VIII.

TESTIMONIAL EVIDENCE

A. Testimonies and Qualifications of Witnesses:

1. What is a testimony?

It is evidence that a competent witness under oath or affirmation gives at trial

or in an affidavit or deposition. (Black’s Law Dictionary, 5th Pocket Edition)

2. In what form may a testimony be given?

It may either be oral or written.

3. Who is a witness?

Section 21. Witnesses; their qualifications. – All persons who can perceive,
and perceiving, can make known their perception to others, may be witnesses.
(20a)

Religious or political belief, interest in the outcome of the case, or conviction

of a crime, unless otherwise provided by law, shall not be a ground for
disqualification

4. Who is a child witness?

A child witness is any person who, at the time of giving testimony, is below
the age of 18 years. The term includes over 18 years in child abuse cases 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. (A.M. No. 004-07-SC [Rule on
Examination of a Child Witness], Sec. 4 (a))

a. Who is a facilitator?

A facilitator is a person appointed by the court to pose questions to a child.

(A.M. No. 004-07-SC, Sec. 4 (d))

b. Who is a support person?

A support person is a person chosen by the child to accompany him to testify

at or attend a judicial proceeding or deposition to provide emotional support
for him. (A.M. No. 004-07-SC, Sec. 4 (f))

c. What is the procedure in testing the competency of a

child witness?

Section 6. Competency. - Every child is presumed qualified to be a witness. However, the

court shall conduct a competency examination of a child, 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.

(a) Proof of necessity. - A party seeking a competency examination must present proof

of necessity of competency examination. The age of the child by itself is not a
sufficient basis for a competency examination.

(b) Burden of proof. - To rebut the presumption of competence enjoyed by a child, the

burden of proof lies on the party challenging his competence.

(c) Persons allowed at competency examination. Only the following are allowed to

attend a competency examination:

(1) The judge and necessary court personnel;

(2) The counsel for the parties;

(3) The guardian ad litem;

(4) One or more support persons for the child; and

(5) The defendant, unless the court determines that competence can be fully
evaluated in his absence.

(d) Conduct of examination. - Examination of a child as to his competence shall be

conducted only by the judge. Counsel for the parties, however, can submit questions
to the judge that he may, in his discretion, ask the child.

(e) Developmentally appropriate questions. - The questions asked at the competency

examination shall be 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.

(f) Continuing duty to assess competence. - The court has the duty of continuously
assessing the competence of the child throughout his testimony. ( A.M. NO. 004-07-
SC )

d. How is the examination of a child witness done?

Section 8. Examination of a child witness. - The examination of a child witness presented in

a hearing or any proceeding shall be done in 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.

The 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.

5. Who is a state witness?

ROC

When two or more persons are jointly charged with the commission of any
offense, upon motion of the prosecution before resting its case, the court may
direct one or more of the accused to be discharged with their consent so that
 they may be witnesses for the state when, after requiring the prosecution to
present evidence and the sworn statement of each proposed state witness at a
hearing in support of the discharge, the court is satisfied that:
(a) There is absolute necessity for the testimony of the accused whose
discharge is requested;
(b) There is no other direct evidence available for the proper prosecution of
the offense committed, except the testimony of said accused;
(c) The testimony of said accused can be substantially corroborated in its
material points;
(d) Said accused does not appear to be the most guilty; and
(e) Said accused has not at any time been convicted of any offense involving
moral turpitude.

Evidence adduced in support of the discharge shall automatically form part of

the trial. If the court denies the motion for discharge of the accused as state
witness, his sworn statement shall be inadmissible in evidence (Sec. 17)

WPP
Any person who has participated in the commission of a crime and desires to
be a witness for the State, can apply and, if qualified as determined in this Act
and by the Department, shall be admitted into the program (to be a state
witness) whenever the following circumstances are present:
(a) The offense in which his testimony will be used is a grave felony as
defined under the Revised Penal Code or its equivalent under special laws;
(b) There is absolute necessity for his testimony;
(c) There is no other direct evidence available for the proper prosecution of
the offense committed;
(d) His testimony can be substantially corroborated on its material points;
(e) He does not appear to be most guilty; and
(f) He has not at any time been convicted of any crime involving moral
turpitude (Sec. 10, RA 6981, the Witness Protection Law)

6. What is the difference between a state witness under the

rules on criminal procedure and a state witness under RA
6981?

Under Rule 119, the crime contemplated may be any offense; the prosecution is
required to present evidence and the sworn statement of each proposed
state witness at a hearing in support of the discharge before the court
orders such discharge as accused.

Meanwhile, under R.A. 6981, the crime contemplated is a grave felony as

defined under the Revised Penal Code or its equivalent under special laws;
the accused has to file his application with the Department of Justice and
must be qualified as determined in the Act.

7. Who is a hostile witness?

A hostile witness is a person declared as such by the court upon adequate
showing of his or her adverse interest, unjustified reluctance to testify, or
his or her having misled the party into calling him or her to the witness
stand. (Rule 132, Sec. 13, par. 2)

8. What are the qualifications of a witness?

Qualifications of a Witness

All persons who can perceive, and perceiving, can make known their
perception to others, may be witnesses.

Religious/political belief, interest in the outcome of the case, or conviction of

a crime unless otherwise provided by law, shall not be ground for
disqualification [Sec. 21, Rule 130]

Basic Qualifications of a Witness

a. He/she can perceive

i. Corollary to perception is that the witness must have personal
knowledge of the facts surrounding the subject matter of his testimony
[Sec. 22, Rule 130]
b. He/she can make known his perception
i. This means that he/she must have the ability to remember and
communicate the remembered perception
c. He/she must take an oath or affirmation [Sec. 1, Rule 132]
d. He/she must not possess any of the disqualifications

A deaf-mute is competent to be a witness so long as he/she has the faculty to

make observations and he/she can make those observations known to others
[People v. Aleman y Longhas, G.R. No. 181539 (2013)]

Parties declared in default are not disqualified from taking the witness stand
for nondisqualified parties. The law does not provide default as an exception
[Marcos v. Heirs of Navarro, G.R. No. 198240 (2013)]

There is no substantive or procedural rule which requires a witness for a party

to present some form of authorization to testify as a witness for the party
presenting him or her [AFP Retirement and Separation Benefits System v.
Republic, G.R. No. 188956 (2013)]

9. Who is a competent witness?

A competent witness is someone fit or eligible to testify on a particular matter in

a judicial proceeding, as determined by his personal qualifications to
testify and the absence of disqualifications to disqualify him.

10.Who is a credible witness?

A credible witness is one whose testimony holds weight and trustworthiness
or reliability.

11.Disqualification of Witnesses:
a. What is an absolute disqualification from being a
witness?

An absolute disqualification prohibits the witness to take the stand. An

example would be disqualification by reason of marriage.

b. What is a relative disqualification from being a witness?

A relative disqualification prohibits the witness to testify on certain matters.

An example would be disqualification by reason of privileged
communication.

12.Give five grounds for the absolute disqualification of a

witness. Give the requisites for the application of each.

(a) Those who cannot perceive (Sec. 20);

(b) Those who can perceive but cannot make their perception known (Sec.
20);

(c) Mentally incapacity – 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 (Sec. 21);

(d) Mentally immaturity – 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 (Sec. 21);

Regardless of the nature or cause of mental disability, the test of

competency to testify is as to whether the individual has
sufficient understanding to appreciate the nature and obligation
of an oath and sufficient capacity to observe and describe
correctly the facts in regard to which he is called to testify.

Basic requirements of a child’s competency as a witness:

(a) Capacity of observation;
(b) Capacity of recollection;
(c) Capacity of communication. In ascertaining whether a child is
of sufficient intelligence according to the foregoing
requirements, it is settled rule that the trial court is called upon to
make such determination (People vs. Mendoza, 68 SCAD 552,
02/22/1996)
(e) Marital disqualification – During their marriage, neither the husband nor
the wife may testify for or against the other without the consent of the
affected spouse, 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 (Sec. 22).

Elements
1. During their marriage
i. The marriage must be valid and existing at the time of
the offer of the testimony
2. The husband or the wife cannot testify against the other
i. The “other” spouse must be a party to the action, either
as a plaintiff or defendant

ii. Note: 2019 Revision removed the words “for or”

3. Without the consent of the affected spouse [Sec. 23, Rule 130]

Except: Spouse may testify against the other even without the
consent of the latter 1. In a civil case by one against the other; or
2. In a criminal case for a crime committed by one against the
other or the latter's direct descendants/ascendants [Sec. 23, Rule
130]

(f) Parental and filial privilege -- No person may be compelled to testify

against his parents, other direct ascendants, children or other direct
descendants (Sec. 25)

(1) No person may be compelled to testify against his parents, other direct
ascendants, children or other direct descendants (Sec. 25)

(2) Under Art. 215 of the Family Code, the descendant may be compelled
to testify against his parents and grandparents if such testimony is
indispensable in prosecuting a crime against the descendant or by one
parent against the other.

