Dean Riano Evidence Notes Rosuello: Principle of Uniformity - Rules On Evidence Shall Be

DEAN
RIANO EVIDENCE NOTES ROSUELLO

EVIDENCE
DEAN WILLARD RIANO
admitted in a judicial proceeding where the Rules of Court are

CHAPTER I strictly observed.
PRELIMINARY CONSIDERATION Technical rules of procedure are not strictly applied in

administrative cases and administrative due process cannot be
A. BASIC PRINCIPLE fully equated with due process in strict judicial terms.
(RULE 128)
Reliance on technical rules of evidence in labor cases
CONCEPT OF EVIDENCE; TRUTH AS PURPOSE is misplaced. The application of the concept of judicial
Section 1. Evidence defined. — Evidence is the means, admission in such cases would be to exact compliance with
sanctioned by these rules, of ascertaining in a judicial technicalities of law that is contrary to demand of substantial
proceeding the truth respecting a matter of fact justice. (Mayon Hotel & Restaurant v Adana)
Not every fact having a conceivable connection to the Rules of evidence does not apply to the following:
issue of the case or that which provides a reasonable a. Board of Medicine (Atienza v Board of Medicine);
inference as to the truth or falsity of a matter alleged, is b. Civil Service Commission (CSC v Colanggo)
considered evidence. c. Naturalization (Ong Chia v Republic)
d. Non judicial proceeding (Sasan Sr. v NLRC);
To be considered evidence, it must be ‘sanctioned’ or e. Administrative or quasi-judicial proceeding (Bantolino
allowed by the Rules of Court (ROC). It is not evidence even if v Coca Cola Bottlers)
it proves the existence or non-existence of a fact in issue if law f. Labor arbiter (Cirtek Employees Labor Union v Cirtek
or the Rules exclude it. Electronics).
Evidence defined under the ROC as means of WHEN EVIDENCE IS REQUIRED; WHEN NOT REQUIRED
ascertaining the truth not in all types of proceeding, but only in a. Where no factual issue exist;
a judicial proceeding. b. Case presents only question of law;
c. Case is subject to judicial notice;
The purpose of evidence is to ascertain the truth d. Judgment on the pleading;
respecting a matter of fact in a judicial proceeding. e. When there is agreement of the parties regarding the
fact involved in the case;
Evidence is required because of the presumption that f. When law or rules presumes truth or facts;
the court is not aware of the veracity of the facts involved in a
case. It is, therefore, incumbent upon the parties to prove a ALPPLICATION OF THE RULES ON ELECTRONIC
fact in issue through the presentation of admissible evidence. EVIDENCE
Rules on electronic evidence have been amended in
While the purpose of evidence is to know the truth, 2012. As the rule now stand, it can be applied not only to all
the truth referred to is not necessarily the actual truth but one civil actions, quasi judicial proceedings and administrative
that is judicial or legal truth. Actual truth may not always be proceedings, but also to criminal actions.
achieved in judicial proceeding because the finding of the court
would depend on the evidence presented before it based on EVIDENCE IN CIVIL CASES DISTINGUISHED FROM
the accepted rules of admissibility. EVIDENCE IN CRIMINAL CASES
Civil Case Criminal Case
NOTE: Sec. 34 Rule 132 where the courts are not authorized Burden of proof is Guilt of the accused must be
to consider evidence which has not been formally offered. preponderance of evidence. proven beyond reasonable
doubt.
SCOPE AND APPLICABILITY OF RULES Offer of compromise is not an Except in quasi offense or
Section 2. Scope. — The rules of evidence shall be the same admission of any liability, and those allowed by law to be
in all courts and in all trials and hearings, except as otherwise is not admissible in evidence compromised, an offer of
provided by law or these rules. against the offeror. compromise by the accused
may be received in evidence
Principle of uniformity – Rules on evidence shall be as an implied admission of
the same in all courts and in all trials and hearing. guilt.
Presumption of innocence Accused enjoys the
The rules on evidence, being component of ROC, does not apply, except in constitutional presumption of
apply only to judicial proceedings. Thus, under Rule 1 Sec 4, some cases provided by law innocence.
rules on evidence shall not apply to NICOLE. (e.g. common carriers)
Administrative agencies are not bound by technical

rules of evidence. It can accept documents which cannot be
1
DEAN RIANO EVIDENCE NOTES ROSUELLO

DISTINCTION BETWEEN PROOF AND EVIDENCE required at the time of the commission of the offense in order
Proof is not evidence itself. There is proof only to convict the accused.
because of evidence. It is merely the probative effect of
evidence and the conviction or persuasion of the mid resulting
from a consideration of evidence. Evidence is the medium of WAIVER OF THE RULES OF EVIDENCE
proof. The rules on evidence may be waived. When an
otherwise objectionable evidence is not objected to, the
FACTUM PROBANS DISTINGUISHED FROM FACTUM evidence becomes admissible because of waiver. E.g. failure
PROBANDUM to object to hearsay evidence, the same becomes admissible.
Evidence signifies a relationship between: (a) the fact Parties may stipulate waiving the rules of evidence
or proposition to be established (factum probandum); (b) the subject to Article 6 NCC, so long as no law or principles of
fact or material evidencing the fact or the proposition to be morality, good customs and public policy are transgressed or
established (factum probans) no right of third persons are violated.
Factum probandum is the fact to be proved the fact Failure to object with respect to a privileged
which is in issue and to which the evidence is directed. Factum communication involving state secrets communicated to a
probans is the probative or evidentiary fact tending to prove public officer in official confidence should not be construed as
the fact in issue. waiver of the privileged character of the communication
because of public policy considerations as when the state
secret is one involving national defense and security.
Totality of evidence to prove the liability refers to
factum probans.
B. ADMISSIBILITY OF EVIDENCE
If factum probandum signifies the fact or proposition REQUISITES FOR THE ADMISSIBILITY OF EVIDENCE
to be established, then matters of judicial notice, conclusive Section 3. Admissibility of evidence. — Evidence is admissible
presumptions and judicial admission cannot qualify as parts of when it is relevant to the issue and is not excluded by the law
factum probandum, because such matters need not be of these rules.
established or proven.
For an evidence to be admissible, it must be relevant
Factum probandum in a civil case refers to elements and is not excluded by the rules.
of the cause of action from the point of view of the plaintiff and
the element of defense from the standpoint of the defendant. Wigmor’s two axioms of admissibility: (a) none but the
facts having rational probative value are admissible (axiom of
In criminal case, the factum probandum includes all relevance), and (b) that all facts having rational probative value
matters that the prosecution must proved beyond reasonable are admissible unless some specific rule forbids them (axiom
doubt in order to justify a conviction when the accused pleads of competence).
not guilty.
Thus, even if the evidence is relevant to the issue of
LIBERAL CONSTRUCTION OF RULES OF EVIDENCE existence or non-existence of the contract, it is inadmissible
Like all other provisions under the ROC, the rules on because it is excluded by law, hence, incompetent.
evidence must be liberally construed. (Sec. 6 Rule 1)
RELEVANT EVIDENCE
Procedural rules must be liberally interpreted and Under Sec.4 Rule 128, an evidence to be relevant
applied so as not to frustrate substantial justice. However, to must have such a relation to the fact in issue as to induce
justify relaxation of the rules, a satisfactory explanation and belief in its existence or non-existence.
subsequent fulfillment of the requirement have always been
required. Concept of relevance is clearly one of logic. It deals
with the rational relationship between the evidence and fact to
Rules on Electronic Evidence shall likewise be be proved. Evidence adduced should be directed to the matter
construed liberally. (Sec. 2 Rule 2 REE) in dispute and any evidence which has neither direct nor
indirect relationship to such matters must be set aside as
ABSENCE OF VESTED RIGHT IN RULES ON EVIDENCE irrelevant.
There is no vested right in the rules on evidence
because they are subject to change by the SC pursuant to its Matter of relevance requires the existence of fact in
power to promulgate rules concerning pleading, practice and issue. Fact in issue refers to the disputed fact. Thus, evidence
procedure. However, it is subject to constitutional limitation on offered to prove undisputed fact is irrelevant and inadmissible.
the enactment of ex post facto law.
Where there is no issue as to matter of fact, there
Ex post facto law includes that which alters the rules exist no purpose for an item of evidence.
on evidence and receives less or different testimony than that
2

TEST FOR DETERMINING RELEVANCY OF EVIDENCE NOTE: Objection that an evidence is incompetent is not an
The test is one of logic, common sense and accepted form of objection (must specify a ground – either
experience. The existence of relationship between fact in issue leading, hearsay, parol, etc.)
and the offered evidence is one that is perceived only by the
mind without reference to a statute or law. Thus, matter of COMPETENCE OF ELECTRONIC EVIDENCE
relevance rests largely at the discretion of the court. Electronic evidence is competent evidence and is
admissible if it complies with the rules on admissibility
COLLATERAL MATTERS prescribed by the ROC and related laws, and is authenticated
Section 4. Relevancy; collateral matters. — Evidence must in manner prescribed by the REE.
have such a relation to the fact in issue as to induce belief in
its existence or non-existence. Evidence on collateral matters ADMISIBILITY AND WEIGHT (PROBATIVE VALUE) OF
shall not be allowed, except when it tends in any reasonable EVIDENCE
degree to establish the probability or improbability of the fact in Admissibility of evidence refers to the question of
issue. whether or not the evidence is to be considered at all.
Probative value of evidence refers to the question of whether
A matter is collateral when it is on a parallel or or not it proves an issue.
diverging line; merely additional or auxiliary. Connotes
absence of direct connection between the evidence and matter Admissibility of evidence should not be equated with
in dispute. weight of the evidence. The admissibility of the evidence
depends on its relevance and competence, while weight of
It is not allowed because it does not have direst evidence pertains to its tendency to convince and persuade.
relevance to the issue of the case. However, a collateral matter
may be admitted if it tend in any reasonable degree to MULTIPLE ADMISSIBLITY
establish the probability or improbability of the fact in issue. Multiple admissibility is one where proffered evidence
is admissible for two or more purposes. (E.g. a dying
A collateral matter will be admitted if it has the declaration may be admitted as as part of res gestae or a
tendency to induce belief as to probability or improbability of declaration against interest.)
the issues of case as when it would have the effect of
corroborating or supplementing facts previously established by Evidence may be inadmissible for one purpose but
direct evidence. (Example of collateral matters – character admissible for another or vice versa. (E.g. Person’s bad
under Sec. 51 Rule 130) general reputation for truth, honesty and integrity is
inadmissible to prove that a person committed the crime
RULES OF EVIDENCE ON THE CREDIBILITY OF WITNESS charge but admissible to impeach the credibility of witness)
Evidence on the credibility of a witness, or the lack of
it, is always relevant – tends to prove or disprove the Evidence may also be admissible against one party
truthfulness of his assertion and the probative value of the but not against another. (E.g. Extrajudicial statement is not
proffered evidence. admissible against co-accused under res inter alios acta)
NOTE: Every type of evidence sought to be admitted, whether A private document may be offered as both
object or document, requires testimony of a witness who shall documentary and object evidence. If offered to prove its
identify, testify and affirm or deny the authenticity of the existence, condition or for any purpose other than content
evidence. Thus, we have the rules to test credibility of a thereof, it is considered as object evidence. If offered as proof
witness, presence or lack of it, thru cross-examination and of its content, it is documentary evidence.
impeachment.
CONDITIONAL ADMISSIBILITY
COMPETENT EVIDENCE When relevance of a piece of evidence is not
Competent evidence is one that is not excluded by apparent at the time it is offered, but the relevance of which will
law or rules in a particular case. readily be seen when connected to other pieces of evidence
not yet offered, the evidence may be conditionally admitted,
Test of competency is based on law or rules subject to the condition that its relevancy and competency will
(compare to that of relevance which is logic or common later be established.
sense).
If the connection is not shown as promised, the court
If a particular rule or law excludes the evidence, it is may, upon motion of the adverse party, strike out from the
incompetent. Thus, competence is a matter of law. record the evidence previously conditionally admitted.
Competence in general refers to the eligibility of an CURATIVE ADMISSIBLITY

evidence to be received as such. However, when applied to a Curative admissibility allow a party to introduce
witness. Competence refers to qualifications of the witness – otherwise inadmissible evidence to answer the opposing
his eligibility to take the stand and testify. party’s previous introduction of inadmissible evidence if it
would remove any unfair prejudiced caused by the admission
of the earlier inadmissible evidence.
3

NOTE: Conviction by circumstantial evidence requires no less
Curative admissibility should not be made to apply than poof beyond reasonable doubt, same as that of direct
where the evidence was admitted without the object because evidence.
the failure to object constitutes a waiver of the inadmissibility of
the evidence. Where the evidence admits two interpretations, one of
which consistent with guilt and other with innocence, the
NOTE: In our jurisdiction, inadmissible evidence not objected accused must be acquitted. (People v Corpuz)
to become admissible.
It is only where the objection was incorrectly

overruled that the court should allow the other party to CUMULATIVE EVIDENCE AND CORROBORATIVE
introduce evidence to contradict the evidence improperly EVIDENCE
admitted in order to cure the prejudice caused to the other Cumulative evidence refers to evidence of the same
party. kind and character as that already given and tends to prove
the same proposition.
Curative admissibility does not apply if it appears that
the party seeking to invoke it intentionally or negligently failed Corroborative evidence is one that is supplementary
to object to the inadmissible evidence in order to gain to that already given tending to confirm, strengthen or validate
admission later of his inadmissible evidence. it; an additional evidence of different character proving the
same point or fact.
DIRECT AND CIRCUMSTANTIAL EVIDENCE
Direct evidence proves a fact without the need to In our jurisdiction, corroborative evidence covers also
make an inference from another fact. Circumstantial evidence evidence of the same kind as that already proffered so long as
(indirect evidence) is that evidence which indirectly proves a it affirms the previous evidence. In this sense, corroborative
fact in issue through an inference drawn from the evidence evidence is the same as cumulative evidence.
already established.
Corroborative evidence is not always required.
CONVICTION BY CIRCUMSTANTIAL EVIDENCE Testimony of a sole eyewitness is sufficient to support a
Direct evidence is not indispensable to prove a crime conviction so long as it is clear, straightforward and worthy of
charged. It may be proved by circumstantial evidence. credence.
Even in the absence of direct evidence, conviction Corroborative evidence is required only when there
can be had if the established circumstance constitute an are reasons to suspect that a witness falsified the truth or that
unbroken chain, consistent with each other and to the his observation are inaccurate. (Mangangey v Sandiganbayan)
hypothesis that the accused is guilty, to the exclusion of all
other hypothesis that he is not. Under the Rules on Examination of a Child Witness
(RECW), corroboration shall not be required of a testimony of
Circumstantial evidence applies when no witness saw a child. His testimony, if credible by itself, shall be sufficient to
the commission of the crime. To be sufficient for conviction, the support a finding of fact, conclusion or judgment subject to the
following must concur: standard of proof required in a criminal and non-criminal
a. There is more than one circumstance; cases. (Sec. 22 RECW)
b. The fact from which the inference are derived are
proven; and POSITIVE AND NEGATIVE EVIDENCE
c. The combination of all the circumstances is such as Positive evidence is one where a witness affirms in
to produce a conviction beyond reasonable doubt. the stand that a certain state of facts does exist or that a
certain event happened. On the other hand, a negative
The above circumstances must constitute an evidence is where a witness states that an event did not occur
unbroken chain that inexorably leads to one fair conclusion: or that the state of facts alleged to exist does not actually exist.
the accused committed the crime to the exclusion of all others.
(People v Deocampo) Positive or negative evidence may also refer to the
presence or absence of something.
The circumstances must point unerringly to the
direction of guilt and mere suspicions, probabilities or NOTE: Positive and negative evidence are normally
suppositions do not warrant a conviction. (People v Pascual) associated to testimonial evidence.
[Reason: Proof beyond reasonable doubt is required]
A denial is a negative evidence, considered to be
In conviction based on circumstantial evidence, weak form of defense and can never overcome an affirmative
totality of circumstances must eliminate beyond reasonable or positive testimony. It is negative and self-serving which
doubt the possibility of innocence. cannot be given greater weight than testimony of credible
witnesses who testified on affirmative matter. To be believed, it
must buttressed by strong evidence of non-culpability,
4

otherwise it is purely self-serving and no evidentiary value. In People v Navarro, the recorded altercation is not a
(See People v Maliksi and Tan v Pacuribot) private communication since the heated discussion occurred in
the presence of other persons, it could not be private.
Mere denial, not properly corroborated or
substantiated by clear and convincing evidence, cannot prevail Sec. 1 of AWL enumerates modes of recording which
over testimony of credible witnesses who testified on include: (a) tapping any wire or cable; (b) using Dictaphone,
affirmative matters. dictagraph, detectaphone, walkie-talkie, tape recorder, any
device otherwise described; in Ganaan v IAC, a telephone
Greater probative value is given to evidence that is extension line cannot be placed under the category of the
positive than that of negative in character. (Republic v enumerated devices. (Telephone party lines were deleted from
Bautista); Reason: witness who testifies to a negative may the final provision of the law)
have forgotten what actually occurred, while it is impossible to
remember what never existed. (Gomez v Gomez-Samson) A person, though not participating in the acts
mentioned, can be made liable if he knowingly possess any
ADMISSIBLE EVIDENCE AND CREDIBLE EVIDENCE tape record, wire record, disc record, or any such record or
Evidence is admissible when it is relevant to the issue copies thereof of any communication, spoken word secured or
and is not excluded by law or rules. However, an admissible obtained in a manner violative of law; so anyone who willfully
evidence is not necessarily credible evidence. or knowingly aid, permit or cause to be done the acts
described.
Admissible means that evidence is of such character
that the court, pursuant to rule, is bound to receive or allow to It is also unlawful to replay the same to any other
be introduced in trial. Credibility, on the other hand, refers to person; or to communicate the contents thereof, verbally or in
believability or the that quality which renders a one worthy of writing, to other; also is furnishing of transcript of the recorded
belief. communication, whether complete or partial.
NOTE: Admissibility of evidence is not necessarily credible Acts mentioned as punishable would not constitute a
evidence. Admissibility is on thing and credibility is another. violation of law if done by a peace officer authorized by a
written order of the court in cases involving (a) treason; (b)
INADMISSIBLE EVIDENCE UNDER THE ANTI- espionage; (c) provoking war and disloyalty in case of war; (d)
WIRETAPPING LAW (RA 4200) [AWL] piracy; (e) mutiny in high seas; (f) rebellion, including
Evidence obtained in violation of AWL shall not be conspiracy, inciting and proposal to commit such; (g) sedition,
admissible in evidence in the following proceedings: (a) including conspiracy and inciting to such; (h) kidnapping; (i)
judicial; (b) quasi-judicial; (c) legislative; or (d) administrative other offenses against national security.
hearing or investigation. (Sec. 4)
SURVEILLANCE OF SUSPECTS, INTECEPTIONS AND
NOTE: Admissibility of wire-tapped recordings in impeachment RECORDING OF COMMUNICATIONS UNDER THE HUMAN
proceeding is not well-settled. However, if the nature of SECURITY ACT OF 2007 (RA 9372)
impeachment as sui generis, by CJ PUNO, is to be adopted, A police or law enforcement official may listen to,
there is no reason to prevent the admissibility of illegally intercept and record, any communication, message,
procured recordings in an impeachment case since it is not conversation, discussion, or written or spoken words between
among those enumerated. the following:
a. Members of a judicially declared and outlawed
The evidence considered inadmissible are: (a) any terrorist organization, association, or group of
communication or spoken word; (b) the existence, contents, persons; or
substance, purport or meaning of the communication or b. Any person charged or suspected of the crime of
spoken word, or any part thereof; or (c) any information terrorism or conspiracy to commit such. (Sec. 7)
contained, obtained, or secured by any person in violation of
Secs. 1,2 and 3 of AWL. Officer may the interception or recording with the use
of any mode, form, kind, or type of electronic or other
AWL does not consider it unlawful to record open and surveillance equipment or interception or tracking devices, or
public communications. What the law protects are private with the use of any other suitable ways and means for that
conservations and communications. It is considered unlawful purpose. (ibid.)
to (a) secretly overhear; (b) intercept; (c) record private
communication or spoken word when doing so is without the Any of the above acts may not be done without a
authority of all the parties to such private communication. written order of the CA, which shall be granted only upon
written application by police or law enforcement official. The
If only one party authorizes the recording, there is still latter must be one who is authorized by the Anti-Terrorism
a violation of the law. The subject communication is Council to fule such application. (Note: application is an ex
inadmissible. parte)
5

