicate originals because they are not signed. (Mahilum v. Court of Appeals, 17 SCRA 482) Computer printouts. If the data are stored in a computer or similar device, any printout or other output readable by sight, shown to reflect the data accurately, is an original. (Evidence Code of California, Added by Stats. 1977, Sec. 1) In a labor case, IBM Philippines, Inc., et al., v. NLRC, et al., G.R. No. 117221, prom. April 13, 1999, the Supreme Court held that computer printouts which were not signed because they are unsigned. The Court went on further to say that its decisions, while adhering to a liberal view in the conduct of proceedings before administrative agencies, have nonetheless consistently required some proof of authenticity or reliability as condition for the admission of documents. Not one of the 18 print-out copies submitted by IBM was ever signed, either by the sender or the receiver. There is thus no guarantee that the message sent was the

same message received. Neither were the print-outs certified or authenticated by any company official who could properly attest that these came from IBMs computer system or that the data stored in the system were not and/or could not haved been tampered with before the same were printed out. Ballots - Every ballot needs to be presented in a case of election protest. Every ballot constitutes the will of every voter. DEMONSTRATIVE EVIDENCE - one which or represents demonstrates the real thing. (ex. Map, diagram, photograph, or a model) Photographs: Must faithfully represent what it depicts (Same rules apply to motion pictures and recordings) X-Rays: Must show location and extent of injury Scientific tests, demonstrations by physical act and experiments: This is a matter of judicial discretion.

B. Documentary Evidence Rule 130,

Sec. 2. - Writings or any material containing letters, words, numbers, figures, symbols or other modes of written expression offered as proof of their contents. 1. Best Evidence Rule Rule 130, Secs. 3-4 General Rule: When the subject of inquiry is the contents of a document, no evidence shall be admissible other than the original document itself. Exceptions: 1. When the original has been lost or destroyed, or cannot be produced in court, without bad faith on the part of the offeror; 2. When the original is in the custody or under the control of the party against whom the evidence is offered, and the latter fails to produce it after reasonable notice; 3. When the original consists of numerous accounts or other documents which cannot be examined in court without great loss of time and the fact sought to be established from them is only the general result of the whole; and 4. When the original is a public record in the custody of a public officer or is recorded in a public office.

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Original of a Document 1 The original of the document is one the contents of which are the subject of inquiry. 2 When a document is in two or more copies executed at or about the same time, with identical contents, all such copies are equally regarded as originals. 3 When an entry is repeated in the regular course of business, one being copied from another at or near the time of the transaction, all the entries are likewise equally regarded as originals. Rules on Electronic Evidence (Rule 4) Sec. 1. Original of an Electronic Document An electronic document shall be regarded as the equivalent of an original document under the Best Evidence Rule if it is a printout or output readable by sight or other means, shown to reflect the data accurately. Sec. 2. Copies as equivalent of the originals When a document is in two or more copies executed at or about the same time with identical contents, or is a counterpart produced by the same impression as the original, or from the same matrix, or by mechanical or electronic re-recording, or by chemical reproduction, or by other equivalent techniques which accurately reproduces the original. Notwithstanding the foregoing, copies or duplicates shall not be admissible to the same extent as the original if: a genuine question is raised as to the authenticity of the original; or in the circumstances it would be unjust or inequitable to admit the copy in lieu of the original. Carbon copies are deemed duplicate originals. They may be introduced as evidence without accounting for the nonproduction of the original. (People vs. Tan, 1959) The Best Evidence Rule applies only when the contents of the document are the subject of inquiry. It does not apply when the issue is only as to whether or not such document was actually executed or in the circumstances relevant to its execution. (People vs. Tandoy, 1990) SOME EXAMPLES: 1. Baptismal and Marriage Certificate - They are only evidence to prove the administration of the sacraments on the dates therein specified - Baptismal certificate is not conclusive proof of filiation being hearsay

2. Medical Certificate - To prove torture inflicted by the police, the medical certificate alone without the testimony of the examining physician is inadmissible (People v. Villagracia, 226 SCRA 398) 3. Residence Certificate - The place of obtaining a residence certificate and the date contained are not conclusive as to the real residence or domicile of a person owning said certificate. (Zuellig v. Republic, 83 Phil. 768) 4. Tax declaration - It can be used as evidence that a portion of land had been sold. (Gacos v. CA, 212 SCRA 8) 5. Accounts and Account Books - Where the custom brokers authorized representative accepted the cargo OK and complete as shown in the surveyors report countersigned by him and it was obviously his assigned task to note defects in the cargo, said acceptanceif not being outright upon the customs brokeris at least evidence of the condition of the goods when thus received. (Insurance Company of North America vs. C.F. Sharp & Co., Inc. 18 SCRA 462) - An audit made by or the testimony of a private auditor is inadmissible in evidence as proof of the original records, books of accounts, reports or the like. (Compania Maritima vs. Allied Free Workers Union, 77 SCRA 24) After complying with the BEST EVIDENCE RULE will the court necessarily admit the original writing? No. 1) The requirements of authentication of documents must be met. There must be proof of authentication. However this applies only when the writing is a private document. 2) After authentication, the proponent has to comply with the rule that if the original writing is not in an official language (English or Filipino), it is his duty to give to the court a translation thereof. 3) If there is an alteration, he must explain such alteration. He may show that the alteration was made: a) by another, b) without his concurrence, or c) made with the consent of the parties

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affected by it, or d) was otherwise properly or innocent made, or e) The alteration did not change the meaning or language of the instrument. PRIVATE DOCUMENTS. How Proven = Rule 132, Sec. 20 Before any private document offered as authentic is received in evidence, its due execution and authenticity must be proved either: (1) by anyone who say the document executed or written; or (2) by evidence of the genuineness of the signature or handwriting of the maker. Any other private document need only be identified as that which it is claimed to be. - Ancient Document Rule = Rule 132, Sec. 21 (Not Required to Authenticate) Requisites: (1) The private document is more than 30 years old; (2) It is produced from a custody in which it would naturally be found if genuine; (3) It is unblemished by any alterations or circumstances of suspicion. If all requisites have been met, no other evidence of its authenticity is required. - How Genuineness of Handwriting is Proven = Rule 132, Sec. 22 It may be proved by any witness who believes it to be the handwriting of such person because he has seen the person write, or has seen writing purporting to be his upon which the witness has acted or been charged, and has thus acquired knowledge of the handwriting of such person. Evidence respecting the handwriting may also be given by a comparison made by the witness or the court, with writings admitted or treated as genuine by the party against whom the evidence is offered, or proved to be genuine to the satisfaction of the judge. Not much weight is given to handwriting experts. Unless, therefore, there is, in a given case, absolute absence, or manifest dearth, or direct or circumstantial competent evidence of the character of a questioned handwriting, much weight should not be given to characteristic similarities, or dissimilarities, between the questioned handwriting and an authentic one. (Punzalan v. Commission on Elections, G.R. No. 132435 prom. April 27, 1998 citing Lorenzo v. Diaz, 53 O.G. 4110-4111, cited in Francisco on Evidence, Vol. VII, Part I, 1997 Edition, p. 674)

Questions involving the mere similarity or dissimilarity of handwritings could be determined by the court itself as authorized under Sec. 22, Rule 132 of the Rules of Court by making a comparison of the disputed handwriting "with writings admitted or treated as genuine by the party against whom the evidence is offered, or proved to be genuine to the satisfaction of the judge." (Punzalan v. Commission on Elections, supra) 2. Secondary Evidence Rule 130, Secs. 5-8 2.1 Instances when secondary evidence may be introduced: 2.1.1 when original document is unavailable (lost, destroyed or cannot be produced in court) - The offeror, upon proof of (1) its execution or existence and (2) cause of its unavailability, without bad faith on his part may prove its contents by: = A copy = A recital of its contents in some authentic document = The testimony of witnesses. The order stated must be followed. 2.1.2 When original document is in adverse partys custody or control. - If after reasonable notice is given to the adverse party to produce the document and after satisfactory proof of the existence of the document is made, he fails to produce the document, secondary evidence may be presented. 2.1.3 when original document is a public record. - Its contents may be proved by a certified copy issued by the public officer in custody thereof. 2.2 A party who calls for the production of a document and inspects it is not obliged to offer it as evidence. The voluminous character of the document must be established before evidence other than the original may be introduced. (Compania Maritima vs. Allied Free Workers, 1977) In the case where the original is in the custody of the adverse party, it is not necessary that it be in the actual possession of the adverse party. It is enough that the circumstances show that the writing is in his possession or under his control. Secondary evidence is admissible where the adverse party denies having it in his possession. (Villa Rey Transit vs. Ferrer, 1968) All duplicates or counterparts must be accounted for before using copies as

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evidence. (De Vera vs. Aguilar, 1983) 3. Parol Evidence Rule Rule 130, Sec. 9 Nature of parol evidence rule: It is not a rule of evidence but of substantive law. It is part of the law of contracts, the law of negotiable instruments, and the law of wills. It is founded upon the substantive rights of the parties. It was made part of the rules of evidence in order that it may be considered in all its phases in one place. Reasons for the parol evidence rule: 1) When the parties have reduced their agreement in writing, 2) it is presumed that they have made the writing 3) the only repository and memorial of the truth, and 4) whatever is not found in the writing must be understood to have been waived or abandoned. General Rule: When the terms of an AGREEMENT (including WILLS) have been reduced to WRITING, it is considered as containing ALL the terms agreed upon and there can be, between the parties and their successors in interest, NO evidence (testimonial or documentary) of such terms other than the contents of the written agreement. Exceptions: A party may present evidence to a. Modify, b. Explain or c. Add to the terms of written agreement if he puts in issue in his pleading: (a) An intrinsic ambiguity, mistake or imperfection in the written agreement; (b) The failure of the written agreement to express the true intent and agreement of the parties thereto; (c) The validity of the written agreement; or (d) The existence of other terms agreed to by the parties or their successors in interest after the execution of the written agreement. ILLUSTRATION: The vendee can validly tell the court that the deed of sale is not really one of sale but one or mortgage as long as he puts in issue in the pleadings, any of the

matters enumerated above. [N.B. Art. 1602, NCC presumes that a deed of sale is an equitable mortgage when: 1] price of sale with right to purchase is unusually inadequate; 2) Vendor remains in possession as lessee or otherwise; 3) When another instrument extending period of redemption is executed; 4) When purchaser retains for himself a part of purchase price; 5) Vendor assumes tax; 6) Other circumstances] ILLUSTRATION: There is a sale of a piece of land in favor of Juan dela Cruz. If you read the document there is really nothing wrong because there is a vendor, there is a vendee and there is an object and consideration. But it turns out that there are two persons who carry the name Juan de la Cruz. That document is intrinsically ambiguous because we do not know who the vendee in that sale. The defect can be remedied by the introduction of testimonial evidence or other documentary evidence to show to the court who is the Juan dela Cruz mentioned in the deed of sale as the vendee. But if in that deed of sale where Juan dela Cruz is the vendee, and there is only one Juan dela Cruz, but the property sold is simply a piece of land. There is an ambiguity what particular land is sold as there is no description. The ambiguity is extrinsic. It arises from the face of the document itself. Here we cannot introduce evidence aliunde. The contract is void, which under the Rules cannot allow be corrected and converted into a valid contract.

US

cases and some Philippine cases recognized intermediate ambiguity, and evidence aliunde may be admitted by the court to explain or add to its meaning. This arises by the use of equivocal word/s which is susceptible of more than one interpretation. Example: Defendant sold to plaintiff a distilling apparatus of guaranteed

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capacity of 6,000 liters daily. Defendant claimed that the phrase referred to receiving capacity. Here the word capacity was susceptible of two interpretations. SC held that parol evidence is admissible to show which of the two interpretations meant by the parties. (Palanca v. Fred Wilson & Co., 37 Phil. 506) What is the coverage of the parol evidence rule and what are the exceptions to the parol evidence rule ? a. Covered. Only prior and contemporaneous agreements which are deemed to have been merged in the writing conformably to the "integration of the agreement rule." (Woodhouse v. Halili, 93 Phil. 526) b. Not covered. 1) Subsequent agreements, notwithstanding that such agreements may have the effect of adding to, changing, modifying, or even altogether abrogating the contract of the parties as evidenced by the writing. 2) Collateral agreements which although oral and contemporaneous with the writing are separate and distinct agreements. (PNB v. Seeto, 91 Phil. 756) 3) It also does not apply if the issue revolves around fraud and false representation since they are incidental to the execution and not to the integration. (Woodhouse vs. Halili, 1953) 4) It does not apply either when third parties are involved. (Lechugas vs. CA, 1986)

subject-matter of the written agreement is different from that of the contemporaneous oral agreement, then the latter is a separate and distinct agreement and, therefore, provable by parol evidence. 2) If the two agreements refer to the same subject-matter, the test is to determine whether or not the contemporaneous oral agreement is separable, then the contemporaneous oral agreement is separate and distinct and, therefore, probable by parol evidence. (Lese v. Lamprecht, 196 N.Y. 32) c. Example of agreement which CANNOT be proven by parol evidence: Express trusts concerning real property cannot be proven by parol evidence because title and possession cannot be defeated by oral evidence which can easily be fabricated and contradicted. (Sinaon, et al., v. Sorongon, et al., 136 SCRA 410) d. Examples of collateral agreements which CAN be proved by parol evidence: 1) An agreement of reconveyance is a distinct agreement, separate from the sale itself, although the two agreements are usually contained in one and the same document. (Laureano v. Kilayco, 34 Phil. 148; Yacapin v. Neri, 40 Phil. 61) 2) Inducements and representations which led to the execution of an agreement may be proven by parol evidence because they do not vary the terms of the agreement. (Woodhouse v. Halili, 93 Phil. 526; Bough v. Cantiveros, 40 Phil. 209) 3) Parol evidence is admissible to prove an independent and collateral agreement which constitutes an inducement to the making of the sale or part of the consideration thereof. (Robles v. Lizarraga Hnos., 50 Phil. 387) 4) A condition precedent not stipulated in writing is provable by oral evidence. REASON: Before the happening of the condition, there is no written agreement yet to which the parol evidence may apply. 5) Verbal assurances given by the indorser of an out-of-town check to the employees of the bank where it was presented for encashment that he would refund the amount if the check should be dishonored by the drawee bank is a collateral

NOTES: a. Contemporaneous agreement. A contemporaneous agreement is one entered into at the same time as the agreement which has been reduced to writing. b. Tests to determine whether a contemporaneous oral agreement is separate and distinct from the written agreement and therefore provable by parol evidence: 1) The first test is the subject-matter of the two agreements. If the

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agreement separate and distinct from the indorsement, by virtue of which the first bank was induced to cash the same, and therefore, provable by parol evidence. (PNB v. Seeto, 91 Phil. 756) 6) Any prior or contemporaneous conversaion in connection with a note or its indorsement may be proved by parol evidence. (PNB v. Seeto, 91 Phil. 756; Philips v. Preston, 5 How. [U.S.] 278) 7) An extrinsic agreement between indorser and indorsee which cannot be embodied in the instrument without impairing its credit may be proved by parol evidence. (PNB v. Seeto, 91 Phil. 756; 9 Wigmore 148) 8.) The fact that parties who appear to have signed as principals did so as merely sureties is provable by parol evidence. (Tan Machan v. De la Trinidad, 3 Phil. 684) FALSA DEMONSTRATION NON NOCET False description will not invalidate an instrument The erroneous description will be considered as a surplusage. ILLUSTRATION: In a deed of sale of a parcel of land covered by: TCT 12345, located in City of Muntinlupa. There is really a land covered by TCT 12345 with same technical description however it is not located in Muntinlupa, but in Laguna. The erroneous description will not invalidate the contract. Best evidence rule distinguished from parol evidence rule: 1) Under the best evidence rule, the issue is contents of a writing (Sec. 3, Rule 130, ROC) WHILE under the parol evidence rule, there is no issue as to contents of a writing (Sec. 9, Rule 130, ROC); 2) Under the best evidence rule, secondary evidence is offered to prove the contents of a writing, which is not allowed unless the case falls under any of the exceptions (Sec. 3, Rule 130, ROC) WHILE under the parol evidence rule, the purpose of the offer of parol evidence is to change, vary, modify, qualify, or contradict the terms of a complete written agreement, which is not allowed unless the case falls under any of the exceptions. (Sec. 9, Rule 130, ROC)

Only the parties and their successors in interest, and not strangers may invoke the protection of the parol evidence rule. (Sec. 9, Rule 130, ROC) PAROLE EVIDENCE DISTINGUISHED FROM STATUTE OF FRAUDS The Statute of Frauds requires that certain agreements be proved by writing or by some note or memorandum thereof in order to be enforceable. On the other hand, the Parole Evidence Rule has nothing to do with the manner of proving agreements. Its object is to prohibit alteration, change, modification, variation or contradiction of the terms of a written agreement by parol evidence. 4. Interpretation of Documents Rule 130, Secs. 10-19 SEC. 10. Interpretation of a writing according to its legal meaning. The language of a writing is to be interpreted according to the legal meaning it bears in the place of its execution, unless the parties intended otherwise. SEC. 11. Instrument construed so as to give effect to all provisions. In the construction of an instrument where there are several provisions or particulars, such a construction is, if possible, to be adopted as will give effect to all. SEC. 12. Interpretation according to intention; general and particular provisions. In the construction of an instrument, the intention of the parties is to be pursued; and when a general and a particular provision are inconsistent, the latter is paramount to the former. So a particular intent will control a general one that is inconsistent with it. SEC. 13. Interpretation according to circumstances. For the proper construction of an instrument, the circumstances under which it was made, including the situation of the subject thereof and of the parties to it, may be shown, so that the judge may be placed in the position of those whose language he is to interpret. SEC. 14. Peculiar signification of terms. The terms of a writing are presumed to have been used in their primary and general acceptation, but evidence is admissible to show that they have a local, technical, or otherwise peculiar signification, and were so used and understood, in the particular instance, in which case the agreement must be construed accordingly. SEC. 15. Written words control printed. When an instrument consists partly of written words and partly of a printed form,

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and the two are inconsistent, the former controls the latter. SEC. 16. Experts and interpreters to be used in explaining certain writings. When the characters in which an instrument is written are difficult to be deciphered, or the language is not understood by the court, the evidence of persons skilled in deciphering the characters, or who understand the language, is admissible to declare the characters or the meaning of the language. SEC. 17. Of two constructions, which preferred. When the terms of an agreement have been intended in a different sense by the different parties to it, that sense is to prevail against either party in which he supposed the other understood it, and when different constructions of a provision are otherwise equally proper, that is to be taken which is the most favorable to the party in whose favor the provision is made. SEC. 18. Construction in favor of natural right. When an instrument is equally susceptible of two interpretations, one in favor of natural right and the other against it, the former is to be adopted. SEC. 19. Interpretation according to usage. An instrument may be construed according to usage, in order to determine its true character. C. Testimonial Evidence Qualifications of Witnesses Rule 130, Sec. 20 - Can perceive, and perceiving, can make their known perception to others. GR: A disinterested person could be compelled to give his testimony through subpoena Exceptions: Persons who are immune from the process of subpoena by tradition, convention or law: a. Ambassadors of foreign countries by virtue of treaty obligations b. President of the Philippines or other country Disqualifications a. Mental incapacity or immaturity (Sec. 21, Rule 130, ROC); b. Marriage (Sec. 22, Ibid); c. Death or insanity of adverse party (Sec. 23, Ibid.) d. Privileged communication (Sec. 24, Ibid.) [Applies to Rules on Electronic Evidence] 1) Marital privileged communication rule (Sec.