(3) The privilege cannot apply between stepmothers and stepchildren

because the rule applies only to direct ascendants and descendants, a
family tie connected by a common ancestry by her stepmother (Lee vs.
CA, GR No. 177861 [2010]).

(4) A child can waive the filial privilege and choose to testify against his
father. The rule refers to a privilege not to testify, which can be
invoked or waived like other privileges (People vs. Invencion, GR No.
131636 [2003])
 Sec. 25, Rule 130 Art. 215, FC Art. 315, CC
(repealed by FC)
No person shall be No descendant shall No descendant can
compelled to testify be compelled, in a be compelled, in a
against his/her criminal case, to criminal case, to
1. Parents testify against his testify against his
2. other direct parents and parents and
ascendants grandparent s ascendants
3. children or
4. other direct
descend ants
Except when such Except when such NONE
testimony is testimony is
indispensable in a indispensable in a
crime crime

1. against that person 1. against the descend

or ant or
2. by one parent 2. by one parent
against the other. against the other

13.Give five grounds for the relative disqualification of a

witness. Give the requisites for the application of each.

(a) Dead Man’s Statute – Parties or assignors of parties to a case, or persons

in whose behalf a case is prosecuted, against an executor or administrator or
other representative 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 (Sec. 23).

(1) This rule applies only to a civil case or a special proceeding. The
following are the elements for the application of the rule:
(a) The plaintiff is the person who has a claim against the estate
of the decedent or person of unsound mind;
(b) The defendant in the case is the executor or administrator or a
representative of the deceased or the person of unsound mind;
(c) The suit is upon a claim by the plaintiff against the estate of
said deceased or person of unsound mind;
(d) The witness is the plaintiff, or an assignor of that party, or a
person in whose behalf the case is prosecuted; and
(e) The subject of the testimony is as to any matter of fact
occurring before the death (ante litem motam) of such deceased
person or before such person became of unsound mind (Sec. 23).

(b) Disqualification by reason of privileged communication (Sec. 24):

Privilege

A privilege is a rule of law that, to protect a particular relationship or interest,

either permits a witness to refrain from giving testimony he otherwise could
be compelled to give, or permits someone usually one of the parties, to
prevent the witness from revealing certain information. [Herrera]

Privilege may only be invoked by the persons protected thereunder. It may

also be waived by the same persons, either impliedly or expressly.

Note: this Section was substantially amended in the 2019 Revised Rules

1. The 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;

Also known as marital privilege

Rationale
Confidential nature of the privilege; to preserve marital and domestic
relations

Elements

1. The husband or the wife

2. During or after the marriage
3. Cannot be examined
4. Without the consent of the other
5. As to any communication received in confidence by one from the
other during the marriage [Sec. 24(a), Rule 130]

Except: Spouse may testify for or against the other even without the
consent of the latter
1. In a civil case by one against the other, or
2. In a criminal case for a crime committed by one against the other or
the latter’s direct descendants or ascendants. [Sec. 24(a), Rule 130]

A widow of a victim allegedly murdered may testify as to her

husband’s dying declaration as to how he died since the same was not
intended to be confidential [US v. Antipolo, G.R. No. L-13109 (1918)]

Scope: “Any communication”

Includes utterances, either oral or written, or acts [Herrera]
 When not applicable
1. When the communication was not intended to be kept in confidence
2. When the communication was made prior to the marriage
3. Waiver of the privilege [Herrera]

Waiver
1. Failure of the spouse to object; or
2. Calling spouse as witness on cross examination
3. Any conduct constructed as implied consent. [Herrera]

The objection to the competency of the spouse must be made when he

or she is first offered as a witness. The incompetency is waived by
failure to make a timely objection to the admission of spouse’s
testimony [People v. Pasensoy, G. R. No. 140634 (2002)

Marital Disqualification (Sec. 22) Marital Privilege (Sec. 24)

Can be invoked only if one of the Can be claimed whether or not the
spouses is a party to the action; spouse is a party to the action;
Applies only if the marriage is Can be claimed even after the
existing at the time the testimony is marriage has been dissolved;
offered;
Ceases upon the death or either Continues even after the termination
spouse; of the marriage;
Constitutes a total prohibition Applies only to confidential
against any testimony for or against communications between the
the spouse of the witness; spouses.
The prohibition is a testimony for or The prohibition is the examination
against the other. of a spouse as to matters related in
confidence to the other spouse.

2. 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;

Elements
As regards an attorney or any person reasonably believed by the client
to be licensed to engage in the practice of law
1. Without the consent of his client
2. Cannot be examined as to
a. Any communication made by the client to him/her, or
b. His/her advice given thereon in the course of, or with a view
to, professional employment [Sec 24(b), Rule 130]

As regards an attorney’s secretary, stenographer, clerk, or other persons

assisting the attorney
1. Without the consent of the client and his/her employer
2. Cannot be examined
3. Concerning any fact the knowledge of which has been acquired in
such capacity [Sec. 24(b), Rule 130]

Subject-matter of the privilege

1. Communications
2. Observations by the lawyer (regardless of medium of transmission
which may include oral or written words and actions)
3. Tangible evidence delivered to a lawyer
4. Documents entrusted to a lawyer [Herrera]

Exceptions

1. Furtherance of crime or fraud

a. If the services or advice of the lawyer were sought or obtained

b. To enable or aid anyone
c. To commit or plan to commit
d. What the client knew or reasonably should have known to be a crime
or fraud [Sec. 24(b)(i), Rule 130]

2. Claimants through same deceased client

a. As to communication relevant to an issue between parties who
b. Claim through the same deceased client
c. Regardless of whether the claims are by testate, intestate, or inter
vivos transaction [Sec. 24(b)(ii), Rule 130]

3. Breach of duty by lawyer or client

a. As to communications relevant to an issue of breach of duty

i. By the lawyer to his/her client; or

ii. By the client to his/her lawyer [Sec. 24(b)(iii), Rule 130]

4. Document attested by the lawyer

a. As to communication relevant to an issue concerning an attested
document
b. The lawyer is an attesting witness [Sec. 24(b)(iv), Rule 130]

5. Joint clients

a. As to a communication relevant to a matter of common interest

between two or more clients
b. The communication was made by any of them to
c. The lawyer retained or consulted in common
d. Communication is offered in an action between any of the clients
e. Neither expressly agreed otherwise [Sec. 24(b)(v), Rule 130]
 Identity of Client
General rule: The attorney-client privilege may not be invoked to r
efuse to divulge the identity of the client.

Exceptions:
1. When a strong probability exists that revealing the name would
implicate that person in the very same activity for which he sought the
lawyer’s 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 v. Sandiganbayan,
G.R. No. 105938 and G.R. No. 108113 (1996)]

Duration of the privilege In the absence of a statute, the privilege is

permanent. It may even be claimed by a client’s executor or
administrator after the client’s death [Herrera]

3. 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 that capacity, and which would blacken
the reputation of the patient;

Elements
1. A physician, psychotherapist or person reasonably believed by the
patient to be authorized to practice medicine or psychotherapy

a. Psychotherapist:
i. Person licensed to practice medicine engaged in the diagnosis
or treatment of a mental or emotional condition; or

ii. A person licensed as a psychologist by the government while

similarly engaged

2. In a civil case

a. Note: the privilege cannot be claimed in a criminal case because the

interest of the public in a criminal prosecution should be deemed
more important than the secrecy of the communication [Riano, 211,
2016 Ed.]

3. Without the consent of the patient

4. Cannot be examined as to

a. Any confidential communication made between the patient

and his/her physician or psychotherapist
b. For the purpose of diagnosis or treatment
 i. Of the patient’s physical, mental, or emotional condition
ii. Including drug or alcohol addiction

Note: this privilege also applies to persons, including members of the

patient’s family, who have participated in the diagnosis or treatment of
the patient under the direction of the physician or psychotherapist. [Sec.
24(c), Rule 130]

Physician-patient relationship need not be entered into voluntarily.

When not applicable

1. Communication was not given in confidence
2. Communication was irrelevant to the professional employment
3. Communication was made for an unlawful purpose
4. Communication was intended for the commission/concealment of a
crime
5. Communication was intended to be made public/divulged in court
6. When there was a waiver
7. When the doctor was presented as an expert witness and only
hypothetical problems were presented to him [Lim v. C.A., G.R. No.
91114 (1992)]

Waiver
1. Express waiver – may only be done by the patient
2. Implied waiver
a. By failing to object
b. When the patient testifies
c. A testator procures an attending doctor to subscribe his will as an
attesting witness
d. Disclosure of the privileged information either made or acquiesced
by the privilege holder before trial
e. Where the patient examines the physician as to matters disclosed in a
consultation
f. Also check Rule 28 on Physical and Mental Examination [Rules on
Civil Procedure] [Herrera]

Physician allowed to testify as an expert

A doctor is allowed to be an expert witness when he does not disclose
anything obtained in the course of his examination, interview and treatment of
a patient. [Lim v. C.A., G.R. No. 91114 (1992)]

Autopsical information

If the information was not acquired by the physician in confidence, he may be

allowed to testify thereto. But if the physician performing the autopsy was
also the deceased’s physician, he cannot be permitted either directly or
indirectly to disclose facts that came to his knowledge while treating the
living patient [Herrera, citing US Case Travelers’ Insurance Co. v. Bergeron]

Duration of privilege
The privilege survives the death of the patient. [Riano, 212, 16th Ed.]