Before the order is issues, the applicant and the Whatever is repugnant to the standards of human
witnesses he may produce shall be examined under oath or knowledge, observation and experience becomes incredible
affirmation to establish the following matters: and must lie outside judicial cognizance. (People v De
a. Probable cause to believe based on personal Guzman)
knowledge that a crime of terrorism or conspiracy to
commit such has been committed, or being Credibility of witnesses is matter best examined by,
committed, or about to be committed; and left to, trial court, who can weigh such testimonies in light
b. Probable cause to believe that based on personal of witnesses’ demeanor and manner of testifying, and who is in
knowledge, evidence essential to the conviction of the a unique position to discern between truth and falsehood.
charge or suspected persons, or evidence that would (People v Cardenas; People v Gustafsson; People v Rubio;
solve or prevent the crime, will be obtained; and People v Penilla)
c. There is no other effective means readily available for
acquiring such evidence. (Sec. 8) Where the trial judge did not hear the testimonies
himself, he would not be in a better position than the SC to
Authorization by the CA shall be effective for the assess the credibility of witnesses on the basis of their
period specified in the written order which shall not exceed 30 demeanor. (BPI v Reyes)
days from the date of receipt of the written order by the
applicant, renewable for a non-extendible period of 30 days Appellate court will not overturn findings of trial court
from the expiration of the original period upon proper unless the trial court overlooked, misunderstood or misapplied
application. (Sec. 10) some facts or circumstances of weight and substance which
will alter the assailed decision or affect the result of the case.
The authorization, order of extension and application The rule finds an even more stringent application where said
filed, including authorization of Anti-Terrorism Council are findings are sustained by the CA. (People v Cerilla; People v
classified information. Aquilar; Ingal v People)
The person under surveillance or whose Minor inconsistencies in the narration of facts by the
communications are intercepted has the right to be informed of witnesses do not detract from their essential credibility as long
the acts done by the law enforcement authorities, or challenge as their testimonies on the whole are coherent and intrinsically
the legality of the interception before the CA which issued the believable. (People v Camat)
written order. (Sec. 9)
Discrepancies between the statements of the affiant
INADMISSIBLE EVIDENCE IN CONNECTION WITH in his affidavit and those made on the stand do not necessarily
ARREST, SEARCHES AND SEIZURE discredit the witness since ex parte affidavits are generally
In People v Aminnudin, an evidence is inadmissible incomplete and subordinate in importance to testimony in open
when there is legal infirmity in the arrest for noncompliance court. (People v Angelio)
with the requisites of in flagrante delicto exception.
Discrepancies or inconsistency in the testimony of a
Reliable information alone, absent any overt act witness to serve as basis for acquittal must refer to significant
indicative of a felonious enterprise in the presence and within facts vital to the guilt or innocence of the accused [e.g.
the view of arresting officers is not sufficient to constitute elements of the crime]. (People v Mangundayao)
probable cause that would justify an in flagrante delicto arrest.
(People v Molina) Inconsistencies on minor details or collateral matters
are badges of veracity and manifestations of truthfulness due
In order to determine the admissibility of the seized to their tendency of demonstrating that the testimony had not
items in evidence, it is indispensable to ascertain whether or been rehearsed or concocted. (People v Sabadlab)
not the search was lawful. The warrantless search is justified
only if it were incidental to lawful arrest. For Rape Cases:
a. Youth and immaturity are generally badges of truth
The conclusion of the trial court that the warrantless and sincerity. No sane girl would concoct a story of
arrest was illegal, ipso jure renders warrantless search defloration, allow an examination of her private parts
incidental to the illegal arrest unlawful. ( People v Laguio Jr.) and subject herself to public trial or ridicule is she has
no, in truth, a victim of rape;
SOME JURISPRUDENTIAL TENETS ON PROBATIVE b. Sole testimony of the victim, so long as her testimony
VALUE AND CREDIBILITY meets the test of credibility, may serve as basis for
Evidence, to be worthy of credit, must not only conviction of the accused. (People v Rubio);
proceed from a credible source but must also be credible in it c. When the victim’s testimony is plausible,
self; must be natural, reasonable and probable as to make it spontaneous, convincing and consistent with human
easy to believe; value of evidence is weigh in conformity to nature and ordinary course of things, it can beget
knowledge and common experience of mankind. (Serra v moral certainty of guilt of her violator. (People v
Mumar) Santos);
d. In relation to the constitutional presumption of
innocence – It is not enough to say the a girl would
6

not expose herself to the humiliation of rape Absence of proof of motive to falsely impure a serious
complaint unless the charge is true. For the crime against the accused, the presumption of regularity in the
prosecution to succeed, it is also necessary that the performance of official duty shall prevail. (People v Almodiel)
complainant’s story is by itself believable independent
of the presumption. (People v Domogoy); The defense of frame-up is not looked upon with favor
e. Ill motives becomes inconsequential if there is an due to its being conveniently concocted. Failure of the accuse
affirmative and credible declaration from the rape to formally charge the policemen for the supposed frame-up
victim which clearly established a liability against the and extortion can be regarded as tacit admission that the
accused. (People v Navarette Jr.) evidence had not been tampered or meddled with. (People v
Bautista; People v Velasquez)
In assessing frame-up, the court need also consider
C. MISCELLANEOUS DOCTRINES the evidence of the prosecution. The rule requiring a claim of
frame-up to be supported by clear and convincing evidence
FALSUS IN UNO, FALSUS IN OMNIBUS was never intended to shift to the accused the burden of proof
Falsus in uno, falsus in omnibus means “false in one in a criminal case. (Agustin v People)
thing, false in everything; if the testimony of a witness on a
material issue is willfully false and given with an intention to DELAY AND INITIAL RELUCTANCE IN REPORTING A
deceive, the jury may disregard all the witness’ testimony. CRIME
Delayed reporting by witnesses of what they know
The doctrine is not strictly applied in this jurisdiction. about a crime does not render their testimonies false or
Before the maxim can be applied, the witness must be shown incredible; it is explained by the natural reticence of most
to have willfully falsified the truth on one or more material people and their abhorrence not to get involved in a criminal
points; it presupposes the existence of positive testimony on a case, also is the fear of reprisal. (People v Navarro)
material point contrary to subsequent declaration in the
testimony. (Northwest Airline v Chiong) NOTE: Natural reluctance of a witness to get involved in a
criminal case, as well as to give information to the authorities is
The doctrine is not a positive rule of law and should a matter of judicial notice. (ibid.)
not be applied to portions of the testimony corroborated by
other evidence. (People v Negosa; People v Pacapac) Deference or reluctance in reporting does neither
destroy the truth of the charge nor an indication of deceit.
ALIBI; DENIAL (People v Cabtalan)
Alibi is inherently weak and must be rejected when
the identity of the accused is satisfactorily and categorically Only when delay is unreasonable or unexplained may
established by eyewitnesses to the offense, especially when it work to discredit the complainant. (People v Navarette, Jr.)
such witness have no ill-motive to testify falsely. (People v
Viojela) Delay in reporting an incident of rape – it is possible
that the victim go through a “state of denial” to cope with the
Alibi crumbles in the light of positive identification by overwhelming emotional stress of an extremely shocking
truthful witnesses. (People v Camat) event. (People v Maglente); or because of the effect of fear or
intimidation instilled in the victim’s mind(People v Lantano); or
NOTE: Two types of positive identification: (a) by direct threats and public ridicule (People v Ortoa); or fear of reprisal
evidence, through an eyewitness to the very commission of the and social humiliation (People v Satioquio).
crime; and (b) by circumstantial evidence, such as where the
accused is last seen with the victim immediately before or after FLIGHT OR NON-FLIGHT OF THE ACCUSED
the crime. (People v Villarico) Fact that appellant never fled the locality where the
crime was committed is not a valid defense because it does
ALIBI; NOT ALWAYS FALSE not signify innocence.
An alibi may serve as basis for acquittal if it can really
be shown by clear and convincing evidence that it was indeed Non-flight cannot prevail against the weight of positive
physically impossible for the accused to be at the scene of the identification of the appellants. (People v Dacibar)
crime at the time of its commission. (People v Cacayan)
Flight per se is not synonymous with guilt and must
NOTE: The burden of proof still lies in the prosecution to not always be attributed to one’s consciousness of guilt. It is
establish the guilt of the accused. not a reliable indicator of guilt absent of other circumstances
because it is inherently ambiguous. (Valdez v People)
FRAME-UP
For the claim of frame-up to prosper, the defense However, where the accused escaped from detention
must adduced clear and convincing evidence to over come the during the pendency of the case, flight was considered as an
presumption that the government officials have performed their indication of guilt. (People v Isang)
duties in a regular and proper manner.
When flight is unexplained, it is a circumstance from
which an inference of guilt may be drawn. “The wicked flee
7

when no man pursueth, but the innocent are as bold as a lion.”
(People v Camat)
8

CHAPTER II presumed in case of death or injury of a passenger. (Art. 1756
NCC); defendant has the burden to show that he observed the
BURDEN OF PROOF, QUANTUM OF EVIDENCE AND extraordinary diligence required by law.
PRESUMPTIONS
However, in Calalas v CA; FGU Insurance v G. P.
A. BURDEN OF PROOF AND BURDEN OF EVIDENCE Sarmiento Trucking, it is the breach of contract of carriage
(RULE 131) which the plaintiff has to prove, not the negligence.
Specifically, in Viloria v Continental Airlines, the plaintiff need
BURDEN OF PROOF to prove (a) existence of the contract, and (b) fact of non-
Section 1. Burden of proof. — Burden of proof is the duty of a performance by the carrier.
party to present evidence on the facts in issue necessary to
establish his claim or defense by the amount of evidence The burden of proof that a debt was contracted lies
required by law. with the creditor-plaintiff. Ei incumbit probation qui dicit, non
qui negat – he who asserts, not he who denies, must prove
Burden of proof (onun probandi) refers to the (Homeowners Savings and Loan Bank v Dailo).
obligation of a party to a litigation to persuade the court that he
is entitled to relief. Termination cases – the burden life upon employer to
show that the dismissal is for a valid and just cause, otherwise
The burden of proof lies with the party who asserts the dismissal is illegal. A dismissed employee is not required to
his right. Thus, in a counter-claim, the burden lies with the prove his innocence of the charge leveled against him by his
defendant. employer (Philippine National Construction Corp v Mandagan);
defense of resignation, still the employer must prove that the
He who asserts the affirmative of the issue has the employee voluntarily resigned.
burden of proof to obtain a favorable judgment.
Administrative proceedings – burden of proof that the
One who denies the due execution of a deed where respondent committed the acts complained of rest on the
one’s signature appears has the burden of proving that one complainant.
never appeared before the notary public and acknowledge the
deed to be a voluntary act. (Chua v Westmont Bank) TEST FOR DETERMINING WHERE BURDEN OF PROOF
LIES
Quasi delict – the plaintiff has the burden to prove The test is to ask which party to the action or suit will
that the fault or negligence of the defendant is the proximate fail if he offers no evidence competent to show the facts
cause of the injuries he sustained; defendant has the burden to averred as the basis for the relief he seeks to obtain.
prove that the injuries were caused by third person or a caso
fortuito. The burden of proof rest with the party who wants to
establish a legal right in his favor; burden is on the part of the
Action based on contract – plaintiff has the burden of party who makes the allegations - Ei incumbit probation qui
proving existence and execution of contract, obligation of the dicit, non qui negat.
defendant and his breach thereof.
WHERE BURDEN OF PROOF IS FIXED
Action for sum of money –plaintiff has the burden of The burden of proof is fixed by the pleadings. The
proving the existence of debt, and non-payment thereof claim of the plaintiff or the defense of the defendant is spelled
despite demand or after due date of the obligation. out in his complaint or answer to the complaint, respectively.
The burden of proof of both parties does not shift during the
Intervention – plaintiff has the burden to prove his course of the trial.
legal interest in the matter in litigation or that he is so situated
as to be adversely affected by any distribution or disposition of BURDEN OF EVIDENCE
property in custody of the court. Burden of evidence is the duty of a party to go
forward with the evidence to overthrow the prima facie
Civil cases – plaintiff has the burden of proving the evidence against him. The burden of going forward with the
material allegations of the complaint when those are denied in evidence may shift from one side to the other as the
the answer; defendant has burden with regard to new matters exigencies of the trial requires. This duty is also called the
introduced; generally – he who alleges a fact has the duty to burden of coming forward with the evidence.
establish his case by preponderance of evidence.
When the accused admits killing the victim, but
NOTE: It is inaccurate to state that the burden of proof rest pleads self-defense, the burden of evidence is shifted to him to
solely on the shoulders of the plaintiff. By virtue of Sec. 1, is prove such defense by clear, satisfactory and convincing
the duty of the party to present evidence not only to establish a evidence that excludes any vestige of criminal aggression on
claim but also a defense. his part.
Common carriers – the passenger plaintiff does not

have the burden of proving carrier’s negligence since it is
9

BURDEN OF PROOF VS BURDEN OF EVIDENCE Presumption of fact is when the assumption is made
Burden of proof is the obligation of the party to from the fact without any direction or positive requirement of a
present evidence on the fact in issue necessary to establish law. (E.g. A attack B without provocation, the logical
his claim or defense by amount of evidence required by law. presumption arises that A does not have tender feelings
Burden of evidence is the duty to go forward with evidence to towards B. A presumption of fact is a mere inference because
overthrow any prima facie presumption against him. it does not necessarily give rise to a legal effect)
EQUIPOISE RULE OR EQUIPONDERANCE DOCTRINE EFFECT OF PRESUMPTION

Equipoise rule refers to a situation where the A party in whose favor the legal presumption exists
evidence of the parties is evenly balanced, or there is doubt on may rely on and invoke such legal presumption to establish a
which side the evidence preponderates or weighs more fact in issue without the need to introduce evidence to prove
heavily. In such case, the decision should be against the party such fact.
with the burden of proof (in civil cases).
MEANING OF CONCLUSIVE PRESUMPTION
In criminal case, the equipoise rule provides that A presumption is conclusive (presumptions juris et de
where the evidence is evenly balanced, the constitutional jure) when the presumption becomes irrebuttable upon the
presumption of innocence tilts the scales in favor of the presentation of evidence and any evidence tending to rebut the
accused. In dubio pro reo. When moral certainty as to presumption is inadmissible, no matter how strong.
culpability hangs in the balance, acquittal on reasonable doubt
inevitably becomes a matter of right. In essence, a conclusive presumption is not a
presumption at all but a substantive rule of law directing the
In labor cases, if doubt exist between the evidence proof of certain facts conclusively proves an additional fact
presented by the employer and employee, the scale of justice which cannot be rebutted.
must be titled in favor of the latter. (Mayon Hotel & Restaurant
v Adana) MEANING OF DISPUTABLE PRESUMPTION
A presumption is disputable (presumption juris
B. PRESUMPTIONS tantum) or rebuttable presumption if it may be contradicted or
(RULE 131) overcome by other evidence. Under Rule 131, disputable
presumptions are satisfactory, if uncontradicted, but may be
CONCEPT OF PRESUMPTIONS contradicted and overcome by other evidence. Thus, when
Presumption is an assumption of fact resulting from evidence that rebuts the presumption is introduced, the force
rule of law which requires such fact to be assumed from of the presumption disappears.
another fact or group of facts found or otherwise established in
the action; an inference of the existence or non-existence of a CONCLUSIVE PRESUMPTION UNDER THE ROC
fact which courts are permitted to draw from proof of other Section 2. Conclusive presumptions. — The following are
facts. instances of conclusive presumptions:
(a) Whenever a party has, by his own declaration, act,
Presumptions are not evidence. They merely affect or omission, intentionally and deliberately led to
the burden of offering evidence. In a sense, it is another to believe a particular thing true, and to act
upon such belief, he cannot, in any litigation arising
INFERENCE DISTINGUISHED FROM A PRESUMPTION out of such declaration, act or omission, be permitted
Inference is a factual conclusion that can rationally be to falsify it:
drawn from other facts. It is a result of the reasoning process. (b) The tenant is not permitted to deny the title of his
It need not have a legal effect because law does not mandate landlord at the time of commencement of the relation
it. The fact finder is free to accept of reject the inference. of landlord and tenant between them
Presumption, on the other hand, is a rule of law directing that if
a party proves certain facts at the trial or hearing, the fact The conclusive presumptions under the ROC are
finder must also accept an additional fact (presumed fact) as based on the doctrine of estoppel. Under this doctrine, the
proven unless sufficient evidence is introduced tending to rebut person making the representation cannot claim benefit from
the presumed fact. the wrong he himself committed. (Phil. Pryce Assurance Corp.
v CA)
KINDS OF PRESUMPTION
Presumptions are classified into presumption of law The first conclusive presumption is referred to as
(Presumption juris) or presumption of fact (Presumption estoppel in pais or estoppel by conduct.
hominis). Presumption of law is, in turn either conclusive or
disputable. ESTOPPEL
Estoppel is an equitable principle rooted upon natural
Presumption of law is an assumption which the law justice, prevents persons from going back on their own acts
requires to be made from a set of facts. (E.g. presumption of and representations, to the prejudice of others who have relied
innocence of the accused) on them.
10

The doctrine of estoppel is based upon the ground of deceased owner of the property. As administrators, the lessors
public policy, fair dealings, good faith, and justice, and its were not actually parties to the lease agreement. (Consumido
purpose is to forbid one to speak against his own act, v Ros)
representations, or commitments, to the injury of one to whom
they are directed and who reasonably relied thereon. DISPUTABLE PRESUMPTION UNDER THE ROC
See Sec 3 Rule 131 for complete list.
In relation to the party estopped, the essential
elements are: A significant example of disputable presumption is
a. Conduct amounting to false representation or Sec. 3[m], that “official duty has been regularly performed.
concealment of material facts; or at least calculated to
convey the impression that the facts are otherwise In cases involving violations of Dangerous Drugs Act,
than, and inconsistent with, those which the party credence must be given to police officers for they are
subsequently attempts to assert; presumed to have performed their duties in a regular manner.
b. Intent, or at least expectation, that this conduct shall Absence of evidence showing the contrary suggesting ill
be acted upon by, or at least influence, the other motive of the part of the office or deviation from the regular
party; and performance of their duties, the presumption stands. (People v
c. Knowledge, actual or constructive, of the real facts. Bautista)
On the other hand, in relation to the party claiming the Mere allegations of frame-up or extortion, without
estoppel, the essential elements are: clear and convincing evidence to support the same, are
a. Lack of knowledge and of the means of knowledge of deemed not sufficient to rebut the presumption of regularity in
the truth as to the facts in question; the performance of official duty. (People v Clarite)
b. Reliance in good faith upon the conduct or statement
of the party to be estopped; Presumption of regularity of court proceedings
c. Action or inaction based thereon of such character as includes presumptions of regularity of service of summons. It is
to change the position or status of the party claiming incumbent upon the party questioning the validity of the service
the estoppel, to his injury, detriment or prejudice. to rebut the presumption. The return is prima facie proof of the
facts indicated therein. (Masagana Concrete Products v
An essential element of estoppel is that the person NLRC)
invoking it has been influenced, or relied on the representation
or conduct of the person sought to be estopped. The presumption does not apply in a petition for writ
of amparo. Under Section 17 of the Rule on the Writ of
Because of the conclusive presumption under Section Amparo, the “respondent public official or employee cannot
2b Rule 131, the ROC sufficiently shields the lessor from being invoke the presumption that official duty has been regularly
questioned by the lessee, regarding its title or better right of performed to evade responsibility or liability.”
possession as lessor because having admitted the existence
of lessor-lessee relationship, the lessee is barred from Presumption of regularity of official acts does not
assailing the lessor’s title of better right of possession. apply to in-custody investigation. The confession of the
accused, if made without the assistance of counsel is
As long as the lessor-lessee relationship between the inadmissible in evidence regardless of absence of coercion or
parties exists, the lessee cannot, by any proof, however even if had been voluntarily given. (People v Camat)
strong, overturn the conclusive presumption that the lessor has
valid title to or better right of possession to the subject leased Presumption of innocence of the accused prevails
premises that it has. (Datalift Movers Inc v Belgravia Realty & over the presumption that law enforcement agents were in the
Development Corporation) regular performance of their duty. Evidence of guilt beyond
reasonable doubt, and nothing else, is required to erase all
The lessees are estopped to deny their landlord’s title doubt as to the culpability of the accused. (Zafra v People)
or assert better title not only to themselves, but also in some
third person while they remain in possession of the leased The presumption of regularity of the performance of
premises and until they surrender possession to the landlord. official duty must be seen in the context of an existing rule of
law or statute authorizing the performance of an act or duty or
This estoppel applies even though the lessor had no procedure in the performance thereof. The presumption, in
title at the time the relation of lessor and lessee was created, other words, obtains only where nothing in the record is
and may be asserted not only by the original lessor, but also suggestive of the fact that the law enforcers involved deviated
by those who succeed to his title. (Golden Horizon Realty v Sy from the standard conduct of official duty as provided for in the
Chuan); the relationship of the parties does not depend on the law.
former’s title but on the agreement between the parties.
Where official conduct in question is irregular on its
However, a lessor-respondent cannot claim estoppel face, an adverse presumption arises as a matter of course.
against the lessee where they knew fully well that they were Thus, where the buy-bust team deviated from the mandated
accepting rentals from the latter in their capacity as mere conduct of taking post-seizure custody of the dangerous drugs
administrator of the leased premises or only on behalf of the
11