24 [a], Ibid.); 2) Lawyer-client privileged communication rule (Sec. 24 [b], Ibid.); 3) Doctor-patient privileged communication rule (Sec. 24 [c], Ibid.)(N/A in criminal cases) 4) Priest-penitent privileged communication rule (Sec. 24 [d], Ibid.); and 5) Public officer privileged communication rule (Sec. 24 [e], Ibid.). e. Parental and filial testimonial privilege rule (Sec. 25, Rule 130, ROC) Note: Conviction of a crime does not disqualify a person from testifying but may disqualify him from being discharged as a state witness. (Sec. 9 [e], Rule 119, ROC) Note: This is not an exclusive enumeration of the Rules on privilege communication. Other examples are: a. Under Rules on Alternative dispute Resolution, information or communication given by parties who participate in ADR is confidential b. Information derived by editors, reporters and publishers c. The negotiations under the Witness Protection Program (Accused discharged as state witness) A. By reason of mental incapacity or immaturity Rule 30, Sec. 21 - Those whose mental condition, at the time of their production for examination, is such that they are incapable of intelligently making known their perception to others; - Children whose mental maturity is such as to render them incapable of perceiving the facts respecting which they are examined and of relating them truthfully. A mental retardate is not for this reason alone disqualified from being a witness. (People vs. Salomon, 1993) Requisites of competency of a child as witness: capacity of observation; capacity of recollection; and capacity of communication. (People vs. Mendoza, 1996) B. Marital Disqualification Rule 130, Sec. 22 General Rule: During their marriage, neither the husband nor the wife may testify for or against the other without the consent of the affected spouse. Exceptions:

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In a civil case by one against the other or, - In a criminal case for a crime committed by one against the other or the latter's direct descendants or ascendants. The right to invoke this disqualification belongs to the spouse-party (Ortiz v. Arambulo, 8 Phil. 98) against or for whom the testimony is being proferred. It may be waived 1) By a failure to interpose timely objection, or 2) By calling the other spouse as witness (Ibid., People v. Francisco, 78 Phil. 694) The privilege could be invoked even if the spouse is testifying in favor of the spouseparty because damaging testimony may be elicited during the cross-examination.

time of the trial, the witness-spouse cannot be compelled to testifyeven where the crime charged is against the witness person, and even though the marriage was entered into for the express purpose of suppressing the testimony. (Marriage for convenience) CASE: A filed a complaint against husband and wife for annulment of a contract by reason of fraud. (H&W both defendants). A subpoenaed the wife to be his hostile witness which is allowed in civil cases. When the wife received the subpoena, the husband filed a motion in court for the quashing of the subpoeana, on the ground that there is a violation of the rule on marital disqualification/spousal immunity. A told the court that this is not a case where the wife will be giving testimony as an adverse witness in favor of the plaintiff. So the rule on spousal immunity does not apply. Ruling of the Court: Spousal immunity applies. If the wife was allowed to testify as an adverse witness for the plaintiff, she might give testimony that he will harm her interest and that of her husband. So that there will be a violation of the spousal immunity. A conceded. A told the court now that if he cannot compel the wife to be an adverse witness, then he should be allowed to get the deposition of the wife, because under the Rules of Court when the deposition of a person is taken, it does not necessarily mean that the deponent will be used as a witness in court, since it is only a mode of discovery. Ruling of the Court: Even if the purpose is just to get the deposition of the wife the rule on spousal immunity applies. CASE: A son filed a complaint against his own father for recovery of property or some assets. The son asked her mother to testify in his favor. SC held that there will be a violation of the spousal immunity rule. Note: As long as there is a case INVOLVING the husband OR wife, the disqualification is absolute. C. Dead Mans Statute Rule 130, Sec. 23 Sometime called the Survivors disqualification rule Parties or assignor of parties to a case, or persons in whose behalf a case is prosecuted, against - An executor or - Administrator or - Other representative

DIFFERENCE B/W PRIVILEGE AND MARITAL DISQUALIFICATION a. Privilege is applicable regardless of whether the spouses are parties or not - Marital disqualification is applicable only when one or both spouses are parties b. The privilege applies to testimonies on confidential communication only -Marital disqualification applies to testimony on any fact c. Marital disqualification ceases after dissolution of marriage -Privileged communication lasts even after the death of either spouse d. Even if the communication is not confidential, the marital disqualification may still be invoked e. Marital disqualification is more concerned with the consequences. If the rule is not there, perjury and domestic disunity may result. Privilege protects the hallowed confidences inherent in marriage b/w husband and wife and therefore guarantees the preservation of the marriage and further the relationship between the spouses as it encourages the disclosure of confidential matters without fear of revelation. Marrying the Witness An accused can effectively seal the lips of a witness by marrying the witness. As long as a valid marriage is in existence at the

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of a deceased person, or against a person of unsound mind, upon a claim or demand against the estate of such deceased person or against such person of unsound mind, cannot testify as to any matter of fact occurring BEFORE the death of such deceased person or before such person became of unsound mind. Exceptions to the survivors disqualification rule: 1) Ordinary witnesses, who are not the plaintiff, assignor of plaintiff, or person in whose behalf the case is prosecuted may testify. (Francia v. Hipolito, 93 Phil. 968) 2) When the plaintiff is a corporation, the officers or stockholders thereof are not disqualified. (Lichauco v. Atlantic Gulf, et c., 84 Phil. 330) 3) When there is an imputation of fraud against the deceased, the plaintiff is not barred from testifying to such fraud. (Go Chi Gun v. Co Cho, 96 Phil. 622) 4) When the plaintiff is the executor, administrator or legal representative of the deceased, or the person of unsound mind, the defendant or defendants are free to testify against the plaintiff. (Tongco v. Vianzon, 50 Phil. 698) 5) When the defendant or defendants, though heirs of the deceased, are sued in their personal and individual capacities, the plaintiff may testify against them. (Go Chi Gun v. Co Cho, 96 Phil. 622) 6) When the survivor's testimony refers to a negative fact. (Mendezona v. vda. de Goitia, 54 Phil. 557) 7) When the survivor's testimony is favorable to the deceased. (Icard v. Marasigan, 71 Phil. 419) 8) The adverse party is competent to testify to transactions or communications with the deceased or incompetent person which were made with an agent of such person in cases in which the agent is still alive and competent to testify. But the testimony of the adverse party must be confined o those transactions or communications which were had with the agent. (Goni, et al., v. Court of Appeals, et al., 144 SCRA 231) How protection of the dead mans statute is waived: 1) By not objecting to plaintiff's testimony on prohibited matters. (Marella v. Reyes, 12 Phil. 1) 2) By cross-examining the plaintiff on prohibited matters. (Tongco v. Vianzon, 50 Phil. 698) 3) By calling witnesses to testify on prohibited matters. (Arroyo v. Azur, 76 Phil. 493)

4) When the plaintiff's deposition is taken by the representative of the estate or when counsel for the representative crossexamined the plaintiff as to matters occurring during the deceased's lifetime. (Goni, et al., v. Court of Appeals, et al., 144 SCRA 231) CASE: Mr. D approaches Mr. C to borrow P100,000 to be paid next year. Mr. C gives Mr. D the amount. Mr. C did not require Mr. D to execute a promissory note. A day before the agreed date of payment, Mr. D died. Mr. C went to the executor of the estate of Mr. D and claims the payment of the debt. In this case, Mr. C is incompetent to testify as to the transaction he had with Mr. D. D. Privileged Communication 1. Marital Privilege Rule 130, Sec. 24 (a) Husband or the wife, during or after the marriage, cannot be examined without the consent of the other as to any communication received in confidence by one from the other during the marriage - EXCEPT: = In a civil case by one against the other, or = In a criminal case for a crime committed by one against the other or the latter's direct descendants or ascendants; CASE: If the communication is made in front of the children of the husband and wife. Can the privilege be invoked? YES, if the children are still minors. Note: The assumption is any communication given by one spouse to the other is presumably confidential because there is no standard given in the Rules. Applications of the marital privileged communciation rule: 1) Every communication between spouses is presumed to be confidential. (Sexton v. Sexton, 129 Ia. 487; Wigmore, Sec. 2336) 2) Communications made in the presence of third parties are not confidential, unless the third person may be considered as an agent of the spouses. (Floyd v. Miller, 61 Ind. 224) 3) Communications overheard by third persons remain confidential as between the spouses, but the third person who overheard may be called upon to testify. (People v. Carlos, 47 Phil. 626) 4) Communications coming into the hands of third persons, whether legally or illegally, remain confidential as between the spouses, but the third person may be called upon to

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testify. (People, and Hammons, supra) But if the third person acquired knowledge of the communication by collusion and voluntary disclosure on the part of either of the spouses, he thereby becomes an agent of such spouses so that the privilege is claimable against him. (Ibid.) 5) Communications intended for transmission to third persons are not confidential. (U.S. v. Antipolo, 37 Phil. 726) Waiver of the marital privileged communication rule: The privilege is claimable by the spouse not called as witness, so that it its waivable only by him or her; and it is waivable by any act of such spouse which might be considered as an express or implied consent to the disclosure of the communication. (People v. Hayes, 140 N.Y. 484) 2. Attorney-Client Privilege Rule 30, Sec. 24 (b) An attorney cannot, without the consent of his client, be examined as to - Any communication made by the client to him, or - His advice given thereon in the course of, or with a view to, professional employment, nor can an attorney's secretary, stenographer, or clerk be examined, without the consent of the client and his employer, concerning any fact the knowledge of which has been acquired in such capacity; - Privilege is owned by the client. It is he who can invoke the privilege. If the client waives the privilege, no one else including the attorney can invoke it. Hence it the client is asked on cross-examination of his communications to his lawyer and reveals the same there would be a waiver. There is also a waiver if the client does not object to the attorneys testimony. The attorney-client privilege may not be invoked to refuse to divulge the identity of the client, EXCEPT: (1) When a strong probability exists that revealing the name would implicate that person in the very same activity for which he sought the lawyers advice; (2) When disclosure would open the client to liability; (3) When the name would furnish the only link that would form the chain of testimony necessary to convict. (Regala vs. Sandiganbayan, 1996) LAST LINK DOCTRINE: Nonprivileged information, such as identity of the client is protected if the revelation of such information would necessarily reveal the privileged information.

It is enough that the client reasonably believed that the person consulted is a lawyer. Communications may refer to anticipated litigations or may not refer to any litigation at all. Privilege does not extend to communications where the clients purpose is the furtherance of a future intended crime or fraud

3. Physician-Patient Privilege Rule 30, Sec. 24 (c) A person authorized to practice medicine, surgery or obstetrics cannot in a CIVIL CASE, without the consent of the patient, be examined as to - Any advice or treatment given by him or - Any information which he may have acquired in attending such patient in a professional capacity, which information was necessary to enable him to act in capacity, and which would blacken the reputation of the patient; - This privilege belongs to the patient, so that it is only he that can claim or waive it. It is waivable expressly or impliedly. It is impliedly waived like any other privilege rule. (Penn. Mutual Life Ins. Co. v. Wiler, 100 Ind. 92) - The waiver may be by a contract as in medical or life insurance - When the patient answers questions on cross examination, there is waiver - Under Rule 28 ROC, the court may order a party to submit to a physical or mental examination, so long as the mental or physical condition is in dispute. The party examined may request a report of the examination. By doing so, he waives any privilege he may have in that action regarding the testimony of every other person who has examined him in respect of the same examination. This privilege does not apply when the doctor is presented as an expert witness and only hypothetical problems were presented to him. (Lim vs. CA, 1992) 4. Priest- Penitent Privilege Rule 30, Sec. 24 (d) A minister or priest cannot, without the consent of the person making the confession, be examined as to - Any confession made to or - Any advice given by him in his professional character in the course of discipline enjoined by the church to which the minister or priest belongs

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5. Public Officer Privilege Rule 30, Sec. 24 (e) A public officer cannot be examined during his term of office or afterwards, as to communications made to him in official confidence, when the court finds that the public interest would suffer by the disclosure. 6. Parental and Filial Privilege Rule 130, Sec. 25 A person cannot be compelled to testify against his parents, other direct ascendants, children or other direct descendants. N.B. There is an inconsistency between the ROC and Family Code with respect to this privilege. ROC prevails since it took effect in 1989 and is made by the SC. While the Family Code took effect in 1989, and though substantive is procedural in character. Who are not covered and may be compelled to testify: 1) Relatives by affinity. 2) Brothers and sisters. 3) Aunts, uncles, nephews, nieces. 4) Cousins of whatever degree. 5) Other collateral relatives. Note: Parental and filial testimony dies not prohibit voluntary testimony or compelled testimony against relatives by affinity or collateral relatives. Note: It is believed that adopted and adopter are covered by the parental and filial testimonial privilege rule but only insofar as the parent and child is concerned. It does not extend to the direct ascendants of the adopter because the adoptive relation is between the adopter and the adopted only. The reason for this opinion is the rationale behind the privilege, which is to preserve harmonious relations between parent and child which could be ruptured through testifying in court. Furthermore, perjury may result because the parent or the child may give false testimony to protect the other. Admissions and Confessions Admissions Rule 130, Sec. 26 - Any act, declaration or omission of a party as to a relevant fact may be given in evidence against him. Such admission may be received in evidence not only against the party who made it or his successors-in-interest but also against third persons. (Viacrucis vs. CA, 1986) The silence of an accused under custody or his failure to deny statements by

another implicating him in a crime cannot be considered as a tacit confession of his participation in the commission of the crime. (People vs. Alegre, 1979) Self-serving evidence An admission favorable to the party making it. (Lichauco v. Atlantic Gulf & Pacific Co., 84 Phil. 342) a. Self-serving or favorable admissions made out of court not admissible: REASONS: 1) A man may be safely believed if he declares against his own interest, but not if he advocates his interest. (Lichauco v. Atlantic Gulf & Pacific Co., 84 Phil. 342) 2) It is excluded on the same ground as any hearsay evidence, that, the lack of opportunity for crossexamination by the adverse party. (National Development Co., v. Workmen's Compensation Commission, 19 SCRA 865) b. When self-serving or favorable admissions are admissible: 1) If made in open court 2) giving full opportunity to the adverse party 3) to exercise his right of crossexamination. Rule 129 Sec. 4 vs. Rule 130 Sec. 26 First is a JUDICIAL ADMISSION, which is conclusive upon the admitter whether in writing or oral. This applies to civil, criminal cases and even special proceedings. Second is an EXTRAJUDICIAL ADMISSION. Under this rule, the admission is admissible only if it is against the interest of the admitter. (otherwise it is a self-serving statement) Example: Flight is considered a disserving act, since it is prejudicial to the interest of the accused. Flight is considered as circumstantial evidence of the guilt of the accused. BUT non-flight cannot be used as evidence to prove his innocence, because that will be considered as an act that is favorable to the interest of the accused. Extra-judicial Confession vs. Admission A confession, as distinguished from admission, is a declaration made at any time by a person, voluntarily and without compulsion or inducement, stating or acknowledging that he had committed or participated in the commission of a crime. The term, admission, on the other hand, is usually applied in criminal cases to