Hospital Records during discovery procedure

To allow the disclosure during discovery procedure of the hospital records

would be to allow access to evidence that is inadmissible without the patient’s
consent. Disclosing them would be the equivalent of compelling the physician
to testify on privileged matters he gained while dealing with the patient,
without the latter’s prior consent. [Chan v. Chan, G.R. No. 179786 (2013)]

4. 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;

Elements
1. A minister or priest or person reasonably believed to be so
2. Without the consent of the affected person
3. Cannot be examined as to any
a. communication; or
b. confession made to; or
c. advice given by him/her

4. in his/her professional character

5. in the course of discipline enjoined by the church to which the minister or
priest belongs [Sec. 24(d), Rule 130

5. 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.

Elements
1. A public officer
2. During or after his/her tenure
3. Cannot be examined as to communications made to him/her in official
confidence
4. When the court finds that the public interest would suffer by the disclosure
[Sec. 24(e), Rule 130]

Elements of “presidential communications privilege”

1. Must relate to a “quintessential and nondelegable presidential power;”
2. Must be authored or “solicited and received” by a close advisor of the
President or the President himself; and
3. Privilege may be overcome by a showing of adequate need such that the
information sought “likely contains important evidence” and by the
unavailability of the information elsewhere [Neri v. Senate, G.R. No. 180643
(2008)]

Purpose
The privilege is not intended for the protection of public officers but for the
protection of the public interest. When no public interest would be prejudiced,
this privilege cannot be invoked [Banco Filipino v. Monetary Board, G.R. No.
70054 (1986)).

Rule on Third Parties

The communication shall remain privileged, even in the hands of a third
person who may have obtained the information, provided that the original
parties to the communication took reasonable precaution to protect its
confidentiality. [Sec. 24, Rule 130 (last par.)]

Note: This amendment is a stark contrast from the previous rule which
removes the privilege from communication that landed in the hands of third
parties.

(c) Newsman’s privilege -- Without prejudice to his liability under the civil
and criminal laws, the publisher, editor, columnist or duly accredited reporter
of any newspaper, magazine or periodical of general circulation cannot be
compelled to reveal the source of any news-report or information appearing in
said publication which was related in confidence to such publisher, editor or
reporter unless the court or a House or committee of Congress finds that such
revelation is demanded by the security of the State (RA 1477);

General rule: Publisher, editor or duly accredited reporter of any newspaper,

magazine or periodical of general circulation cannot be compelled to reveal
the source of any news-report or information appearing in said publication
which was related in confidence to such publisher, editor or reporter

Exception: Court or a House/Committee of Congress finds that such

revelation is demanded by security of the State Note: This is without
prejudice to his liability under the civil and criminal laws [R.A. 53, as
amended by R.A. 1477

(d) Bank deposits -- All deposits of whatever nature with banks or banking
institutions in the Philippines including investments in bonds issued by the
Government of the Philippines, its political subdivisions and its
instrumentalities, are hereby considered as of an absolutely confidential
nature and may not be examined, inquired or looked into by any person,
government official, bureau or office, except upon written permission of the
depositor, or in cases of impeachment, or upon order of a competent court in
cases of bribery or dereliction of duty of public officials, or in cases where the
money deposited or invested is the subject matter of the litigation (RA 1405).
 (e) Sanctity of the ballot – voters may not be compelled to disclose for
whom they voted.
(f) Trade secrets.

General Rule: A person cannot be compelled to testify about any trade secret
Except: the non-disclosure will conceal fraud or otherwise work injustice
When disclosure is directed, the court shall take protective measures, as
required by 1. the interests of the owner of the trade secret; 2. the interests of
the parties; and 3. the furtherance of justice [Sec. 26, Rule 130]

Note: This is a new rule.

(g) Information contained in tax returns (RA 2070, as amended by RA 2212)

14.What is the difference between testimonial privilege and

testimonial disqualification?

A testimonial privilege is held by the witness, who has the power to invoke or
waive it. He cannot be compelled, but he is not prohibited to testify.

On the other hand, a testimonial disqualification absolutely bars a witness from

talking about a specific matter. He does not have a choice in whether he
could waive it and testify anyway.

15.What is the difference between parental testimonial

privilege and filial testimonial privilege.

Parental testimonial privilege is held by parents so as not to be compelled to

testify against their children or direct descendants, while filial testimonial
privilege is held by children so as not to be compelled to testify against their
parents or direct ascendants.

16.What is a privileged communication?

Privileged communication is a communication that is protected by law

from compelled disclosure in a legal proceeding or that cannot be used
against the person who made it. (Black’s Law Dictionary, 5 th Pocket
Edition)
A privileged communication is one made bona fide upon any subject
matter in which the party communicating has an interest, or in reference to
which he has a duty. (Fortich v. CA, G.R. No. 120769, Feb. 12, 1997)

17.What are the obligations of a witness?

OBLIGATION
A witness must answer questions, although his/her answer may tend to
establish a claim against him/her. [Sec. 3, Rule 132]

18.What are the rights of a witness?

RIGHTS

1. To be protected from irrelevant, improper, or insulting questions, and from

harsh or insulting demeanor;

2. Not to be detained longer than the interests of justice require;

3. To only be examined as to matters pertinent to the issue;

4. Not to give an answer which will tend to subject him/her to a penalty for an
offense
a. Unless: otherwise provided by law
Example of this right: Sec. 8, R.A. 1379 and other immunity statutes
which grant the witness immunity from criminal prosecution for
offenses admitted

5. Not to give an answer which will tend to degrade his/her reputation

a. Exceptions:
i. the answer is the very fact in issue;
ii. the answer is a fact from which the fact in issue would be presumed

b. Exception to the exception: he/she must answer to the fact of his/her

previous final conviction for an offense [Sec. 3, Rule 132]

B. Admissions and Confessions

1. What is an admission?

Section 27. Admission of a party. – The act, declaration or omission of a party

as to a relevant fact

It is a voluntary acknowledgment made by a party of the existence of the truth

of certain facts which are inconsistent with his claims in an action.

2. What is an extrajudicial admission?

Section 27. Admission of a party. – The act, declaration or omission of a party

as to a relevant fact may be given in evidence against him or her. (26a

Any statement of fact made by a party against his interest or unfavorable to

the conclusion for which he contends or is inconsistent with the facts alleged
by him. [2 Regalado 754, 2008 Ed., citing 31 C.J.S. 1022]
 A statement by the accused, direct or implied, of facts pertinent to the issue,
and tending in connection with proof of other facts, to prove his guilt. [People
v. Lorenzo, G.R. No. 110107 (1995)]

3. What are the requisites for the admission of an

extrajudicial admission?

Requisites for Admissibility

1. They must involve matters of fact;
2. They must be categorical and definite;
3. They must be knowingly and voluntarily made; and
4. Is adverse to admitter’s interests [2 Regalado 754, 2008 Ed.]

4. How may an admission be made?

An admission may either be express or implied. An express admission is a

positive statement or act, while an implied admission is one which may be
inferred from the declarations or acts of a person.

It may also be adoptive, which occurs when a person manifests his assent to the
statements of another person.

5. Is an implied admission admissible in evidence?

Yes?

6. When may an offer of compromise be considered an

admission?

Except those involving quasi-offenses (criminal negligence) or those allowed

by law to be compromised, an offer of compromise by the accused may be
received in evidence as an implied admission of guilt (Sec. 27, Rule 133)

7. What is an admission by silence?

An act or declaration made in the presence and within the hearing or

observation of a party who does or says nothing when the act or declaration is
such as naturally to call for action or comment if not true, and when proper
and possible for him/her to do so, may be given in evidence against him/her.
[Sec. 33, Rule 130]

Requisites: When silence is deemed an admission

1. Person heard or understood the statement;

 2. That he was at a liberty to make a denial;

3. That the statement was about a matter affecting his rights or in which he
was interested and which naturally calls for a response;

4. That the facts were within his knowledge; and

5. That the fact admitted from his silence is material to the issue [People v.
Paragsa, G.R. No. L-44060 (1978)]

This rule applies even when a person was surprised in the act [US v. Bay,
G.R. No. 9341 (1914)] or even if he was already in the custody of the police
[People v. Ancheta, G.R. No. 143935 (2004)]

When not applicable

1. Statements adverse to the party were made in the course of an official

investigation [U.S. v. De la Cruz, G.R. No. 4740 (1908)], as where he was
pointed out in the course of a custodial investigation and was neither asked to
reply nor comment on such imputations [People v. Alegre, G.R. No. L-30423
(1979)]

2. Party had justifiable reason to remain silent, e.g. acting on advice of

counsel [2 Regalado 763, 2008 Ed.]