confiscated, there is no way to presume that members thereof Presumption of innocence is enjoyed until final
had performed their duties regularly. (People v Obmiranis) conviction and in this regard, the prosecution’s case must rise
and fall on its own merits and cannot draw its strength from the
EXAMPLES OF DISPUTABLE PRESUMPTIONS weakness of the defense. (People v Mingming)
(a) That a person is innocent of crime or wrong;
(b) That an unlawful act was done with an unlawful intent; The presumption the evidence when willfully
(c) That a person intends the ordinary consequences of his suppressed would be adverse if produced, does not apply if (a)
voluntary act; the evidence is at the disposal of both parties; (b) that
(d) That a person takes ordinary care of his concerns; suppression is not willful; (c) it is merely corroborative or
(e) That evidence willfully suppressed would be adverse if cumulative; and (d) the suppression is an exercise of a
produced; privilege such as it is covered by the privileged communication
(f) That money paid by one to another was due to the latter; (Blue Cross Health Care, Inc. v Olivares)
(g) That a thing delivered by one to another belonged to the
latter; Every statute has in its favor the presumption of
(h) That an obligation delivered up to the debtor has been paid; constitutionality. This presumption is rooted n the doctrine of
(i) That prior rents or installments had been paid when a separation of powers which enjoins upon the three coordinate
receipt for the later one is produced; departments of the government a becoming courtesy for each
(j) That a person found in possession of a thing taken in the other’s act. The theory is that every law, being a joint act of the
doing of a recent wrongful act is the taker and the doer of the legislature and the executive, has passed careful scrutiny to
whole act; otherwise, that things which a person possess, or ensure that it is in accord with the fundamental law. The court
exercises acts of ownership over, are owned by him; may declare a law or portions thereof unconstitutional where a
(k) That a person in possession of an order on himself for the petitioner has shown a clear and unequivocal breach of the
payment of the money, or the delivery of anything, has paid the Constitution, not merely doubtful or argumentative one. In
money or delivered the thing accordingly; other words, the grounds for nullity must be beyond
(l) That a person acting in a public office was regularly reasonable doubt, for to doubt is to sustain. (Cawaling v
appointed or elected to it; COMELEC)
(m) That official duty has been regularly performed;
(n) That a court, or judge acting as such, whether in the For further discussion on different disputable
Philippines or elsewhere, was acting in the lawful exercise of presumption, read pages 118 – 130 of RIANO :3
jurisdiction;
(o) That all the matters within an issue raised in a case were PRESUMPTION OF DEATH
laid before the court and passed upon by it; and in like manner Absence of seven (7) years – if it is unknown whether
that all matters within an issue raised in a dispute submitted for or not the absentees is still alive, he is considered dead for all
arbitration were laid before the arbitrators and passed upon by purposes but not for the purposes of succession. (Sec. 3[w])
them;
Absence of ten (10) years – the absentee shall be
One of the most significant presumptions is Sec. 3[a], considered dead for the purposes of opening his succession
which is at the same time a constitutional right. “The only after an absence of 10 years. Before the lapse of 10
presumption of innocence is not a mere form but a substantial years, he shall not be considered dead if the purpose is the
part of the law. It is not overcome by mere suspicion or opening of his succession. (ibid.)
conjecture; a probability that the defendant committed the
crime, nor the fact that he had the opportunity to do so. Its Absence of five (5) years – if the absentee
purpose is to balance the scales in what would otherwise be disappeared after the age of 75 years, his absence of five
an uneven contest between the lone individual pitted against years is sufficient for the purpose of opening his succession in
the people and all the resources at their command… The which case, it is not necessary to wait for the lapse of 10
accused must be acquitted and set free if his guilt cannot be years. (ibid.)
proven beyond the whisper of a doubt. This is in consonance
with the rule that conflicts in evidence must be resolved upon Absence of four (4) years – a person is deemed dead
the theory of innocence rather than the guilt when it is possible for all purposes even for the purpose of succession in any of
to do so.” (People v Alvario) the following cases:
a. If the person is on board a vessel that was lost during
In rape cases, it is not enough to say that a girl would sea voyage, or an aircraft which is missing, and has
not expose herself to the humiliation of a rape complaint not been heard of for 4 years since the loss of the
unless the charge is true. That is putting thing too simple. For vessel or aircraft;
the prosecution to succeed, it is also necessary to find that the b. If the person is member of the armed forces who has
complainant’s story is by itself believable independently of the taken part in armed hostilities, and has been missing
presumption. Otherwise, if all that matters were that for 4 years;
presumption, every accusation of rape would inevitably result c. If the person has been in danger of death under other
in conviction, without need of further evidence. This would circumstances and whose existence has not been
militate against the rule that the accused shall be presumed known for 4 years;
innocent until the contrary is proved. (People v Domogoy) d. If the person is married and has been absent for 4
consecutive years, the spouse present may contract
12

subsequent marriage if he or she has a well-founded presumptions operates against plaintiff who has the burden of
belief that the absent spouse is already dead. proof. (People v Santiago)
In case of disappearance, where there is danger of It is required that every circumstance favoring the
death, an absence of only 2 years shall be sufficient for the innocence of the accused must be taken into account. The
purpose of contracting a subsequent marriage again. However, proof against him must survive the test of reason and the
in any case, before marrying again, the spouse present must strongest suspicion must not be permitted to sway judgment.
institute a summary proceeding as provided in the FC and in (People v De Guzman)
the rules for a declaration of presumptive death of the
absentee, without prejudice to the effect of reappearance of Suspicion, no matter how strong, must never sway
the absent spouse. the judgment. Where there is reasonable doubt, the accused
must be acquitted even though his innocence may not have
been proven. (People v Maraorao)
ABSENCE OF PRESUMPTION OF LEGITIMACY OR
ILLEGITIMACY PREPONDERANCE OF EVIDENCE
Section 4. No presumption of legitimacy or illegitimacy. — Section 1. Preponderance of evidence, how determined. — In
There is no presumption of legitimacy of a child born after civil cases, the party having burden of proof must establish his
three hundred days following the dissolution of the marriage or case by a preponderance of evidence. In determining where
the separation of the spouses. Whoever alleges the legitimacy the preponderance or superior weight of evidence on the
or illegitimacy of such child must prove his allegation. 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
C. QUANTUM OF EVIDENCE (WEIGHT AND SUFFICIENCY facts to which there are testifying, the nature of the facts to
OF EVIDENCE) which they testify, the probability or improbability of their
(RULE 133) testimony, their interest or want of interest, and also their
personal credibility so far as the same may legitimately appear
PROOF BEYOND REASONABLE DOUBT upon the trial. The court may also consider the number of
witnesses, though the preponderance is not necessarily with
Section 2. Proof beyond reasonable doubt. — In a criminal the greater number
case, the accused is entitled to an acquittal, unless his guilt is
shown beyond reasonable doubt. Proof beyond reasonable Preponderance of evidence is the weight, credit and
doubt does not mean such a degree of proof, excluding value of the aggregate evidence on either side and is usually
possibility of error, produces absolute certainly. Moral certainly considered to by synonymous with “greater weight of the
only is required, or that degree of proof which produces evidence.”
conviction in an unprejudiced mind.
It is the evidence which is more convincing to the
In criminal cases, the burden of proof as to the guilt of court as worthier of belief than that which is offered in
the accused lies in the prosecution because of the opposition thereto; it means that the evidence adduced by one
presumption of innocence of the accused. Thus, in every side is superior to or has greater weight than that of the other.
criminal prosecution, the State must prove beyond reasonable
doubt, all the elements of the crime charged and the complicity In determining whether or not there is preponderance
and participation of the accused – it is the constitutional of evidence, the court may consider the following:
presumption that laid such burden upon the prosecution. a. All the facts and circumstances of the case;
b. The witnesses’ manner of testifying, their intelligence,
Reasonable doubt does not refer to any doubt or a their means and opportunity of knowing the facts to
mere possible doubt because everything in human experience which they are testifying, the nature of the facts to
is subject to possible doubt. Reasonable doubt is that state of which they testify, the probability or improbability of
the case which, after a comparison of all the evidence, does their testimony;
not lead the judge to have in his mind, moral certainty of the c. The witnesses’ interest or want of interest, and their
truth of the charged. Where there is reasonable doubt as to the personal credibility so far as the same may ultimately
guilt of the accused, there must be an acquittal. (People v appear in the trial;
Calma) d. The number of witnesses
When a prima facie case is established by the To persuade by the preponderance of evidence is not
prosecution in a criminal case, the burden of proof does not to take the evidence quantitatively but qualitatively.
shift to the defense. It remains thought the trial with the party
upon whom it is imposed – the prosecution. A prima facie case SUBSTANTIAL EVIDENCE
need not be countered by a preponderance of evidence nor by Section 5. Substantial evidence. — In cases filed before
evidence of greater weight. Defendant’s evidence which administrative or quasi-judicial bodies, a fact may be deemed
equalizes the weight of plaintiff’s evidence or puts the case in established if it is supported by substantial evidence, or that
equipoise is sufficient. Should it happen that at the trial the amount of relevant evidence which a reasonable mind might
weight of evidence equally balanced or at equilibrium and accept as adequate to justify a conclusion.
13

neither be proof beyond reasonable doubt nor standard of
This degree of evidence applies to administrative preponderance of evidence. While being administrative, the
cases and which requires that in order to establish a fact, the standard of substantial evidence cannot likewise apply given
evidence should constitute that amount of relevant evidence that the object of extradition law which is to prevent the
which a reasonable mind might accept as adequate to support prospective extradite from fleeing the jurisdiction. Thus, clear
a conclusion. and convincing evidence should be used in granting bail in
extradition cases, a standard which is lower that proof beyond
Substantial evidence is required in the following reasonable doubt but higher than preponderance of evidence.
proceedings: (a) administrative or quasi-judicial proceedings The potential extradite must prove by clear and convincing
(general); (b) proceedings before the NLRC and the labor evidence that he is not a flight risk and will abide with all the
code; (c) agrarian cases; (d) writ of amparo. orders and processes of the extradition court.
In administrative proceeding against judges (sexual Once an accused in a prosecution form murder or
harassment), the SC declared that they are highly penal in homicide admitted his infliction of the fatal injuries, he assumes
character and are to be governed by the rules applicable to the burden to prove by clear and convincing evidence the
criminal cases. The quantum of proof required to support justifying circumstance that would avoid his criminal liability.
administrative charges against judges should be proof beyond (People v Fontanilla)
reasonable doubt. (Duduaco v Laquindanum); this quantum of
proof was later extended to administrative cases filed against a SOME JURISPRUDENTIAL PRONOUNCEMENTS ON
sheriff for harassment and misconduct. (Arnado v Suarin) CLEAR AND CONVINCING EVIDENCE
A notarized instrument is a prima facie evidence of
However, where the charges against the judge the truth of the facts stated therein and a conclusive
involves (a) unbecoming conduct; (b) unexplained wealth; (c) presumption of its existence and due execution. To overcome
dereliction of duty; (d) conduct prejudicial to the best interest of this presumption, there must be clear and convincing
the service; (e) incompetence; (f) absence without leave, the evidence. Absent such evidence, the presumption must be
quantum of proof is substantial evidence, not proof beyond upheld. (Chua v Westmont Bank)
reasonable doubt.
Bad faith has to be established by the claimant with
QUANTUM OF EVIDENCE IN A PETITION FOR WRIT OF clear and convincing evidence, and this necessitates an
AMPARO examination; allegations of bias and partiality are not enough
In petition for writ of amparo, the parties shall in the absence of clear and convincing evidence to overcome
establish their claims by substantial evidence. (Sec. 17, Rule the presumption that the judge will undertake his noble role to
on the Writ of Amparo) dispense justice according to law and evidence without fear or
favor. (Elefant v Inting); relate this to application for award of
EFFECT OF FAILURE TO PROVE ADMINISTRATIVE moral damages.
LIABILITY ON THE CRIMINAL CASE
In Paredes v CA, the SC declared that an absolution Fraud is never presumed but must be proved by clear
from criminal charges is not a bar to an administrative and convincing evidence; mere preponderance of evidence is
prosecution, or vice versa. Thus, considering the difference in not even adequate. (Alfonso v Cebu Country Club); NOTE: this
the quantum of evidence, as well as the procedure, the rule will not apply when Article 1387 of NCC applies, the
findings and conclusion in one should not necessarily be transactions therein are presumed fraudulent.
binding on the others. Evidences presented in the
administrative case may not necessarily be the same evidence Forgery should be proved by clear and convincing
to be presented in the criminal case. The prosecution is evidence, and whoever alleges it has the burden of proving the
certainly nor precluded from adducing additional evidence to same. (Sumbad v CA)
discharge the burden of proof required in the criminal case.
When the accused invokes self-defense, the onus is
NOTE: In Paredes case, the accused argued that as his on him to establish by clear and convincing evidence his
liability in the administrative case was not established, so will justification for the killing. (People v Tomolin)
the criminal case against which requires a heavier quantum of
proof. Allegations of frame-up and extortion by the police
officers must be substantiated by clear and convincing
CLEAR AND CONVINCING EVIDENCE evidence. (People v Boco)
Evidence is clear and convincing if it produces in the
mind of the trier of fact a firm belief or conviction as to For an alibi to prosper, it must be proved by clear and
allegation sought to be established. It is intermediate, being convincing evidence that it was physically impossible for the
more than preponderance, but not to the extent of such accused to have been at the scene of the crime at the time of
certainty as is required beyond reasonable doubt. its commission and commit the crime. (People v Agunos);
same rule with denial (People v Mustapa)
In Gov’t of Hongkong Special Administrative Region v
Olalia Jr., an extradition proceeding being sui generis, the Presumption of regularity in the performance of duty
standard of proof required in granting or denying a bail can stands if the defense failed to present clear and convincing
14

evidence that the police did not properly performed their duty
or that they were inspired by an improper motive. (People v
Concepcion)
In confirmation of imperfect or incomplete title on the

basis of possession, the burden of proving is by clear and
convincing evidence compliance with the requirements of the
applicable law.
EVIDENTIARY WEIGHT OF ELECTRONIC EVIDENCE

In assessing the evidentiary weight of electronic
evidence, certain factors may be considered, like:
a. The reliability of the manner in which it is generated,
stored or communicated;
b. The reliability of the manner in which its originator
was identified;
c. The integrity of the information and communication
system;
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, and
f. Other factors which the court may consider. (Sec. 1,
Rule 7, REE)
All matters relating to admissibility and evidentiary

weight of an electronic document may be established by
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. (Sec. 1, Rule 9, REE)
The affiant shall be made to affirm the contents of the

affidavit in open court and may be cross-examined as a matter
of right by the adverse party. (Sec. 2, Rule 9, REE)
15

CHAPTER III d. Admiralty and maritime courts of the world and their
seals;
JUDICIAL NOTICE AND JUDICIAL ADMISSIONS e. Political constitution and history of the Philippines;
(RULE 129) f. Official acts of the legislative, executive and judicial
departments of the Philippines;
A. JUDICIAL NOTICE g. Laws of nature;
h. Measure of time;
Section 1. Judicial notice, when mandatory. — A court shall i. Geographical divisions.
take judicial notice, without the introduction of evidence, of the
existence and territorial extent of states, their political history, It would be an error for a court not to take judicial
forms of government and symbols of nationality, the law of notice of an amendment to the ROC. (Sienna Realty Corp v
nations, the admiralty and maritime courts of the world and Gal-lang)
their seals, the political constitution and history of the
Philippines, the official acts of legislative, executive and judicial In Candido v CA, the petitioner insists that the lower
departments of the Philippines, the laws of nature, the court erred in not taking judicial notice of his affidavit that was
measure of time, and the geographical divisions. attached to his pleading but which was not formally offered in
evidence. The Court considered the insistence futile since it is
Section 2. Judicial notice, when discretionary. — A court may not among the matters which the rule mandatorily requires to
take judicial notice of matters which are of public knowledge, be judicially noticed.
or are capable to unquestionable demonstration, or ought to be
known to judges because of their judicial functions. WHEN JUDICIAL NOTICE IS DISCRETIONARY
A court may take judicial notice of matters which are
Section 3. Judicial notice, when hearing necessary. — During of public knowledge, or are capable to unquestionable
the trial, the court, on its own initiative, or on request of a party, demonstration, or ought to be known to judges because of
may announce its intention to take judicial notice of any matter their judicial functions.
and allow the parties to be heard thereon.
The principles of discretionary judicial notice will apply
where the following requisites are met:
After the trial, and before judgment or on appeal, the proper a. The matter is one of common knowledge;
court, on its own initiative or on request of a party, may take b. The matter must be settled beyond reasonable doubt
judicial notice of any matter and allow the parties to be heard (if there is any uncertainty about the matter, then
thereon if such matter is decisive of a material issue in the evidence must be adduced);
case. c. The knowledge must exist within the jurisdiction of the
court.
Judicial notice is based on the maxim, “what is known
need not be proven.” They are matters in a litigation which The principal guideline in determining what facts may
must be admitted without need for evidence. When the rule is be assumed to be judicially known is that of notoriety. Hence,
invoked, the court may dispense with the presentation of judicial notice is limited to facts evidenced by public records
evidence on judicially cognizable facts. and facts of general notoriety.
FUNCTION OF JUDICIAL NOTICE A judicially noticed fact must be one not subject to a
The function of judicial notice is to abbreviate litigation reasonable dispute in that it is either: (1) generally known
by the admission of matters that need no evidence because within the territorial jurisdiction of the trial court; (2) capable of
judicial notice is a substitute for formal proof of a matter by accurate and ready determination by resorting to sources
evidence; it takes the place of proof and is of equal force, whose accuracy cannot reasonable be questioned.
making evidence unnecessary.
Common knowledge are matters coming to the
While court has the power to dispense with proof of knowledge of men generally in the course of the ordinary
judicially cognizable fact when judicial notice are properly experiences of life, or they may be matter which are generally
invoked, it cannot, however, be used to fill in the gaps in the accepted by mankind as true and are capable of ready and
party’s evidence; it should not be used to deprived the adverse unquestioned demonstration.
party of the opportunity to prove a disputed fact.
Facts found in encyclopedias, dictionaries or other
WHEN JUDICIAL NOTICE IS MANDATORY publications, are judicially noticed, provided they are of such
When matter is subject to a mandatory judicial notice, universal notoriety and so generally understood as forming
no motion or hearing is necessary for the court to take judicial party of the common knowledge of every person.
notice. The following are matters subject of mandatory judicial
notice: Matters which are capable of unquestionable
a. Existence or territorial extent of states; demonstration pertains to fields of professional and scientific
b. Political history, forms of government and symbols of knowledge.
nationality of states;
c. Law of nations;
16

Matters which ought to be known to judges because principles of international law as part of the law of land. Being
of their judicial function an example of which would be facts part of the law of the land, they are, technically, in the nature of
which are ascertainable from the records of court proceedings. local laws and are subject of mandatory judicial notice.
However, courts cannot take judicial notice of factual matter in
controversy. JUDICIAL NOTICE OF MUNICPAL ORDINANCES
Municipal trial courts should take judicial notice of
Before taking judicial notice, the court must allow the municipal ordinances in force in the municipality in which they
parties to be heard thereon; any reasonable doubt on the sit. (US v Blanco)
matter sought to be judicially noticed must be resolved against
the taking of judicial notice. (State Prosecutors v Muro) An RTC should also take judicial notice of the
municipal ordinance in force in the municipalities within their
JUDICIAL NOTICE AND KNOWLEDGE OF THE JUDGE jurisdiction but only when so required by law (City of Manila v
Judicial notice is not judicial knowledge. The mere Garcia); or in cases on appeal to it from the MTC in which the
personal knowledge of the judge is not judicial knowledge of latter took judicial notice of. (US v Hernandez)
the court, and he is not authorized to make his individual
knowledge of fact, not generally or professionally knows, as JUDICIAL NOTICE OF COURT’S OWN ACTS AND
the basis of his action. (Ibid.) RECORDS
A court will take judicial notice of its own acts and
A judge must take judicial notice of a fact if it is one records in the same case. (Republic v CA)
which is the proper subject of judicial cognizance even if it is
not within his personal knowledge. NO JUDICIAL NOTICE OF RECORDS OF OTHER CASES;
EXCEPTION
STAGE WHEN JUDICIAL NOTICE MAY BE TAKEN Courts are not authorized to take judicial notice of the
Judicial notice may be taken during trial of the case. contents of the records of other cases, even when such cases
The court, during trial, may announce its intention to take have been tried or are pending in the same court, and
judicial notice of any matter. It may do so on its own initiative notwithstanding the fact that both cases may have been heard
or on request of any party and allow the parties to be heard or are actually pending before the same judge (Tabuena v
thereon. This hearing is only for the purpose of determining the CA); Exceptions (a) when in the absence of any objection, and
propriety of taking judicial notice and not for the purpose of with the knowledge of the opposing party, the contents of said
proving the issues in the case. other case are clearly referred to by title and number in a
pending action and adopted and read into the record of the
Judicial notice may also be taken by the proper court latter; or (b) when the original record of the other case or any
after trial and before judgment or on appeal. The proper court, party of it is actually withdrawn from the archives at the court’s
on its own initiative or on request of a party, may take judicial discretion upon the request, or with the consent of the parties,
notice of any matter and allow the parties to be heard thereon and admitted as part of the record of the pending case. (Ibid.)
if such mater is decisive of a material issue in the case.
JUDICIAL NOTICE OF PROPRIETARY ACTS OF GOCCs
JUDICIAL NOTICE OF FOREIGN LAWS; DOCTRINE OF They are not among the matters, which the court can
PROCESSUAL PRESUMPTION take judicial notice of. It cannot be considered an official act of
Courts cannot take judicial notice of foreign laws. Like the executive department because it was entered into while
any other facts, they must be alleged and proved. In the performing a proprietary function. (Asian Terminals Inc. v
absence of proof, the foreign law will be presumed to be the Malayan Insurance Co.)
same as the laws of the jurisdiction hearing the case under the
doctrine of processual presumption. (Northwest Orient Airlines So are the post office practice is not a proper subject
v CA) of judicial notice and is not of unquestionable demonstration.
Where the foreign law is within the knowledge of the JUDICIAL NOTICE OF BANKING PRACTICES
court, such as when the law is generally well known, had been The court may take judicial notice of banking
ruled upon in previous cases before it and none of the parties practices under Section 2, due to the fact that there exist a
claim otherwise, the court may take judicial notice of the uniform practice in transactions of banking and other financial
foreign law. (PCIB v Escolin) institution.
JUDICIAL NOTICE OF THE FINANCIAL CONDITION OF
Where the foreign law is part of published treaty, THE GOVERNMENT
periodical or pamphlet and the writer is recognized in his Judicial notice could be taken of the fact that the
profession or calling as expert in the subject, the court may government is and has for many years been financially
take judicial notice of the treatise containing the foreign law. strapped, to the point that even the most essential services
(Sec. 46 Rule 130) have suffered serious curtailment.
JUDICIAL NOTICE OF THE LAW OF NATION JUDICIAL NOTICE OF OTHER MATTERS