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statements of fact by the accused which do not directly involve an acknowledgment of the guilt of the accused or of criminal intent to commit the offense with which he is charged. (U.S. v. Corrales, 28 Phil. 365) Admission by silence. a. An act or declaration made 1) in the presence and 2) within the hearing or 3) observation b. of a party who does or says nothing c. when the act or declaration 1) is such as naturally to call for action or comment if not true, and 2) when proper and possible for him to do so, d. may be given in evidence against him. (Sec. 32, Rule 130, ROC arrangement and numbering supplied) Exceptions to the rule on admission by silence or instances where there is no admission by silence: 1) Where no good reason exists for the party to comment on the act or declaration (Veil v. Strong, 10 Vt. 455), as when the act or declaration was not specifically directed to the party who remained silent. (80 A.L.R., Anno., 1272) 2) When the party had no opportunity to comment on the act or declaration. (People v. Ranario, 49 Phil. 220) 3) Where the act or declaration was made in the course of an official investigation. (People v. Tia Fong, 98 Phil. 609) 4) When silence is upon advice of counsel. (People v. Kozlowski, 115 A.L.R. 1505) res inter alios acta alteri nocere non debet or res inter alios acta Rule (First Part of Rule) Statements made or matters accomplished between two parties cannot prejudice a third party. (Blanza v. Arcangel, 21 SCRA 4) The rights of a party cannot be prejudiced by an act, declaration, or omission of another, except as hereinafter provided. (Sec. 28, Rule 130, ROC) Exceptions to res inter alios acta: 1) When there is a rational similarity or resemblance between the conditions giving rise to he fact offered and the circumstances surrounding the issue or fact to be proved. (Cruz, et al., v. Court of Appeals, et al., G.R. No. 126713, prom. July 27, 1998) 2) In actions based on fraud and deceit, because it sheds light on the state of mind or knowledge of a person; it provides insight into such person's motive or intent; it

uncovers a scheme, design or plan; or it reveals a mistake. (Cruz, supra) 3) (Vicarious Admissions)- The rights of a party may be prejudiced by the act, declaration or omission of another when between the party making the admission and against whom it is offered there exists a relation of: a) partnership; b) agency; c) joint interest; d) conspiracy; or e) privity. Exceptions to the rule that extrajudicial statements of an accused implicating a co-accused may not be utilized against the latter: (1) the co-accused impliedly acquiesced in or adopted the confession by not questioning its truthfulness; (2) the accused persons voluntarily and independently executed identical confessions without collusion and without contradiction by the others present; (3) the accused admitted the facts after being apprised of the confession; (4) if they are charged as co-conspirators of the crime which was confessed by 1 of the accused and the confession is used only as a corroborating evidence; (5) the confession is used as circumstantial evidence to show the probability of participation by the co-conspirator; (6) the confessant testified for his codefendant; (7) the co-conspirators extrajudicial confession is corroborated by other evidence on record. (People vs. Raquel, 1996) Rule on admission by co-partner or agent: 1) The act or declaration of a partner or 2) agent within the scope of his authority and during the existence of the partnership or agency, 3) may be given in evidence against such party 4) after the partnership or agency a) is shown by evidence [(testimonial or documentary, which may be 2ndary evidence)] b) other than such act or declaration. 5) The same rule applies to the act or declaration of a joint owner, joint debtor, or other person jointly interested with the party. (Sec. 29, Rule 130, ROC arrangement and numbering supplied) Rule on admission by conspirator:

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1) The act or declaration of a conspirator 2) relating to the conspiracy and during its existence, 3) may be given in evidence against the coconspirator 4) after the conspiracy a) is shown by evidence (Circumstantial Evidence- cannot be proven by documentary evidence, since conspirators do not normally reduce their agreement in writing) b) other than such act or declaration. (Sec. 30, Rule 130) *This refers to extrajudicial acts and declarations of a conspirator and not to his testimony as a witness in the trial. (People v. Atencio, L-222518, Jan. 17, 1968) Rule on Admission by Privies Rule 130, Sec. 31 - Where one derives title to property from another, the act, declaration, or omission of the latter, while holding the title, in relation to the property, is evidence against the former Example: X, father of Z, while the former was alive, openly told his acquaintances, that the land where his house stood had already been sold to Y. Here, the declaration by X is not admissible against Z, the sole heir of Y, because the statement was made after X held title to the land. Second Part of Inter alios acta Rule (Similar Acts as Evidence) Rule 130, Secs. 34 - Evidence that one did or did not do a certain thing at one time is not admissible to prove that he did or did not do the same or similar thing at another time; but it may be received to prove a specific intent or knowledge; identity, plan, system, scheme, habit, custom or usage, and the like. Confessions Rule 130, Sec. 133; Rule 115 (e); Art. III, Sec. 17, 1987 Constitution - Declaration of an accused acknowledging his guilt of the offense charged, or of any offense necessarily included therein; may be given in evidence against him. - Confession is evidence of high order: 1) There is no evidence of a higher quality than a confession, It represents the outward manifestation of a man. Unless, therefore, the confession is nullified by evidence of duress, the same is admissible as an evidence of guilt of a high quality. (People v. Garcia, 54 Phil. 329, 358) 2) If a confession be true and voluntary, the deliberate act of the accused with a full

comprehension of its significance, there is no impediment to its admission as evidence and it then becomes evidence of a high order, since it is supported by the presumption, a very strong one, that no person of normal mind will deliberately and knowingly confess himself to be the perpetrator of a crime, especially if it be a serious crime, unless prompted by truth and conscience. (People v. Zea, et al., 130 SCRA 87, 88) Probative value of recantations: They are looked upon with disfavor as recantations are usually secured through intimidation or for a monetary consideration. (Molina v. People, 259 SCRA 138) General rule on admissibility of confession: A confession is admissible only against the accused who made it and not against his co-accused, for as against the latter, the confession would be hearsay and res inter alios acta. (People v. Talledo, 85 Phil. 533) Exceptions: when a confession is admissible against co-accused: 1) When the confession of an accused implicating his co-accused is made judicially at a joint trial (U.S. v. Macamay, 36 Phil. 893) or when the extrajudicial statements implicating a co-accused are repeated in open court (People v. Ola, G.R. No. L47147, July 3, 1987), because the coaccused as a chance to cross-examine. 2) When the offer in evidence of an extrajudicial confession against a coaccused is not objected to. (People v. Atienza, 86 Phil. 576) 3) When the co-accused against whom an extrajudicial confession is offered had, by his acts, conducts and declarations adopted he confession as his own. (People v. Atienza, supra; People v. Orencia, 47 Phil. 970) 4) Where several accused, without collusion, made extrajduicial confessions which are identical in essential details and corroborated by other evidence, such confession is admissible against the others. (People v. Pelonia, L-14624, July 24, 1960) 5) The confession of a conspirator is admissible against his co-conspirator provided it was made during the existence of the conspiracy. (Sec. 30, Rule 130, ROC; People v. Ramirez, L-5875, May 15, 1953) 6) When the recitals in the extrajudicial confession of an accused is corroborated in its important details by other proofs in the record, it may be admitted against the other accused. (People v. Villanueva, L-12687, July 31, 1962)

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Extrajudicial confessions identical in material respects (also known as interlocking confessions) admissible against all declarants: 1) As circumstantial evidence. Extrajudicial confessions independently made without collusion and are identical with each other in their material respects and confirmatory of the other are admissible as circumstantial evidence against coaccused implicated therein to show the probability of the latter's actual participation in the commission of the crime. (People v. Encipido, et al., 146 SCRA 492) 2) As corroborative evidence. They are admissible as corroborative evidence against the other accused, if it is clear from other facts and circumstances presented that persons other than the declarants themselves participated in the commission of the crime charged and proved. (Ibid.) They are what is commonly known as interlocking confession and constitute an exception to the general rule that extrajudicial confessions/admissions are admissible in evidence only against the declarants thereof. (Ibid.) The invocation of amnesty is in the nature of a plea of confession and avoidance, which means that the pleader admits the allegations against him, but disclaims liability therefor on account of intervening facts which, if proved, would bring the crime charged within the scope of the amnesty proclamation. (People v. Salig, et al., 133 SCRA 69 citing Vera v. People, 7 SCRA 153) What is meant by corpus delicti ? a. It refers to a particular crime and signifies that the specific offense had been actually committed by someone, being composed of two elements: 1) certain results were produced, and 2) someone is criminally responsible. (People v. Marquez, 77 Phil. 83) b. It also means actual commission of the crime charged. (People v. Madrid, 88 Phil. 1; People v. Sanchez, 89 Phil. 423), or the specific fact of loss or injury. (People v. Garcia, 99 Phil. 381) Examples of corpus delicti: a. In murder or homicide, the corpus delicti is the fact of death (People v. Garcia, 99 Phil. 381), which may be proved even circumstantially. (People v. Sasota, 91 Phil. 111; People v. Moro Ansang, 93 Phil. 44).

b. In robbery or theft, the fact of loss. (People v. Niem, 75 Phil. 668) c. In arson, the fact of burning, (People v. Marquez, 77 Phil. 83; People v. Mones, 58 Phil. 46) d. In an affray, the fact that pistol shots were heard and a bystander was killed by one of the shots constitute evidence of corpus delicti, which is the violent death of a person, whether feloniously caused or not. (People v. Nocum, 77 Phil. 1018) Conviction for murder proper even if victims body is not produced: In all crimes against persons in which the death of the victim is an essential element of the offense, there must be satisfactory evidence of the fact of death and the identity of the victim that a crime has been committed which is what corpus delicti really means. The failure of the prosecution to produce the body of the victim does not imply the absence of corpus delicti for the term does not refer to the body of the murdered person. (People v. Centeno, et al., 130 SCRA 209) - Sec. 17, Art III No person shall be compelled to be a witness against himself. The operative act in determining whether the right against self-incrimination has been violated is when the police investigation is no longer a general inquiry into an unsolved crime but has begun to focus on a particular suspect who has been taken into custody by the police to carry out a process of interrogation that lends itself to eliciting incriminatory statements and not the signing by the suspect of his supposed extrajudicial confession. (People vs. Compil, 1995) By affixing their signatures on the boxes, accused in effect made a tacit admission of the crime charged. These signatures are tantamount to an extrajudicial confession made without the assistance of counsel, which is not sanctioned by the Bill of Rights. (People vs. Wong Chuen Ming, 1996) Any confession, including a reenactment without admonition of the right to silence and to counsel, and without counsel chosen by the accused is inadmissible in evidence. (People vs. Yip Wai Ming, 1996) The declaration of an accused expressly acknowledging his guilt of the offense may be given in evidence against him and any person, otherwise competent to testify as a witness who heard the confession is

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competent to testify as to the substance of what he heard if he heard and understood it. (People vs. Maqueda, 1995) Compromises Rule 130, Sec. 27 1.Civil Cases An offer of compromise is not an admission of any liability, and is not admissible against the offeror. 2. Criminal Cases An offer of compromise by the accused may be received in evidence as an implied admission of guilt EXCEPT in cases involving quasi-offenses (criminal negligence) or those allowed by law to be compromised. - A plea of guilty later withdrawn, or an unaccepted offer of a plea of guilty to lesser offense, is not admissible in evidence against the accused who made the plea or offer. The Good Samaritan Rule: An offer to pay or the payment of medical, hospital or other expenses occasioned by an injury is not admissible in evidence as proof of civil or criminal liability for the injury. It has long been held that in cases of public crimes, the accused is permitted to show that the offer was not made under a consciousness of guilt but merely to avoid the inconvenience of imprisonment of for some other reason which would justify a claim by the accused that the offer was not in truth an admission of his guilt or an attempt to avoid the legal consequences which would ordinarily ensue therefrom. (People vs. Godoy, 1995) A plea of forgiveness may be considered as analogous to an attempt to compromise. (People vs. De Guzman, 1996) An offer to compromise does not require that a criminal complaint be first filed before the offer can be received as evidence against the offeror. (People vs. Yparriguirre, 1997) THE Hearsay Rule 1. Testimonial Knowledge Rule 130, Sec. 36 1 What can a witness testify to? - A witness can testify only to those facts which he knows of his personal knowledge = those which are derived from his own perception, except as otherwise provided in these rules. The hearsay evidence rule applies also to affidavits when the supposed affiant never identified the affidavit and there was no opportunity for the prosecution to cross-

examine him/her. (People vs. Brioso, 1971). The testimony of a witness regarding a statement made by another person, if intended to establish the truth of the facts asserted in the statement is clearly hearsay evidence. It is otherwise if the purpose is merely to establish the fact that the statement was made, or the tenor of such statement. (People vs. Cusi, 1965) The testimony of a witness on the confession made to him by the accused is not hearsay. He is testifying to a fact which he knows of his personal knowledge (was testifying to the fact that the accused told him that he stabbed the victim) and not to the truth of the statement of the accused. (People vs. Gaddi, 1989) Examples of hearsay evidence: 1) The testimony of a witness as to what he has heard another person say about the facts in dispute. (People v. Reyes, 76 Phil. 354; Aldecoa & Co., v. WArner Barnes & Co., 30 Phil. 153) NOTE: See concept of independent relevant statement. 2) Affidavits. (Marisfosque v. Luna, L-9095, May 25, 1957; People v. Pagkaliwagan, 76 Phil. 457) General rule: Affidavits without presenting affiant in court is mere hearsay: The constitutional right to confrontation precludes reliance on affidavits. Such a constitutional safeguard cannot be satisfied unless the opportunity is given to the accused to test the credibility of any person, who, by affidavit or deposition would impute the commission of an offense to him. It would be to disregard one of the most valuable guarantees of a person accused if solely on the affidavits presented, his guilt could be predicated. (People v. Santos, et al., 139 SCRA 586-587 citing People v. Lavarez, 23 SCRA 1301) Exceptions: when affidavits are given weight: 1) Where said affidavits are overwhelming, uncontroverted by competent evidence and not inherently improbable. (Top-Weld Manufacturing, Inc. v. ECED, S.A., et al., 138 SCRA 132) 2) Under the Rule on Summary Procedure for civil cases; 3) When a motion is based on facts not appearing of record the court may hear the matter on affidavits or depositions presented by the respective parties, but the court may direct hat the matter be heard wholly or partly on oral testimony or depositions. (Sec. 7, Rule 133,

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ROC) 3) A letter offered in evidence to establish the facts in issue. (Pastor v. Gaspar, 2 Phil. 592; People v. Carlos, 47 Phil. 626) 4) A medical certificate to the extent of the injuries found by the doctor on the offended party's body. (De Guia v. Meralco, 40 Phil. 706) 5) A resolution of the municipal council of a certain municipality as to the character of an accused in a criminal case. (U.S. v. Tanjuatco, 1 Phil. 374) 6) Newspaper Articles- (Double deck hearsay or Double hearsay) Theory of the hearsay rule: When a human utterance is offered as evidence of the truth of the fact asserted in it, the credit of the assertor becomes the basis of inference, and therefore the assertion can be received as evidence only when made on the witness stand, subject to the test of cross-examination. TWO CONCEPTS OF HEARSAY EVIDENCE: 1. Second hand information (not derived from personal knowledge of witness) 2. Testimony by a witness derived from his personal knowledge BUT the adverse party is not given opportunity to cross-examine Example (No. 2): Plaintiff presents witness A. A testifies in court on matters personally known to him. After direct examination, court tells that defendant can cross examine on next scheduled hearing. On the next scheduled hearing witness A no longer appears and could no longer be located. [The remedy here now is to ask that the testimony of witness A be stricken out since it now becomes hearsay] Rationale behind the non-admissibility of hearsay evidence: 1) A witness can testify only to those facts which he knows of his own knowledge; and 2) To preserve the right of parties to crossexamine the original witness or person claiming to have knowledge of the transaction or occurrence. (People v. Pagkaliwagan, 76 Phil. 457) The right to cross-examine he adverse party's witnesses is essential in the administration of justice for it is the only means of testing the credibility of witnesses and their testimony, and this right is not available in respect of hearsay evidence since he declarant is not in court. (Donnelly

v. U.S., 228 U.S. 243) Principle of Independently Relevant Statements - Under this principle regardless of the truth or falsity of a statement, the fact that such statements have been made is relevant. The hearsay rule does not apply, and the statements are admissible as evidence. Evidence as to the making of such statement is not secondary but primary, for the statement itself may constitute a fact in issue or be circumstantially relevant as to the existence of such a fact. - Independent relevant statements are hearsay in character but not legal hearsay, hence they are not considered as exceptions to the hearsay rule. Illustration: A was drinking with his buddies. A told them that: My neighbor is a thief. Later on As neighbor was charged with theft. Prosecution calls as his witness one of the drinking buddies. The drinking buddy testifies in court saying: The accused is a thief because I heard A says so. [THIS IS HEARSAY EVIDENCE] Now, supposing the neighbor filed a libel case against A. The drinking buddy serves as a witness for the plaintiff, and says: I heard A said that the plaintiff is a thief.. [Now this time this is not hearsay, because the FACT IN ISSUE is whether or not the utterances were made by a particular person, regardless of the truth or falsity of the statement] CASE: ESTRADA v. DESIERTO, APRIL 3, 2001 Issue: Whether or not the use of the Angara diary to determine the state of mind of President Estrada violates the rule against the admission of hearsay evidence Held: 1) Angara diary is not an OUT-OFCOURT STATEMENT, since it is part of the pleadings in the case. 2) Angara diary is not covered by the hearsay rule. Evidence is called hearsay when its probative force depends in whole or in part, on the competency and credibility of some persons other than the witness by whom it is sought to produce it. 3) Admission are not excluded by hearsay evidence. The Angara diary contains direct statements of petitioner which can be categorized as admissions of a party. And though the diary is not Estradas hence nonbinding on him, SC held that the doctrine of adoptive admission applies. 4) res inter alios acta rule- exception: admissions by a co-partner or agent.