Failure to file a comment

Respondent’s failure to file a comment despite all the opportunities afforded

him constituted a waiver of his right to defend himself. In the natural order of
things, a man would resist an unfounded claim or imputation against him. It is
generally contrary to human nature to remain silent and say nothing in the
face of false accusations. As such, respondents' silence may be construed as
an implied admission and acknowledgement of the veracity of the allegations
against him [OCA v. Amor, A.M. No. RTJ-08-2140 (2014)]

8. What is an adoptive admission?

An adoptive admission is a party’s reaction to a statement or action by

another person when it is reasonable to treat the party’s reaction as an
admission of something stated or implied by the other person. (Estrada v.
Desierto, G.R. Nos. 146710-15, 03 April 2001)

9. How is an adoptive admission made?

Adoptive admission may occur when a party:

a) Expressly agrees to or concurs in an oral statement made by another;
b) Hears a statement and later on essentially repeats it;
c) Utters an acceptance or builds upon the assertion of another;
 d) Replies by way of rebuttal to some specific points raised by another but
ignores further points which he or she has heard the other make; or
e) Reads and signs a written statement made by another. (Republic v.
Kenrick Development Corporation, G.R. No. 149576 August 8, 2006)

10.How is an adoptive admission different from an

admission by silence?

An adoptive admission contemplates a reaction from a party, whether spoken

or acted out, while admission by silence contemplates no reaction at all.

11.When may person be prejudiced by the admission of

another?

Third persons are prejudiced by an act, declaration, or omission of a party in the

following cases:
a) Admission by a co-partner or agent, joint owner, joint debtor, or other
person jointly interested with the party;
b) Admission by a conspirator; and
c) Admission by privies. (Rule 130, Sections 30-32)

12.May an admission in a counter-affidavit submitted

during a preliminary investigation be admitted in
evidence?

Yes. (Ladiana v. People, G.R. No. 144293, Dec. 2, 2002)

13.Give the differences between an admission and a

confession.

In a confession, there is a direct and positive acknowledgment of guilt; in an

admission, there is merely a statement of fact not directly involving an
acknowledgment of guilt or of the criminal intent to commit the offense
with which one is charged. (Ladiana v. People, G.R. No. 144293, Dec. 2,
2002)

Admission Confession
An act, declaration or The declaration of an
 omission of a party as to a accused acknowledging
relevant fact (Sec. 26, his guilt of the offense
Rule 130) charged, or of any offense
necessarily included
therein (Sec. 33, Rule
130).
It is a voluntary It is a statement by the
acknowledgment made by accused that he engaged in
a party of the existence of conduct which constitutes
the truth of certain facts a crime (29 Am. Jur. 708).
which are inconsistent
with his claims in an
action (Black’s Law
Dictionary, 5 th Ed.)
Broader than confession. Specific type of admission
which refers only to an
acknowledgment of guilt
May be implied like Cannot be implied, but
admission by silence. should be a direct and
positive acknowledgment
of guilt.
May be judicial or May be judicial or
extrajudicial extrajudicial.
May be adoptive, which
occurs when a person
manifests his assent to the
statements of another
person (Estrada vs.
Desierto, 356 SCRA 108)

Confessions

1. What is a confession?

Section 34. Confession. – The declaration of an accused

acknowledging his or her guilt of the offense charged, or of
any offense necessarily included therein, may be given in
evidence against him or her

2. What are the different kinds of confession?

A confession may either be judicial or extrajudicial. A judicial confession may

sustain a conviction, but an extrajudicial confession may do so only when
corroborated by evidence of corpus delicti.
 3. What are the requisites for the admission of an extrajudicial
confession?

For an extrajudicial confession to be admissible in evidence, it must satisfy the

following requirements:
a) The confession must be voluntary;
b) It must be made with the assistance of a competent and independent
counsel preferably of the confessants choice;
c) It must be express; and
d) It must be in writing. (People v. Bacor, G.R. No. 122895. April 30,
1999)

4. What are interlocking confessions?

Interlocking confessions -- Where several extra-judicial

confession had been made by several persons charged with an
offense and there could have been no collusion with reference
to said several confessions, the facts that the statements
therein are in all material respects identical, is confirmatory of
the confession of the codefendant, and is admissible against
his other co-defendants (People vs. Badilla, 48 Phil. 718)

C. Examination of Witnesses

1. Why must testimonies be given in open court?

Section 1, Rule 131 of the Rules of Court provides that the burden of proof is
the duty of a party to prove the truth of his claim or defense, or any fact in
issue by the amount of evidence required by law. In civil cases, the burden of
proof rests upon the plaintiff, who is required to establish his case by a
preponderance of evidence. Section 1. In civil cases, the party having the
burden of proof must establish his case by a preponderance of evidence. 

In determining where the preponderance or superior weight of evidence on

the issues involved lies, 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 are testifying, the nature
of the facts to which they testify, the probability or improbability of their
testimony, their interest or want of interest, and also their personal credibility
so far as the same may legitimately appear upon the trial. 

Testimonies are given in open court because a witness’s

demeanor, conduct, and attitude under grueling examination are
important in determining the truthfulness of witnesses and in
 unearthing the truth, especially in the face of conflicting
testimonies. The emphasis, gesture, and inflection of the voice
are potent aids in ascertaining the witness's credibility.

Reference: Heirs of Teresita Villanueva vs. Heirs of Petronila

Syquia Mendoza G.R. No. 209132 dated June 5, 2017

2. In what form may a testimony be made?

A testimony is made in oral form. (Rule 132, Sec. 1)

3. What are the exceptions to the rule that testimonies

must be given orally?

a. When the witness is incapacitated to speak; or

b. When the question calls for a different mode of answer (Rule 132, Sec.
1)
Riano

Under the Rule on Summary Procedure, in criminal cases, the

affidavits of the partied shall constitute the direct testimonies of
the witnesses who executed the same.

In civil cases, the parties are merely required to submit the

affidavits of their witnesses and other pieces of evidence on the
factual issues, together with their position papers, setting forth
the law and the facts relied upon.

Judicial Affidavit Rule

4. What is the difference between an oath and an

affirmation?

The only difference between an oath and an affirmation is whether the person
is swearing to a supreme being. If the person swears to their deity with their
hand on their holy scriptures, then it is an oath. Otherwise, it is an affirmation.

5. Why must a witness be sworn?

A witness must be sworn for him to recognize the duty to tell the truth and,
consequently, be qualified to be a witness. (Riano, probably based on Sevier
v. State, 614 P.2d 791 (1980)) Further, he may be held liable for perjury.

6. What are the duties of a witness?

a. To testify
b. to answer questions
c. to answer truthfully
7. Who shall examine the witness?
 The witness is examined by the party presenting him and the
adverse party. (Rule 132, Sec. 5 and 6)

8. What is a voir dire examination under the Philippine

setting?

Voir dire examination is conducted to determine the competency or

qualifications of the witness in case it is objected to. When the court subjects
the witness to voir dire, the court reminds him or her about the consequences
of the truth. When the court is satisfied that the influence of fear or hope has
been ruled out, then the confession of the witness can be deemed voluntary.
(People v. Miscala, G.R. No. 91016, September 27, 1991)

9. What is the procedure in conducting a competency test

for a child witness?

If the presumed qualification of a child as a witness is

questioned, then the child is examined by the judge. At his
discretion, the judge may ask questions that the counsel for the
parties have submitted. After which, the court has the duty of
continuously assessing the competence of the child throughout
his testimony. (A.M. No. 004-07-SC, Sec. 6

10. What are the purposes of :

Direct Direct examination is the examination- Purpose is to build up the

examination in-chief of a witness by the party theory of the case by eliciting
presenting him or her on the facts facts about the client’s cause
relevant to the issue. of action or defense.
Cross Upon the termination of the direct Cross-examination aims to: (a)
examination examination, the witness may be cross- Test the accuracy and
examined by the adverse party on any truthfulness of the witness and
relevant matter, with sufficient fullness his freedom from interest or
and freedom to test his or her accuracy bias or the reverse; and (b)
and truthfulness and freedom from Elicit all important facts
interest or bias, or the reverse, and to bearing upon the issue, not
elicit all important facts bearing upon only of those covered in the
the issue. direct examination but also on
all other matters relevant to
the issue/s pleaded.
Re-direct After the cross-examination of the Principal objects are (a) to
examination witness has been concluded, he or she prevent injustice to the witness
may be re-examined by the party and the party who has called
calling him or her to explain or him by affording an
supplement his or her answers given opportunity to the witness to
during the cross-examination. On re- explain the testimony given on
direct examination, questions on cross-examination, (b) to
 matters not dealt with during the cross- explain any apparent
examination may be allowed by the contradiction or inconsistency
court in its discretion. in his statements, and (c)
complete the answer of a
witness, or add a new matter
which has been omitted, or
correct a possible
misinterpretation of testimony
Re-cross Upon the conclusion of the re-direct A witness cannot be recalled
examination examination, the adverse party may re- without leave of court, which
cross-examine the witness on matters may be granted only upon
stated in his or her re-direct showing of concrete,
examination, and also on such other substantial grounds.
matters as may be allowed by the court
in its discretion.
Recalling the After the examination of a witness by Aims to correct or explain his
witness both sides has been concluded, the prior testimony; or lay the
witness cannot be recalled without proper foundation for his
leave of the court. The court will grant impeachment, but this is
or withhold leave in its discretion, as permitted only with the
the interests of justice may require. discretion of the court.

a) Cross-examination
What is the scope of the cross-examination of an
Ordinary question?
What is the scope of the cross-examination of
The accused?