When foreign law refers to the law of nations, said law Trial courts can take judicial notice of the general
is subject to a mandatory judicial notice. Under the Philippines increase in rentals of real estate especially of business
Constitution, the Philippines adopts the generally accepted establishments (Catungal v Hao) but reasonable amount of
17

rent may not be determined by judicial notice but by supporting manifestations or stipulations; or (c) in other stages of judicial
evidence. (Corinthian Gardens Assoc v Tanjangco) proceeding.
Courts cannot take judicial notice of an administrative Thus, stipulation of facts at the pre-trial constitutes
regulation or of a statute that is not yet effective for the simple judicial admission; it will require no further proof and may be
reason that it still is inexistent. controverted only upon showing a clear showing that the
admission was made through palpable mistake or that no
Judicial notice of the age of the victim is improper. admissions are made.
Age of the victim must be duly proven by the birth or baptismal
certificate or, in the absence thereof, upon showing that the ADMISSION IN DRAFTED DOCUMENTS
document is lost or destroyed, by other documentary evidence Admission made in a document drafter for purposes
or oral evidence sufficient for that purpose. of filing a pleading but never filed, is not judicial admission. If a
party signs the pleading, it is deemed an extrajudicial
It can judicially noticed that the scene of the rape is admission. However, if the attorney signs it, it is not even an
not always nor necessarily isolated or secluded, for lust is no admission by a party. Note that the authority of the attorney
respecter of time or place. Court can take judicial notice of the extends only to statements made in open court or in pleadings
Filipina’s inbred modesty and shyness, and her antipathy in filed.
publicly airing acts which blemish her honor and virtue.
(People v Tundag) ADMISSIONS IN PLEADINGS AND MOTIONS
Admissions made in the pleadings of a party are
Judicial notice can be taken of the fact that deemed judicial admission, including those made in the
testimonies during trial are much more exact and elaborate complaint, which cannot be controverted, except as provided
than those stated in sworn statements, usually being by law.
incomplete and inaccurate for a variety of reasons, at times
because of partial and innocent suggestions or for want of Admission are binding and the party making such is
specific inquiries. (Estioca v People) precluded from denying the same unless there is proof of
palpable mistake or no such admission was made.
SC has taken judicial notice of scientific findings that
drug abuse can damage the mental faculties of the user. An admission made in a pleading may be an actual
(Bughaw Jr. v Treasure Island Industrial Corporation) admission as when the party categorically admits a material
allegation made by the adverse party, or it may be inferred
The court cannot be expected to take judicial notice of from the failure to specifically deny the material allegations in
the new address of a lawyer who has moved, or ascertain, on the other party’s pleadings.
its own, whether or not the counsel of record has been
changed and whom the new counsel could possibly be. NOTE: Material averments in the complaint, other than those
as to the amount of unliquidated damages, shall be deemed
B. JUDICIAL ADMISSION admitted when not specifically denied.
(RULE 129)
As a general rule, fact alleged in a party’s pleading
Section 4. Judicial admissions. — An admission, verbal or are deemed admissions of that party and are binding upon
written, made by the party in the course of the proceedings in him, but this is not an absolute and inflexible rule. Answer is a
the same case, does not require proof. The admission may be mere statement of fact which the party filing it expects to
contradicted only by showing that it was made through prove, but it is not evidence. This, in spite of the presence of
palpable mistake or that no such admission was made. judicial admissions in a party’s pleading, the trial court is still
given leeway to consider other evidence presented. (Sps
A judicial admission requires no proof, it is binding Santos v Sps Lumbao)
and conclusive. To be a judicial admission, it is required that:
(a) made by a party to the case and (b) must be made in the ABERMENTS IN PLEADINGS WHICH ARE NOT DEEMED
course of proceeding in the same case. ADMISSIONS
The following are not deemed admitted even if the
To be considered as judicial admission, the same party fails to make a specific denial:
must be made in the same case in which it is offered. a. Immaterial allegations;
b. Conclusions;
Admissions of a non-party do not fall within the c. Non-ultimate facts
definition of section 4; so thus an admission made in another d. Unliquidated damages (Section 11, Rule 8)
judicial proceedings. It will be considered as an extrajudicial
admission for purposes of the other proceedings where such IMPLIED ADMISSION OF ALLEGATIONS OF USURY
admission is offered. If a complaint makes an allegation of usury to recover
usurious interest, the defendant must not make a specific
A party may make judicial admissions in (a) denial but must likewise do it under oath. Failure to make
pleadings; (b) during trials, either verbal or written proper denial under oath would result to an implied admission
of allegation of usury.
18

NOTE: Under Section 27 Rule 130, an offer of compromise by
IMPLIED ADMISSIONS OF ACTIONABLE DOCUMENTS the accused could be considered as an implied admission of
When an action or defense is founded upon written guilt.
instrument, the genuineness and due execution of the same
instrument shall be deemed admitted unless the adverse party, IMPLIED ADMISSION IN THE MODES OF DISCOVERY
under oath, specifically denies them and set forth what he Admissions obtained through depositions, written
claims to be the facts. Failure to deny the genuineness and interrogatories or request for admissions are also considered
due execution of the said documents amounts to a judicial judicial admission. (Programme Incorporated v Province of
admission pursuant. (Sec. 8 Rule 8) Bataan)
However, the failure to deny the genuineness and Under Sec. 1 Rule 26, a party may at any time after
due execution of an actionable document does not preclude the issues have been joined, file and serve upon any other
the party from arguing against the document by evidence of party a written request for the admission by the latter of any
fraud, mistake, compromise, payment, statute of limitation, material and relevant document described in and exhibited
estoppel and want of consideration (Acabal v Acabal). But he with the request. The request for admission may also be of the
is precluded from arguing forgery, because the genuineness of truth of any material and relevant matter of fact set forth in the
the document has been impliedly admitted by his failure to request.
deny the same under oath.
The party to whom the request is directed must file
ADMISSIONS IN THE PRE-TRIAL OF CIVIL CASES and served upon the party requesting, a sworn statement
Admission in the pre-trial as well as those made either denying specifically the matters which an admission is
during depositions, interrogatories or requests for admission, requested or setting forth in detain the reason why he cannot
are all deemed judicial admission because they are made in truthfully either admit or deny those matters. The sworn
the course of the proceedings of the case; admission having statement must be filed and served within 15 days after
been made in a stipulation of facts at the pre-trial must be servers thereof, or within such further time as the court may
treated as judicial admission. allow on motion. If the sworn statement required is not filed
and served, each of the matters of which an admission is
Admissions in pre-trial briefs are judicial admissions requested shall be deemed admitted (implied admission).
and do not require proofs. The representations and statements (Sec. 2, Rule 26)
in their respective pre-trial briefs bind the parties. (Republic v
Sarabia) NOTE: Under Sec. 3 Rule 26, any admission made pursuant to
the request for admission is for the purpose of the pending
Admissions of the parties during the pre-trial as action only. Admission shall not be considered as one for any
embodied in the pre-trial order of the court are binding and other purpose nor may the same be used against him in any
conclusive on them unless there is a clear showing that the other proceeding.
admission was entered through palpable mistake. Such
admission cannot be contradicted by the parties and are, thus, ADMISSIONS IN AMENDED PLEADINGS
estopped from claiming otherwise. Admissions in the superseded pleadings may be
received in evidence against the pleader. (Sec. 8, Rule 10)
ADMISSIONS IN THE PRE-TRIAL OF CRIMINAL CASE
Admission made by the accused in the pre-trial of a NATURE OF ADMISSIONS IN SUPERSEDED PLEADINGS
criminal case is not necessarily admissible against him. To be They are considered extrajudicial admission, which
admissible, the conditions set by Sec. 2 Rule 118 must be must be proven. Pleading that have been amended disappears
complied with: “All agreements or admission made or entered from the record, lose their status as pleading and cease to be
during the pre-trial conference shall be reduced in writing and judicial admission, and to be utilized as extrajudicial
signed by the accused and counsel, otherwise, they cannot be admissions, they must be formally offered in evidence.
used against the accused.”
ADMISSIONS IN DISMISSED PLEADINGS
Note that the above rule will not apply to stipulation of They are merely extrajudicial admissions.
facts made during the trial. In People v Hernandez, the (Servicewide Specialists v CA)
conformity of the accused in the form of his signature affixed
thereto is unnecessary in view of the fact hat an attorney who HYPOTHETICAL ADMISSION IN A MOTION TO DISMISS
is employed to manage a party’s conduct of a lawsuit has A motion to dismiss hypothetically admits the truth of
prima facie authority to make relevant admission by pleadings, the allegations of the complaint. However, the admission
by oral or written stipulation which, unless allowed to be extends only to such matters of fact that have been sufficiently
withdrawn, are conclusive and binding to the accused/client. pleaded and not to mere epithets charging fraud, allegations of
legal conclusions or erroneous statements of law, inference
A stipulation of facts entered into by the prosecution from facts not stated, matters of evidence or irrelevant matters.
and defense counsel during trial in open court is automatically Only the material allegations, not conclusions in a complaint,
reduced into writing and contained in the official transcript of are deemed admitted.
the proceedings had in court.
19

ADMISSIONS BY COUNSEL
Admissions by counsels are generally conclusive
upon a client and even the negligence of counsel binds the
client. (Sarraga v Banco Filipino)
However, in cases where reckless or gross

negligence of counsel deprives the client of due process of law
or when its application will result in outright deprivation of
client’s liberty or property, or when interest of justice so
require, relief is accorded to the client who suffered by reason
of the counsel’s gross or palpable mistake or negligence.
(Salazar v CA)
EFFECTS OF JUDICIAL ADMISSIONS

Under Sec. 4 Rule 129, judicial admission does not
require proof and cannot be contradicted because they are
conclusive upon the party making it.
Judicial admissions are waiver of proof; production of

evidence may be dispensed with. A judicial admission removes
the admitted fact from the field of controversy.
It cannot be controverted and is conclusive to such

party making it, and all proofs to the contrary or inconsistent
therewith should be ignored, whether objection is interposed or
not.
A party cannot subsequently take a position contrary

to or inconsistent with what was pleaded. (Alfelor v Halasan)
HOW JUDICIAL ADMISSIONS MAY BE CONTRADICTED

Two ways to contradict a judicial admission:
a. By showing that the admission was made through
palpable mistake;
b. By showing that no such admission was made.
The mistake that would relieve a party must be one

that is “palpable” or a mistake that is clear to the mind and
plain to see; it is a mistake that is “readily perceived by the
senses or the mind.”
‘No such admission’ may be invoked when the

statement is taken out of context or that his statement was not
made in the sense it is made to appear by the other party.
(Philippine Health-Care Providers v Estrada)
20

CHAPTER IV Every evidence, whether it be document or object,
needs a witness. Testimonial evidence provides the foundation
OBJECT AND DOCUMENTARY EVIDENCE for all types of evidence.
(RULE 130)
Object evidence is not taken in isolation. It is weighed
A. OBJECT EVIDENCE in relation to the testimony of a witness. In giving credence to a
testimony, the court takes into consideration the physical
NATURE OF OBJECT EVIDENCE evidence. If the testimony bears a striking similarity with the
Section 1. Object as evidence. — Objects as evidence are physical evidence, the testimony becomes worthy of belief.
those addressed to the senses of the court. When an object is (People v Larrañaga)
relevant to the fact in issue, it may be exhibited to, examined
or viewed by the court After authentication, the object needs to be offered in
evidence at the appropriate time. Formal offer of evidence is
Object evidence is the real thing itself. It consist of vital since the court shall consider no evidence which has not
tangible things and appeals directly to the senses of the court. been formally offered. (Sec. 34, Rule 132)
Object evidence is not visual alone. It covers the OBJECT EVIDENCE AND THE RIGHT AGAINST SELF-
entire range of human senses: hearing, taste, smell and touch. INCRIMINATION
The right against self-incrimination cannot be invoked
Object evidence (physical evidence) is mute but against object evidence. The right against self-incrimination
eloquent manifestation of truth, and it ranks high in our find no application in cases where no testimonial compulsion
hierarchy of trustworthy evidence – where the physical was involved.
evidence runs counter to the testimonial evidence, the physical
evidence should prevail. (BPI v Reyes) Right against self-incrimination is simply a prohibition
against legal process to extract from the accused’s own lips,
REQUISITE FOR ADMISSIBILITY OF OBJECT EVIDENCE against his will, admission of guilt. It does not apply in cases
The basic requirement for the admissibility of an where the evidence sought to be excluded is not an
object or real evidence are: (a) it must be relevant; (b) must be incriminating statement but an object evidence.
authenticated; (c) must be made by a competent witness; and
(d) the object must be formally offered in evidence. DEMONSTRATIVE EVIDENCE
Demonstrative evidence is not the actual thing but it is
The admissibility of object or real evidence requires referred to as demonstrative because it represents or
that the object be both relevant and competent. To be relevant, demonstrates the real thing. It is not strictly real evidence
the evidence must have a relationship to the fact in issue. To because it is not the very thing involved in the case (e.g.
be competent, it must not be excluded by the rules or by the diagram, photograph, model etc.)
law.
The admissibility of this type of evidence largely
For the object not be excluded by the Rules, the depends on the laying the proper foundation for the evidence.
same must pass the test of authentication. The threshold The rule boils down to one basic question: Does the evidence
foundation for real evidence is its being authenticated. sufficiently and accurately represents the object it seeks to
demonstrate or represent? If it does, then it is admissible.
To authenticate the object, it must be shown that it is
the very thing that is either the subject of the lawsuit or the Photographs of persons, things and places, when
very one involved to proved an issue in the case. instructive to the understanding of the case, will be admitted in
evidence. To be admitted, the same must be relevant and
To authenticate the object, there must be someone competent. It is competent when properly authenticated by a
who should identify the object to be the actual thing involved in witness who is familiar with the scene or person portrayed, and
the litigation. This someone is the witness. Being a witness, he who testifies that the photograph faithfully represents what it
must testify based on his actual and personal knowledge of the depicts.
exhibit he is presenting for admission. (NOTE: A witness can
only testify to those facts which he knows of his personal Under the Rules on Electronic Evidence,
knowledge; that is, which is derived from his own perception photographic evidence shall be admissible in evidence
[Sec. 36, Rule 130]) provided:
a. It shall be presented, displayed and shown to the
Object evidence, being inanimate, cannot speak for court;
itself. It cannot present itself to the court as an exhibit. (NOTE: b. It shall be identified, explained or authenticated by
even ancient document more than 30 years requires a witness either:
to testify on the characteristic of the document even if it no a. The person who made the recording; or
longer requires authentication.) b. Some other person competent to testify.
(Sec. 1, Rule 11, REE)
21

The Rule that applies to photographs generally apply previous knowledge of the parties. Such inspection or view is
to motion pictures and recordings. But because of possibility of part of the trial since evidence is thereby being received.
tampering and distortion, courts have traditionally required a
stricter standard in laying the foundation for motion pictures CATEGORIES OF OBJECT EVIDENCE
and tape recordings. It is requirement to have detailed For purposes of authentication of an object or for
testimony as to the qualifications of the operator, a detailed laying the foundation for exhibit, object evidence may be
description of the equipment used, and the conditions under classified as:
which the photograph and the recordings were taken. This rule a. Objects that have readily identifiable marks (Unique
was liberalized and the testimony of a person present when object);
the activities of taking the picture and recording have been b. Objects that are made readily identifiable (Object
held sufficient. Said witness must testify that the motion picture made unique); and
accurately and faithfully represents the place or person it c. Objects with no identifying marks and cannot be
purports to portray. marked (non-unique objects).
Tape recording – the witness should identify the For unique objects, so long as the witness testifies
speakers, state how he recognizes their voices and that the that the object has a unique characteristic (e.g. serial number);
recording was not taken in violation of the Anti-Wire Tapping saw the object; remember its characteristics; assert that the
Law. object shown to the court is the same or substantially in the
same condition as when he first saw it; and that those
Diagrams, model and maps – Aside from the characteristics are those of the object he is identifying, the
requirement of relevance, such must be identified by a witness authentication requirement is satisfied.
who is familiar with what the evidence depicts, and that the
same is an accurate representation of the scene it portrays. If the object does not have a unique characteristic
(e.g. kitchen knife), the witness may be able to identify the
X-ray pictures, skiagraphs and radiographs – They same in court if he claims that he made the thing acquire a
are admissible when show to have been made under unique characteristic like placing identifying marks on it. All he
circumstance as to assure their accuracy and relevancy to a has to do is to testify as to what he did to make the object
material issue in the case. They are properly authenticated by identifiable and that the object presented to him for
the x-ray technician or the physician who testifies to the identification has the characteristics he made.
competence of the person taking it, the procedure taken and
that the x-ray picture shown is that of the person, anatomical CHAIN OF CUSTODY IN GENERAL
part or the object involved in the case. Objects which are not readily identifiable or cannot be
made identifiable (non-unique objects), proponent thereof must
Scientific tests, demonstrations and experiments – establish a chain of custody.
Refusing or granting of requests for demonstrations,
experiments or test in open court is a matter of discretion. The purpose of chain of custody is to guaranty the
Open court reenactments of material events by witness has integrity of physical evidence and prevent the introduction of
been held perm evidence which is not authentic; or to ensure that the integrity
and evidentiary value of the seized items are preserved, so
NOTE: In all object evidence, the touchstone for its much so that unnecessary doubts as to the identity of the
admissibility is the ability of the witness to authenticate the evidence are removed. (People v Langcua)
exhibit and that the question of sufficiency of the authentication
is a matter of judicial discretion. Links refers to the people who actually handled or
had custody of the object. Each link must show how he
VIEW OF AN OBJECT OR SCENE received the object, how he handled it to prevent substitution,
When an object is relevant to the fact in issue, it may and how it was transferred to another. Each of the handlers of
be exhibited to, examined, or viewed by court. the evidence must testify to make the foundation complete.
[Ideal procedure]
Going out of the courtroom to observe places and
object is commonly termed a “view.” It is not necessary that every custodian or person who
had an opportunity to come in contact with the evidence
The court may make an ocular inspection of sought to be admitted offer his or her testimonies. So long as
contested lands; inspect a crime scene, etc. to clarify itself with one of the chains testifies and his testimony negates the
certain matters raised by the litigants. possibility of tampering and that the integrity of the evidence is
preserved, his testimony alone is adequate to prove the chain
Judges are granted the discretion to grant or refuse a of custody. The same rule applies where two people possess
request for a view. the item of evidence jointly.
NOTE: Inspection or view outside the courtroom should be CHAIN OF CUSTODY IN DRUG CASES (Sec 21 RA 9165)
made in the presence of the parties or at least with previous Chain of custody is the duly recorded authorized
notice to them. It is error for the judge to go alone to the land in movements and custody of seized drugs or controlled
question or place where the crime is committed without chemicals or plant sources of dangerous drugs or laboratory
22

equipment of each stage, from the time of seizure/confiscation and essential chemicals, as well as
to receipt in the forensic laboratory to safekeeping to instruments/paraphernalia and/or laboratory
presentation in court for destruction. Such record of equipment, the same shall be submitted to the PDEA
movements and custody of seized item shall include the Forensic Laboratory for a qualitative and quantitative
identity and signature of the person who held temporary examination;
custody of the seized item, the date and time when such
transfer of custody were made in the course of safekeeping (3) A certification of the forensic laboratory
and use in courts as evidence, and the final disposition. examination results, which shall be done under oath
(People v Obmiranis) by the forensic laboratory examiner, shall be issued
within twenty-four (24) hours after the receipt of the
It is the method of authenticating evidence which subject item/s: Provided, That when the volume of the
requires that the admission of an exhibit be preceded by dangerous drugs, plant sources of dangerous drugs,
evidence sufficient to support a finding that the matter in and controlled precursors and essential chemicals
question is what the proponent claims it to be. It include does not allow the completion of testing within the
testimony about every link in the chain, from the moment the time frame, a partial laboratory examination report
item was picked up to the time it is offered into evidence in shall be provisionally issued stating therein the
such a way that every person who touched the exhibit would quantities of dangerous drugs still to be examined by
describe how and from whom it was received, where it was the forensic laboratory: Provided, however, That a
and what happened to it while in the witness’ possession, the final certification shall be issued on the completed
condition in which it was received, and the condition in which it forensic laboratory examination on the same within
was delivered to the next link in the chain. the next twenty-four (24) hours;
NOTE: Testimony about a perfect chain is not always the
standard. The exhibit’s level of susceptibility to fungibility, (4) After the filing of the criminal case, the Court shall,
alteration or tampering – without regard to whether the same is within seventy-two (72) hours, conduct an ocular
advertent or not – dictates the level of strictness in the inspection of the confiscated, seized and/or
application of the chain of custody. surrendered dangerous drugs, plant sources of
dangerous drugs, and controlled precursors and
In cases involving narcotic substances, the Court essential chemicals, including the
declared that in authenticating the same, a more stringent instruments/paraphernalia and/or laboratory
standard is necessary. It is necessary that the identity of the equipment, and through the PDEA shall within twenty-
prohibited drug be established beyond doubt. four (24) hours thereafter proceed with the destruction
or burning of the same, in the presence of the
The procedure to followed in the custody and accused or the person/s from whom such items were
handling of the seized dangerous drugs is provided for in Sec. confiscated and/or seized, or his/her representative or
21 of RA 9165, which provides: counsel, a representative from the media and the
Section 21. Custody and Disposition of Confiscated, Seized, DOJ, civil society groups and any elected public
and/or Surrendered Dangerous Drugs, Plant Sources of official. The Board shall draw up the guidelines on the
Dangerous Drugs, Controlled Precursors and Essential manner of proper disposition and destruction of such
Chemicals, Instruments/Paraphernalia and/or Laboratory item/s which shall be borne by the offender: Provided,
Equipment. – The PDEA shall take charge and have custody That those item/s of lawful commerce, as determined
of all dangerous drugs, plant sources of dangerous drugs, by the Board, shall be donated, used or recycled for
controlled precursors and essential chemicals, as well as legitimate purposes: Provided, further, That a
instruments/paraphernalia and/or laboratory equipment so representative sample, duly weighed and recorded is
confiscated, seized and/or surrendered, for proper disposition retained;
in the following manner:
(5) The Board shall then issue a sworn certification as
(1) The apprehending team having initial custody and to the fact of destruction or burning of the subject
control of the drugs shall, immediately after seizure item/s which, together with the representative
and confiscation, physically inventory and photograph sample/s in the custody of the PDEA, shall be
the same in the presence of the accused or the submitted to the court having jurisdiction over the
person/s from whom such items were confiscated case. In all instances, the representative sample/s
and/or seized, or his/her representative or counsel, a shall be kept to a minimum quantity as determined by
representative from the media and the Department of the Board;
Justice (DOJ), and any elected public official who
shall be required to sign the copies of the inventory (6) The alleged offender or his/her representative or
and be given a copy thereof; counsel shall be allowed to personally observe all of
the above proceedings and his/her presence shall not
(2) Within twenty-four (24) hours upon constitute an admission of guilt. In case the said
confiscation/seizure of dangerous drugs, plant offender or accused refuses or fails to appoint a
sources of dangerous drugs, controlled precursors representative after due notice in writing to the
accused or his/her counsel within seventy-two (72)
23