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Executive Secretary Angara was the little president, an alter ego of the president. Indeed, he was authorized by the petitioner to act for him in the critical hours and days before he abandoned Malacanan. 5) Independently Relevant Statement- there are two classes: (1) Statements which are the very facts in issue; (2) Statements which are circumstantial evidence. The second class includes: a. Statement of a person knowing his state of mind, that is his mental condition, knowledge, belief, intention, ill will and other emotions b. Statements of a person which show his physical condition as illnesses and the like c. Statements of a person which an inference may be made as to the state of mind of another, that is the knowledge, belief, motive, good or bad faith of the latter d. Statements which may identify the date, place and persons in questions e. Statements showing the lack of credibility of a witness The Angara diary contains statements of the petitioner which reflect his state of mind and are circumstantial evidence of his intent to resign . 2. Exceptions 2.1 Dying Declaration Rule 130, Sec. 37 - Declaration was made under the consciousness of an impending death - Declaration refers to cause and surrounding circumstances of the death of the declarant - Declaration may be received in any case wherein declarants death is the subject of inquiry (In one case. The husband was shot and wife was stabbed. The wife died instantly. The husband was brought to the hospital and made a statement that it was X who stab her wife. The husband then died. The statement is not a dying declaration because it pertains to the wife) - The declarant must be competent as a witness (What if declarant is proved to be a congenital liar? Still this exception may apply, because he is not disqualified from testifying in court if he were alive) - The declarant actually died, otherwise, the declaration may be admitted as part of the res gestae and not as a dying declaration APPLICABILITY: Both Civil and Criminal. [Criminal: Only those which involve death, homicide, murder, parricide, robbery with homicide, rape with homicide] Victim need not state that he has lost all

hope of recovery. It is sufficient that circumstances are such as to inevitably lead to the conclusion that at the time the declaration was made, the declarant would not expect to survive the injury from which he actually died. The degree and seriousness of the wounds and the fact that death supervened thereafter constitute substantial evidence of the victim's consciousness of his impending death. (People v. Tanaman, et al., G.R. No. 71768, July 28, 1987) Dying declaration has weight even if declarant did not die immediately after his declaration: The fact that the declarant died four (4) hours after his statement does not diminish the probative value of the dying declaration since it is not indispensable that the a declarant expires immediately thereafter. It is the belief of impending death and not the rapid succession of death that renders the dying declaration admissible. (People v. Bautista, G.R. No. 111149, prom. September 5, 1997) Mere gesture of dying victim inconclusive: The gesture of a dying woman in pointing to a direction, when asked for the identity of her assailant, is too vague to be given such probative value in determining the culpability of the accused. REASON: Unlike an oral or a written declaration, a simple gesture of the hand unaccompanied by words, is open to various interpretations by the witness who testifies to its existence. Thus, the evidence comes to the court couched in the witness' second hand perception and possibly, imbued with his personal meanings and biases. This is what makes hearsay evidence objectionable. The second hand evidence is placed before the court without the benefit of cross-examination by the party against whom it is brought, nor of any other means of assessing the competence and credibility of the source. (People v. Ola, G.R. No. L-47147, July 3, 1987) CASE: The crime charged is rape with homicide. The victim before death tells to the police investigator/doctor: I was raped. [This is not a dying declaration, because the statement has nothing to do with the cause and circumstances surrounding the death. But this may be admitted as part of res gestae] 2.2 Res Gestae Rule 130, Sec. 42 - What are admissible as part of the res gestae:

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- Statements made by a person while a starting occurrence is taking place or immediately prior or subsequent thereto with respect to the circumstances thereof - Statements accompanying an equivocal act material to the issue and giving it legal significance TWO CONCEPTS: A. Spontaneous Statements B. Statements accompanying Equivocal Acts- Equivocal means ambiguous; capable of different interpretations. EXAMPLE: a) SPONTANEOUS STATEMENT: X barged into the house of Y, tied her to a chair and robbed her. X brought Ys maid to a bedroom and raped her. Y could hear the maid crying: Huwag! Maawa ka sa akin!. When X fled, Y with the maid rushed to the police station and told the police what happened. The maid told the police that despite her pleas X still raped her. The police noticed that the maid was hysterical and on the verge of collapse. X was charged with robbery with rape. During the trial the maid could no longer be located. The prosecution presents the policeman to testify on what the maid told him. [The testimony would be hearsay but as an exception to the hearsay rule. The statements made by the maid fall within the res gestae rule] b) EQUIVOCAL/VERBAL ACTS: A witness testifies on the stand for the plaintiff in a collection case where the defendant denies having borrowed P10,000 from the plaintiff. The debt is not evidenced by a promissory note because plaintiff claims that defendant had orally borrowed money from him in the past and had always paid. This time he refuses to pay. The witness testifies that one year ago he saw the plaintiff give money to the defendant. And that he heart the plaintiff said that: Heres the money you are borrowing from me. Further, he said that he heard the defendant say: Thank you, I will pay one year after. [Here the equivocal act of handing the money was given significance by the statement of the plaintiff] DYING DECLARATION vs. RES GESTAE Time when statements made: DYING DECLARATION- statements must be made after the injury has been inflicted upon the applicant. RES GESTAE- in so far as startling occurrence is concerned, the statements could be made prior or simultaneous with or after the startling occurrence.

Death of declarant: DYING DECLARATIONdeclarant must die RES GESTAE- no need for declarant to die Declarant: DYING DECLARATION- must be the victim RES GESTAE- anybody PEOPLE vs. CLOUD (265 SCRA 472) Concept of independently relevant statements and res gestae applied simultaneously. [N.B. dying declaration may likewise be applied simultaneously with independently relevant statement] Josephine Aguilar was at the emergency room of a hospital to have some stitches removed from her daughters head when she saw a boy being carried by a man, followed by an old woman who was shouting hysterically. The boys face was swollen and bruised and his body covered with dry blood. The old woman, apparently the boys grandmother, cried and repeatedly screamed. Pinatay siya ng sariling ama!. The old woman told the people inside the emergency room that the boys father had beaten him up, tied his hands, and stabbed him. Ruling of SC: Insofar as the statements of Rufina Alconyes(old woman) are concerned, they are admissible as part of the res gestae, they having been caused by and did result from the startling, if not gruesome, occurrence that she witnessed; and these were shortly thereafter uttered by her with spontaneity, without prior opportunity to contrive the same. The report made thereof by Josephine Aguilar is not hearsay since she was actually there and personally heard the statements of Alconyes which she recounted in court. Her account of said statements of Alconyes are admissible under the doctrine of independently relevant statements, with respect to the tenor and not the truth thereof, since independent of the truth or falsity of the same they are relevant to the issue on the cause of the death of the victim. 2.3 Declaration Against Interest Rule 130, Sec. 38 By whom made: a person deceased, or unable to testify, against the interest of the declarant Subject of declaration/act: the fact asserted in the declaration was at the time it was made so far contrary to declarant's own

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interest, that a reasonable man in his position would not have made the declaration unless he believed it to be true Against whom received: such may be received in evidence against himself or his successors in interest and against third persons. REQUISITES: a. The declaration is made by 1) a person deceased, or 2) unable to testify [i.e. in foreign country or physical/mental impairments] b. against the interest of the declarant, [declarant MUST KNOW that it is against his interest] c. if the fact asserted in the declaration 1) was at the time it was made 2) so far contrary to declarant's own interest, 3) that a reasonable man in his position a) would not have made the declaration b) unless he believed it to be true. (Sec. 38, Rule 130, ROC)

accused did not commit the crime charged. 2.4 Pedigree Rule 130, Sec. 39 By whom made: person deceased, or unable to testify Subject of declaration/act: pedigree of another person related to him by birth or marriage When admissible: occurred before the controversy, and the relationship between the two persons is shown by evidence other than such act or declaration. Pedigree - includes relationship, family genealogy, birth, marriage, death, the dates when and the places where these fast occurred, and the names of the relatives. It embraces also facts of family history intimately connected with pedigree. 2.5 Family Tradition Rule 130, Sec. 40 Subject of exception: reputation or tradition existing in a family previous to the controversy, in respect to the pedigree of any one of its members, may be received in evidence if the witness testifying thereon be also a member of the family, either by consanguinity or affinity. -Entries in family bibles or other family books or charts, engravings on rings, family portraits and the like, may be received as evidence of pedigree. 2.6 Common Reputation Rule 130, Sec. 41 - What are admissible? - Common reputation existing previous to the controversy, respecting facts of public or general interest > 30 years old, or respecting marriage or moral character, may be given in evidence. - Monuments and inscriptions in public places may be received as evidence of common reputation Note: When it comes to presentation of evidence concerning the good or bad moral character, the only evidence admissible is evidence of COMMON REPUTATION. So if character evidence is allowed a litigant cannot present proof that he is of good moral character. Example: A parish priest of the community where the accused belongs is presented as witness. And the parish priest testifies that the accused goes to mass everyday and receives holy communion. [The testimony is not admissible to show the accuseds good moral character; Moral character for purposes of evidence can be demonstrated ONLY by evidence of REPUTATION]. So the parish priest should tell the court what is the reputation of the

Declaration against interest distinguished from admission: 1) An admission is not necessarily against the interest of the admitter WHILE the declaration must be against the declarant's own interest(penal, proprietary, financial) 2) An admission may be received even if the admitter is alive WHILE the declarant must be dead or is unable to testify; 3) An admission may be received in evidence only against the admitter and those identified with him in legal interest WHILE the declaration may be received even against third persons. (Smith v. Moore, 142 N.C. 277) Inability to testify = either dead, mentally incapacitated or physically incompetent. Mere absence from the jurisdiction does not make him ipso facto unavailable. Fuentes vs. CA (1996) CASE: People v. Holgado Jose was killed. Pedro admitted that he was the one who killed Jose. Unfortunately, Pedro also died. The prosecutor filed an information charging Juan with homicide of Jose. The defense presented a witness who heard Pedro say that he was the one who killed Jose. SC held that Pedros declaration is a declaration against interest. It is therefore admissible to show that the

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accused in the community. Principle of NEGATIVE REPUTE If in a community nothing good or bad is heard about a particular person, the presumption is that he is really a good person, because that flows from the established principle in substantive law that everyone is acting in good faith. 2.7 Entries in the Course of Business Rule 130, Sec. 42; Rule 8, REE When made: Entries made at, or near the time of transactions to which they refer By whom made: by a person deceased, or unable to testify, who was in a position to know the facts therein stated, Treatment of such evidence: prima facie evidence, if such person made the entries in his professional capacity or in the performance of duty and in the ordinary or regular course of business or duty. Rule 8, Section 1. Hearsay rule exception: A memorandum, report, record or data compilation of acts, events, conditions, opinions, or diagnoses, made by electronic, optical or other similar means at or near the time of or from transmission or supply of information by a person with knowledge thereof, and kept in the regular course or conduct of a business activity, and such was the regular practice to make the memorandum, report, record, or data compilation by electronic, optical or similar means, all of which are shown by the testimony of the custodian or other qualified witnesses. Rule 8, Section 2. This presumption may be overcome by evidence of the untrustworthiness of the source of information or the method or circumstances of the preparation, transmission or storage thereof. 2.8 Official Records Rule 130, Sec. 44 When made: Entries made at, or near the time of transactions to which they refer. By whom made: by a person deceased, or unable to testify, who was in a position to know the facts therein stated, Treatment of such evidence: prima facie evidence, if such person made the entries in his professional capacity or in the performance of duty and in the ordinary or regular course of business or duty. The report submitted by a police officer in the performance of his duties on

the basis of his own personal observation of the facts reported, may properly be constituted as an exception. (Caltex vs. Africa, 1966) Entries in a police blotter are not conclusive proof of the truth of such entries. (People vs. Cabuang, 1993) 2.9 Commercial Lists Rule 130, Sec. 45 Evidence of statements of matters of interest to persons engaged in an occupation contained in a list, register, periodical, or other published compilation is admissible as tending to prove the truth of any relevant matter so stated if that compilation is published for use by persons engaged in that occupation and is generally used and relied upon by them therein. 2.10 Learned Treatises Rule 130, Sec. 46 A published treatise, periodical or pamphlet on a subject of history, law, science, or art is admissible as tending to prove the truth of a matter stated therein if the court takes judicial notice, or a witness expert in the subject testifies, that the writer of the statement in the treatise, periodical or pamphlet is recognized in his profession or calling as expert in the subject. 2.11 Prior Testimony Rule 130, Sec. 47 By whom made: a witness deceased or unable to testify, When given: in a former case or proceeding, judicial or administrative, involving the same parties and subject matter, When admissible: may be given in evidence against the adverse party who had the opportunity to cross-examine him. Unable to testify refers to an inability proceeding from a grave cause almost amounting to death as when the witness is old and has lost the power of speech. (Tan vs. CA, 1967) Conduct and Character as Evidence Conduct Rule 130, Secs. 34-35 - Evidence that one did or did not do a certain thing at one time is not admissible to prove that he did or did not do the same or similar thing at another time; but it may be received to prove a specific intent or knowledge; identity, plan, system, scheme, habit, custom or usage, and the like. - An offer in writing to pay a particular sum of money or to deliver a written instrument or specific personal property is, if rejected without valid cause, equivalent to the actual

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production and tender instrument, or property.

of

the

money,

Character Rule 130, Sec. 51; Rule 132, Sec. 14 General Rule: Character evidence is not admissible, [because it is purely circumstantial] exceptions1. In criminal cases - Accused = may prove his good moral character which is pertinent to the moral trait involved in the offense charged. - Prosecution = may not prove his bad moral character unless in rebuttal. - Offended Party = his/her good or bad moral character may be proved if it tends to establish in any reasonable degree the probability or improbability of the offense charged. 2. In civil cases - Evidence of the moral character of a party in a civil case is admissible only when pertinent to the issue of character involved in the case. - Witness = Evidence of his/her good character is not admissible until such character has been impeached. While evidence of another crime is, as a rule, not admissible in a prosecution for robbery; it is admissible when it is otherwise relevant, as when it tends to identify defendant as the perpetrator and tends to show is presence at the scene of the crime or in the vicinity of the crime at the time charged, or when it is evidence of a circumstance connected with the crime. (People vs. Irang, 1937) Good or bad moral character of the victim is not necessary in a crime of murder where the killing is committed through treachery or premeditation. (People vs. Soliman, 1957) V. Opinion Rule Rule 130, Secs. 48-50 General Rule: The opinion of a witness is not admissible (R130, 48) Except: 1. Expert witness: opinion of a witness on a matter requiring special knowledge, skill, experience or training which he shown to possess (R130, 49) 2. Ordinary witness: The opinion of a witness for which proper basis is given, may be received in evidence regarding (a) The identity of a person about whom he has adequate knowledge; (b) A handwriting with which he has sufficient familiarity; and (c) The mental sanity of a person with whom he is sufficiently acquainted. (d) The witness may also testify on his

impressions of the emotion, behavior, condition or appearance of a person. (R130, 50) There is no precise requirement as to the mode in which skill or experience shall have been acquired. Scientific study and training are not always essential to the competency of a witness as an expert. Knowledge acquired by doing is no less valuable than that acquired by study. (Dilag Co. vs. Merced, 1949) Polygraph test has not as yet attained scientific acceptance as a reliable and accurate means of ascertaining truth or deception. (People vs. Adoviso, 1999) Expert opinions are not ordinarily conclusive in the sense that they must be accepted as true on the subject of their testimony, but are generally regarded as purely advisory; the courts may place whatever weight they choose upon such testimony and may reject it, if they find that it is inconsistent with the facts in the case or otherwise unreasonable.(Punzalan v. Commission on Elections, et al., G.R. No. 126669) Testimony of handwriting expert not indispensable to COMELEC. Handwriting experts, while probably useful, are not indispensable in examining or comparing handwriting; this can be done by the COMELEC itself. It was ruled by the Supreme Court that evidence aliunde is not allowed to prove that a ballot is marked, an inspection of the ballot itself being sufficient. ((Punzalan v. Commission on Elections, et al., G.R. No. 126669) VI.Burden of Proof and Presumptions 1. Burden of Proof Rule 131, Sec. 1 Burden of proof (Risk of non-persuasion): duty of a party to present evidence on the facts in issue necessary to establish his claim or defense by the amount required by law. Criminal Cases: The burden of proof is on the prosecution, because under Rule 133 the accused is entitled to acquittal unless his guilt is demonstrated by proof beyond reasonable doubt Civil Cases: The usual principle is that whoever makes an affirmative allegation has the burden of proof Infringement cases: The burden of proof to substantiate a charge of infringement is with the plaintiff. But where he plaintiff introduces the patent in evidence, and the same is in due form, there is created a prima facie presumption of its correctness and validity. The decision of the Commissioner of Patent (now the Director of

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the Intellectual Property Office), in granting the patent is presumed to be correct. The burden of going forward with the evidence (burden of evidence) then shifts to the defendant to overcome by competent evidence this legal presumption. (Maguan v. Court of Appeals, et al., 146 SCRA 116, 117) Two separate burdens in Burden of Proof: 1. Burden of going forward- that of producing evidence 2. Burden of persuasion- burden of persuading the trier of fact that the burdened party is entitled to prevail Illustration of going forward with the evidence: For example after the existence of a debt has been proven by the creditor the burden of proving payment devolves upon the debtor. Where the debtor introduces evidence of payment, the burden of going forward with the evidence - as distinct from the general burden of proofshifts to the creditor who is then under the duty of producing evidence to show nonpayment. (Jimenez, et al, v. NLRC, et al., G.R. No,. 116960, prom. April 2, 1996) In short, the burden of going forward is the burden of producing evidence. EFFECT OF ABSENCE OF EVIDENCE or no evidence is presented CRIMINAL CASE: Accused is acquitted CIVIL CASE: a. When defendant does not file an answer- Plaintiff wins b. When defendant files an answer and sets up purely negative defenses and no evidence is presented by both sides- Defendant wins because plaintiff has not carried his burden c. When defendant files an answer and sets up affirmative defenses and no evidence is presented by both sidesPlaintiff wins Example: The defendant filed an answer: I admit that I borrowed money from the plaintiff, but the plaintiff has no reason to run after me because I have paid that account long time ago. [If no evidence is presented by both sides then plaintiff wins because the defendant admitted the existence of loan. And it is the defendants burden to prove his affirmative defense.] BURDEN OF EVIDENCE- the duty resting upon a party, by means of evidence, to create or meet a prima facie case.