1. Under section 6 the witness may be examined: (a) As to any matter stated in
the direct examination (b) or any matter connected therewith (c) as to the accuracy
and truthfulness and freedom of the witness from interest or bias, or the reverse
and (d) upon all important facts bearing upon the issue.

2. The English Rule is followed in the Philippines: the cross examination is not
confined to matters subject of the direct examination but extends to other maters,
even if not inquired in the direct examination but are material to the issues. This is
distinguished from the American Rule which holds that the scope of the cross-
examination is confined to the facts and circumstances brought out, or connected
with, matters stated in the direct examination

b) Rebuttal
c) Surrebuttal

Presentation of Rebuttal and Sur-rebuttal Evidence If the

court grants the motion to present rebuttal evidence, the
 prosecution shall immediately proceed with its
presentation after the defense has rested its case, and
orally rest its case in rebuttal after the presentation of its
last rebuttal witness. Thereafter, the accused shall
immediately present sur-rebuttal evidence, if there is any,
and orally rest the case after the presentation of its last sur-
rebuttal witness. Thereafter, the court shall submit the case
for decision. [A.M No 15-06-10-SC, III No 13 (e)]

11. What is a judicial affidavit?

Under the Judicial Affidavit Rule, a judicial affidavit is the direct examination
of a witness under oath, which is the examination-in-chief of a witness by the
party presenting him on the facts relevant to the issue, subject to the usual
mode of cross-examination. It is prepared by a lawyer with his sworn
attestation. (A.M. No. 12-8-8-SC)

12. What are the rules on the application of the Judicial

Affidavit Rule in:
a) civil cases

(1) Judicial affidavits of the witnesses’ intended testimonies shall be

attached to the pleading and form an integral part thereof. (Rules
of Civil Procedure, Rule 7, Sec. 6 (b))
(2) The direct testimony of witnesses for the plaintiff shall be in the
form of judicial affidavits. (Rules of Civil Procedure, Rule 18,
Sec. 7, par. 2)

b) criminal cases

This rule shall apply to all criminal actions:

(1) Where the maximum of the imposable penalty does not exceed six
years;
(2) Where the accused agrees to the use of judicial affidavits, irrespective
of the penalty involved; or
With respect to the civil aspect of the actions, whatever the
penalties involved are.

13. When may a witness be allowed to use a

memorandum?

A witness may be allowed to refresh his or her memory respecting a fact by

anything written or recorded by himself or herself, or under his or her
direction, at the time when the fact occurred, or immediately thereafter, or at
any other time when the fact was fresh in his or her memory and he or she
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 or she chooses, cross-examine the witness upon it and
may read it in evidence. A witness may also testify from such a writing or
record, though he or she retains no recollection of the particular facts, if he or
she is able to swear that the writing or record correctly stated the transaction
when made; but such evidence must be received with caution. (Rule 132, Sec.
16)

14. Define the two kinds of memoranda.

1. Present Recollection Revived: the witness is presented the memorandum or

record with the expectation that it will pull a switch in the brain and enable
the witness to put aside the memorandum and testify on what he now recalls.

Thus the evidence is not the memorandum or writing but what the testify
remembers as now testified

2. Past Recollection Recorded. The same procedure is followed but the

witness is still unable to recollect the event but he can assert that the facts
therein narrated are true. The evidence therefore is the writing itself.

15. What is impeachment of a witness?

It is the process of showing that a witness is not credible or that his testimony
is not worthy of belief, i.e. casting doubt as to the credibility of the witness or
credibility of his testimony. Note that credibility of the witness is different
from credibility of testimony

16. Who may be impeached as witnesses?

a. the witness of the plaintiff

b. the witness of the defendant

17. How may a witness be impeached?

The following modes may impeach a witness by:

a. Contradictory evidence;
b. Evidence that his general reputation for truth, honesty or integrity is
bad;
c. Evidence that he has made at other times statements inconsistent with
his present testimony (Rule 132, Sec. 11); or
d. Evidence of conviction of crime if the crime was punishable by a
penalty in excess of 1 year, or the crime involved moral turpitude
regardless of penalty – inapplicable if subject to amnesty or annulment
of conviction. (Rule 132, Sec. 12)
Generally, the witness of the prosecution may be impeached during his cross-
examination or during the presentation of evidence by the party and/or during
the presentation of evidence in chief by the defendant.

On the other hand, the witness of the defendant may be impeached by the
plaintiff during the cross examination of said witness and/or during the
presentation of evidence during the rebuttal stage.

18. What is the One Day Examination of Witness Rule?

A witness has to be fully examined in one (1) day only. It shall

be strictly adhered to subject to the courts' discretion during trial
on whether or not to extend the direct and/or cross-examination
for justifiable reasons. [A.M. No. 03-1-09-SC]

19. What is the Most Important Rule? ( di ko sure kung

Most Important Witness Rule sana to, wala ako mahanap na
Most important Rule lang hahahaha)

Under AM No. 03-01-09-SC or the 2004 Guidelines of Pre-trial

and Use of Deposition-Discovery Measures (July 13, 2004), in
civil cases where no amicable settlement was reached by the
parties, the trial judge is directed to determine the most important
witnesses and limit the number of such witnesses to be heard.
The court shall also require the parties and/or counsels to submit
the names, addresses, and contact numbers of the witnesses to be
summoned by subpoena. The facts to be proven by each witness
and the approximate number of hours per witness shall also be
fixed by the trial judge (Section [1] [A] [S] [j].

20. When may the testimony of a witness be expunged

from the record?

a. When the witness answers prematurely before there is reasonable

opportunity for the adverse party to object, and such objection is found
to be meritorious;
b. When the answers are incompetent, irrelevant, or improper (Sec. 39);
c. When the witness becomes unavailable for cross-examination through
no fault of the cross-examining party;
d. When the answer is unresponsive;
e. When the testimony was allowed conditionally and the condition for its
admissibility was not fulfilled (Riano, Evidence: A Restatement for the
Bar, p. 467, 2009 ed.);
f. When a witness has volunteered statements in such a way that the party
has not been able to object thereto;
g. When a witness testifies without a question being addressed to him; or
 h. When a witness testifies beyond the ruling of the court prescribing the
limits within which he may answer.

21. When may a witness be recalled?

As a general rule, a witness cannot be recalled without leave of court as the

recalling of a witness is a matter of judicial discretion. (Sec. 9, Rule 132)
However, this rule is dispensed with when:

1. The examination has not been concluded; or

2. If the recall of the witness was expressly reserved by a party with the
approval of the court. In these two cases the recall of a witness is a
matter of right. (Regalado, Vol. II, p. 848, 2008 ed.)

Note: Something more than the bare assertion of the need to propound
additional questions is essential before the court's discretion may rightfully be
exercised to grant or deny recall. There must be a satisfactory showing of
some concrete, substantial ground for the recall.

D. Rules on Testimonies

1. What is testimonial knowledge?

Testimonial knowledge pertains to facts derived from his or her own

perception. (Rule 132, Sec. 22)

2. Give and define the common rules or doctrines regarding

testimonial evidence.

3. Hearsay Rule
a. What is hearsay evidence?

Section 37. Hearsay. – Hearsay is a statement other than

one made by the declarant while testifying at a trial or
hearing, offered to prove the truth of the facts asserted
therein. A statement is (1) an oral or written assertion or
(2) a non-verbal conduct of a person, if it is intended by
him or her as an assertion. Hearsay evidence is
inadmissible except as otherwise provided in these Rules.

A statement is not hearsay if the declarant testifies at the

trial or hearing and is subject to cross examination
concerning the statement, and the statement is (a)
inconsistent with the declarant’s testimony, and was given
under oath subject to the penalty of perjury at a trial,
 hearing, or other proceeding, or in a deposition; (b)
consistent with the declarant’s testimony and is offered to
rebut an express or implied charge against the declarant of
recent fabrication or improper influence or motive; or (c)
one of identification of a person made after perceiving him
or her

b. What are the forms of hearsay evidence?

Hearsay evidence may be verbal or in writing. The rule against the

admissibility of hearsay is so sweeping that it necessarily includes within its
scope written statements which fall within the general definition of hearsay.

c. What is the Hearsay Rule?

It states that a witness can testify only to those facts which he knows of based
on his personal knowledge or those which are derived from his own
perception.

d. Why is hearsay evidence excluded?

II. The rationale of excluding hearsay evidence is because there is no
opportunity for cross-examination hence it is not subject to the test of truth.
Hearsay testimony is not subject to the tests which can ordinarily be applied
for the ascertainment of the truth of testimony, since declarant is not present
and available for cross examination. Moreover, the court is without
opportunity to test the credibility of hearsay statements by observing the
demeanor of the person who made them (People v. Padit, G.R. No. 202978,
February 1, 2016)

a. What are the requisites of hearsay evidence?