hours before the actual burning or destruction of the preserved by the apprehending officer/team, shall not render
evidence in question, the Secretary of Justice shall void and invalid such seizures of and custody over the said
appoint a member of the public attorney's office to items. (People v Rivera)
represent the former;
In case of failure to comply with the requirements of
(7) After the promulgation and judgment in the law in the handling of confiscated drugs, the implementing
criminal case wherein the representative sample/s rules clearly require the following:
was presented as evidence in court, the trial a. The non-compliance must be because of justifiable
prosecutor shall inform the Board of the final grounds; and
termination of the case and, in turn, shall request the b. The apprehending officer/team must have properly
court for leave to turn over the said representative preserved the integrity and evidentiary value of the
sample/s to the PDEA for proper disposition and seized items.
destruction within twenty-four (24) hours from receipt
of the same; and If sufficient explanation is given by the prosecution for
the non-compliance with the required procedure, such non-
compliance shall not render the seizure and custody of the
(8) Transitory Provision: a) Within twenty-four (24) seized items void and invalid.
hours from the effectivity of this Act, dangerous drugs
defined herein which are presently in possession of However, mere statement that the integrity and
law enforcement agencies shall, with leave of court, evidentiary value of the evidence has been preserved is not
be burned or destroyed, in the presence of enough. It must be accompanied by proof. (People v Dela
representatives of the Court, DOJ, Department of Cruz)
Health (DOH) and the accused/and or his/her
counsel, and, b) Pending the organization of the Failure of the prosecution to show that the police
PDEA, the custody, disposition, and burning or officer conducted the required physical inventory and
destruction of seized/surrendered dangerous drugs photograph of evidence confiscated is not fatal and does not
provided under this Section shall be implemented by automatically render the accused appellant’s arrest illegal or
the DOH. the item seized /confiscated from him inadmissible provided it
was shown that there exist a justifiable grounds and proof that
The offender or his/her representative or counsel the integrity and evidentiary value of the evidence have been
shall be allowed to personally observe all of the above preserved. (People v Rivera)
proceedings. His presence shall not constitute an admission of
guilt. However, after having been duly notified in accordance For as long as the chain of custody remains
with the law and said alleged offender refuses or fails to unbroken, even though the procedural requirements provided
appoint a representative within 72 hours before actual burning for in Sec. 21 of RA 9165 was not faithfully observed, the guilt
or destruction of evidence, the SOJ shall appoint a member of of the accused will not be affected. The integrity of the
PAO to represent the form. (See Section 21[6] and Valleno v evidence is presumed to have been preserved unless there is
People) a showing of bad faith, ill will, or proof that the evidence has
been tampered with.
IMPORTANCE OF THE MARKING OF EVIDENCE
First stage of the chain of custody is the marking of NOTE: The issue if there is non-compliance with the law is not
the dangerous drugs or related items. Marking is the affixing admissibility, but of weight or evidentiary merit or probative
on the dangerous drugs or related items by the apprehending value. Thus, non-compliance would not render the arrest of
officer or the poseur-buyer of his initials or signature or other the accused illegal or the items seized from him inadmissible.
identifying signs. (People v Magundayao)
Marking should be made in the presence of the What is important is the preservation of the integrity
apprehended violator immediately upon arrest. The importance and evidentiary value of the seized items, as the same would
of prompt marking cannot be denied because succeeding be utilized to determine the guilt of the accused. The existence
handler will use the marking as reference. of the dangerous drugs is a condition sine qua non for
conviction. The drugs itself constitutes the very corpus delicti
Marking also operates to set apart as evidence the of the crime and the fact of its existence is vital to a judgment
dangerous drugs or related items from other material from the of conviction. Thus, it is essential that the identity of the
moment they are confiscated until they are disposed of at the prohibited drug be established beyond reasonable doubt.
close of the criminal proceeding, forestalling switching, planting
or contamination of evidence; it is indispensable in the It is however, necessary to explain the failure to
preservation of the integrity and evidentiary value. comply with the procedure set by law. When the prosecution
merely justified the failure of the officer to comply by stating
EFFECT OF NON-COMPLIANCE WITH SEC. 21 RA 9165 that the integrity and evidentiary value of the seized items were
Under Section 21(a), non-compliance with the properly preserved in accordance with law, is in effect,
requirements under justifiable grounds, as long as the integrity advancing no justifiable grounds to explain the non-
and the evidentiary value of the seized items are properly compliance.
24

f. The qualification of the analyst who conducted the
Thus, failing to prove entitlement to the proviso, the test.
arresting officers’ non-compliance with the procedure is not
excused. This inexcusable non-compliance invalidates their RULE ON DNA EVIDENCE
seizure of and custody over the seized drugs, thus, The Rule on DNA Evidence (AM 06-11-05-SC) took
compromising the identity and integrity of the same. As a result effect on October 15, 2007.
thereof, the accused must be acquitted.
The Rule on DNA Evidence is primary rule to be
Minor deviations would not automatically exonerate applied whenever DNA evidence is offered, used or proposed
an accused from the crime of which he is convicted. This is to be offered or used as evidence in:
especially true when the lapses in procedure were recognized a. Criminal actions;
and explained under justifiable grounds. There must be a b. Civil actions;
showing that the officers intended to comply with the c. Special proceedings. (Sec. 1, RDE)
procedure but were thwarted by some justifiable reasons.
Matters, which are not specifically governed, by the
Where the marking of the seized items where not RDE, the ROC and other pertinent provision of the law on
done in the presence of the apprehended violators, nor made evidence shall apply. (Sec. 2, RDE)
upon confiscation and in the place of seizure but elsewhere.
The witnesses could not explain the same actual markings. No DNA – refers deoxyribonucleic acid which is the chain
explanation how the drugs were stored, labeled, and recorded. of molecules found in every nucleated cell of the body.
Nor was there an explanation as to who brought the
confiscated items to the laboratory. The Court had to acquit the DNA Profile – the genertic information derived from
accused based on reasonable doubt. (Fajardo v People – Must DNA testing of biological samples obtained from a person
Read J) where such biological sample is clearly identifiable as
originating from that person.
ELEMENTS TO BE ESTABLISHED IN THE PROSECUTION
FOR SALE OF DANGEROUS DRUGS DNA evidence – the totality of the DNA profiles,
The elements for sale of dangerous drugs are (1) the results and other genetic information directly generated from
identity of the buyer and seller, the object and the the DNA testing of biological samples
consideration; and (2) the delivery of the thing sold and the
payment. (People v Almodiel) The significance of DNA lies in the uniqueness of the
totality of the DNA of a person. Totality of individual’s DNA is
What is material is the proof that the transaction or unique except identical twins.
sale actually took place and that the corpus delicti be
presented in the court as evidence. A person who has legal interest in the litigation may
file an application for DNA testing order before the appropriate
The commission of the offense of illegal sale of drugs court, at any time. The order shall no, however, be issued as a
merely requires the consummation of the selling transaction, matter of course and from the mere fact that the person
which happens the moment the exchange of money and drugs requesting has legal interest in the litigation. There must be a
between the buyer and the seller takes place. further showing that:
a. A biological sample exist that has relevance to the
Absence of marked money does not create a hiatus in case;
the evidence for the prosecution as long as the sale of b. The biological sample (i) was not previously subjected
dangerous drugs is adequately proven and the drug subject of to the DNA testing requested; or (ii) if it was
the transaction is presented before the court. (Law does not previously subjected to testing, the result may require
require presentation of any money used in the buy-bust confirmation for a good reason;
operation) c. DNA testing has the scientific potential to produce
new information that is relevant to the proper
NOTE: An arrest made after an entrapment operation or buy- resolution of the case; and
bust does not require a warrant inasmuch as it is considered a d. The existence of other factors, if any, which the court
valid warrantless arrest being caught in flagrante delicto. may consider as potentially affecting the accuracy
and integrity of the DNA testing. (Sec. 4, RDE)
DNA EVIDENCE
In People v Vallejo (Must Read J) the Court adopted Finding that the above requirement have been
the following guidelines to be used by the courts in assessing complied, the court shall now issue an order, if appropriate, to
the probative value of DNA evidence: (a) take biological samples from any person or crime scene
a. How samples were collected; evidence; and (b) impose reasonable conditions on the testing
b. How they were handled; to protect the integrity of the biological sample and the liability
c. The possibility of contamination of the samples; of the test results. (Sec. 5, RDE)
d. The procedure followed in analyzing the samples;
e. Whether the proper standards and procedures wer NOTE: Under Section 4, the court may motu proprio order a
followed in conducting the test; and DNA testing.
25

instead of conducting a hearing, it may instead remand the
Under Section 4, a court order is not always required petition to the court of origin and issue the appropriate orders.
as the RDE allows a testing if done before a suit or proceeding (Sec. 10, RDE)
is commenced at the request of any party, including law
enforcement agencies. Thus, a litigation need not exist prior to NOTE: Under Section 10, the petition for writ of habeas corpus
DNA testing. Court order shall be required only if there is a may also be filed by the prosecution.
pending litigation, but not before the litigation.
DNA profiles and all the result or other informations
An order granting DNA testing shall be immediately obtained from DNA testing are confidential. Whoever
executory and shall not be appealable. (Sec. 5, RDE) The discloses, utilizes or publishes in any form any of such
remedy, thus, is a petition for certiorari under Rule 65, but such information without proper court order shall be liable for direct
petition shall not stay the implementation of the order, unless contempt of the court wherein such evidence was offered,
the higher court issues an injunctive order. (Ibid.) presented or sought to be presented. (Sec. 11, RDE)
There is no automatic admission in evidence of the Except upon court order, the DNA profile and other
DNA evidence obtained in the testing. Under Section 5, the results shall only be released to any of the following:
grant thereof shall not be construed as an automatic admission a. The person from whom the sample was taken;
into evidence of any component of the DNA evidence. The b. Lawyers representing parties in the case or action
court still has to evaluate the probative value of the proposed where the DNA evidence is offered and presented or
evidence before it can be admitted. sought to be offered or presented;
c. Lawyers of private complainant in a criminal action;
The determination of probative value of DNA d. Duly authorized law enforcements agencies; and
evidence rest to the following matters: e. Other persons as determined by the court. (Section
a. Chain of custody, how biological samples were 11, RDE)
collected, handled, and possibility of contamination;
b. DNA testing methodology, procedure of analysis, The person from whom the biological sample was
advatages and disadvantages of procedure, taken may request that his DNA profiles and all results and
compliance with the scientifically valid standards in information thereof be disclosed to the person designated in
conducting the test; his request. The request, however, must be in writing and
c. The forensic DNA laboratory, its accreditation and verified, filed in the court that allowed the DNA testing. (Ibid.)
qualification of analyst; if not accredited, the court
shall experience the experience of the laboratory in PARAFFIN TEST
foresic works and its credibility shall be properly Paraffin test have been considered as inconclusive by
established; the Court because such proved to be extremely unreliable to
d. The reliability of the testing results. (Sec. 7, RDE) use. The test can only establish the presence or absence of
nitrates or nitrites but such test alone cannot determine that
A person already convicted under a final and the source of such nitrates or nitrites was the discharged
executory judgment may still avail of DNA testing as the RDE firearms.
allows post-conviction DNA testing which may be availed by
(a) the prosecution, or (b) the person convicted by final and Presence of nitrates should be taken only as an
executory judgment, provided that: indication of a possibility or even probability but not of
a. Biological sample exist; infallibility that a person has fired a gun, since nitrates are also
b. Sample is relevant to the case; admittedly found in substances other than gunpowder.
c. Testing would probably result in the reversal or
modification of the judgment of conviction. (Sec. 6, On the other hand, argument hat the negative result
RDE) of gunpowder nitrates shows absence of physical evidence
that one fired a gun is untenable as it such nitrates can be
NOTE: Under Section 6, a prior court order is not required for a washed off before the test.
post DNA testing.
Paraffin test is merely corroborative evidence, neither
If the result of the DNA testing are favorable to the proving nor disproving that a person did indeed fire a gun.
convict, he may file a petition for writ of habeas corpus in the Positive or negative result of the test can be influenced by
court of origin. The court shall then conduct a hearing and in several factors.
case the court finds that the petition is meritorious, it shall
reverse or modify the judgment of conviction and order the POLYGRAPH TESTS (LIE DETECTOR TESTS)
release of the convict, unless his detention is justified for a Courts accordingly uniformly reject the results of
lawful cause. (Sec. 10, RDE) polygraph tests when offered in evidence because it has not
yet attained scientific acceptance as a reliable and accurate
The petition shall be filed in the court of origin as a means of ascertaining truth or deception. (US v Tedder)
rule. However, the rule allows the petition to be filed either in
the CA or SC, or any of its member. A hearing may be
conducted by the latter courts or by any of its member or
26

B. DOCUMENTARY EVIDENCE and be converted to an electronic document if transmitted or
(RULE 130) received or later recorded electronically.
MEANING OF DOCUMENTARY EVIDENCE (DOCUMENT An electronic document is on that may be used for
AS EVIDENCE) any of the following purposes:
Section 2. Documentary evidence. — Documents as evidence a. Establish a right;
consist of writing or any material containing letters, words, b. Extinguish an obligation;
numbers, figures, symbols or other modes of written c. Prove or affirm a fact.
expression offered as proof of their contents
Electronic documents are the functional equivalents
Documentary evidence refers to (1) writings and to (2) of paper-based document. Under the REE, “whenever a rule of
any other material containing letters, words, numbers, figures, evidence refers to the term of writing, document, record,
symbols or other modes of written expressions, and offered as instrument, memorandum or any other form of writing, such
proof of their contents. term shall be deemed to include an electronic document as
defined in these Rules.”
Under the first category are those instantly
recognizable as documents like contracts and wills. Under the Since an electronic document is the functional
second are those which are not traditionally considered equivalent of a paper-based document, it is therefore logical to
writings but are actually objects which contains modes of consider the rules on evidence in the ROC, including statutes
written expression. containing rules of evidence, to be of suppletory character to
the application of the REE in all matters not specifically
For writings and materials containing modes of written covered by the latter.
expression do not ipso facto make such documentary
evidence. For such writings or materials to be deemed Under Sec. 1, Rule 5, REE, the person offering the
documentary evidence, it must be offered as proof of their document has the burden to prove its authenticity. With
contents. respect to the manner of authentication, the same is outline
under Section 2 which provides that “before any private
If offered for some other purpose, the writings or electronic document offered as authentic is received in
materials would be deemed object evidence. evidence, its authenticity must be proved by any of the
following means:
A private document may be offered and admitted in a. By evidence that it had been digitally signed by the
evidence both as documentary evidence and as object person purported to have signed the same;
evidence depending on the purpose for which the document is b. By evidence that other appropriate security
offered. (Multiple Admissibility) procedures or devices as may be authorized by the
SC or by law for authentication of electronic
DOCUMENTS UNDER THE RULES ON ELECTRONIC document were applied to the document, or;
EVIDENCE c. By other evidence showing its integrity and reliability
Electronic document refers to information or the to the satisfaction of the judge.”
representation of information, data, figures, symbols or other
modes of written expressions described or however NOTE: Sec 2, Rule 5 applies only when the document is
represented, by which a right is established or an obligation is private electronic document and the same is offered as
extinguished, or by which a fact may be proved or affirmed, authentic document.
which is received, recorded, transmitted, stored, processed,
retrieved or produced electronically. It includes digitally signed Thus, when an electronic document is offered simply
documents and any print out or output, readable by sight or for what it is or for what it is claimed to be without regard to
other means, which accurately reflects the electronic data whether or not it is authentic, Sec. 2 Rule 5 finds no relevance.
message or electronic document. For purposes of there Rules, In such case, the document needs only to be identified
the term ‘electronic document’ may be used interchangeably pursuant to Section 20, Rule 132 ROC.
with ‘electronic data message.’ (Section 1[h] REE)
When a document is electronically notarized, the
An electronic document, based on the definition, does manner of authentication under Sec. 2 Rule 5 will not apply,
not only refer to the information itself. It also refers to the because the document is transformed into a public document
representation of that information. Whether it be the and is to be proved in accordance with the ROC. (See Sec. 3,
information itself or its representation, for the document to be Rule 5, REE) Thus, under Sec. 30, Rule 132 of the ROC, it
deemed ‘electronic,’ it is important that it be received, may be presented in evidence without further proof, the
recorded, transmitted, stored, processed, retrieved or certificate of acknowledgment being prima facie evidence of
produced electronically. (Bar 2012) the execution of the instrument or document involved.
The rule does not absolutely require that the

document be initially generated or produced electronically. A
document may be prepared in through traditional written way
27

EVIDENTIARY CONCEPTS INVOLED IN THE There is no reason to apply the BER when the issue
PRESENTATION OF DOCUMENTARY EVIDENCE does not involve the contents of a writing. The key to
To be admissible, documentary evidence must be understanding of BER is simply to remember that the rule
relevant and competent. It is also subject to general cannot be invoked unless the contents of a writing is the
exclusionary rule such as rule of hearsay, BER, and PER. subject of the judicial inquiry, in which case, the best evidence
is the original writing itself.
REQUISITES FOR ADMISSIBILITY OF DOCUMENTARY
EVIDENCE The rule finds no application where a party never
The following are the requisites for the admissibility of disputed the terms and conditions of the promissory note.
documentary evidence: Thus, defense of lack of consideration or that the signature
a. It must be relevant; was not made in the personal capacity of the respondent are
b. Authenticated; defenses, which do not question the precise wordings of the
c. By a competent witness; document, which could have paved the way for the BER.
d. Formally offered in evidence; (Consolidated Bank and Trust Corp v Del Monte Motor Works)
Where the issue is the execution or existence of the
C. BEST EVIDENCE RULE (BER) document or the circumstances surrounding its execution, the
Section 3. Original document must be produced; exceptions. BER does not apply and testimonial evidence is admissible.
— When the subject of inquiry is the contents of a document, (Arceo v People)
no evidence shall be admissible other than the original
document itself, except in the following cases: Where the purpose of the prosecution is to prove the
(a) When the original has been lost or destroyed, or contents of the check, specifically the name of drawer and
cannot be produced in court, without bad faith on the endorse, date and amount and the dishonor thereof, as well as
part of the offeror; the reason for such dishonor, the original check must be
(b) When the original is in the custody or under the presented before the court. (Magdayao v People)
control of the party against whom the evidence is
offered, and the latter fails to produce it after Where the issue is only as to whether such document
reasonable notice; was actually executed or exist, or on circumstances relevant to
(c) When the original consists of numerous accounts or surrounding its execution, the BER does not apply and
or other documents which cannot be examined in testimonial evidence is admissible. Any other substitutionary
court without great loss of time and the fact sought to evidence is likewise admissible without the need to account for
be established from them is only the general result of the original. (Chua Gaw v Chua)
the whole; and
(d) When the original is a public record in the custody Where the evidence is purely testimonial, BER finds
of a public officer or is recorded in a public office. no application; nor where the inquiry involved the existence,
execution, delivery of the document; nor where the document
Best evidence rule is the rule requiring the production is presented as a real/object evidence; in these cases, the
of the original writing. It comprehends a situation where the original need not be presented.
evidence offered is substitutionary in nature when what should
be offered is the original evidence. WHEN DOCUMENT IS MERELY COLLATERALLY IN ISSUE
When a document is involved in the inquiry but the
The rationale of the BER is that (1) there is a document is only collaterally in issue, the BER does not apply.
substantial hazard of inaccuracy in the human process of A document is collaterally in issue when the purpose of
making a copy by handwriting or typewriting, and (2) as introducing it is not to establish its terms, but to show facts that
respects oral testimony purporting to give from memory the have no reference to its contents like its existence, condition,
terms of a writing, there is a special risk of error, greater than execution or delivery.
in any case of attempts at describing other situation generally.
WAIVER OF RULE
The purpose for the BER is the prevention of fraud or The BER may be waived if not raised or objected to in
mistake in the proof of the contents of a writing. the trial.
NOTE: The term “best” has nothing to do with degree of its HOW TO APPLY THE BER
probative value in relation to other types of evidentiary rules. It Determined the matter inquired into. If the inquiry
is not intended to mean as most superior evidence. More involves a document, and its content are the subject of the
accurately, it is the “original document rule” or the “primary inquiry, the BER applies and must be complied with.
evidence rule.” (That is why it has been described as a
misnomer, as it is often been misunderstood and given a If, for one reason or another, the original cannot be
meaning it does not deserve.) presented in evidence, the party must (1) have adequate legal
excuse for the failure to present the original; and (2) presenting
For the BER to apply, two requisites must concur: (a) a secondary evidence sanctioned by the ROC.
subject matter must involve a document, and (b) subject of the
inquiry is the contents of the documents.
28