BURDEN OF PROOF vs. BURDEN OF EVIDENCE Burden of Proof NEVER SHIFTS, while Burden of Evidence is TRANSFERRED from one litigant to another depending on the progress of trial. Illustration: Plaintiff files a complaint for recovery of a defaulted loan. Defendant files an answer with a negative defense, denying the existence of the loan. [ At the start, the plaintiff has the burden of proof and also burden of evidence, he should go to trial and present evidence to show that he has a cause of action. If he has introduced enough proof that he has a cause of action, the burden of evidence will now be shifted to the defendant. If defendant presents enough evidence to prove his negative defense then the burden of evidence is shifted again to the plaintiff on rebuttal evidence.] Can the accused in a criminal/civil case before presenting his own evidence ascertain conditionally or provisionally whether the evidence presented by the prosecution is enough to convict him? Yes. In a criminal/civil case, the accused(defendant/plaintiff) can easily determine the sentiment of the court concerning the quantum of evidence presented by the prosecution(defendant/plaintiff) by simply filing a demurrer to evidence with leave of court. PRINCIPLE OF NEGATIVING AVERMENT A negative averment do not have to be proven UNLESS the negative averment is an essential part of the cause of action or defense. Example: In an information for illegal possession of firearms, the information will contain an averment that the accused does not have a license to possess the firearm[negative averment]. * In this case, the negative averment is an essential part of the commission of the crime, hence this must be proven. Doctrine of equipoise or Equiponderance Rule Where the evidence on an issue of fact is in equipoise or there is doubt on which side the evidence preponderates, the party having the burden of proof fails upon that issue. (Rivera v. Court of Appeals, et al., G.R. No. 115625, prom. January 23, 1998) Therefore, as neither party was able to make out a case, neither side could establish its cause of action and prevail with

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the evidence it had. They are thus no better off than before they proceeded to litigate, and, as a consequence thereof, the courts can only leave them as they are. (Rivera, supra citing Municipality of Candijay, Bohol v. Court of Appeals, 251 SCRA 530) 2. Presumptions Rule 131, Secs. 2-4 Presumption- an inference as to the existence or non-existence of a fact which courts are permitted to draw from the proof of other facts. CLASSIFICATIONS 1. PRESUMPTION JURIS OR OF LAW- a deduction which the law expressly directs to be made from particular facts -Must be made whenever the facts appear which furnish the basis for the inference -Reduced to fixed rules and form part of the system of jurisprudence 2. PRESUMPTION HOMINIS OR OF FACTa deduction which reason draws from facts proved without an express direction from the law to that effect -Discretionary on the court -Derived from circumstances of a particular case through common experience of mankind CLASSIFICATIONS OF PRESUMPTIONS OF LAW 1. Conclusive- not permitted to be overcome by any proof to the contrary 2. Disputable- law permits to be overcome or contradicted 2.1 Conclusive 2.1.1. Whenever a party by his own declaration, act, omission, has led another 1 to believe a particular thing to be true AND 2 to act upon such belief, he cannot in any litigation arising out of such declaration, act or omission be permitted to falsify it. (Estoppel) 2.1.2. The TENANT is not permitted to deny the title of his landlord at the time of the COMMENCEMENT of the relation of landlord and tenant between them. Note: also a conclusive presumption under the Rule 39, which is a public policy principle of res judicata (a judgment is conclusive upon the title to the thing or upon the political or legal condition of a person, {judgment in rem or in personam}) There is

2.2

Disputable

CLASSIFICATIONS: 1. Presumption of innocence (Presumption of good faith) 2. Presumption of regularity of official and judicial acts 3. Presumption of regularity of private transactions - Person is innocent of a crime or wrong; - Unlawful act is done with an unlawful intent; - Person intends the ordinary consequences of his voluntary act; - Person takes ordinary care of his concerns; - Evidence willfully suppressed would be adverse if produced ELEMENTS: a. The suppression is wilful. (Sec. 3-e, Rule 131, ROC) continue b. The suppression is not in the exercise of a privilege. c. The evidence suppressed is not merely corroborative. d. The evidence is at the disposal only of the suppressing party. NOTES: Instances where adverse presumption from suppression of evidence does not apply: a. If the evidence is at the disposal of both parties. (People v. Ducay, 225 SCRA 1) b. The suppression was not willful. c. The suppressed evidence is merely corroborative or cumulative. d. The suppression is an exercise of a privilege. (People v. Navaja, 220 SCRA 624) - Money paid by one to another was due to the latter; - Thing delivered by one to another belonged to the latter; - Obligation delivered up to the debtor has been paid; - Prior rents or installments had been paid when a receipt for the later ones is produced; - A person found in possession of a thing taken in the doing of a recent wrongful act is the taker and doer of the whole act; otherwise, that things which a person possesses or exercises acts of ownership over, are owned by him; - Person in possession of an order on himself for the payment of the money or the delivery of anything has paid the money or delivered the thing accordingly; person acting in public office was regularly

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appointed or elected to it; - Official duty has been regularly performed; - A court or judge acting as such, whether in the Philippines or elsewhere, was acting in the lawful exercise of jurisdiction; - All the matters within an issue raised in a case were laid before the court and passed upon by it; all matters within an issue raised in a dispute submitted for arbitration were laid before arbitrators and passed upon by them; - Private transactions have been fair and regular; - ordinary course of business has been followed; - there was a sufficient consideration for a contract; - negotiable instrument was given or indorsed for a sufficient consideration; - An indorsement of negotiable instrument was made before the instrument was overdue and at the place where the instrument is dated; - A writing is truly dated; - Letter duly directed and mailed was received in the regular course of the mail; - Absentee of 7 years, it being not known whether or not he is alive, is considered dead for all purposes except for succession. = For the purpose of opening his succession: an absence of 10 years, if disappeared after age of 75, absence of 5 years. = The following shall be considered dead for all purposes including the division of the estate among the heirs: = Person on board a vessel lost during a sea voyage, or an aircraft with is missing, who has not been heard of for 4 years since the loss of the vessel or aircraft; = Member of the armed forces who has taken part in armed hostilities, and has been missing for 4 years; = Person who has been in danger of death under other circumstances and whose existence has not been known for four years; = Spouse, of a married person absent for 4 consecutive years, may contract a subsequent marriage if he or she has wellfounded belief that the absent spouse is already death; 2 years in case of disappearance, where there is a danger of death the circumstances hereinabove provided. Before marrying again, the spouse present must institute a summary proceedings as provided in the Family Code and in the rules for declaration of presumptive death of the absentee, without prejudice to the effect of reappearance of the absent spouse. - Acquiescence resulted from a belief that

the thing acquiesced in was conformable to the law or fact; - Things have happened according to the ordinary course of nature and ordinary nature habits of life; - Persons acting as copartners have entered into a contract of co-partnership; - A man and woman deporting themselves as husband and wife have entered into a lawful contract of marriage; - Property acquired by a man and a woman who are capacitated to marry each other and who live exclusively with each other as husband and wife without the benefit of marriage or under void marriage, has been obtained by their joint efforts, work or industry. - In cases of cohabitation by a man and a woman who are not capacitated to marry each other and who have acquire properly through their actual joint contribution of money, property or industry, such contributions and their corresponding shares including joint deposits of money and evidences of credit are equal. - If the marriage is terminated and the mother contracted another marriage within three hundred days after such termination of the former marriage, these rules shall govern in the absence of proof to the contrary: - A child born before 180 days after the solemnization of the subsequent marriage is considered to have been conceived during such marriage, even though it is born within the 300 days after the termination of the former marriage. - A child born after 180 days following the celebration of the subsequent marriage is considered to have been conceived during such marriage, even though it be born within the 300 days after the termination of the former marriage. - A thing once proved to exist continues as long as is usual with things of the nature - The law has been obeyed; - A printed or published book, purporting to be printed or published by public authority, was so printed or published; - A printed or published book, purporting contain reports of cases adjudged in tribunals of the country where the book is published, contains correct reports of such cases; - A trustee or other person whose duty it was to convey real property to a particular person has actually conveyed it to him when such presumption is necessary to perfect the title of such person or his successor in interest; - Except for purposes of succession, when 2 persons perish in the same calamity, and it

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is not shown who died first, and there are no particular circumstances from which it can be inferred, the survivorship is determined from the probabilities resulting from the strength and the age of the sexes, according to the following rules: = Both < 15: older survived; = Both > 60: younger survived; = One <15; other >60: <15 survived; = Both >15, <60 and the sex be different, the male is deemed to have survived, if the sex be the same, the older; = One < 15 or >, and the other between those ages, the latter is deemed to have survived. - That if there is a doubt, as between two or more persons who are called to succeed each other, as to which of them died first, whoever alleges the death of one prior to the other, shall prove the same; in the absence of proof, they shall be considered to have died at the same time. (5a) The presumption that evidence not produced or willfully suppressed is adverse to the party, will not apply if the evidence is at the disposal of both the defense and the prosecution and if the evidence is merely conclusive. (People vs. Padiernos, 1976) VII. Presentation of Evidence Note: The Rules apply to Summary Procedure but in a modified form, since in Summary Procedure the testimonies of the witnesses, (in civil cases) will be reduced into writing in the form of affidavit. Hence, there is no direct, cross, re-cross or re-direct examination. Affiant is not allowed in Summary Procedure to embody hearsay testimony. In criminal cases under Summary Procedure, the affidavits of the witnesses take the place of the direct examination. There is cross examination VOIR DIRE- preliminary examination of witnesses for the purpose of establishing whether or not a witness really is qualified as such. (Likewise done in examination of a child witness, but it is only the judge who can ask questions, plaintiff and defendant can write their questions and give it to the judge) Note: Ordinary witnesses are not allowed to be examined in a narrative form, except a child witness. A. Examination of Witnesses 1. How done Rule 132, Sec. 1

open court under oath or affirmation - Mode of answering General Rule: oral Exception: o Witness is incapacitated to speak or o Question calls for a different mode of answer 2. Rights and Obligations Rule 132, Sec. 3 Obligation of a witness: answer questions, although his answer may tend to establish a claim against him. Rights of a witness: 2.1 To be protected from irrelevant, improper, or insulting questions, and from harsh or insulting demeanor; 2.2 Not to be detained longer than the interests of justice require; 2.3 Not to be examined except only as to matters pertinent to the issue; 2.4 Not to give an answer which will tend to subject him to a penalty for an offense unless otherwise provided by law; or 2.5 Not to give an answer which will tend to degrade his reputation, unless it to be the very fact at issue or to a fact from which the fact in issue would be presumed. But a witness must answer to the fact of his previous final conviction for an offense. Case: Supposing a witness refused to answer because he feels the question is incriminatory. However, the court directs the witness to give an answer and the witness obeys the order of the court. Later on the answer turns out to be incriminatory and later on the witness was indicted for the commission of this offense, can his testimony in court be given in evidence against him in the form of an admission? NO, because the witnsess has initially objected and he gave the answer only in compliance with an order of the court. According to some decisions that could be treated as a compelled testimony given under duress and therefore could not be used against the witness. EXCEPTIONS TO RULE AGAINST SELFINCRIMINATION 1. Use Immunity- the witness will still be indicted for the commission of an offense, but the statements given by the witness cannot be used against him. He is not immunized from prosecution. 2. Transactional Immunity- There is absolute immunity, both to prosecution and

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use of the statements given by the witness. 3. Order in the Examination Rule 132, Sec. 4 3.1 Direct Examination Rule 132, Sec. 5 - Examination-in-chief of a witness by the party presenting him on the facts relevant to the issue. 3.2 Cross-Examination Rule 132, Sec. 6 - When conducted: upon termination of direct examination - Matters covered: witness may be crossexamined by the adverse party as to = Any matters stated in the direct examination, or connected therewith, with sufficient fullness and freedom to test his accuracy and truthfulness and freedom from interest or bias, or the reverse, and = To elicit all important facts bearing upon the issue. Implied waiver of cross-examination The party was given the opportunity Dela Paz vs. IAC (1987) TWO RULES ON LIMITS OF CROSS EXAMINATION 1. English Rule- where a witness is called to testify to a particular fact, he becomes a witness for all purposes and may be fully cross-examined upon all matters material to the issue, the examination not being confined to the matters inquired about in the direct examination. 2. American Rule- restricts crossexamination to facts and circumstances which are connected with the matters that have been stated in the direct examination of the witness. (applies when witness is the accused in a criminal case; and when witness is hostile or adverse party witness) 3.3 Re-direct Examination Rule 132, Sec. 7 - When conducted: after the crossexamination of the witness has been concluded - Why conducted: to explain or supplement his answers given during the crossexamination. On re-direct-examination, the court in its discretion may allow questions on matters not dealt with during the crossexamination. 3.4 Re-cross Examination Rule 132, Sec. 8 - Adverse party may re-cross-examine the witness on matters stated in his re-direct examination, and also on such other matters as may be allowed by the court in its discretion, upon the conclusion of the redirect examination. 4. Recalling Witnesses Rule 132, Sec. 9 - After the examination of a witness has been concluded by both sides has been concluded, the witness cannot be recalled without leave of court. The court will grant or withhold leave in its discretion as the interests of justice may require. There must be a satisfactory showing of some concrete, substantial ground (i.e. particularly identified material points were not covered in the crossexamination; particularly described vital documents were not presented to the witness; the cross-examination was conducted in so inept a manner as to result in a virtual absence thereof. (People vs. Rivera, 1991) 5. Leading and Misleading Questions Rule 132, Sec. 10 Leading questions Questions that suggest to the witness the answer, which the examining party desires, are leading questions. General Rule: Not allowed Exceptions: 1. On cross examination; 2. On preliminary matters; 3. When there is a difficulty is getting direct and intelligible answers from a witness who is ignorant, or a child of tender years, or is of feeble mind, or a deaf-mute; 4. Of an unwilling or hostile witness; or o A witness may be considered as unwilling or hostile only if so declared by the court upon adequate showing of his adverse interest, unjustified reluctance to testify, or his having misled the party into calling him to the witness stand. 6. Of a witness who is an adverse party or an officer, director, or managing agent of a public or private corporation or of a partnership or association which is an adverse party. When the answer is derived from a leading question the evidence has no probative value at all even if there is no objection to a leading question.

Misleading questions 1 Those that assume as true a fact not yet testified to by the witness, or contrary to that which he has previously stated. 2 Not allowed.