1. Declarant is out of court

2. Out of court declaration is offered as proof of its contents
3. Absence of opportunity for cross-examination

b. What is an independently relevant statement?

Under the doctrine of independently relevant statements, only the fact that
such statements were made is relevant, and the truth or falsity thereof is
immaterial. The hearsay rule does not apply, hence, 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.
(PEOPLE v. LOBRIGAS, G.R. No. 147649, December 17, 2002)

c. Exceptions to the Hearsay Rule:

i. What is a dying declaration?
Section 38. Dying declaration. – The declaration of a dying person, made
under the consciousness of an impending death, may be received in any case
wherein his or her death is the subject of inquiry, as evidence of the cause and
surrounding circumstances of such death.

ii. What are requisites of a dying

declaration?

(a) The declaration concerns the cause and the surrounding circumstances
of the declarants’ death;
(b) It is made when death appears to be imminent and the declarant is
under a consciousness if an impending death;
(c) The declarant would have been competent to testify had he or she
survived; and
(d) The dying declaration is offered in a case in which the subject of
inquiry involves the declarant’s death. (People v. Gatarin, G.R. No.
198022, April 7, 2014)
(e) Statement is complete in itself (People v. De Joya) – doctrine of
completeness

iii. Why is a dying declaration considered

hearsay?

It is considered hearsay because it is a statement other than one made by the

declarant while testifying (Rule 130, Sec. 37), more specifically, by a person
who died to a person taking the witness stand.

iv. Why is a dying declaration admissible?

It is admissible because of two reasons: Necessity, because the declarant’s

death renders it impossible his taking the witness stand, and it often happens
that there is no other equally satisfactory proof of the crime; and
Trustworthiness, because the declaration is made in extremity (when the party
is at the point of death) and every motive to falsehood is silence and the mind
is induced by the most powerful considerations to speak the truth. (People v.
Cerilla, G.R. No. 177147, November 28, 2007)

v. What does res gestae mean?-

“things done”

Res gestae refers to the circumstances, facts, and declarations that grow out of the main fact
and serve to illustrate its character and are so spontaneous and contemporaneous with the
main fact as to exclude the idea of deliberation and fabrication. The test of admissibility of
evidence as a part of the res gestae is, therefore, whether the act, declaration, or exclamation,
is so interwoven or connected with the principal fact or event that it characterizes as to be
regarded as a part of the transaction itself, and also whether it clearly negates any
premeditation or purpose to manufacture testimony.
 What are included as parts of the res
gestae?

a) Statements made by a person while a startling occurrence is taking

place or immediately prior or subsequent thereto under the stress of
excitement caused by the occurrence;
b) Statements accompanying an equivocal act material to the issue and
giving it a legal significance. (Rule 130, Sec. 44).
c) A dying declaration, but survived.

What is a spontaneous statement?

Spontaneous Statements - Statements or exclamations made immediately after
some exciting occasion by a participant or spectator and asserting the
circumstances of that occasion as it is observed by him. The res gestae is the
startling occurrence. It may be prior to or simultaneously with, or subsequent
with the startling occurrence.

What are the requisites for its admission?

1. There is a startling event or occurrence taking place;

2. A statement was made while the event is taking place, or immediately
prior to, or subsequent thereto;
3. The statement was made before the declarant had the time to contrive
or devise a falsehood; and
4. The statements must concern the occurrence in question and its
immediate attending circumstances (Talidano v. Falcon Maritime &
Allied Services, Inc., G.R. No. 172031, July 14, 2008) or the statement
relates to the circumstances of the startling event or occurrence (Rule
130, Sec. 44)

Why is this admissible?

Its admissibility is anchored on the theory that the statement was uttered
under circumstances suggestive of the truth, where the opportunity to
fabricate is absent. The statement is a reflex action rather than a deliberate act,
instinctive rather than deliberate. (Morgan v. Foretich) LOOK AT: People v.
Gatarin – statement is interwoven with principal fact or part of transaction

vi. What is a verbal act?

Verbal Act – Utterance which accompany some act or conduct to which it is

desired to give legal effect. The res gestae is the equivocal act material to the
issue, and giving it legal significance. It must be contemporaneous with or
must accompany the equivocal act in order to be admissible.

What are the requisites for its admission?

Requisites:
i. The fact or occurrence characterized must be equivocal;
ii. The verbal acts must characterize or explain the equivocal act;
iii. The equivocal act must be relevant to the issue; and
iv. The verbal acts must be contemporaneous with the equivocal act.
(Talidanao v. Falcon Maritime & Allied Services, Inc.)

Why is this admissible?

A spontaneous declaration of an individual who has recently suffered an
overpowering and shocking experience is like to be truthful. (Commonwealth
v. Blackwell, 343 Pa. Super 201, June 7, 1985)

vii. What is mean by “res inter alios acta alteri

nocere non debet”?

The statement is Latin for ‘Things done between strangers ought not to affect
a third person, who is a stranger to the transaction.’

viii. What is the res inter alios acta rule?

Things done between strangers ought not to injure those who are not parties to
them [Black’s Law Dictionary]

The rule provides that it would be inconvenient and unjust for a man to be
bound by the acts of mere unauthorized strangers. If a party ought not to be
bound by the acts of strangers, neither ought their acts nor conduct be used as
evidence against him. (People v. Guittap, G.R. No. 144621, May 9, 2003)

The rule has reference to extrajudicial declarations. Hence, statements made

in open court by a witness implicating persons aside from his own judicial
admissions are admissible as declarations from one who has personal
knowledge of the facts testified to.

What are the two branches of the res inter

alios rule? Get all the terms for these
branches.
a) The rights of a party cannot be prejudiced by an act, declaration or
omission of another (Rule 130, Sec. 29); and
b) Evidence that one did or did not do a certain thing at one time is not
admissible to prove that he or she did or did not do the same or similar
thing at another time. (Rule 130, Sec. 35)

What are the exceptions to the first

branch? Give the requisites for their
admission.
a) Admission by a co-partner or agent (Rule 130, Sec. 30)
 1. The act or declaration of a partner or agent of the party must be
authorized to make a statement concerning the subject or within
the scope of his authority;
2. The admission was made during the existence of the partnership
or agency; and
3. The existence of the partnership or agency is proven by
independent evidence other than such act or declaration. The
Articles of Incorporation or a Special Power of Attorney may be
presented.

b) Admission by a co-conspirator (Rule 130, Sec. 31)

1. The declaration or act be made or done during the existence of
the conspiracy;
2. The declaration or act must relate to the purpose and object of
the conspiracy; and
3. The conspiracy must be shown by evidence other than the
declaration or act (evidence aliunde).

c) Admission by privies (Rule 130, Sec. 32)

1. Act, declaration, or omission by a predecessor-in-interest;
2. The act, declaration, or omission of the predecessor must have
occurred while he was holding the title to the property; and
3. The act, declaration or omission must be in relation to the
property.

What are the exceptions to the second

branch?
General rule: Evidence that one did or did not do a certain thing at one time is
not admissible to prove that he/she did or did not do the same or similar thing
at another time

Exceptions: Said evidence may be received to prove a:

1. specific intent or knowledge
2. identity
3. plan, system, or scheme
4. habit
5. custom or usage and the like [Sec. 35, Rule 130]

ix. For what purposes may a previous

conduct be admitted in evidence?

but it may be received to prove a specific intent or knowledge, identity, plan,

system, scheme, habit, custom or usage, and the like.

Why are these admissible in evidence?

Evidence of similar acts may frequently become relevant, especially in
actions based on fraud and deceit, because it sheds light on the state of mind
or knowledge of a person, his motive or intent, or they may uncover a
scheme, design or plan.

The admissibility of similar acts or previous conduct would depend on the

purposes for which such acts or conduct are offered.

x. What is a declaration against interest?

Section 40. Declaration against interest. – The declaration made by a person

deceased or unable to testify against the interest of the declarant, if the fact
asserted in the declaration was at the time it was made so far contrary to the
declarant’s own interest that a reasonable person in his or her position would
not have made the declaration unless he or she believed it to be true, may be
received in evidence against himself or herself or his or her successors in
interest and against third persons. A statement tending to expose the declarant
to criminal liability and offered to exculpate the accused is not admissible
unless corroborating circumstances clearly indicate the trustworthiness of the
statement.
What are the requisites for its
admissibility?

a. Declarant is dead or unable to testify;

b. Declaration relates to a fact against the interest of the declarant;
c. At the time he made said declaration, declarant was aware that the same
was contrary to the declarant’s own interest; and
d. Declarant had no motive to falsify and believed such declaration to be true
[Sec. 40, Rule 130]
Why is this admissible?