EXCUSES FOR NOT PRESENTING THE ORIGINAL The correct order of proof is as follows: (a) existence;
As a rule, so long as the original is available, no other (b) execution; (c) loss; and (d) contents, although at the sound
evidence can be substituted for the original because the discretion of the court, this order may be changed if necessary.
original is the best evidence in relation to mere copies or (Citibank N.A. Mastercard v Teodoro)
substitute thereof.
Due execution and authenticity of the document must
Excuses for the non-production of the original be proved by either: (a) anyone who saw the document being
documents refer to the instances when the original does not executed or written; or (b) by evidence of genuineness of the
have to be produced even when the contents thereof are the signature or handwriting of the maker. (Sec. 20 Rule 132;
subject of the inquiry. These instances are: Ramos v CA)
(a) When the original has been lost or destroyed, or
cannot be produced in court, without bad faith on the NOTE: Before any secondary evidence can be presented, it is
part of the offeror; imperative that all the originals of a deed must be accounted
(b) When the original is in the custody or under the for. (Heirs of Teodoro Dela Cruz v CA)
control of the party against whom the evidence is
offered, and the latter fails to produce it after The burden of proof in establishing the loss or
reasonable notice; destruction of the original is on the proponent of the secondary
(c) When the original consists of numerous accounts or evidence.
other documents which cannot be examined in court
without great loss of time and the fact sought to be The loss of the original need not be shown to be
established from them is only the general result of the beyond all possibility of mistake; a reasonable probability of its
whole; and loss is sufficient lie by showing that there was a bona fide and
(d) When the original is a public record in the custody of diligent but fruitless search for the document. (Paylago v
a public officer or is recorded in a public office. Jarabe)
When the subject of the inquiry is the contents of a The presentation of the secondary evidence must be
writing, the original document must be presented in evidence. in the following order:
If secondary evidence is to be offered, the proponent has to lay a. Copy of the original;
the basis for the admission of such secondary evidence. b. Recital of its content in some authentic document;
c. Testimony of witnesses
REQUISITES FOR THE INTRODCUCTION OF SECONDARY
EVIDENCE IN CASE OF LOSS, DESTRUCTION OR The hierarchy of preferred secondary evidence must
UNAVAILABILITY OF THE ORIGINAL be strictly followed. Thus, testimony of the witness to prove the
Section 5. When original document is unavailable. — When contents of the lost original is inadmissible if a copy is available
the original document has been lost or destroyed, or cannot be or if there is a recital of the contents in some authentic
produced in court, the offeror, upon proof of its execution or document.
existence and the cause of its unavailability without bad faith
on his part, may prove its contents by a copy, or by a recital of NOTE: Presentation or offer of the original may be waived. If a
its contents in some authentic document, or by the testimony party against whom the secondary evidence is offered does
of witnesses in the order stated. not object thereto, the secondary evidence becomes primary
evidence. However, even if admitted, its probative value must
Secondary evidence is admissible as an exception to still meet the various tests by which its reliability is to be
BER when the original writing has been lost, destroyed or determined.
cannot be produced in court without bad faith on the party of
the party offering. This exception also covers the situation REQUISITES FOR THE INTRODUCTION OF SECONDARY
where the original cannot be presented in court as the same is EVIDENCE WHEN THE ORIGINAL IS IN THE CUSTODY OR
beyond the territorial jurisdiction of the court. CONTROL OF THE ADVERSE PARTY
Secondary evidence may be admitted only by laying Section 6. When original document is in adverse party's
the basis for its production. Laying such basis under Section 5 custody or control. — If the document is in the custody or
requires compliance with the following: under the control of adverse party, he must have reasonable
a. The offeror must prove the execution and existence of notice to produce it. If after such notice and after satisfactory
the original document; proof of its existence, he fails to produce the document,
b. The offeror must show the cause of its unavailability ; secondary evidence may be presented as in the case of its
and loss.
c. The offeror must show that the unavailability was not
due to his bad faith. Showing that the original document is in the custody
After the above requirement having been complied with, the or under control of the adverse party does not ipso facto
contents of the document may now be proven by secondary authorized the presentation of secondary evidence. Laying the
evidence. basis requires proof of the following:
a. Original exist;
29

b. Document is under the custody or control of the the certified true copy of the original issued by the public officer
adverse party; in custody of the public records.
c. That the proponent of secondary evidence has given
the adverse party reasonable notice to produce the EFFECTS OF NOT OFFERING A DOCUMENT IN EVIDENCE
original document; AFTER CALLING FOR ITS PRODUCTION AND
d. That the adverse party failed to produce the original INSPECTION
document despite the reasonable notice. Section 8. Party who calls for document not bound to offer it.
— A party who calls for the production of a document and
The notice may be in the form of a motion for the inspects the same is not obliged to offer it as evidence.
production of the original, or made in open court in the
presence of the adverse party or via a subpoena duces tecum, No unfavorable inference may be drawn from failure
provided that the party in custody of the original has sufficient of the party to offer the same in evidence.
time to produce the same.
MEANING OF ORIGINAL
After the foundational requirements for the Section 4. Original of document. —
introduction of secondary evidence have been complied with, (a) The original of the document is one the contents
secondary evidence may now be presented as in the case of of which are the subject of inquiry.
loss. This means that it can be proven by (a) a copy; (b) recital (b) When a document is in two or more copies
of its content in some authentic document; or (c) by testimony executed at or about the same time, with identical
of witnesses in the order stated. contents, all such copies are equally regarded as
originals.
REQUISITES FOR THE INTRODUCTION OF SECONDARY (c) When an entry is repeated in the regular course of
EVIDENCE WHEN THE ORIGINAL CONSIST OF business, one being copied from another at or near
NUMEROUS ACCOUNTS the time of the transaction, all the entries are likewise
Under this exception, secondary evidence is equally regarded as originals
admissible:
a. If the original consists of numerous accounts or Original of a document is one the contents of which
documents; are the subject of inquiry.
b. They cannot be examined in court without great loss
of time; and NOTE: Under the ROC, there are instances when subsequent
c. The fact sought to be established from them is only documents are also regarded as originals. It does not
the general result of the whole. necessarily refer to the first one ever written.
The reason for this exception lies in the determination When an entry is repeated in the regular course of
by the court that production of the original writings and their business, one being copied from another at or near the time of
examination would result in great loss of time and that the the transaction, all the entries are equally regarded as
evidence desired from the voluminous accounts is only the originals. To be considered original under this provision, there
general result of the whole. must be: (a) entries made and repeated in the regular course
of business, and (b) entries must be made at or near the time
Thus, under this exception, a witness may be allowed of the transaction.
to offer a summary of a number of documents or the summary
itself; they may be also be presented in the form of charts or When a document is in two or more copies, which are
calculations. executed at the same time, with identical content, all such
copies are equally regarded as originals. Thus, a lawyer who
NOTE: The voluminous records must be made accessible to writes a pleading in two or more copies, which are, executed in
the adverse party so that the correctness of the summary may same, with identical contents, each document is an original. So
tested on cross examination. (Campania Maritima v Allied Free too do printing, mimeographing, lithography, and other similar
Workers Union) methods make those executed at the same time. [E.g.
Newspaper, it is an original in itself.]
REQUISITES FOR THE INTRODUCTION OF SECONDARY
EVIDENCE WHEN THE ORIGINAL IS A PUBLIC RECORD Thus, when carbon sheets are inserted between two
Section 7. Evidence admissible when original document is a or more sheets of paper with the writing and signature on the
public record. — When the original of document is in the first sheet being reproduced in the sheets beneath by the
custody of public officer or is recorded in a public office, its same stroke of the pen or writing medium, all the sheets are
contents may be proved by a certified copy issued by the deemed originals. (Trans-Pacific Industrial Supplies, Inc. v CA)
public officer in custody thereof.
Where a document is executed in duplicate or
Public records are generally not to be removed from multiplicate form, each one of the parts is primary evidence of
places where they are recorded and kept (Sec. 26, Rule 132). the contents of the document, and the other need not be
For this reason, the proof of the contents of a document may produced. In such case, each is deemed an original. (Anglo-
be done by secondary evidence. This secondary evidence is American Packing v Cannon)
30

In a suit against a telegraph company for failure to (d) The existence of other terms agreed to by the
transmit a message, the original is the message submitted to parties or their successors in interest after the
the company for transmission. However, if the suit is for execution of the written agreement.
damages by the sender against the telegraph company The term "agreement" includes wills.
because of delay, the original would be the message as
received by the recipient. PER directly applies to contracts which the parties
have decided to set forth in writing. Thus, when the agreement
ORIGINAL UNDER THE REE is merely oral, the PER should not be applied.
Under Section 1 Rule of the REE, the original of the
electronic document is its printout or output readable by sight NOTE: Under the law on contract, the document, deed and
or other means, provided it is shown to reflect the date instruments are merely tangible evidence of a contract. It is the
accurately. meeting of the minds between parties that constitutes the
contract.
Copies of the printout or output readable by sight
referred are also deemed originals where the copies were It is the decision of the party to reduce the agreement
executed at or about the same time with identical contents, or in written form that is critical to the application of PER. When
is a counterpart produced by the same impression as the they execute a written contract, PER comes into play.
original or from the same matrix, or by other means and which
accurately reproduces the original. (Sec. 2, Rule 4, REE) APPLICATION OF THE PAROL EVIDENCE RULE
Parol means something oral or verbal, but with
For the court not to consider the copies mentioned in reference to contract it means extraneous evidence or
above as having the same effect as originals, a genuine evidence aliunde. Under the ROC, it refers not only to oral but
question as to the authenticity of the original must be raised, or also to written evidence which are outside of or extraneous to
that the circumstances would make it unjust or inequitable to the written contract between the parties.
admit the copy in lieu of the original. (Ibid.)
Under the ROC, the written agreement is already
ORIGINAL PRINTOUT OF FACSIMILE TRANSMISSIONS considered to contain all the things agreed upon. It represents
In MCC Industrial Sales Corporation v Ssanyong the final expression of the agreement of the parties on the
Corporation, the Court concluded that the term electronic data subject. Being final, any extraneous or parol evidence is
message and electronic document under the Electronic inadmissible for any of the following purposes: (a) modify; (b)
Commerce Act of 2000, do not include a facsimile transmission explain, or (c) add to the terms of the agreement.
and cannot be considered as electronic evidence. It is not
functional equivalent of an original under the BER and is not PER forbids any addition to, or contradiction of, the
admissible as electronic evidence. terms of the written agreement by testimony or other evidence
purporting to show the different terms were agreed upon by the
NOTE: E-Commerce’s definition of “electronic data message” parties, varying the purport of the written agreement.
was copied from Canada, under the former, telexes or faxes,
except computer generated faxes are excluded from the The purpose of the PER is to give certainty to written
definition. transactions, preserve reliability and protect the sanctity of
written agreements.
Facsimile transmission is not an “electronic data
message” or an “electronic document” and cannot be PER has no application to oral agreements or any
considered electronic evidence by the Court; so is a photocopy writings which does not embody the agreement of the parties.
of such fax transmission not an electronic evidence.
NOTE: A will is not technically an agreement, but for the
D. PAROL EVIDENCE RULE purposes of the application of PER, it is considered as an
agreement.
CONTRACTS AND PAROL EVIDENCE RULE
Section 9. Evidence of written agreements. — When the terms For the PER to apply, a written contract need not be
of an agreement have been reduced to writing, it is considered in any particular form, private or public, or be signed by both
as containing all the terms agreed upon and there can be, parties.
between the parties and their successors in interest, no
evidence of such terms other than the contents of the written APPLICATION OF THE RULE ONLY TO PARTIES AND
agreement. THEIR SUCCESSORS-IN-INTEREST
However, a party may present evidence to modify, explain or Only the parties and successors-in-interest are bound
add to the terms of written agreement if he puts in issue in his by parol evidence. The rule does not bind suit involving
pleading: strangers to the contract. Thus, a stranger to the writing is not
(a) An intrinsic ambiguity, mistake or imperfection in bound by its terms and is allowed to introduce extrinsic or parol
the written agreement; evidence against the efficacy of the writing.
(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
31

WHEN AND HOW TO INTRODUCE PAROL EVIDENCE raising of the issue of intrinsic ambiguity in the pleading which
The rule prohibiting parol evidence is not absolute, A will authorize the introduction of parol evidence.
party may present evidence when he desires to modify, explain
or add to the terms of the written agreement by showing: Intrinsic or latent ambiguity is one which is not
a. Intrinsic ambiguity, mistake or imperfection in the apparent on the face of the document but which lies in the
written agreement; person or thing that is subject of the document or deed; or
b. Failure of the written agreement to express the true when the language of the writing is clear and intelligible and
intent and agreement of the parties thereto; suggests but a single meaning, but some matter extraneous to
c. Validity of the written agreement; the writing creates the ambiguity.
d. Existence of other terms agreed to by the parties or
their successors-in-interest after the execution of the Patent or extrinsic ambiguity or that which appears on
written agreement. the very face of the instrument, and arise from the defective,
obscure, or insensible language used, is not within the ambit of
NOTE: Introducing parol evidence means offering extrinsic or PER. Thus, parol evidence is not admissible to explain the
extraneous evidence that would modify, explain or add to the ambiguity otherwise the court would be creating instead of
terms of the written agreement, but parol evidence may only construing a contract.
be allowed, if any of the matters mentioned above is put in
issue in the pleading. Without such complying with this MISTAKE OR IMPERFECTION IN THE WRITING AND
requirement – putting in issue in the pleadings – parol FAILURE TO EXPRESS THE TRUE AGREEMENT OF THE
evidence cannot be introduced. PARTIES
The admission of parol evidence may be justified
PER does not per se bar the introduction of parol when there is a mistake or imperfection in the written
evidence as long as the pleader puts in issue in the pleading agreement. The party who wants to prove the defect in the
any matter set forth in the rule; unless duly pleaded, a party writing must put this mistake or imperfection in issue in the
will be barred from offering extrinsic evidence over the pleading.
objection of the adverse party.
Failure of the writing to express the true agreement of
Although parol evidence is admissible to explain the the parties is another ground for admitting parol evidence as
meaning of a contract, it cannot serve the purpose of long as the issue is raised in the pleadings.
incorporating into the contract additional contemporaneous
conditions which are not mentioned at all in the writing unless NOTE: Mistake or imperfection does not mean it prevented the
there has been fraud or mistake. Evidence of a prior or meeting of the minds of between or among the parties. This
contemporaneous verbal agreement is generally not only means that despite the meeting of the minds, the true
admissible to vary, contradict, or defeat the operation of a valid agreement of the parties is not reflected in the instrument.
contract. (Sea Oil Petroleum Corp v Autocorp Group)
Aside from mistake, there are some other reasons
PRIOR, CONTEMPORANEOUS AND SUBSEQUENT enumerated in substantive law for the failure of the instrument
AGREEMENTS to express the true intention of the parties like fraud,
The rules limit the inadmissibility of parol evidence or inequitable conduct or accident (See. Article 1359 NCC); or
extrinsic evidence to prior or contemporaneous stipulation. It ignorance, lack of skill, negligence or bad faith on the part of
does not cover proof of an agreement entered into after the the person drafting the instrument. (See. Article 1364 NCC)
written instrument was executed, notwithstanding that such
agreement may have the effect of adding to, changing or NOTE: Although parol evidence is admissible to explain the
modifying the written agreement of the parties. Under the meaning of a contract, it cannot serve the purpose of
rules, subsequent agreement could be invoked only if its incorporating into the contract additional contemporaneous
existence is put in issue in the pleading. (See Sec. 9[d], Rule conditions which are not mentioned at all in the writing unless
130) there has been fraud or mistake. (SeaOil v Autocorp)
NOTE: The present rule requires that the admissibility of NOTE: When there is meeting of the minds between the
subsequent agreement be conditioned upon its being put in parties, but their true intention is not expressed in the
issue. instrument by any of the aforementioned cause, one of the
parties may ask the court for reformation of the instrument.
INTRINSIC AMBIGUITYIN THE WRITING (See. Article 1359 NCC)
An instance when evidence aliunde or parol evidence
may be allowed to modify, explain or even add to the written In an action for reformation of instrument under the
agreement is when an intrinsic ambiguity exist in the written NCC, the plaintiff may introduce parol evidence to show the
agreement. real intention of the parties. This action presupposes that a
meeting of the minds exists between the parties.
Mere intrinsic ambiguity will not authorize the
admission of parol evidence. It is important that the intrinsic If there is no meeting of the minds between the
ambiguity be put in issue in the party’s pleading. It is the parties because of mistake, fraud, inequitable conduct or
accident, the proper remedy is not reformation but an action for
32

annulment (See. Article 1359) because the contract is E. AUTHENTICATION AND PROOF OF DOCUMENTS
rendered voidable by vitiation of consent of one of the parties. (RULE 132)
An action for reformation is not an action brought to Authentication is the preliminary step in showing the
reform mistake but to reform the instrument evidencing the admissibility of an evidence.
contract. Such action presupposes that there is nothing wrong
with the contract itself because there is a meeting of the minds Litigation always involves the authentication of either
between the parties. This action is brought so the true the object or documentary evidence. Unless a document is
intention of the parties may be expressed in the instrument. self-authenticating, it will not be admitted in evidence without
prior authentication.
Parol evidence is competent and admissible to prove
that the instrument was in truth and in fact given merely as a NOTE: Authentication is vital in the presentation of evidence
security for the repayment of a loan and not a sale. (Madrigal v as the presumption is “that the object and documents
CA) presented are, as a rule, counterfeit.” Thus, it is incumbent
upon the proponent of evidence to prove its authenticity.
When the consent of a party to a contract has been
procured by fraud, inequitable conduct or accident, and an Authentication of private document does not require a
instrument was executed by the parties in accordance with the seal. There shall be no difference between a sealed and
contract, what is defective is the contract itself because of unsealed private document insofar as their admissibility as
vitiation of consent. The remedy is to bring an action for the evidence is concerned. (Sec. 32, Rule 132)
annulment of the contract.
CONCEPT OF A DOCUMENT
Reformation of the instrument cannot be brought to A document is a deed, instrument or other duly
reform any of the following: authorized paper by which something is proved, evidenced or
a. Simple donation inter vivos wherein no condition is set forth.
imposed;
b. Wills; However, for a document to be considered as
c. When the real agreement is void. documentary evidence, it must be offered as proof of its
contents. If the document is not offered for that purpose, the
DISTINCTION BETWEEN THE BEST EVIDENCE RULE AND document is mere object evidence.
THE PAROL EVIDENCE RULE
BER PER PUBLIC AND PRIVATE DOCUMENTS
Establish a preference for the Is not concerned with primacy Section 19. Classes of Documents. — For the purpose of their
original document over of evidence but presupposes presentation evidence, documents are either public or private.
secondary evidence thereof. that the original is available. Public documents are:
Precludes the admission of Precludes the admission of (a) The written official acts, or records of the official
secondary evidence if the other evidence to prove the acts of the sovereign authority, official bodies and
original document is terms of a document other tribunals, and public officers, whether of the
available. then the contents of the Philippines, or of a foreign country;
document itself for the (b) Documents acknowledge before a notary public
purpose of varying the terms except last wills and testaments; and
of the writing. (c) Public records, kept in the Philippines, of private
Invoked by any litigant to an Invoked only by the parties to documents required by law to the entered therein.
action whether or not said the document or their All other writings are private.
litigant is a party to the successors-in-interest.
document involved. Document may either be public or private. This
Applies to all forms of Applies to written agreements classification is for the purpose of their presentation in
writings. (contracts) and wills. evidence.
Written official acts and records of official acts of

WAIVER OF PAROL EVIDENCE RULE sovereign authority do not refer only to those of the
Parol evidence rule can be waived by failure to invoke Philippines. They also refer to those of foreign country.
the benefit of the rule. This waiver may be made by failure to
object to the introduction of evidence aliunde. Inadmissible Documents acknowledge before a notary public are
evidence may be rendered admissible by failure to object. public documents except last wills and testaments which are
private even if notarized. Included in this class of public
PROBATIVE VALUE documents are those acknowledge before an officer authorized
Even if parol evidence is admitted, such admission to administer oaths, other than a notary public.
would not mean that the court would give probative value to
the parol evidence. Admissibility is not equivalent of probative In case of public record of private document required
value or credibility. by law to entered in a public record, the public document does
33

not refer to the private document itself but the public record of no other evidence of its authenticity need be given.
that private document.
An exception to the rule requiring proof of the
PROOF OF PRIVATE DOCUMENT genuineness and due execution of private document is the
Section 20. Proof of private document. — Before any private case of a private “ancient document.”
document offered as authentic is received in evidence, its due
execution and authenticity must be proved either: Private ancient document is a private document which
(a) By anyone who saw the document executed or is more than thirty (30) years old, produced from a custody
written; or which it would naturally be found if genuine, unblemished by
(b) By evidence of the genuineness of the signature any alterations or circumstances of suspicion.
or handwriting of the maker.
Any other private document need only be identified as that When a document is ancient, evidence of its
which it is claimed to be. authenticity need not be given; there is no need to prove its
genuineness and due execution. This means that there is no
WHEN AUTHENTICATION OF PRIVATE DOCUMENT IS necessity for the observance of the authentication process
REQUIRED under Section 20 of Rule 132. It must, however, be established
Where the private document is offered in evidence as that the document is ancient and that it has the characteristic
authentic, there is a need to prove its due execution and of a document so provided under Sec. 21. [Testimony needs
authenticity. If the document or writing is not offered as only to identify that the document is indeed an ancient one, not
authentic, it only needs to be identified as that which it is to prove its authentication]
claimed to be.
NOTE: Even if the document is not ancient, it is submitted that
Two ways of proving the due execution and a private document, the authenticity of which has been
genuineness of private instrument: (a) to rely on the personal admitted by the parties, requires no further authentication.
knowledge of the witness. Here, the witness attests to the
genuineness of the document because it was executed or HOW TO PROVE GENUINENESS OF A HANDWRITING
signed in his presence; or (b) not requiring the presence of the Section 22. How genuineness of handwriting proved. — The
witness in the execution of the document. Here, the witness handwriting of a person may be proved by any witness who
testifies or shows evidence that the signature or handwriting of believes it to be the handwriting of such person because he
the maker is genuine. has seen the person write, or has seen writing purporting to be
his upon which the witness has acted or been charged, and
Manner of authenticating a document required by has thus acquired knowledge of the handwriting of such
Sec. 20 of Rule 132 applies only when a private document is person. Evidence respecting the handwriting may also be
offered as authentic as when it is offered to prove that the given by a comparison, made by the witness or the court, with
document was truly executed by the person purported to have writings admitted or treated as genuine by the party against
made the same. Thus, when the document is offered in whom the evidence is offered, or proved to be genuine to the
evidence not as authentic, its genuineness and due execution satisfaction of the judge.
need not be proven as when the purpose of the offerror is to
show that the document exists. NOTE: Section 22 does not require expert testimony to prove
the handwriting of a person.
WHEN AUTHENTICATION OF PRIVATE DOCUMENT IS
NOT REQUIRED Handwriting of a person may be proven by any
Authentication of private document is excused in the witness who believes it to be the handwriting of a person
following: because: (a) he has seen the person write; or (b) has seen the
a. When document is an ancient one within the context writing purporting to be his upon which the witness has acted
of Sec. 21 Rule 132; or been charged, and has thus acquire knowledge of the
b. When the genuineness and authenticity of the handwriting of such person; or (c) by comparison made by the
actionable document have not been specifically witness or the court, with writings admitted or treated as
denied under oath by the adverse party under Sec. 8 genuine by the party against whom the document is offered, or
of Rule 8; proved to be genuine to the satisfaction of the judge. (Heirs of
c. When the genuineness and authenticity of the Amado Celestial v Heirs of Editha Celestial)
document have been admitted under Sec. 4 of Rule
129 (Judicial Admission); IMPORTANCE OF KNOWING WHETHER THE DOCUMENT
d. When the document is not being offered as authentic IS A PUBLIC OR PRIVATE; PROOF OF NOTARIAL
under Sec. 20 Rule 132. DOCUMENTS
Section 30. Proof of notarial documents. — Every instrument
ANCIENT DOCUMENTS duly acknowledged or proved and certified as provided by law,
Section 21. When evidence of authenticity of private may be presented in evidence without further proof, the
document not necessary. — Where a private document is certificate of acknowledgment being prima facie evidence of
more than thirty years old, is produced from the custody in the execution of the instrument or document involved.
which it would naturally be found if genuine, and is
unblemished by any alterations or circumstances of suspicion,
34