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DOCTRINE OF INCOMPLETE TESTIMONY: When cross examination cannot be done or completed due to causes attributable to the party who offered the witness, the incomplete testimony is rendered incompetent and should be stricken from the record. Except: where the prosecution witness was extensively crossexamined on the material points and thereafter failed to appear and cannot be produced despite a warrant for his arrest. (People v. GOrospe, GR 51513, May 15, 1984) Scope of judges participation at trial: A judge who presides at a trial is not a mere referee. He must actively participate therein by directing counsel to the facts in dispute, by asking clarifying questions, and by showing an interest in a fast a fair trial. (Clarin v. Yatco, 56 O.G. 7042, Nov. 14, 1960) He can interrogate witnesses to elicit the truth, to obtain clarification, or to test their credibility. (People v Moreno, 83 Phil. 286) However, this power must be exercised by the court sparingly and judiciously. (People v. Ferrer, 44 O.G. 112). Of course, the judge cannot curtail counsel's right to interrogate witnesses. (People v. Bedia, 83 Phil. 909) There is no prohibition against the judge conducting the examination of the witness. The counsel may object to the questions propounded by the judge. Power of court to stop further evidence: 1) The court may stop 2) the introduction of further testimony 3) upon any particular point 4) when the evidence upon it is already so full 5) that more witnesses to the same point 6) cannot be reasonably expected 7) to be additionally persuasive. But this power should be exercised with caution. When the evidence already presented on one point is sufficient and the party merely seeks to present cumulative evidence which cannot produce additional persuasive effect or that he is not sure of what the other witnesses would testify, the court may in its sound discretion stop the introduction of such further evidence. (People v. Reyes, et al., 133 SCRA 51) Role of attorney during presentation of evidence: An attorney has a dual role to

perform relative to proving the truth respecting a matter of fact. He must ensure that all evidence supporting the material allegations, whether raised in the pleadings or not are admitted by the court. His other role is to block the admission of evidence supporting his opponents' material allegations whether raised in the pleadings or not. In order to perform this dual role the attorney should ensure that the evidence he offers are admissible in accordance with the Rules of Court and those of his opponent are properly objected to for being inadmissible 6. Impeachment of Witnesses 6.1. Impeachment of Adverse Partys Witness Rule 132, Sec. 11 - How done: by contradictory evidence; by evidence that his general reputation for truth, honesty or integrity is bad; or by evidence that he has made at other times statements inconsistent with his present testimony. - Evidence of particular wrongful acts is not allowed except that it may be shown by the examination of the witness, or the record of the judgment, that he has been convicted of an offense. 6.2. Impeachment of Own Witness Rule 132, Sec. 12 - General Rule: The party producing a witness is not allowed to impeach the latters credibility. - Exception: The witness is an unwilling or hostile witness. = A witness may be considered as unwilling or hostile only if so declared by the court upon adequate showing of his adverse interest, unjustified reluctance to testify, or his having misled the party into calling him to the witness stand. - The impeachment may be made by the party presenting the hostile or unwilling witness in all respects as if he had been called by the adverse party, except by evidence of bad character. He may also be impeached and cross-examined by the adverse party, but such cross-examination must only be on the subject matter of his examination-in-chief. 6.3. Impeachment by Prior Inconsistent Statements Rule 132, Sec. 13

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- Before a witness can be impeached by evidence that he has made at other times statements inconsistent with his present testimony: the statements must be related to him, with the circumstances of the times and places and the persons present, and he must be asked whether he made such statements, and if so, be allowed to explain them; if the statements be in writing they must be shown to the witness before any question is put to him concerning them (laying the predicate). Laying the foundation or laying the basis- refers to a situation where an evidence which is otherwise incompetent will be introduced in evidence because it falls under the exceptions to that rule on exclusion. Example: If a party desires to introduce secondary or substitutionary evidence he must first lay the foundation or lay the basis. He must first proved that there was a writing duly executed and that the original has been lost or destroyed. 7. Exclusion and Separation of Witnesses Rule 132, Sec. 14 - The judge may exclude from the court any witness not at the time under examination, so that he may not hear the testimony of other witnesses. The judge may also have the witnesses separated and prevented from conversing with each other until all have been examined. 8. Refreshing Recollection of Witnesses Rule 132, Sec. 16 8.1 Revival of Present Memory - A witness may be allowed to refresh his memory respecting a fact, by anything written or recorded by himself or under his direction at the time when the fact occurred, or immediately thereafter, or at any other time when the fact was fresh in his memory and knew that the same was correctly written or recorded, - BUT in such case the writing or record must be produced and may be inspected by the adverse party, who may, if he chooses, cross examine the witness upon it, and may read it in evidence. Note: The memorandum is not evidence, it is still the testimony 8.2 Past Recollection Recorded - A witness may testify from such writing or record, (as in the case in revival of present memory) though he retain no recollection of the particular facts, if he is able to swear

that the writing or record correctly stated the transaction when made; but such evidence must be received with caution. Note: It is the memorandum that will serve as evidence (documentary evidence) What is the consequence of giving in evidence a part of an act, declaration, conversation, writing or record? (Rule 132, Section 17) [RULE OF COMPLETENESS] - The whole of the same subject may be inquired into by the other, and when a detached act, declaration, conversation, writing or record is given in evidence, any other act, declaration, conversation, writing or record necessary to its understanding may also be given in evidence. Rule on Examination of a Child Witness Applicability of the Rule. Unless otherwise provided, this Rule shall govern the examination of child witnesses who are victims of crime, accused of a crime, and witnesses to crime. It shall apply in all criminal proceedings and non-criminal proceedings involving child witnesses. (1) Child witness I. Definition (4(a)) Any person who at the time of giving testimony is < 18 years. In child abuse cases: a child includes one over eighteen (18) years but is found by the court as unable to fully take care of himself or protect himself from abuse, neglect, cruelty, exploitation, or discrimination because of a physical or mental disability or condition. II. Competency of a Child Witness: Every child is presumed qualified to be a witness. To rebut the presumption of competence enjoyed by a child, the burden of proof lies on the party challenging his competence. (6, 6(b)) Competency exam A. When conducted- Motu proprio or on motion of a party, when it finds that substantial doubt exists regarding the ability of the child to perceive, remember, communicate, distinguish truth from falsehood, or appreciate the duty to tell the truth in court. (6) - A party seeking a competency examination must present proof of necessity of competency examination. The age of the child by itself is not a

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sufficient basis for a competency examination. (6(a)) B. Who are allowed to attend- The judge and necessary court personnel; - The counsel for the parties; - The guardian ad litem; - Support person/s for the child; and - The defendant, unless the court determines that competence can be fully evaluated in his absence. (6(c)) How conducted- By whom conducted: by the judge, counsel for the parties, however, can submit questions to the judge that he may, in his discretion, ask the child. (6(d)) - Questions asked: appropriate to the age and developmental level of the child; shall not be related to the issues at trial; and shall focus on the ability of the child to remember, communicate, distinguish between truth and falsehood, and appreciate the duty to testify truthfully. (6(e)) - The court has the duty of continuously assessing the competence of the child throughout his testimony. (6(f))

result in his inability to effectively communicate due to embarrassment, fear, or timidity. - In making its order, the court shall consider the developmental level of the child, the nature of the crime, the nature of his testimony regarding the crime, his relationship to the accused and to persons attending the trial, his desires, and the interests of his parents or legal guardian. - The court may, motu proprio, exclude the public from the courtroom if the evidence to be produced during trial is of such character as to be offensive to decency or public morals. - The court may also, on motion of the accused, exclude the public from trial, except court personnel and the counsel of the parties. (23) b) The court may order that persons attending the trial shall not enter or leave the courtroom during the testimony of the child. (24) c) Motion by party who presents a child witness or the guardian ad litem of such child witness may, however, move the court to allow him to testify in the manner provided in this Rule (8): i. Live-link television testimony in criminal cases where the child is a victim or a witness. (25) Who may apply for an order that testimony of the child be taken in a room outside the courtroom and be televised to the courtroom by live-link television: 1 prosecutor, 2 counsel or the 3 guardian ad litem Period for application: The person seeking such an order shall apply at least five (5) days before the trial date, unless the court finds on the record that the need for such an order was not reasonably foreseeable. Hearing on the application:

III. Testifying
A. Oath: Before testifying, a child shall take an oath or affirmation to tell the truth. (7) B. Examination 1. How conducted General Rule: open court, unless the witness is incapacitated to speak, or the question calls for a different mode of answer, the answers of the witness shall be given orally. (8) Exception/s: a) Exclusion of the public - Why made: To protect the right to privacy of the child or If the court determines on the record that requiring the child to testify in open court would cause psychological harm to him, hinder the ascertainment of truth, or

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The court may motu proprio hear and determine, with notice to the parties, the need for taking the testimony of the child through live-link television. The judge may question the child in chambers, or in some comfortable place other than the courtroom, in the presence of the support person, guardian ad litem, prosecutor, and counsel for the parties. The questions of the judge shall not be related to the issues at trial but to the feelings of the child about testifying in the courtroom. The judge may exclude any person, including the accused, whose presence or conduct causes fear to the child. Order denying/granting use of live-link TV: The court shall issue an order granting or denying the use of live-link television and stating the reasons therefor. Factors considered by the court in granting/denying application: (1)The age and level of development of the child; (2)His physical and mental health, including any mental or physical disability; (3)Any physical, emotional, or psychological injury experienced by him; (4)The nature of the alleged abuse; (5)Any threats against the child; (6)His relationship with the accused or adverse party; (7)His reaction to any prior encounters with the accused in court or elsewhere; (8)His reaction prior to trial when the topic of

testifying was discussed with him by parents or professionals; (9)Specific symptoms of stress exhibited by the child in the days prior to testifying; (10)Testimony of expert or lay witnesses; (11)The custodial situation of the child and the attitude of the members of his family regarding the events about which he will testify; and (12)Other relevant factors, such as court atmosphere and formalities of court procedure. The court may order that the testimony of the child be taken by live-link television if there is a substantial likelihood that the child would suffer trauma from testifying in the presence of the accused, his counsel or the prosecutor as the case may be. The trauma must be of a kind which would impair the completeness or truthfulness of the testimony of the child. How done: where testimony is taken: in a room separate from the courtroom who are present: o guardian ad litem; o one or both of his support persons; o the facilitator o and interpreter, if any; o a court officer appointed by the court; o persons necessary to operate the closedcircuit television equipment; and o other persons whose presence are determined by the court to be necessary to the welfare and well-being of the child; - The judge, prosecutor,

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accused, and counsel for the parties shall be in the courtroom. The testimony of the child shall be transmitted by live-link television into the courtroom for viewing and hearing by the judge, prosecutor, counsel for the parties, accused, victim, and the public unless excluded. If it is necessary for the child to identify the accused at trial, the court may allow the child to enter the courtroom for the limited purpose of identifying the accused, or the court may allow the child to identify the accused by observing the image of the latter on a television monitor. The court may set other conditions and limitations on the taking of the testimony that it finds just and appropriate, taking into consideration the best interests of the child. The testimony of the child shall be preserved on videotape, digital disc, or other similar devices which shall be made part of the court record and shall be subject to a protective order as provided in section 31(b).

describing the approved courtroom arrangement If the court grants an application to shield the child from the accused while testifying in the courtroom, the courtroom shall be arranged to enable the accused to view the child. iii. Videotaped deposition. (27) Who may apply for an order that a deposition be taken of the testimony of the child and that it be recorded and preserved on videotape? 1 prosecutor, 2 counsel, or 3 guardian ad litem (consultation with prosecutor or counsel as in application for use of livelink TV. also required) When allowed:If the court finds that the child will not be able to testify in open court at trial, it shall issue an order that the deposition of the child be taken and preserved by videotape. Deposition-taking: Who are present o Judge who shall preside at the videotaped deposition of a child; Prosecutor; defense counsel; Guardian ad litem; Accused, provided that, if the order of the court is based on evidence that the child is unable to testify in the physical presence of the accused, the court may direct the latter to be excluded from the room in which the deposition is conducted. In case of exclusion of the accused, the court shall order that the testimony of the child be taken by live-link television in

ii. Screens, one-way mirrors, and other devices to shield child from accused. (26) Who may apply for an order that the chair of the child or that a screen or other device be placed in the courtroom in such a manner that the child cannot see the accused while testifying: 1 prosecutor or 2 guardian ad litem (consultation with prosecutor or counsel as in application for use of live-link TV. also required) Order granting application: The court shall issue an order stating the reasons and

o o o o

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accordance with section 25 of this Rule. If the accused is excluded from the deposition, it is not necessary that the child be able to view an image of the accused. o Other persons whose presence is determined by the court to be necessary to the welfare and well-being of the child; Support person/s, the facilitator and interpreter, if any; Court and stenographer;

The videotaped deposition and stenographic notes shall be subject to a protective order as provided in section 31(b). If, at the time of trial, the court finds that the child is unable to testify for a reason stated in section 25(f) of this Rule, or is unavailable for any reason described in section 4(c), Rule 23 of the 1997 Rules of Civil Procedure, the court may admit into evidence the videotaped deposition of the child in lieu of his testimony at the trial. The court shall issue an order stating the reasons therefor. After the original videotaping but before or during trial, any party may file any motion for additional videotaping on the ground of newly discovered evidence. The court may order an additional videotaped deposition to receive the newly discovered evidence. When conducted: The court may order that the testimony of the child should be taken during a time of day when the child is well-rested. (14) Provisions for ease of child in testifying/accommodations for a child a. Interpreter for child (9) How appointed: the court motu proprio or upon motion When appointed:When a child does not understand the English or Filipino language or is unable to communicate in said languages due to his developmental level, fear, shyness, disability, or other similar reason Who may be interpreter? If a witness or member of the family of the child is the only person who can serve as an interpreter for the child, he shall not be disqualified and may serve as the interpreter of the child. The interpreter, however, who is also a witness, shall testify An interpreter shall

o o

Persons necessary to operate the videotape equipment.

Objections to testimony or evidence; rights of the accused o Objections to deposition testimony or evidence, or parts thereof, and the grounds for the objection shall be stated and shall be ruled upon at the time of the taking of the deposition. The rights of the accused during trial, especially the right to counsel and to confront and cross-examine the child, shall not be violated during the deposition.

The videotaped deposition shall be preserved and stenographically recorded. The videotape and the stenographic notes shall be transmitted to the clerk of the court where the case is pending for safekeeping and shall be made a part of the record. The court may set other conditions on the taking of the deposition that it finds just and appropriate, taking into consideration the best interests of the child, the constitutional rights of the accused, and other relevant factors.

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take an oath or affirmation to make a true and accurate interpretation. b. Facilitator to pose questions to child (10) How appointed: The court motu proprio or upon motion, When appointed: child is unable to understand or respond to questions asked. Who may be a facilitator: The facilitator may be a child psychologist, psychiatrist, social worker, guidance counselor, teacher, religious leader, parent, or relative. The facilitator shall take an oath or affirmation to pose questions to the child according to the meaning intended by counsel. Function of facilitator: Respective counsels for the parties shall pose questions to the child only through the facilitator. The questions shall either be in the words used by counsel or, if the child is not likely to understand the same, in words that are comprehensible to the child and which convey the meaning intended by counsel. c. Support persons (11) A child testifying at a judicial proceeding or making a deposition shall have the right to be accompanied by one or two persons of his own choosing to provide him emotional support. (1)Both support persons shall remain within the view of the child during his testimony. (2)One of the support persons may accompany the child to the witness stand, provided the support person does not completely obscure

the child from the view of the opposing party, judge, or hearing officer. (3)The court may allow the support person to hold the hand of the child or take other appropriate steps to provide emotional support to the child in the course of the proceedings. (4)The court shall instruct the support persons not to prompt, sway, or influence the child during his testimony. Support person, also a witness 1 Disapproved if it is sufficiently established that the attendance of the support person during the testimony of the child would pose a substantial risk of influencing or affecting the content of the testimony of the child. 2 If allowed his testimony shall be presented ahead of the testimony of the child. d. Waiting area for child witnesses (12) that is separate from waiting areas used by other persons. e. Courtroom environment (13) Aim: create a more comfortable environment for the child court may, in its discretion, direct and supervise the location, movement and deportment of all persons in the courtroom including the parties, their counsel, child, witnesses, support persons, guardian ad litem, facilitator, and court personnel. The child may be allowed to testify from a place other than the witness chair.

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The witness chair or other place from which the child testifies may be turned to facilitate his testimony but the opposing party and his counsel must have a frontal or profile view of the child during the testimony of the child. The witness chair or other place from which the child testifies may also be rearranged to allow the child to see the opposing party and his counsel, if he chooses to look at them, without turning his body or leaving the witness stand. The judge need not wear his judicial robe. Nothing in this section or any other provision of law, except official in-court identification provisions, shall be construed to require a child to look at the accused. Accommodations for the child under this section need not be supported by a finding of trauma to the child. f. Recess during testimony (15) The child may be allowed reasonable periods of relief while undergoing direct, cross, re-direct, and re-cross examinations as often as necessary depending on his developmental level. g. Testimonial aids (16): use of dolls, anatomicallycorrect dolls, puppets, drawings, mannequins, or any other appropriate demonstrative device to assist him in his testimony. h. Emotional security item (17): While testifying, a child shall be allowed to have an item of his own choosing such as a blanket, toy, or doll i. Conduct in questioning the witness: i. Conduct of counsel: a counsel may be prohibited

from approaching a child if it appears that the child is fearful of or intimidated by the counsel. (18) ii. Mode of questioning: - The court shall exercise control over the questioning of children so as to (1) facilitate the ascertainment of the truth, (2) ensure that questions are stated in a form appropriate to the developmental level of the child, (3) protect children from harassment or undue embarrassment, and (4) avoid waste of time. - The court may allow the child witness to testify in a narrative form. iii. Questions and objections thereto leading questions in all stages of examination of a child may be allowed if the same will further the interests of justice (20) Objections to questions should be couched in a manner so as not to mislead, confuse, frighten, or intimidate the child. (21) Weight given to testimony of child witness: strong; corroboration not required - His testimony, if credible by itself, shall be sufficient to support a finding of fact, conclusion, or judgment subject to the standard of proof required in criminal and noncriminal cases. (22)

j.