This is well-established exception which finds confirmation in human nature

and experience. People normally speak freely and even with untruth when the
statement is in their interest, but are usually unwilling to speak falsely
against their interest

Wigmore considers a declaration against interest as also founded on

necessity on the account of impossibility of obtaining other evidence from the
same source, the declarant being unavailable in person to testify on the stand
on account of death, absence from the jurisdiction or serious illness.

xi. What is pedigree?

Pedigree is the history of family descent which is transmitted from one

generation to another by both oral and written declarations and traditions.
(Young v. Shulenberg, 59 N.E. 135 (N.Y. 1901), January 22, 1901)
It includes relationship, family genealogy, birth, marriage, death, the dates
when and the places where these facts occurred, and the names of the
relatives. It embraces also facts of family history intimately connected with
pedigree. (Rule 130, Sec. 41)

Give the requisites for the admissibility of

a declaration about pedigree.

The following are the requisites for the admissibility of a declaration

about pedigree:

1. Declarant is dead or unable to testify;

2. Pedigree of a person is in issue;
3. Declarant is a relative of the person whose pedigree is in question;
4. Declaration is made before the controversy occurred;
5. The relationship between the declarant and the person whose pedigree
is in question is shown by evidence other than such act or declaration.
(Tecson v. COMELEC, G.R. No. 161434, March 3, 2004)

Give the requisites for the admissibility of

reputation regarding pedigree.

The following are the requisites for the admissibility of reputation

regarding pedigree:

1. There is controversy in respect to the pedigree of any member of the

family.
2. The reputation of the pedigree of the person concerned existed previous
to the controversy.
3. The witness testifying to the reputation regarding pedigree of the
person concerned must be a member of the family of said person either
by consanguinity, affinity, or adoption. (Rule 130, Sec. 42)

Give the requisites for the admissibility of

tradition regarding pedigree.

(a) There is a controversy in respect to the pedigree of any members of a

family;
(b) The reputation or tradition of the pedigree of the person concerned existed
ante litem motam or pervious to the controversy; and
(c) The witness testifying to the reputation or tradition regarding the pedigree
of the person concerned must be a member of the family of said person, either
by consanguinity or affinity

xii. What is reputation?

Reputation is the estimate in which he is held by the public in the place where
he is known. (Cooper v. Greeley, 1 Denio (N. Y. 1845) 347)

Section 43. Common reputation. – Common reputation existing previous to

the controversy, as to boundaries of or customs affecting lands in the
community and reputation as to events of general history important to the
community, 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.
xiii. How is reputation different from
character?

Reputation refers to the perception of society on a person, while character is

the combination of qualities that make an individual human distinct from
others. (Black’s Law Dictionary, 5th Pocket Edition)

xiv. What is tradition?

Tradition means past customs and usages that influence or govern present acts
or practices. (Black’s Law Dictionary, 5th Pocket Edition

xv. What are the requisites for the admission

of common reputation?

a. Common reputation existed ante litem motam

b. Reputation pertains to:
1. boundaries of or customs affecting lands in the community
2. events of general history important to the community
3. marriage, or
4. moral character [Sec. 43, Rule 130]

Note: The 30-year rule was removed in the Amended Rules

xvi. What are the requisites for the admission
of entries in official records?

Requisites for Admissibility

a. Entries in official records were made by a public officer in the performance
of his/her duties or by a person in the performance of a duty specially
enjoined by law [Sec. 46, Rule 130];
b. Entrant must have personal knowledge of the facts stated by him or such
facts acquired by him from reports made by persons under a legal duty to
submit the same [Barcelon, Roxas Securities v. CIR, G.R. 157064 (2006)];
and
c. Entries were duly entered in a regular manner in the official records
[People v. Mayingque, G.R. No. 179709 (2010)]

*********** Entries in the course of business

a. Memorandum, report, record or data compilation
1. Of acts, events, conditions, opinions, or diagnoses
2. Made by writing, typing, electronic, optical, or other similar means
3. At or near the time of or from transmission or supply of information

b. Entrant had knowledge thereof

c. Records are kept in the regular course or conduct of a business activity
d. The making of the memorandum, report, record, or data compilation by
electronic, optical or similar means is regular practice
e. All of the above are shown by the testimony of a custodian or other
qualified witness [Sec. 45, Rule 130]

Note: Sec. 45 has no counterpart in the previous Rules but it is the exact
reproduction of Sec. 2, Rule 8, Rules on Electronic Evidence (“Business
records as exception to the hearsay rule under the Rules on Electronic
Evidence”)

If the entrant is available as a witness, the entries will not be admitted, but
they may nevertheless be availed of by said entrant as a memorandum to
refresh his memory while testifying on the transactions reflected therein
[Cang Yui v. Gardner, G.R. No. L-9974 (1916)]

Entries in the payroll, being entries in the course of business, enjoy the
presumption of regularity [Sapio v. Undaloc Construction, G.R. No. 155034
(2008)]
Reason for rule
The duty of the employees to communicate facts is of itself a badge of
trustworthiness of the entries [Security Bank and Trust Company v. Gan, G.R.
No. 150464 (2006)]

These entries are accorded unusual reliability because their regularity and
continuity are calculated to discipline record keepers in the habit of precision
[LBP v. Monet’s Export and Manufacturing Corp., G.R. No. 184971 (2010)]

xvii. What are the requisites for the admission

of commercial lists?

Requisites for Admissibility

a. Evidence of statements of matters of interest to persons engaged in an
occupation
b. Such statements are contained in a list, register, periodical, or other
published compilations
c. Compilation is published for use by persons engaged in that occupation;
and 1. Example: mortality tables, MIMS drug database
d. It is generally used and relied upon by them [Sec. 47, Rule 130]

xviii. Give five examples of evidence which are

similar to commercial lists.
 1. Trade journals reporting current prices and other market data;
2. Mortality tables compiled for life insurance;
3. Abstracts of title compiled by reputable title examining institutions or
individuals;
4. Business directories;
5. Animal pedigree registers.

xix. What is a learned treatise?

Section 48. Learned treatises. – 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 or her profession or
calling as expert in the subject

xx. When is a learned treatise not considered

hearsay?

It is not considered hearsay when its writer is recognized in the profession or

an expert in the subject
xxi. What are the requisites for the admission
of a learned treatise?

Requisites for admissibility:

(a) The court takes judicial notice that the writer of the statement in the
treatise, periodical or pamphlet, is recognized in his profession or calling as
expert in the subject; or
(b) 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 (Wigmore on Evidence).

xxii. What is the residual exception to the

hearsay rule?

Section 50. Residual exception. – A statement not specifically covered by any

of the foregoing exceptions, having equivalent circumstantial guarantees of
trustworthiness, is admissible if the court determines that (a) the statement is
offered as evidence of a material fact; (b) the statement is more probative on
the point for which it is offered than any other evidence which the proponent
can procure through reasonable eff orts; and (c) the general purposes of these
[R]ules and the interests of justice will be best served by admission of the
statement into evidence. However, a statement may not be admitted under this
exception unless the proponent makes known to the adverse party, sufficiently
in advance of the hearing, or by the pre-trial stage in the case of a trial of the
main case, to provide the adverse party with a fair opportunity to prepare to
meet it, the proponent’s intention to offer the statement and the particulars of
it, including the name and address of the declarant.
 xxiii. Give an example under the residual
exception rule.

4. Opinion Rule
a. What is an opinion?

Opinion is an inference or conclusion drawn from facts observed [Black’s

Law Dictionary]

In the law of evidence, opinion is an inference or conclusion drawn by a

witness from facts some of which are known to him and others assumed, or
drawn from facts which, though lending probability to the inference, do not
evolve it by a process of absolutely necessary reasoning. (BLACK'S LAW
DICTIONARY)

b. What is the difference between an opinion and a

conclusion?

An opinion is a conclusion or judgement held with confidence but falling

short of positive knowledge, while a conclusion is a judgement or opinion
obtained by reasoning; inference; deduction.

c. What is the difference between an opinion and an

inference?

An opinion is a fact with added information that cannot be directly observed

or checked for accuracy, while an inference is a logical conclusion made from
facts.

d. Why is an opinion generally not admissible?

Generally, the opinion of a witness is not admissible because it does not

pertain to facts within his knowledge.

e. When is an opinion admissible?

1. Opinion of an expert witness. (Sec. 52, Rule 130)

2. Opinion of ordinary witnesses with respect to:
a. The identity of a person about whom he or she has adequate
knowledge;
b. A handwriting with which he or she has sufficient familiarity; and
c. The mental sanity of a person with whom he or she is sufficiently
acquainted.
The person may also testify on his or her impression of the emotion, behavior,
condition or appearance of a person. (Sec. 53, Rule 130)

f. When may the opinion of an ordinary witness be

admitted?

3. Opinion of ordinary witnesses with respect to:

d. The identity of a person about whom he or she has adequate
knowledge;
e. A handwriting with which he or she has sufficient familiarity; and
f. The mental sanity of a person with whom he or she is sufficiently
acquainted.

The opinion of a witness on a matter requiring special knowledge, skill,

experience, training, or education, which he/she shown to possess, may be
received in evidence [Sec. 52, Rule 130]

g. Who is an expert witness?