Before the admission of a private document in PROOF OF OFFICIAL RECORD; ATTESTATION OF A
evidence that is offered as authentic, its due execution and COPY
authenticity must be proved (Sec. 20). This requirement does Section 24. Proof of official record. — The record of public
not apply to a public document which admissible without documents referred to in paragraph (a) of Section 19, when
further proof of its due execution and genuineness. admissible for any purpose, may be evidenced by an official
publication thereof or by a copy attested by the officer having
Under Sec. 30 Rule 132, every document duly the legal custody of the record, or by his deputy, and
notarized may be presented in evidence without further proof, accompanied, if the record is not kept in the Philippines, with a
the certificate of acknowledgment being prima facie evidence certificate that such officer has the custody. If the office in
of the execution of the instrument or document involved. which the record is kept is in foreign country, the certificate
may be made by a secretary of the embassy or legation,
Notarized document, being public document, do not consul general, consul, vice consul, or consular agent or by
require authentication, unlike private documents. They enjoy any officer in the foreign service of the Philippines stationed in
the prima facie presumption of authenticity and due execution the foreign country in which the record is kept, and
(Domingo v Robles); it is a prima facie evidence of the truth of authenticated by the seal of his office
the facts stated therein and a conclusive proof of its existence
and due execution. Section 25. What attestation of copy must state. — Whenever
a copy of a document or record is attested for the purpose of
To overcome the presumption in favor of notarized evidence, the attestation must state, in substance, that the
document, there must be evidence presented that is clear and copy is a correct copy of the original, or a specific part thereof,
convincing and in addition, one who denies the due execution as the case may be. The attestation must be under the official
of a deed where one’s signature appears has the burden of seal of the attesting officer, if there be any, or if he be the clerk
proving that contrary to the recital in the jurat, one never of a court having a seal, under the seal of such court.
appeared before the notary public and acknowledge the deed
to be a voluntary act. Denial without clear and convincing Section 26. Irremovability of public record. — Any public
evidence to support fraud and falsity are not sufficient to record, an official copy of which is admissible in evidence,
overthrow the presumption. 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
Notarial seal converts a document from private to essential to the just determination of a pending case.
public instrument, after which it may be presented as evidence
without further proof of its genuineness and due execution. While a public document does not require the
(Maria v Cortez) authentication imposed upon a private document, there is a
necessity for showing to the court that indeed a record of the
However, the irregular notarization or lack of official acts of official bodies exist. This is effected by:
notarization does not necessarily affect the validity of the a. An official publication thereof;
contract reflected in the document. (Bangayan v RCBC) b. A copy of the document attested by the officer having
legal custody of the record or by the attestation of his
The nature of documents as either public or private deputy; if the record is not kept in the Philippines, the
determines how they may be presented as evidence in court. A attestation must be accompanied by a certificate that
public document is self-authenticating and requires no further such officier has the custody; if the office in which the
authentication in order to be presented as evidence in court. In record is kept is in a foreign country, the certificate
contrast, private document, requires authentication in the may be made by the secretary of the embassy or
manner allowed by law or the ROC before its acceptance as legation, consul-general, consul, vice-consul, or
evidence in court. (Patula v People) consular agent or by any officer in the foreign service
of the Philippines stationed in the foreign country in
PUBLIC DOCUMENTS AS EVIDENCE which the record is kept, and authenticated by the
Section 23. Public documents as evidence. — Documents seal of his office.
consisting of entries in public records made in the performance
of a duty by a public officer are prima facie evidence of the The attestation referred to above must “state in
facts therein stated. All other public documents are evidence, substance, that the copy is a correct copy of the original or a
even against a third person, of the fact which gave rise to their specific part thereof, as the case may be. The attestation must
execution and of the date of the latter. 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
When a public officer, in the performance of his duty, such court.”
makes an entry in the public record, the document of such
entry is deemed prima facie evidence of the facts stated in the The certificate and attestation are required because
entry. However, in the case of other public documents, the of the general rule on the irremovability of public records.
facts stated therein constitute evidence of the facts that gave
rise to the execution of such document and of the date of the SPECIAL POWER OF ATTORNEY EXECUTED ABROAD
execution of the same. Notary public in a foreign country is not one of those
who can issue the certificate mentioned in Sec. 24 Rule 132.
Thus, there is non-compliance with the Rule which could
35

render the SPA inadmissible in evidence. Not being duly meaning or language of the instrument. If he fails to do that,
established in evidence, the SPA cannot be used by the son to the document shall not be admissible in evidence.
file a suit in representation on one who executes the SPA for
not being the real party in interest. PROOF OF DOCUMENTS IN AN UNOFFICIAL LANGUAGE
Section 33. Documentary evidence in an unofficial
PUBLIC RECORD OF A PRIVATE DOCUMENT language. — Documents written in an unofficial language shall
Section 27. Public record of a private document. — An not be admitted as evidence, unless accompanied with a
authorized public record of a private document may be proved translation into English or Filipino. To avoid interruption of
by the original record, or by a copy thereof, attested by the proceedings, parties or their attorneys are directed to have
legal custodian of the record, with an appropriate certificate such translation prepared before trial.
that such officer has the custody.
IMPEACHMENT OF JUDICIAL RECORD
A public record of a private document may be proved Section 29. How judicial record impeached. — Any judicial
by any of the following: record may be impeached by evidence of: (a) want of
a. By the original record; or jurisdiction in the court or judicial officer, (b) collusion between
b. By a copy thereof, attested by the legal custodian of the parties, or (c) fraud in the party offering the record, in
the record, with an appropriate certificate that such respect to the proceedings.
officer has the custody.
Judicial record refers to the record of judicial
PROOF OF LACK OF RECORD proceedings. It does not only include official entries or files or
Section 28. Proof of lack of record. — A written statement official acts of a judicial officer but also the judgment of the
signed by an officer having the custody of an official record or court.
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, REGISTRATION OF CONTRACTS
accompanied by a certificate as above provided, is admissible Where a contract is required by law to be registered,
as evidence that the records of his office contain no such the same must be, as a rule, in a public instrument.
record or entry. Certain contracts must be embodied in a public
instruments in order to be valid. Examples:
How may the absence of a record be proven? a. Donation of an immovable;
b. Donation of movable exceeding five thousand pesos;
c. Partnership where immovable property or real rights
Proof of lack of record of a document of a written are contributed.
statement signed by the officer having custody of the official
record or by his deputy. The written statement must contain FOREIGN JUDGMENTS; DIVORCES
the following matter: Before a foreign judgment is given presumptive
a. There has been diligent search of the record; evidentiary value, the document must first be presented and
b. That despite such diligent search, no record of entry admitted in evidence.
of a specified tenor is found to exist in the records of
his office. Under Section 24 and 25 of Rule 132, on the other
hand, a writing or document may be proven as a public or
The written statement must be accompanied by a official record of a foreign country by either (1) an official
certificate that such officer has the custody of official records. publication or (2) a copy thereof attested by the officer having
legal custody of the document. If the record is not kept in the
LAST WILLS AND TESTAMENTS Philippines, such copy must be (a) accompanied by a
Last wills and testaments must undergo an certificate issued by the proper diplomatic or consular officer in
authentication process even if they are notarized in the Philippine foreign service stationed in the foreign country in
accordance with Article 806 of the NCC. The ROC, while which the record is kept, and (b) authenticated by the seal of
declaring that the term public document includes one his office. (Vda. De Catalan v Catalan-Lee)
acknowledge before a notary public, nevertheless expressly
excludes last wills and testaments. Besides, substantive law CHURCH REGISTRIES
provides that no will shall pass either real or personal property Church registries of births. Marriages, and deaths
unless proved and allowed in the proper court. (Art. 838 NCC) made subsequent to the promulgation of General Order No.
68, promulgated on December 18, 1889, and the passage of
EXPLAINING ALTERATIONS IN A DOCUMENT Act No. 190, enacted August 7, 1901, are no longer public
Section 31. Alteration in document, how to explain. — The writings, nor are they kept by duly authorized public officials.
party producing a document as genuine which has been They are private writings and their authenticity must be proved,
altered and appears to have been altered after its execution, in as are all other private writings in accordance with the Rules of
a part material to the question in dispute, must account for the Evidence. (Llemos v Llemos)
alteration. He may show that the alteration was made by
another, without his concurrence, or was made with the
consent of the parties affected by it, or was otherwise properly
or innocent made, or that the alteration did not change the
36

CHAPTER V ABILITY TO PERCEIVE.
TESTIMONIAL EVIDENCE Capacity to perceive is the requirement that the
witness must have personal knowledge of the facts
A. QUALIFICATIONS OF WITNESSES surrounding the subject matter of hi testimony.
NATURE OF TESTIMONIAL OR ORAL EVIDENCE. Sec. 36, Rule 130 explicitly requires that a witness
can testify only to those facts which he knows of his personal
Testimonial or oral evidence is evidence elicited from knowledge, i.e. those which are derived from his own
the mouth of a witness, as distinguished from real and oral perception.
evidence; Also called viva voce or living voice or word of
mount. The person giving the testimony is called witness. ABILITY TO MAKE KNOW THE PERCEPTION TO OTHERS
The ability to make known his perception to the court
Competent means evidence that is not excluded by involves two factors: (a) ability to remember what has been
law. Applied to a witness, it means that he is fit or eligible to perceived; and (b) ability to communicate the remembered
testify on a particular matter in a judicial proceeding. perception.
Competence of a witness refers to his personal Deaf-mutes are not necessarily incompetent as
qualification to testify. It includes absence of any factor that witness. They are competent where they can: (a) understand
would disqualify him from being a witness. and appreciate the sanctity of an oath; (b) comprehend facts
they are going to testify to; and (c) communicate their ideas
NOTE: Object, demonstrative or documentary through a qualified interpreter. (People v Tuangco)
evidence need the intervention of a witness. The admission of
any evidence requires its identification by a witness. Even self- COMPETENCY AND CREDIBILITY
authenticating documents need witness to identify the Competence is a matter of law or rule. Credibility
document. REASON: Inanimate object cannot speak for itself. refers to weight and trustworthiness or reliability of the
testimony.
PRESUMPTION IN FAVOR OF COMPETENCE OF A
WITNESS. Prevaricating witness or one who has given
A person who takes the stand as a witness is contradicting testimonies is still a competent witness, but such
presumed to be qualified to testify. A party who desires to testimonies may not be given weight by the court.
question the competence of a witness must do so by making
objection as soon as the fact tending to show incompetency Competency of witness Credibility of witness
are apparent. Reference to the basic Refers to believability of a
qualifications of a witness as witness and has nothing to do
Section 20. Witnesses; their qualifications. — Except as his capacity to perceive and with law or the rules.
provided in the next succeeding section, all persons who can communicate his perception
perceive, and perceiving, can make their known perception to to others. Refers to weight,
others, may be witnesses. trustworthiness or reliability of
the testimony.
Religious or political belief, interest in the outcome of the case,
or conviction of a crime unless otherwise provided by law, shall NOTE: In deciding competence of a witness, the court will not
not be ground for disqualification. inquire into the trustworthiness of a witness.
Basic qualification of a witness: (a) can perceive, and Bias is not a basis for declaring a witness
(b) in perceiving, can make know his perception to others. To incompetent to testify.
these add (c) he must take either an oath or an affirmation
(Sec.1, Rule 132), and (d) must not posses any of the NOTE: Competence is a matter of law or rules, if the law not
disqualification imposed by law or the rules. otherwise exclude or disqualify a witness, he is then
competent.
OATH OR AFFIRMATION.
The willingness to take an oath or affirmation is an Drug abuse will not render a person incompetent to
essential qualification of a witness. No court should allow the testify, except when witness was under the influence at the
testimony of someone who desires to testify but refuses to time he is testifying or at the time the event in question were
swear or make an affirmation. observed. HOWEVER, it may serve as a ground for attacking
the credibility of a witness.
A person is not qualified to be a witness if he is
incapable of understanding the duty to tell the truth. NOTE: Credibility on the other hand is addressed to the sound
discretion of trial courts.
The rule in our jurisdiction allows those who refuse to
being sworn by requiring a witness to make an affirmation Finding of the trial court on the matter of credibility of
instead. witnesses are entitled to highest degree of respect and will not
be disturbed on appeal.
37

without legal effect on his competency to testify, it would
Assigning values to declarations on the witness stand however affect his credibility.
is best and most competently performed by the trial judge, who
had the unmatched opportunity to observe the witnesses and DISQUALIFICATION BY REASON OF IMMATURITY
to assess their credibility by various indicia available but not To be disqualified as witness by reason of immaturity,
reflected on record. the following must concur:
a. The mental maturity of the witness must render him
OTHER FACTORS THAT DO NOT AFFECT THE incapable of perceiving the facts respecting which he
COMPETENCY OF A WITNESS is examine; and
Under Sec. 20, the following do not constitute a b. He is incapable of relating his perception truthfully.
disqualification of a witness, except as provided by the law and
the rules; NOTE: The disqualification in Sec. 21(a) must exist not at the
a. Religious belief; time of his perception of the facts, but at the time he is
b. Political belief; produced for examination. In disqualification by reason of
c. Interest in the outcome of the case; or immaturity, the incompetence of witness must occur at the time
d. Conviction of a crime. (Example: Those who have he perceives the event.
been convicted of falsification of a document, perjury
or false testimony are disqualified from being a The rule on disqualification by reason of immaturity
witness to a will.) (Art 821[2] NCC) must be construed in relation to Rule on Examination of
Child Witness.
The relationship of a witness with a party does not
ipso facto render him a biased witness, under the Rule, CHILD WITNESS; MEANING
interest in the outcome of the case, which includes Child witness is any person who, at the time of giving
relationship, is not a ground for disqualification of a witness. testimony, is below the age of 18 years (Sec. 4[a], RECW)
Previous conviction for perjury is not a ground for May a person over 18 be considered as child
disqualification of a witness testifying for charges of frustrated witness? Yes, In child abuse cases, a child includes one over
murder. 18 but is found by the court as unable to fully take care of
himself or protect himself from abuse, neglect, cruelty,
B. DISQUALIFICATIONS OF WITNESSES exploitation, or discrimination because of a physical or mental
disability or condition. (Sec. 4[a] REWC)
Section 21. Disqualification by reason of mental incapacity or
immaturity. — The following persons cannot be witnesses: COMPETENCY OF CHILD WITNESS; PRESUMPTION;
COMPETENCY EXAMINATION
(a) Those whose mental condition, at the time of their Every child is presumed qualified to be a witness as
production for examination, is such that they are established by Sec. 6 RECW and to rebut the presumption, the
incapable of intelligently making known their burden lies on the party challenging his competence. (Sec. 6
perception to others; (Disqualification by reasons of [b] RECW)
mental incapacity)
When the court finds that substantial doubt exists
regarding the ability of the child to perceive, remember,
(b) Children whose mental maturity is such as to communicate, distinguish truth from falsehood, or appreciate
render them incapable of perceiving the facts the duty to tell the truth, the court, motu propio or on motion of
respecting which they are examined and of relating a party, conduct a competency examination of the child.
them truthfully. (Disqualification by reason of
immaturity) Party seeking a competency examination must
present proof of necessity of a competency examination. Proof
DISQUALIFICATION BY REASON OF METAL INCAPACITY of such must be grounded on the reasons other than the age
To be disqualified as a witness by reason of mental of the child because such age, in itself, is not a sufficient basis
incapacity, the following must concur: for competency examination.
a. The person must be incapable of intelligently making
known his perception to others; and The competency examination of a child witness is not
b. Incapability must exist at the time of his production for open to public. Only the following are allowed to attend:
examination. a. Judge and necessary court personnel;
b. Counsel for the parties;
Sec. 21(a) establishes the rule that the mental c. Guardian ad litem;
incapacity of a witness at the time of his perception of the d. One or more support persons for the child; and
events subject of the testimony does not affect his competency e. Defendant, unless the court determines that
as long as he is competent at the time he is produced for competence can be fully evaluated in his absence.
examination to make known his perception to others.
HOWEVER, although incapacity at the time of perception is Competency examination shall be conducted only by
the judge. If the counsel of the parties desire to ask questions,
38

they cannot do so directly. They are allowed to submit The testimony is prohibited only over the objection of
questions to the judge which he may ask the child in his the affected spouse. It is the spouse against whom the
discretion; Questions shall not be related to the issues of the testimony is offered who has the right to object to the
trial but focus on the ability of the child to remember, competency of the spouse-witness. Thus, the benefit of the
communicate, distinguish between the truth and falsehood and rule may be waived and it may be done so impliedly or
appreciate the duty to testify truthfully. expressly.
When may the trial court order that the testimony of a NOTE: The testimony covered by the rule consist not only of
child be take by live-link television? When there is a substantial utterances but also the production of documents.
likelihood that the child would suffer trauma from testifying in
the presence of the accused, his counsel or the prosecutor as EXCEPTION TO MARITAL DISQUALIFICATION RULE
the case may be. Trauma must be a kind which would impair In the following instances, a spouse may testify for or
the completeness or truthfulness of the testimony of the child. against the other even without the consent of the latter;
(See Sec. 25 REWC) a. In a civil case by one against the other; or
b. In criminal case for a crime committed by one against
MARITAL DISQUALIFICATION RULE (SPOUSAL the other, or the latter’s direct descendants or
IMMUNITY) ascendants.
Section 22. Disqualification by reason of marriage. — During In order for the spouse to be allowed to testify against
their marriage, neither the husband nor the wife may testify for the other in a civil case, the case must be one where the
or against the other without the consent of the affected spouse, spouse is a plaintiff or petitioner and the other spouse is a
except in a civil case by one against the other, or in a criminal defendant or respondent.
case for a crime committed by one against the other or the
latter's direct descendants or ascendants. Where the wife sues the father of his husband for
collection of a loan, the husband may be barred from testifying
The rule prohibiting testimony by one spouse against against the wife upon the objection of the other. This is
the other is based on society’s intent to preserve the marriage because the civil case is not by one against the other but
relationship and promote domestic peace; and also to between a spouse and the parent of the other.
discourage perjury.
In criminal case, the privilege of one to testify against
Reason for the rule (Alvarez v Ramirez): the other is not confined to crimes committed by one against
a. There is identity of interest between spouses; the other, but covers crimes committed by one against the
b. There is a consequent danger of perjury; direct descendants or ascendants of the latter.
c. The policy is to guard the security and confidence of
private life and to prevent domestic disunion and Crimes committed against a spouse’s collateral
unhappiness; and relatives like uncles, cousins or nephews and nieces are not
d. There is want of domestic tranquility. covered by the exception, they are neither descendant nor
ascendants.
The prohibition extends not only to a testimony
adverse to the spouse but also to a testimony in favor of the TESTIMONY WHERE THE SPOUSE IS ACCUSED WITH
spouse. It also extends to both criminal and civil because the OTHERS
rule does not distinguish. The disqualification is between the husband and wife,
but the rule does not preclude the wife from testifying when it
The requires not only a valid marriage but the involves the other parties or accused. However, such
existence of that valid marriage at the moment the witness- testimony cannot be used against the accused-appellant
spouse gives the testimony; The rule does not cover illicit directly or through judicial notice of the proceeding without
cohabitation. violating the marital disqualification rule.
The rule applies whether or not the witness-spouse is Testimony with reference to the husband must be
a party to the case but the other spouse must be a party. disregarded since the husband timely objected thereto under
the marital disqualification rule. (People v. Quidato, Jr.)
The prohibited testimony is one that is given or
offered during the existence of the marriage. The rule does not NOTE: During our midterms was asked, husband sue father in
prohibit a testimony for or against the other after the marriage law for serious physical injuries. Wife then testify against
is dissolved. Husband. Husband invokes marital disqualification of wife. Is
the objection valid? Yes. In this case, it is the husband suing
If the testimony is offered during the existence of the the father in law for serious physical injuries committed against
marriage, it does not matter if the facts subject of the testimony husband, not the father in law suing the husband. The situation
occurred before the marriage. The affected spouse may still does not fall squarely under the exception. The rules applies
invoke the rule by objecting to the testimony as long as it is only in situation where crime is committed by a spouse against
offered during the marriage. the direct ascendant of the other, and not where it is the direct
ascendant committing a crime against the spouse.
39