IV. Questions of Admissibility

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C. Hearsay Exception in Child Abuse Cases (28) Where admitted: child abuse cases, criminal or non-criminal How admitted: 1) Before such hearsay statement may be admitted, its proponent shall make known to the adverse party the intention to offer such statement and its particulars to provide him a fair opportunity to object. a. Child is available The court shall, upon motion of the adverse party, require the child to be present at the presentation of the hearsay statement for cross-examination by the adverse party. b. Child is unavailable the fact of such circumstance must be proved by the proponent. When unavailable: (1)Is deceased, suffers from physical infirmity, lack of memory, mental illness, or will be exposed to severe psychological injury; or (2)Is absent from the hearing and the proponent of his statement has been unable to procure his attendance by process or other reasonable means. When the child witness is unavailable, his hearsay testimony shall be admitted only if corroborated by other admissible evidence. 2) In ruling on the admissibility of such hearsay statement, the court shall consider the time, content and circumstances thereof which provide sufficient indicia of reliability. It shall consider the following factors: c. Whether there is a motive to lie; d. The general character of the declarant child;

e. Whether more than one person heard the statement; f. Whether the statement was spontaneous; g. The timing of the statement and the relationship between the declarant child and witness; h. Cross-examination could not show the lack of knowledge of the declarant child; i. The possibility of faulty recollection of the declarant child is remote; and j. The circumstances surrounding the statement are such that there is no reason to suppose the declarant child misrepresented the involvement of the accused. D. Videotaped and audiotaped indepth investigative or disclosure interviews in child abuse cases (29) When admissible: 1 The child witness (1)Is deceased, suffers from physical infirmity, lack of memory, mental illness, or will be exposed to severe psychological injury; or (2)Is absent from the hearing and the proponent of his statement has been unable to procure his attendance by process or other reasonable means. 2 Before the videotape or audiotape is offered in evidence, all parties shall be afforded an opportunity to view or listen to it and shall be furnished a copy of a written transcript of the proceedings.

By whom conducted: duly trained members of a multidisciplinary team or representatives of law enforcement or child protective services in situations where child abuse is suspected so as to determine whether child abuse occurred.

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individual conducting the interview of the child shall be available at trial for examination by any party. Proof of the following must be given by party offering the videotape or audiotape: (1)The videotape or audiotape discloses the identity of all individuals present and at all times includes their images and voices; (2)The statement was not made in response to questioning calculated to lead the child to make a particular statement or is clearly shown to be the statement of the child and not the product of improper suggestion; (3)The videotape and audiotape machine or device was capable of recording testimony; (4)The person operating the device was competent to operate it; (5)The videotape or audiotape is authentic and correct; and (6)It has been duly preserved. Value of an investigative interview that was not done as required in this Rule: The fact that an investigative interview is not videotaped or audiotaped as required by this section shall not by itself constitute a basis to exclude from evidence outof-court statements or testimony of the child. It may, however, be considered in determining the reliability of the statements of the child describing abuse. E. Sexual abuse shield rule Inadmissible evidence in any criminal proceeding involving alleged child sexual abuse: (1) Evidence offered to prove that the alleged victim engaged in other sexual behavior; and (2) Evidence offered to prove the sexual predisposition of the alleged victim. When admissible: Evidence of specific instances of sexual behavior by the alleged victim to prove that a person other than the accused was the source of semen, injury, or other physical evidence shall be admissible. How admitted: 1. A party intending to offer such evidence must:

(1) File a written motion at least 15 days before trial, specifically describing the evidence and stating the purpose for which it is offered, unless the court, for good cause, requires a different time for filing or permits filing during trial; and (2) Serve the motion on all parties and the guardian ad litem at least 3 days before the hearing of the motion. 2. Before admitting such evidence, the court must conduct a hearing in chambers and afford the child, his guardian ad litem, the parties, and their counsel a right to attend and be heard. The motion and the record of the hearing must be sealed and remain under seal and protected by a protective order set forth in section 31(b). The child shall not be required to testify at the hearing in chambers except with his consent. V. Other protective measures for the child (31) F. Confidentiality of records. When records may be released: upon written request and order of the court To whom may be released: (1) Members of the court staff for administrative use; (2) The prosecuting attorney; (3) Defense counsel; (4) The guardian ad litem; (5) Agents of investigating law enforcement agencies; and (6) Other persons as determined by the court. G. Protective order What are covered: Any videotape or audiotape of a child that is part of the court record Provisos of the protective order: (1) Tapes may be viewed only by parties, their counsel, their expert witness, and the guardian ad litem. (2) No tape, or any portion thereof, shall be divulged by any person mentioned in sub-section (a) to any

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other person, except as necessary for the trial. (3) No person shall be granted access to the tape, its transcription or any part thereof unless he signs a written affirmation that he has received and read a copy of the protective order; that he submits to the jurisdiction of the court with respect to the protective order; and that in case of violation thereof, he will be subject to the contempt power of the court. (4) Each of the tape cassettes and transcripts thereof made available to the parties, their counsel, and respective agents shall bear the following cautionary notice: This object or document and the contents thereof are subject to a protective order issued by the court in (case title), (case number). They shall not be examined, inspected, read, viewed, or copied by any person, or disclosed to any person, except as provided in the protective order. No additional copies of the tape or any of its portion shall be made, given, sold, or shown to any person without prior court order. Any person violating such protective order is subject to the contempt power of the court and other penalties prescribed by law. (5) No tape shall be given, loaned, sold, or shown to any person except as ordered by the court. (6) Within 30 days from receipt, all copies of the tape and any transcripts thereof shall be returned to the clerk of court for safekeeping unless the period is extended by the court on motion of a party. (7) This protective order shall remain in full force and effect until further order of the court. H. Additional protective orders. The court may, motu proprio or on motion of any party, the child, his parents, legal guardian, or the guardian ad litem, issue additional orders to protect the privacy of the child. I. Publication of identity contemptuous.

What is prohibited: Publication or causing publication in any format the name, address, telephone number, school, or other identifying information of a child who is or is alleged to be a victim or accused of a crime or a witness thereof, or an immediate family of the child Liability of violator: contempt of court J. Physical safety of child; exclusion of evidence. A child has a right at any court proceeding not to testify regarding personal identifying information, including his name, address, telephone number, school, and other information that could endanger his physical safety or his family. The court may, however, require the child to testify regarding personal identifying information in the interest of justice. K. Destruction of videotapes and audiotapes produced under the provisions of this Rule or otherwise made part of the court record shall be destroyed after 5 years have elapsed from the date of entry of judgment. L. Records of youthful offender: privileged 1. Youthful offender has been charged before any city or provincial prosecutor or before any municipal judge and the charges have been ordered dropped All the records of the case shall be considered as privileged and may not be disclosed directly or indirectly to anyone for any purpose whatsoever. 2. Youthful offender has been charged and the court acquits him, or dismisses the case or commits him to an institution and subsequently releases him pursuant to Chapter 3 of P. D. No. 603, All the records of his case shall also be considered as privileged and may not be disclosed directly or indirectly to anyone EXCEPT to determine if a defendant may have his sentence suspended under Article 192 of P. D. No. 603 or if he may be granted probation under the provisions of P. D. No. 968 or to enforce his civil

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liability, if said liability has been imposed in the criminal action. The youthful offender concerned shall not be held under any provision of law to be guilty of perjury or of concealment or misrepresentation by reason of his failure to acknowledge the case or recite any fact related thereto in response to any inquiry made to him for any purpose. VI. Suppletory application of Rules of Court: The provisions of the Rules of Court on deposition, conditional examination of witnesses, and evidence shall be applied in a suppletory character. (32) Authentication and Proof of Documents 1. Classes of Documents 1.1 Public Documents Rule 132, Sec. 19 1.1.1-A Written official acts of the sovereign authority, official bodies and tribunals, and public officers, whether of the Philippines or of a foreign country; - How Proven = Rule 132, Sec. 23 - Documents consisting of entries in public records made in the performance of a duty by a public officer are prima facie evidence of the facts therein stated. All other public documents are evidence, even against a third person of the fact which gave rise to their execution and of the date of the latter. 1.1.1-BRecords of the official acts of the sovereign authority, official bodies and tribunals, and public officers, whether of the Philippines or of a foreign country. - How Proven = Rule 132, Sec. 24 - The record may be evidenced by: (1) an official publication thereof; (2) a copy attested by the officer having the legal custody of the record, or by his deputy, and accompanied, if the record is not kept in the Philippines, with a certificate that such officer has the custody. If the record is in a foreign country, the certificate may be made by a secretary of the embassy or legation, consul-general, consul, vice-consul, or consular agent or by any officer in the foreign service of the Philippines stationed in the foreign country in which the record is kept, and authenticated by the seal of his office. *Contents of Attestation = Rule 132, Sec 25

- The attestation must state that the copy is a correct copy of the original or a specific part thereof, as the case may be. The attestation must be under the official seal of the attesting officer, if there be any, or if he be the clerk of a court having a seal, under the seal of such court. - Irremovability of Record = Rule 132, Sec. 26 - Any public record, an official copy of which is admissible in evidence, must not be removed from the office in which it is kept, except upon order of a court where the inspection of the record is essential to the just determination of a pending case. 1.1.2 Notarial Documents except last wills and testaments; - How Proven = Rule 132, Sec. 30 - Notarial documents may be presented in evidence without further proof, the certificate of acknowledgment being prima facie evidence of the execution of the instrument or document involved. 1.1.3 Public Records (kept in the Philippines) of Private Documents required by law to be entered therein - How Proven = Sec. 27 - Such may be proved by the original record, or a copy thereof, attested by the legal custodian of the record, with an appropriate certificate that such officer has the custody. - Proof of Lack of Record = Sec. 28 A written statement signed by an officer having the custody of an official record or by his deputy that after diligent search, no record or entry of a specified tenor is found to exist in the records of his office, accompanied by a certificate that such officer has the custody, is admissible to prove that the records of his office contain no such record or entry. 1.2 Private Documents - How Proven = Rule 132, Sec. 20 Before any private document offered as authentic is received in evidence, its due execution and authenticity must be proved either: (1) by anyone who say the document executed or written; or (2) by evidence of the genuineness of the signature or handwriting of the maker. Any other private document need only be identified as that which it is claimed to be. - Ancient Document Rule = Rule 132, Sec. 21 Requisites: (1) The private document is more than 30 years old; (2) It is produced from a custody in which it would naturally be found if genuine; (3) It is unblemished by

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any alterations suspicion.

or

circumstances

of

If all requisites have been met, no other evidence of its authenticity is required. 1. How Genuineness of Handwriting is Proven = Rule 132, Sec. 22 It may be proved by any witness who believes it to be the handwriting of such person because he has seen the person write, or has seen writing purporting to be his upon which the witness has acted or been charged, and has thus acquired knowledge of the handwriting of such person. Evidence respecting the handwriting may also be given by a comparison made by the witness or the court, with writings admitted or treated as genuine by the party against whom the evidence is offered, or proved to be genuine to the satisfaction of the judge. 2. Impeachment of Judicial Record Rule 132, Sec. 29 How done By evidence of (a) want of jurisdiction in the court or judicial officer; (b) collusion between the parties; or (c) fraud in the party offering the record, in respect to the proceedings. 3. Alterations Rule 132, Sec. 31 - The party producing a document as genuine, which has been altered and appears to have been altered after its execution, in a part material to the question in dispute, must account for the alteration. Failure to do so would result in the inadmissibility of evidence. - He may show that the alteration was made f) by another, g) without his concurrence, or h) made with the consent of the parties affected by it, or i) was otherwise properly or innocent made, or j) The alteration did not change the meaning or language of the instrument. Seal Rule 132, Sec. 32 - There shall be no difference between sealed and unsealed private documents insofar as their admissibility as evidence is concerned. Documents Written in an Unofficial Language Rule 132, Sec.33 - Not admissible unless accompanied with a translation into English or Filipino; parties or their attorneys are directed to have such translation prepared before trial. IS THERE ANY WAY TO AVOID THE TEDIOUS PROCESS OF

AUTHENTICATION? 1. Rule on actionable documents (Rule 8). It provides that if an actionable document is the basis of a complaint of an answer, the law requires that it should be annexed to the pleading or that the contents thereof be copied in verbatim. If there is failure to specifically deny under oath the genuineness and due execution of an actionable document that judicial admission will take the place of authentication 2. Mode of discovery- Request for admission of the genuineness and due execution of a private writing. Failure to object within 15 days, deemed admitted. 3. Pre-trial of civil and criminal case wherein parties may enter into stipulations, where they will admit the genuineness and due execution of the private writing. Offer and Objection 1. Offer of Evidence Rule 132, Sec, 34 1 Why made? - For evidence to be considered by the court - court shall consider no evidence, which has not been formally offered. 1.1 When to make offer Rule 132, Sec. 35 - Testimonial Evidence = at the time the witness is called to testify. - Documentary Evidence = after the presentation of a partys testimonial evidence; offer shall be done orally unless allowed by the court to be done in writing. When evidence admitted even if not formally offered: 1. The same must have been duly identified by testimony duly recorded 2. The same must have been incorporated to the records of the case (Mata Vda. De Onate vs. CA) STAGES in the presentation of documentary evidence 1. Identification- proof that the document being offered is the same one referred to by the witness in his testimony 2. Marking 3. Authentication- proof of documents due execution and genuineness 4. Inspection 5. Formal Offer 6. Objections 2. Objection - Rule 132, Sec. 36 - Testimonial Evidence = must be objected to immediately after the offer is made. = Objection to a question propounded in the course of the oral examination of a witness shall be made as soon as the grounds therefore shall become reasonably apparent.

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- Documentary Evidence = shall be objected to within 3 days after notice of the offer unless a different period is allowed by the court. Kinds of Objection 1. General or broadside- does not go beyond declaring the evidence as immaterial, incompetent, irrelevant, or inadmissible. Does not specify the grounds 2. Specific- States the ground - When repetition is unnecessary Rule 132, Sec. 37 (Rule on Continuing Objection) It shall not be necessary to repeat the objection when it becomes reasonably apparent in the course of the examination of a witness that the questions being propounded are of the same class as those to which objection has been made, whether such objection was sustained or overruled. It shall be sufficient for the adverse party to record his continuing objection to such class of questions. - Ruling Rule 132, Sec. 38 = Given immediately after the objection is made, unless the court desires to take a reasonable time to inform itself on the question presented; but the ruling shall always be made during the trial and at such time as will give the party against whom it is made an opportunity to meet the situation presented by the ruling. = The reason for sustaining or overruling an objection need not be stated. However, if the objection is based on two or more grounds, a ruling sustaining the objection on one or some of them must specify the ground or grounds relied upon. 3. Motion to Strike Rule 132, Sec. 39 - The court may sustain an objection and order the answer given to be stricken off the record should a witness answer the question before the adverse party had the opportunity to voice fully its objection and such objection is found to be meritorious. - The court may also, upon proper motion, order the striking out of answers, which are incompetent, irrelevant or otherwise improper. 4. Tender of Excluded Evidence Rule 132, Sec. 40 - Documentary evidence the offeror may have the same attached or made part of the record. - Testimonial evidence the offeror may

state for the record the name and other personal circumstances of the witness and the substance of the proposed testimony. There is a distinction between identification of documentary evidence and its formal offer as an exhibit. The former is done in the course of the trial and is accompanied by the marking of the evidence while the latter is done only when the party rests his/her case. That a document has been identified does not mean that it will be offered. (Interpacific Transit vs. Aviles, 1990) While there was no offer of the testimony, petitioner waived this defect by failing to object when the ground became reasonably apparent the moment private respondent was called to testify without any prior offer having been made. (Catuira vs. CA, 1994) The rule requiring that there must be a formal offer of evidence before the evidence can be considered may be relaxed provided the evidence must have duly identified by testimony duly recorded and they must have been incorporated in the records of the case. (Vda. De Oate vs. CA, 1995) OFFER OF PROOF/TENDER OF EXCLUDED EVIDENCE vs. OFFER OF EVIDENCE First, is only resorted to if admission is refused by the court for purposes of review on appeal. Second, refers to testimonial, documentary or object evidence that are presented or offered in court by a party so that the court can consider his evidence when it comes to the preparation of the decision. VIII. Weight and Sufficiency of Evidence A. Required Quantum of Evidence 1. Preponderance of Evidence (Civil Cases) Rule 133, Sec. 1 - How determined? The court may consider: = All the facts and circumstances of the case; = The witnesses manner of testifying; = Their intelligence; = Their means and opportunity of knowing the facts to which they testify; = The probability or improbability of their testimony; = Their interest or want of interest; = Personal credibility so far as the same may legitimately appear upon the trial; = Number of witnesses (note preponderance that is not necessarily equated with the no. of witnesses)

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2.