Expert witness is one who has made the subject upon

which he gives his opinion a matter of particular study,
practice or observation and he must have particular and
special knowledge on the subject [People v. Dekingco,
G.R. No. 87685 (1990)]

5. Character Evidence

a. What is character?

Character is the aggregate of the moral qualities which belong to and

distinguish an individual person; the general result of the one’s distinguishing
attributes. That moral predisposition or habit, or aggregate of ethical qualities,
which is believed to attach to a person, on the strength of the common opinion
and report concerning him, derived from the common report of the people
who are acquainted with him.( BLACK'S LAW DICTIONARY 2ND ED.)

b. Why character evidence generally not admissible?

It is generally irrelevant in determining a controversy because the evidence of

a person's character or trait is not admissible to prove that a person acted in
conformity with such character or trait in a particular occasion. (State of
Minnesota v. Paul Ronny Barsness, A13-2013, October 27, 2014)

c. When is character evidence allowed?

a. Criminal cases [Sec. 54(a), Rule 130]

 b. Civil case [Sec. 54(b), Rule 130]
c. In both civil and criminal cases [Sec. 54(c), Rule 130]
1. Evidence of good character of witness is not admissible
until such character has been impeached
2. When the character or trait of character is an essential
element of a charge, claim or defense

a. Criminal Cases
1. Accused – May prove his/her good moral character, which
is pertinent to the moral trait involved in the offense charged.

2. Prosecution – May not prove the bad moral character of the

accused, except in rebuttal.

3. Offended Party –May be proved if it tends to establish in

any reasonable degree the probability or improbability of the
offense charged. [Sec. 54, Rule 130]

Good moral character of accused

The purpose of presenting evidence of good moral character is
to prove the improbability of his doing the act charged. The
accused may prove his good moral character only if it is
pertinent to the moral trait involved in the offense charged
[Herrera]

Bad moral character of accused in rebuttal

Unless and until the accused gives evidence of his good moral
character the prosecution may not introduce evidence of his
bad character [Herrera, citing People v. Rabanes, G.R. No.
93709 (1992)]

Character evidence must be limited to the traits and

characteristics involved in the type of offense charged. Thus:
● on a charge of rape: character for chastity
● on a charge of assault: character for peaceableness or
violence
● on a charge of embezzlement: character for honesty [CSC v.
Belagan, G.R. No. 132164 (2004)]

Proof of the bad character of the victim is not admissible:

● In a murder case: If the crime was committed through
treachery and evident premeditation [People v. Soliman, G.R.
No. L-9723 (1957)]
● In a rape case: If through violence and intimidation [People
v. Blance, G.R. No. 20063, (1923)]

b. Civil cases
 Moral character is admissible only when pertinent to the issue
of character involved in the case [Sec. 54(b), Rule 130]

c. Criminal and civil cases

Evidence of the witness’ good character is not admissible until

such character has been impeached

In all cases in which evidence of character or a trait of

character of a person is admissible, proof may be made by:
1. Testimony as to reputation; or
2. Testimony in the form of an opinion

On cross-examination, inquiry is allowable into relevant

specific instances of conduct.

In cases where the character or trait of character is an essential

element of a charge, claim, or defense, proof may also be
made of specific instances of that person’s conduct. [Sec.
54(c), Rule 130]

d. What are rape shield laws?

Rape Shield Rule In prosecution for rape, evidence of
complainant’s past sexual conduct, opinion thereof or of
his/her reputation shall not be admitted unless, and only to the
extent that the court finds that such evidence is material and
relevant to the case [Sec 6, R.A. 8505

e. What is a sexual abuse shield?

The following evidence is not admissible in any criminal

proceeding involving alleged child sexual abuse:
1. Evidence to prove that the alleged victim engaged in other
sexual behavior; and
2. Evidence offered to prove the sexual predisposition of the
alleged victim [Sec 30, Rule on Examination of a Child
Witness]

Exception: 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. (Sec. 30, Rule on Examination
of a Child Witness

6. Is the Dead Man’s Statute Rule still applicable under the

revised rules on evidence?

No. Deleted
 7. Trial Objections (to testimonial evidence)

a. What is a leading question? Give an example.

A question which suggests to the witness the answer which the examining
party desires is a leading question.

Example: On direct examination, this leading question could be objected

to: “The car that you saw leave the scene of the robbery was blue, right?”
Instead, it should be asked: “What color was the car that you saw leaving
the scene of the robbery?”
b. What is an argumentative question? Give an example.
When the person asking cross-examination questions begins to argue
with the witness, known as “badgering the witness,” then the other party
can object to the questioning as argumentative.

Example:

 Opposing party’s attorney: “You are not afraid of my client,

correct?”
o You: “Yes, I am.”
 Opposing party’s attorney: “Oh come on, how can you be afraid of
a guy who weighs 120 lbs when you weigh 300 lbs?”
o You: “I am afraid of him no matter his weight.”
 Opposing party’s attorney: “Well, you didn’t look very afraid to me
when you walked into court today.”
o You: “Objection, Your Honor, argumentative.”

c. What is a compound question? Give an example.

A compound question is when two or more questions are combined as
one question. Compound questions are not allowed because they can
confuse the witness, the judge, and the jury. Also, it may not be clear for
the court record which of the questions the witness is answering.

If you find yourself asking a compound question, don’t get flustered with
the other party’s objection and skip the issue entirely. Just separate out
the questions, ask them one at a time, and they might then be allowed.

Example: Why did you go back into the house and what made you think
you it was a good idea to then take the children away?

d. What is a speculative question? Give an example.

The speculation objection can be used in two different situations. First, if

a witness does not know a fact to be true or not, but testifies about it
anyway, this testimony would be objectionable as speculation. A
 witness must have personal knowledge of a fact to testify about that fact
and put it into the court record.

Example: A witness could not testify that s/he thinks a person left the
house at 8:00 pm unless s/he actually saw the person leave the house,
or s/he has some other valid basis for that belief.

Second, if a question that is posed can only be answered by using

speculation, the question would be objectionable.

Example:

 Opposing attorney: “What do you think your sister was thinking

when she left?”
o You: “Objection, Your Honor, the question calls for
speculation.”

e. What is a misleading question? Give an example.

A misleading question is one which assumes as true a fact not yet testified to
by the witness, or contrary to that which he has previously stated. It is not
allowed in any type of examination.
Example:

Counsel: You testified that you and the accused were in a car bound for
Baguio city. How fast were you driving?

This question is objectionable as misleading where there was no previous

testimony from the witness that he was driving the car. The question assumes
a fact not yet in evidence.

f. When is a question said to be without any basis?

Di ko to sure hahahahaha

A common lack of foundation objection occurs when a party asks a question,

but has not shown the court why the witness is qualified to answer the
question. Basic foundations that need to be established before the question is
permissible might include personal knowledge and familiarity with the topic.

Lack of foundation objections can occur when the examining attorney is

going too fast and not asking preliminary questions to demonstrate the
witness’ familiarity with the facts.

Example #1 of Foundation Objections

Here is a sample foundation objection dialogue that might happen at trial:

Attorney: Are you a tennis player?

Witness: Yes.

Attorney: What percentage of a tennis ball is made of rubber?

Self-Represented Party: Objection. Lacks foundation.

Judge: Sustained.

In this lack of foundation example, there was no prior testimony establishing

that (1) rubber is used in the production of tennis balls; or (2) that the witness
has any knowledge regarding the manufacturing or composition of tennis
balls.

Why would he, based on what you have just read? All we know is that the
witness hits tennis balls — not manufactures them.

The attorney had not yet sufficiently laid a foundation for the question (in other
words, she was going too fast in her line of questions).

Example #2 of Foundation Objections

Now, let’s assume that the attorney resumes her line of questioning to lay a
proper foundation.

Attorney: Do you know what tennis balls are made of?

Witness: Yes.

Attorney: How do you know that?

Witness: Before retiring in April, I worked as a floor supervisor at a tennis ball

factory for 20 years.

Attorney: As part of your duties as a floor supervisor, were you involved in

supervising the manufacture of tennis balls?

Witness: Yes.

Attorney: Did you become familiar with the materials used to manufacture

tennis balls?

Witness: Yes.

Attorney: What materials are used to manufacture tennis balls?

Witness: Mainly rubber, with some wool.

Attorney: What percentage of a tennis ball is made of rubber?

Witness: I’d say about 85-90%.

See how she slowed down. Asked the right questions. And laid the legal
foundation to get the testimony she needed in her case.
When your opponent objects for lack of foundation, DO NOT PANIC!

Just back up and ask the necessary foundational questions.

g. What is the difference between laying the predicate

and laying the foundation?

“Laying the predicate” refers only to impeachment of a witness through prior

inconsistent statements, while “laying the foundation” refers to a situation
where evidence which is otherwise incompetent will be introduced into
evidence because it falls under the rules of exclusion. (E.g. under the best
evidence rule, a party must first prove that a writing was duly executed and
that the original has been lost or destroyed.) Without first laying the
foundation, secondary evidence will not be admitted by the court.