Proof Beyond Reasonable Doubt (Criminal Cases) Rule 133, Sec. 2 - What is proof beyond reasonable doubt? = That degree of proof which produces conviction in an unprejudiced mind. = Absolute certainty is not required, only moral certainty. 3. Substantial Evidence (Administrative/QuasiJudicial Cases) Rule133, Sec. 5 - What is substantial evidence? The amount of relevant evidence which a reasonable mind might accept as adequate to support a conclusion.

is willfully false and given with an intention to deceive, court may disregard all the witness testimony. (Not a mandatory rule of evidence) - It deals only with the weight of evidence and not a positive rule of law - The witnesses false or exaggerated statements on other matters shall not preclude the acceptance of such evidence as is relieved from any sign of falsehood - The court may accept and reject portions of the witness testimony depending on the inherent credibility thereof. *May the court stop the introduction of further testimony? YES upon any particular point when the evidence upon it is already so full that more witnesses to the same point cannot be reasonably expected to be additionally persuasive; this power should be exercised with caution. (Rule 133, Section 6) *How will the court dispose of a motion which is based on facts not appearing of record? Court may hear the matter on - Affidavits or - Depositions presented by the respective parties but the court may direct that the matter be heard wholly or partly on oral testimony or depositions. (Rule 133, Section 7) Examples of motion which need hearing hence the presentation of evidence: CRIMINAL CASES: Motion for bail (Under Criminal Procedure, the evidence taken up during the hearing of the motion will form part automatically of the records of the case, so there is no need to repeat in the trial what have been covered in the hearing of the motion) CIVIL CASES: Application for preliminary attachment/injunction Motion to dismiss founded on certain facts which are not solely predicated on absence of jurisdiction or failure to state a COA, i.e. it is predicated on the ground of payment (Same with Criminal Case, evidence taken up during hearing made part automatically of records of the case) Rules on Electronic Evidence Scope

B. Extrajudicial Confessions Rule 133,

Sec. 3 - An extrajudicial confession made by an accused, is not a sufficient ground for conviction UNLESS corroborated by evidence of corpus delicti.

C. Circumstantial Evidence Rule 133,

Sec. 4 - Requisites for circumstantial evidence to be sufficient for conviction: a. There is more than 1 circumstance; b. The facts from which the inferences are derived are proven; and c. The combination of all the circumstances is such as to produce a conviction beyond reasonable doubt. OUT-OF-COURT IDENTIFICATION, THE TOTALITY OF CIRCUMSTANCE TEST 1. Witness opportunity to view the criminal act at the time of the crime 2. Witness degree of attention at that time 3. The accuracy of any prior description given by the witness 4. The level of certainty demonstrated by the witness at the identification 5. The length of time between the crime and the identification 6. The suggestiveness of the identification procedure res ipsa loquitur (The thing speaks for itself)- A procedural device which presumes that the person is negligent, when he is in control of an instrumentality causing an injury in the absence of some explanation by him. Falsus in uno, falsus in omnibus (False in one thing, false in everything)- If the testimony of the witness on a material issue

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Unless otherwise provided herein, these Rules shall apply whenever an electronic document or electronic data message (R1, 1) Cases covered. All civil actions and proceedings, as well as quasi-judicial and administrative cases. (R1, 2) Electronic data message Information generated, sent, received or stored by electronic, optical or similar means. (R2, 1g) Electronic Signatures (R2, 1j) Refers to any distinctive mark, characteristic and/or sound in electronic form, representing the identity of a person and attached to or logically associated with the electronic data message or electronic document or any methodology or procedure employed or adopted by a person and executed or adopted by such person with the intention of authenticating, signing or approving an electronic data message or electronic document. Includes digital signatures o Refers to an electronic signature consisting of a transformation of an electronic document or an electronic data message using an asymmetric or public cryptosystem such that a person having the initial untransformed electronic document and the signers public key can accurately determine: (i) Whether the transformation was created using the private key that corresponds to the signers public key; and, (ii) Whether the initial electronic document had been altered after the transformation was made. (R2, 1e) o Digitally signed refers to an electronic document or electronic data message bearing a digital signature verified by the public key listed in a certificate. (R2, 1f) Admissible in evidence as the functional equivalent of the signature of a person on a written document. (R6, 1) How authenticated? (R6, 2) 1. By evidence that a method or process was utilized to establish a digital signature and verify the same; 2. By any other means provided by law;

or 3. By any other means satisfactory to the judge as establishing the genuineness of the electronic signature. Disputable presumptions relating to esignatures: (R6, 3) 1. The electronic signature is that of the person to whom it correlates; 2. The electronic signature was affixed by that person with the intention of authenticating or approving the electronic document to which it is related or to indicate such persons consent to the transaction embodied therein; and 3. The methods or processes utilized to affix or verify the electronic signature operated without error or fault. Disputable presumptions relating to digital signatures: (R6, 4) 1. The information contained in a certificate is correct; 2. The digital signature was created during the operational period of a certificate; 3. No cause exists to render a certificate invalid or revocable; 4. The message associated with a digital signature has not been altered from the time it was signed; and, 5. A certificate had been issued by the certification authority indicated therein. Electronic document (R2, 1h) Information or the representation of information, data, figures, symbols or other modes of written expression, described or however represented, by which a right is established or an obligation extinguished, or by which a fact may be proved and affirmed, which is received, recorded, transmitted, stored, processed, retrieved or produced electronically. Includes digitally signed documents and any printout or output, readable by sight or other means, which accurately reflects the electronic data message or electronic document. For purposes of these Rules, the term electronic document may be used interchangeably with electronic data message. Functional equivalent of paper-based documents. (R3, 1) Admissible in evidence if it complies with the

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rules on admissibility prescribed by the Rules of Court and related laws and is authenticated in the manner prescribed by these Rules. (R3, 2) Confidential character of a privileged communication is not lost solely on the ground that it is in the form of an electronic document. (R3, 3) 3 BEST EVIDENCE RULE: (R4) o An electronic document shall be regarded as the equivalent of an original document under the Best Evidence Rule if it is a printout or output readable by sight or other means, shown to reflect the data accurately. o Originals And Copies: When copies or duplicates regarded as originals: 1. When a document is in two or more copies executed at or about the same time with identical contents, or 2. Is a counterpart produced by the same impression as the original, or from the same matrix, or by mechanical or electronic re-recording, or by chemical reproduction, or by other equivalent techniques that accurately reproduces the original. When copies or duplicates shall not be admissible to the same extent as the original: 3. If a genuine question is raised as to the authenticity of the original; or 4. If in the circumstances it would be unjust or inequitable to admit the copy in lieu of the original. Authentication of Electronic Documents (R5) 1 Burden of proving authenticity: person seeking to introduce an electronic document in any legal proceeding has the burden of proving its authenticity. 2 Manner of authentication Before any private electronic document offered as authentic is received in evidence, its authenticity must be proved by any of the following means: (a) by evidence that it had been digitally signed by the person purported to have signed the same; (b) by evidence that other

appropriate security procedures or devices as may be authorized by the Supreme Court or by law for authentication of electronic documents were applied to the document; or (c) by other evidence showing its integrity and reliability to the satisfaction of the judge. A document electronically notarized in accordance with the rules promulgated by the Supreme Court shall be considered as a public document and proved as a notarial document under the Rules of Court.

Evidentiary Weight Of Electronic Documents (R7) > Factors for assessing evidentiary weight. (a) The reliability of the manner or method in which it was generated, stored or communicated, including but not limited to input and output procedures, controls, tests and checks for accuracy and reliability of the electronic data message or document, in the light of all the circumstances as well as any relevant agreement; (b) The reliability of the manner in which its originator was identified; (c) The integrity of the information and communication system in which it is recorded or stored, including but not limited to the hardware and computer programs or software used as well as programming errors; (d) The familiarity of the witness or the person who made the entry with the communication and information system; (e) The nature and quality of the information which went into the communication and information system upon which the electronic data message or electronic document was based; or (f) Other factors which the court may consider as affecting the accuracy or integrity of the electronic document or electronic data message. > Integrity of an information and communication system. In any dispute involving the integrity of the information and communication system in which an electronic document or electronic data message is recorded or stored, the court may consider, among others, the following factors: (a) Whether the information and communication system or other similar device was operated in a

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manner that did not affect the integrity of the electronic document, and there are no other reasonable grounds to doubt the integrity of the information and communication system; (b) Whether the electronic document was recorded or stored by a party to the proceedings with interest adverse to that of the party using it; or (c)Whether the electronic document was recorded or stored in the usual and ordinary course of business by a person who is not a party to the proceedings and who did not act under the control of the party using it. Hearsay rule exception: A memorandum, report, record or data compilation of acts, events, conditions, opinions, or diagnoses, made by electronic, optical or other similar means at or near the time of or from transmission or supply of information by a person with knowledge thereof, and kept in the regular course or conduct of a business activity, and such was the regular practice to make the memorandum, report, record, or data compilation by electronic, optical or similar means, all of which are shown by the testimony of the custodian or other qualified witnesses. (R8, 1) This presumption may be overcome by evidence of the untrustworthiness of the source of information or the method or circumstances of the preparation, transmission or storage thereof. (R8, 2) How are matters relating to the admissibility and evidentiary weight of an electronic document established? (R9) o by an affidavit stating facts of direct personal knowledge of the affiant or based on authentic records. The affidavit must affirmatively show the competence of the affiant to testify on the matters contained therein. The affiant shall be made to affirm the contents of the affidavit in open court and may be crossexamined as a matter of right by the adverse party. Examination Of Witnesses (R10) Electronic testimony 1 After summarily hearing the parties pursuant to Rule 9 of these Rules, the court may authorize the presentation of testimonial evidence by

electronic means. Before so authorizing, the court shall determine the necessity for such presentation and prescribe terms and conditions as may be necessary under the circumstances, including the protection of the rights of the parties and witnesses concerned. When examination of a witness is done electronically, the entire proceedings, including the questions and answers, shall be transcribed by a stenographer, steno typist or other recorder authorized for the purpose, who shall certify as correct the transcript done by him. The transcript should reflect the fact that the proceedings, either in whole or in part, had been electronically recorded. The electronic evidence and recording thereof as well as the stenographic notes shall form part of the record of the case. Such transcript and recording shall be deemed prima facie evidence of such proceedings.

Ephemeral electronic communication 1 Refers to telephone conversations, text messages, chatroom sessions, streaming audio, streaming video, and other electronic forms of communication the evidence of which is not recorded or retained. (R2, 1k) 2 Shall be proven by the testimony of a person who was a party to the same or has personal knowledge thereof. In the absence or unavailability of such witnesses, other competent evidence may be admitted. (R11, 2) Audio, photographic and video evidence (R11, 1-2) Audio, photographic and video evidence of events, acts or transactions shall be admissible provided it shall be shown, presented or displayed to the court and shall be identified, explained or authenticated by the person who made the recording or by some other person competent to testify on the accuracy thereof. o Same rule covers a recording of the telephone conversation or ephemeral electronic communication shall be covered by the immediately preceding section. If ephemeral, audio, photographic and video

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evidence are recorded or embodied in an electronic document, then the provisions authentication electronic documents apply. (R11, 2) RULE ON DNA EVIDENCE (a) "Biological sample" means any organic material originating from a person's body, even if found in inanimate objects, that is susceptible to DNA testing. This includes blood, saliva and other body fluids, tissues, hairs and bones; (b) "DNA" means deoxyribonucleic acid, which is the chain of molecules found in every nucleated cell of the body. The totality of an individual's DNA is unique for the individual, except identical twins; (c) "DNA evidence" constitutes the totality of the DNA profiles, results and other genetic information directly generated from DNA testing of biological samples; (d) "DNA profile" means genetic information derived from DNA testing of a biological sample obtained from a person, which biological sample is clearly identifiable as originating from that person; (e) "DNA testing" means verified and credible scientific methods which include the extraction of DNA from biological samples, the generation of DNA profiles and the comparison of the information obtained from the DNA testing of biological samples for the purpose of determining, with reasonable certainty, whether or not the DNA obtained from two or more distinct biological samples originates from the same person (direct identification) or if the biological samples originate from related persons (kinship analysis); and (f) "Probability of Parentage" means the numerical estimate for the likelihood of parentage of a putative parent compared with the probability of a random match of two unrelated individuals in a given population. Application for DNA Testing Order. The appropriate court may, at any time, either motu proprio or on application of any person who has a legal interest in the matter in litigation, order a DNA testing. Such order shall issue after due hearing and notice to the parties upon a showing of the following: (a) A biological sample exists that is relevant to the case;

(b) The biological sample: (i) was not previously subjected to the type of DNA testing now requested; or (ii) was previously subjected to DNA testing, but the results may require confirmation for good reasons; (c) The DNA testing uses a scientifically valid technique; (d) The DNA testing has the scientific potential to produce new information that is relevant to the proper resolution of the case; and chan robles virtual law library (e) The existence of other factors, if any, which the court may consider as potentially affecting the accuracy or integrity of the DNA testing. This Rule shall not preclude a DNA testing, without need of a prior court order, at the behest of any party, including law enforcement agencies, before a suit or proceeding is commenced. An order granting the DNA testing shall be immediately executory and shall not be appealable. Petition for certiorari shall not stay the implementation of order unless a higher court issues an injunctive order. Grant of a DNA testing application NOT an automatic admission of DNA evidence. Post-conviction DNA testing may be available, without need of prior court order, to the prosecution or any person convicted by final and executory judgment provided that (a) a biological sample exists, (b) such sample is relevant to the case, and (c) the testing would probably result in the reversal or modification of the judgment of conviction. Factors in Assessment of probative value of DNA evidence. (a) The chain of custody, including how the biological samples were collected, how they were handled, and the possibility of contamination of the samples; (b) The DNA testing methodology, including the procedure followed in analyzing the samples, the advantages and disadvantages of the procedure, and compliance with the scientifically valid standards in conducting the tests; (c) The forensic DNA laboratory, including accreditation by any reputable standardssetting institution and the qualification of the analyst who conducted the tests. If the laboratory is not accredited, the relevant

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experience of the laboratory in forensic casework and credibility shall be properly established; and (d) The reliability of the testing result

conduct a hearing thereon or remand the petition to the court of origin and issue the appropriate orders. RELEASE OF DNA results. Through order of the court. Shall only be released to any of the following, under such terms and conditions as may be set forth by the court: (a) Person from whom the sample was taken; (b) Lawyers representing parties in the case or action where the DNA evidence is offered and presented or sought to be offered and presented; (c) Lawyers of private complainants in a criminal action; (d) Duly authorized law enforcement agencies; and (e) Other persons as determined by the court. Indirect Contempt- to those who publishes or disclose the DNA results without proper court order Preservation of DNA Evidence. The trial court shall preserve the DNA evidence in its totality, including all biological samples, DNA profiles and results or other genetic information obtained from DNA testing. For this purpose, the court may order the appropriate government agency to preserve the DNA evidence as follows: (a) In criminal cases: i. for not less than the period of time that any person is under trial for an offense; or ii. in case the accused is serving sentence, until such time as the accused has served his sentence; and (b) In all other cases, until such time as the decision in the case where the DNA evidence was introduced has become final and executory. chan robles virtual law library Physical destruction of a biological sample before the expiration of the periods set forth above, provided that: (a) There is a court order or (b) The person from whom the DNA sample was obtained has consented in writing to the disposal of the DNA evidence.

FACTORS in evaluating the Reliability of DNA Testing Methodology. (a) The falsifiability of the principles or methods used, that is, whether the theory or technique can be and has been tested; (b) The subjection to peer review and publication of the principles or methods; (c) The general acceptance of the principles or methods by the relevant scientific community; (d) The existence and maintenance of standards and controls to ensure the correctness of data generated; (e) The existence of an appropriate reference population database; and (f) The general degree of confidence attributed to mathematical calculations used in comparing DNA profiles and the significance and limitation of statistical calculations used in comparing DNA profiles. FACTORS in Evaluation of DNA Testing Results. (a) The evaluation of the weight of matching DNA evidence or the relevance of mismatching DNA evidence; (b) The results of the DNA testing in the light of the totality of the other evidence presented in the case; and (c) DNA results that exclude the putative parent from paternity shall be conclusive proof of non-paternity. If the value of the Probability of Paternity is less than 99.9%, the results of the DNA testing shall be considered as corroborative evidence. If the value of the Probability of Paternity is 99.9% or higher, there shall be a disputable presumption of paternity. Remedy if the Results Are Favorable to the Convict. The convict or the prosecution may file a petition for a writ of habeas corpus in the court of origin. In case the court, after due hearing, finds the petition to be meritorious, it shall reverse or modify the judgment of conviction and order the release of the convict, unless continued detention is justified for a lawful cause. A similar petition may be filed either in the Court of Appeals or the Supreme Court, or with any member of said courts, which may