TESTIMONY BY THE ESTRANGED SPOUSE The person entitled to invoke the protection of the
Where marital and domestic relation ship are so dead man’s statute are the executor, administrator, and any
strained that there is no more harmony to be preserved nor representative of a deceased person, when they are the
peace and tranquility which may be disturbed, the reason defendants in a claim against the estate of the deceased. The
based upon such harmony and tranquility fails. In such case, protection may likewise be invoked by a person of unsound
identity of interest disappears and the consequent danger of mind in a claim filed against him.
perjury based on that identity is non-existent. Likewise, the
security and confidences of private life, which the law aims to The rule will not apply where the plaintiff is the
protect, will be nothing but ideals, which through their absence, executor or administrator as representative of the deceased or
merely leave a void in the unhappy home. Thus there in no if the plaintiff is the person of unsound mind.
longer a reason to apply the marital disqualification rule.
(People v Castaneda; Alvarez v Ramirez) The rule contemplates a suit against the estate, its
administrator or executor and not a suit filed by the
SURVIORSHIP DISQUALIFICATION RULE OR DEAD administrator or executor of the estate.
MAN’S STATUTE
When a counterclaim is set up by the administrator of
Section 23. Disqualification by reason of death or insanity of the estate, the case is removed from the operation of the dead
adverse party. — Parties or assignor of parties to a case, or man’s statue. The plaintiff may testify to the occurrences
persons in whose behalf a case is prosecuted, against an before the death of the deceased to defeat the counterclaim
executor or administrator or other representative of a which is not brought against the representative of the estate
deceased person, or against a person of unsound mind, upon but by the said representative. (Sunga-Chan vs Chua)
a claim or demand against the estate of such deceased person
or against such person of unsound mind, cannot testify as to SECOND: Consider the nature of the case. The rule
any matter of fact occurring before the death of such deceased specifies that the case be upon the claim or demand against
person or before such person became of unsound mind. the estate of the deceased person or a person of unsound
mind. The rule will not apply when the action brought is not
The rule applies only to civil case or special against the estate, or not upon a claim or demand against the
proceeding over the estate of the deceased or insane person. estate. This claims, by its tenor and nature, is civil and not
criminal because the estate cannot be criminally liable.
The following are elements for the application of the
rule: THIRD: Inquiry should now shift to the person
a. The defendant is the executor or administrator or a prohibited to testify and the subject of their testimony.
representative of the deceased of the person of
unsound mind; The rules is intended to be exclusive and does not
b. The suit is upon a claim by the plaintiff against the prohibit a testimony by a mere witness to the transaction
estate of said deceased or person of unsound mind; between the plaintiff and deceased and who has no interest to
c. The witness is the plaintiff, or an assignor of that the transaction.
party, or a person in whose behalf the case is
prosecuted; and Offering the testimony of disinterested witness is not
d. The subject matter of the testimony is as to any a transgression of the rule since the prohibition extends only to
matter of facts occurring before the death of such the party or his assignor or the person in whose behalf the
deceased person or before such person became of case is prosecuted.
unsound mind.
The incompetency imposed upon the witness is to
Under this rule, the survivor witness, or his assigns or testify “on any matter of fact occurring before the death of such
representative, is declared incompetent to testify on the deceased person or before such person became of unsound
transaction between him and the deceased. mind.” Hence, if the subject of the testimony is some other
matter, the witness may testify on such matter as when the
The object of the rule is to guard against the subject of the testimony is on a fact which transpired after the
temptation to give false testimony in regard to the transaction death of such person.
on the part of the surviving party and thereby put the parties
upon equal terms. The purpose is to close the lips of the Since a claim or demand against the estate implies a
plaintiff when death has closed the lips of the defendant, in claim adverse to the estate, a testimony beneficial to such
order to remove from the plaintiff the temptation to do estate should not be excluded.
falsehood and the possibility of fictitious claims against the
deceased. (Tan v. CA; Garcia v. Vda de Caparas) Testimony favorable to the estate or insane person is
not barred since the rule is designed to protect the interest of
HOW TO APPLY THE RULE the estate of the deceased person or insane person.
FIRST: In order to determine whether the survivor
disqualification rule will apply, we should know who the
plaintiff and the defendant is.
40

An oral testimony to prove a lesser claim that what MARITAL PRIVILEGED COMMUNICATION
might be warranted by evidence was allowed in the case of The husband or the wife, during or after the marriage, cannot
Icard v Marasigan. be examined without the consent of the other as to any
communication received in confidence by one from the other
Survivorship disqualification rule may be waived by during the marriage except in a civil case by one against the
(a) failing to object to the testimony, or (b) cross-examining the other, or in a criminal case for a crime committed by one
witness on the prohibited testimony; or (c) by offering evidence against the other or the latter's direct descendants or
to rebut the testimony. ascendants
DISQUALIFICATION BY REASON OF PRIVILEGED The application of rule requires the presence of the
COMMUNICATION following elements:
Section 24. Disqualification by reason of privileged a. Valid marriage;
communication. — The following persons cannot testify as to b. Communication received in confidence by one from
matters learned in confidence in the following cases: the other; and
c. The confidential communication was received during
(a) The husband or the wife, during or after the the marriage.
marriage, cannot be examined without the consent of
the other as to any communication received in The law insures absolute freedom of communication
confidence by one from the other during the marriage between the spouses by making it privileged. Neither may be
except in a civil case by one against the other, or in a examined without the consent of the other as to any
criminal case for a crime committed by one against communication received in confidence by one from the other
the other or the latter's direct descendants or during the marriage, save for specified exception.
ascendants; (marital privileged communication)
Information acquired by a spouse before the marriage
even if received confidentially will not fall squarely with marital
(b) An attorney cannot, without the consent of his privileged communication. However, the same may be
client, be examined as to any communication made objected by reason of marital disqualification as long as the
by the client to him, or his advice given thereon in the information sought to be revealed during the marriage though
course of, or with a view to, professional employment, testimony for or against eh affected spouse.
nor can an attorney's secretary, stenographer, or
clerk be examined, without the consent of the client Marital privileged communication requires that the
and his employer, concerning any fact the knowledge information received in confidence during the marriage be “by
of which has been acquired in such capacity; one from the other.” The implication is that confidential
(attorney-client privilege) information received from a third person is not covered by the
privilege.
(c) A person authorized to practice medicine, surgery
or obstetrics cannot in a civil case, without the For information to be confidential, it must be made
consent of the patient, be examined as to any advice during and by reason of marital relations and is intended not to
or treatment given by him or any information which he be shared with others. Without such intention, common
may have acquired in attending such patient in a reasons suggest that the information is not confidential.
professional capacity, which information was It is submitted that there was no intent of
necessary to enable him to act in capacity, and which confidentiality in the information received by wife from his
would blacken the reputation of the patient; dying husband (dying declaration) regarding the identity of his
(Physician-Patient privilege) assailant, but rather that it was made in the furtherance of
justice.
(d) A minister or priest cannot, without the consent of
the person making the confession, be examined as to Communication in private between husband and wife
any confession made to or any advice given by him in are presumed to be confidential. However, if a third person,
his professional character in the course of discipline other than a child of the family, is present with the knowledge
enjoined by the church to which the minister or priest of the communicating spouse, the communication becomes
belongs; (Priest/Minister-Penitent privilege) removed from the coverage of the privilege. Likewise, if the
children of the family are present, this deprived the protection
unless the children are too young to understand what is said.
(e) A public officer cannot be examined during his
term of office or afterwards, as to communications Marital privileged may be waived by failure to object
made to him in official confidence, when the court timely to its presentation or by any conduct that may be
finds that the public interest would suffer by the construed as implied consent.
disclosure. (Privilege communication to public
officers)
41

DISTINCTION BETWEEN THE MARITAL communication or advice be with a view to professional
DISQUALIFICATION RULE AND MARITAL PRIVILEGED employment.
COMMUNICATION RULE
Marital Disqualification Marital Privilege The relationship exists where a person employs the
Communication professional services of an attorney or seeks professional
Section 22 Section 24a guidance, even though the lawyer declines to handle the case.
Does not refer to confidential Refers to confidential
communications. communications received by Were a person consult an attorney, not as a lawyer,
one spouse from the other but merely as a friend, or a participant in a business, the
during marriage consultation would not be within the ambit of the privilege.
Includes facts, occurrences or Applies only to confidential
information even prior to the information received during Communication is not confined to communications
marriage. the marriage. regarding actual pending cases. The communication may refer
Privilege can no longer be The spouse affected by the to anticipa7ted litigations or may refer to any litigation at all. It
invoked once the marriage is information may object even is sufficient that the statement was made in the course of
dissolved. It can only be after the dissolution of legitimate professional relationship between the attorney and
asserted during marriage. marriage. The privilege does the client.
not cease just because the
marriage has ended. Communication may oral or written and extend to
Requires that the spouse for Not required, applies other forms of communication like physical demonstration as
or against whom the regardless of whether the long as they are intended to be confidential; it includes
testimony is offered is a party spouses are parties or not. communications transmitted through facsimile, cellular
to the action. telephone, or other electronic means.
The prohibition is a testimony The prohibition is the
for or against the other examination of a spouse as to Privilege does not extend to:
matters received in a. Communications where the client’s purpose is the
confidence by one from the furtherance of a future intended crime or fraud.
other during marriage. b. The purpose is to commit a crime or tort;
c. Made in the furtherance of an illicit activity;
NOTE: Sec 24(a) do not includes acts merely observed by the
spouse unless such acts are intended as a means of However, communication in confidence made with the
conveying confidential communication by one to the other. lawyer after the crime has been committed may still be
privilege.
NOTE: The prerogative to object to a confidential
communication between spouses is vested upon the spouses An inquiry into the fact of consultation or employment
themselves, particularly the communicating spouse, not a third is not privileged; identity of the client or the lawyer is also not
person. privileged. However, under the last link doctrine, non-
privilege communication, such as identity of the client, is
protected if the revelation of such information would
ATTORNEY-CLIENT PRIVILEGE necessarily reveal privileged communication.
An attorney cannot, without the consent of his client, be
Before the statements of the client and the advice of
examined as to any communication made by the client to him,
the attorney be deemed privileged, the same should have
or his advice given thereon in the course of, or with a view to,
been intended to be confidential. Thus, communications made
professional employment, nor can an attorney's secretary,
to the lawyer but in the presence of third person, not an agent
stenographer, or clerk be examined, without the consent of the
of the attorney, are not privileged. The intention of secrecy
client and his employer, concerning any fact the knowledge of
which has been acquired in such capacity does not appear.
In case of persons overhearing without the knowledge

The following requisites must be present for the
of the client, unless he failed to use ordinary precautions
privilege to arise:
against overhearing, is privileged.
a. There must be a communication made by the client to
the attorney, or an advice given by the attorney to his
Privileged is removed from attorney’s lips if the suit is
client;
between the attorney and the client.
b. Communication or advice must be given in
confidence; and
NOTE: Communication is only privileged where the suit is by
c. The communication or advice must be given either in
or against a third party.
the course of professional employment or with a view
to professional employment.
In relation to the attorney, the client owns the
privilege. It is he who can invoke the privilege. Being personal
The rule does not require a perfected attorney-client
to the client, such privilege can be waived when not invoked.
relationship for the privilege to exist. It is enough that the
42

There is waiver of the privilege when: (a) client is The privilege survives the death of the patient. In
asked on cross-examination of his communication to his Gonzales v CA, The SC, prevented the disclosure of medical
lawyer and reveals the same; (b) client does not object to the findings that would tend to blacken the reputation of the patient
attorney’s testimony on the communication. even after his death.
Relate to Canon 21, which provides that “A lawyer Privilege may be waived by the patient, expressly or
shall preserve the confidences and secrets of his client even impliedly. The waiver may be by contract as in medical or life
after the attorney-client relation is terminated.” insurance.
PHYSICIAN-PATIENT PRIVILEGE NOTE: When there is disclosure by the patient of the

A person authorized to practice medicine, surgery or obstetrics information, there is waiver. (Obviously)
cannot in a civil case, without the consent of the patient, be
examined as to any advice or treatment given by him or any There could be waiver by operation of law or under
information which he may have acquired in attending such the rules. Rule 28 of ROC is an example, ordering a party to
patient in a professional capacity, which information was submit to a physical or mental examination.
necessary to enable him to act in capacity, and which would
blacken the reputation of the patient PRIEST/MINISTER-PENITENT PRIVILEGE
A minister or priest cannot, without the consent of the person
This privilege applies only to civil case, whether the making the confession, be examined as to any confession
patient is a party or not. made to or any advice given by him in his professional
character in the course of discipline enjoined by the church to
The rationale of the rule is to encourage the patient to which the minister or priest belongs
freely disclose all matters, which may aid in the diagnosis in
the treatment of a disease or injury. The person making the confession holds the privilege,
and the priest or minister hearing the confession in his
The privilege protects the interest of the patient and, professional capacity is prohibited from making a disclosure of
thus, the holder of the privilege. the confession without the consent of the person confession.
The person against whom the privilege is claimed is a Privilege extends not only to confession made but
person duly authorized to practice medicine, surgery or also to the advice given by the priest or minister.
obstetrics. The information which cannot be disclosed refers
to: Confession and advice must be given pursuant to the
a. Any advice given to the client; course of discipline of the denomination or sect to which the
b. Any treatment given to the client; minister or priest belongs. Thus, the minister or priest must be
c. Any information acquired in attending such patient duly ordained or consecrated by the sect.
provided that the advice, treatment or information was
made or acquired in a professional capacity and was Business arrangements with the priest are not
necessary to enable him to act in that capacity; covered by the privilege, not being a communication pursuant
d. The information sought would tend to blacken the to a confession or and advice given as a result of confession.
reputation of the patient.
PRIVILEGE COMMUNICATIONS TO PUBLIC OFFICERS
NOTE: Reputation is used instead of character. A public officer cannot be examined during his term of office or
afterwards, as to communications made to him in official
It is not required that the relationship is a result of a confidence, when the court finds that the public interest would
contractual relationship; it could result from quasi-contractual suffer by the disclosure
relationship, as when patient is seriously ill and the physician
threats him even if he is not in the condition to give his It is only privileged when the court finds that the
consent. disclosure would adversely affect the public interest. Hence,
disclosure or non-disclosure is not dependent on the will of the
It is necessary that the physician is acting in his officer but on the determination of a competent court.
professional capacity and that advice or treatment is given or
acquired in such capacity. The privilege may be invoked not only during the term
of office of the public office but also afterwards.
Autopsies are not covered by the privilege because
autopsies are not intended for treatment. National security matters and state secrets are
confidential and the court will most likely uphold the privilege.
The privilege does not apply to shield the commission
of a crime or when the purpose is an unlawful one, e.g. to EXECUTIVE PRIVILEGE; PRESIDENTIAL
acquire narcotics or prohibited drugs; in both case, not COMMUNICATIONS PRIVILEGE
treatment was involved. In Senate v Ermita, the privilege was described as the
power of the government to withhold information from the
public, the courts, and the Congress.
43

Parent cannot be compelled Child may not be compelled
In Almonte v Vaquez, the Court acknowledges certain to testify against his child or to testify against his parents
types of information which the government may withhold form other direct descendants. or other direct ascendants.
the public like military, diplomatic, and national security
secrets. A person may testify against his parents or children
voluntarily but if he refuses to do so, the rule protects him any
In Chavez v PCGG, the Court ruled that there is a compulsion. The rule applies to both criminal and civil case.
privilege against disclosure on certain matters involving state
secrets regarding: Relate the rule to Article 215 of the FC, which
a. Military; provides that “No descendant shall be compelled, in a criminal
b. Diplomatic; and case, to testify against his parents or grandparents, except
c. Other national security matters. when such testimony is indispensable in a crime, against the
descendant or by one parent against the other.”
In Chavez v Public Estates Authority, information on
investigations of crimes by law enforcements agencies before OTHER PRIVILEGED COMMUNICATIONS NOT FOUND IN
the prosecution of the accused were exempted from the right THE RULES OF COURT
to information. a. Editors may not be compelled to disclose the source
of published news;
Right to information does not also extend to b. Voters may not be compelled to disclose for whom
presidential conversations, correspondences, and discussions they voted;
in closed-door cabinet meetings. c. Trade secrets;
d. Information contained in tax census returns;
In AKBAYAN v Aquino, information on inter- e. Bank deposits;
government exchanges prior to the conclusion of treaties and f. Information and statements made at conciliation
executive agreements may be subject to reasonable proceedings;
safeguards for the sake of national interest. The offers g. Sec. 6 of AMLA, institutions covered by the law and
exchanged by the parties during the negotiations continue to its officers and employees who communicate a
be privileged, even after the JPEPA is published. Disclosing suspicious transaction to the AMLC, are barred from
these exchanges could impair the ability of the Philippines to disclosing the fact of such report, that such report was
deal not only with japan but also with other foreign made and other related information.
governments in future negotiation. While constitutional right to
information includes information on on-going negotiations C. EXAMINATION OF WITNESSES (RULE 132)
before final contract, such information does not cover
recognized exceptions like privileged information, military and OPEN COURT EXAMINATION; EXCEPTIONS
diplomatic secrets and similar matters affecting national Section 1. Examination to be done in open court. — The
interest. examination of witnesses presented in a trial or hearing shall
be done in open court, and under oath or affirmation. Unless
READ: Neri v Senate Committee on Accountability of Public the witness is incapacitated to speak, or the questions calls for
Officers and Investigations (435 SCRA 110, 148) a different mode of answer, the answers of the witness shall be
given orally
The Neri case reiterated the rule that for the claim on
executive privilege to be invoked, there must be a formal claim There are testimonies, which need not be given in
of the privilege, lodged by the head of the department which open court. Under Rules on Summary Procedure, the affidavits
has control on the matter, and that a formal and proper claim of the parties shall constitute the direct testimonies of the
of the privilege requires a “precise and certain reason” for witnesses who executed the same.
preserving confidentiality, but Congress must not require the
executive to state the reasons for the claim with such Depositions need not be taken in open court. They
particularity as to compel the disclosure of the information may be taken before a notary public or any person authorized
which the privilege is meant to protect. to administer oaths. (Rule 23)
PRIVILEGED COMMUNICATIONS UNDER THE RULES ON In criminal case, either party may utilize the testimony
ELECTRONIC EVIDENCE of a witness who is deceased, out of the courty, or unavailable
Under Sec.3, Rule 3 REE, the confidential character or unable to testify despite exercise of due diligence, even if
of a privileged communication is not lost solely on the ground the testimony was one used in another case or proceeding,
that it is in the form of an electronic document. provided the said proceeding involved the same parties and
subject matter and the adverse party had the opportunity to
PARENTAL AND FILIAL PRIVILEGE cross-examine the witness. (Rule 115, Sec.1 [f])
Section 25. Parental and filial privilege. — No person may be
compelled to testify against his parents, other direct Under the Judicial Affidavit Rule, the judicial affidavits
ascendants, children or other direct descendants. shall take place of direct testimonies of witnesses.
Parental Privilege Filial Privilege
44

OATH OR AFFIRMATION law. This provision gives meaning to the right of a person
The witness must take either an oath or affirmation, against self-incrimination. (NOTE: Self-incrimination applies
but the option to do so is given to the witness, not to the court. only to criminal action)
Oath is an outward pledge made under the immediate However, a witness has an obligation to answer a
sense of responsibility to God or solemn appeal to the question, although his answer may tend to establish a claim
Supreme Being in attestation of the truth of some statement. against him. This provision refers to a civil claim.
Affirmation is a solemn and formal declaration that the NOTE: Under RA 6981 (Witness Protection, Security and
witness will tell the truth. Benefit Act), a witness admitted into a witness protection
program cannot refuse to testify or give evidence or produce
Refusal to take an oath or give an affirmation will bar books, document, records or writings necessary for the
the witness testimony. prosecution of the offense or offenses for which he has been
admitted on the ground of right against self-incrimination. (Sec.
Rule requiring an oath or an affirmation is satisfied 14)
when court takes pains to impress on the witness the need to
testify truthfully and the witness would says he would. Right against self-incrimination of an accused are not
violated by compulsory blood testing. There is no testimonial
It is an abuse of court’s discretion to require the use compulsion involved by extracting blood for testing purpose.
of words “swear” or “affirm” in the oath if the language would (Tijing v CA); Right against self-incrimination applies only to
violate the witness’s religious beliefs where the witness could testimonial evidence. Extracting blood samples and cutting
otherwise testify truthfully. strands of hair do not involved testimonial compulsion but
purely mechanical acts which neither requires discretion or
EXAMINATION OF WITNESSES AND RECORD OF reasoning. (ibid)
PROCEEDINGS
Section 2. Proceedings to be recorded. — The entire Right against being degraded refers to the right of a
proceedings of a trial or hearing, including the questions witness not to give an answer that will degrade him. However,
propounded to a witness and his answers thereto, the he must answer if the degrading answer: (a) is the very fact in
statements made by the judge or any of the parties, counsel, issue; or (b) refers to a fact from which the fact in issue would
or witnesses with reference to the case, shall be recorded by be presumed.
means of shorthand or stenotype or by other means of
recording found suitable by the court. If the witness is the accused, he may totally refuse to
take the stand. A mere witness cannot altogether refuse to
The official stenographer, stenotypist or recorder shall take the stand. Before he refuses to answer, he must wait for
make a transcript of the record of the proceedings and shall be the incriminating question. (Bagadiong v Gonzales)
certified by him as correct. The transcript so prepared and
certified shall be deemed prima facie a correct statement of EXAMINATION OF A CHILD WITNESS; LIVE-LINK
such proceeding. (Sec. 2, Rule 132) TELEVISION
The examination of child witness shall be done in
RIGHTS AND OBLIGATIONS OF A WITNESS open court. The answer of the witness shall be given orally,
Section 3. Rights and obligations of a witness. — A witness unless the witness is incapacitated, or the question calls for a
must answer questions, although his answer may tend to different mode of answer. (Sec. 8, RECW)
establish a claim against him. However, it is the right of a
witness: Relate this of competency examination, under this
(1) To be protected from irrelevant, improper, or section, the child is already testifying in court.
insulting questions, and from harsh or insulting
demeanor; When child is testifying, the court may exclude the
(2) Not to be detained longer than the interests of public and persons who do not have a direct interest in the
justice require; case, including the press. The order shall be made if the court
(3) Not to be examined except only as to matters determines on record that to testify in open court would cause
pertinent to the issue; psychological harm to him, hinder the ascertainment of truth,
(4) Not to give an answer which will tend to subject or result to his inability to effectively communicate due to
him to a penalty for an offense unless otherwise embarrassment, fear or timidity; the court may, motu propio or
provided by law; or on motion, exclude the public from the courtroom if the
(5) Not to give an answer which will tend to degrade evidence to be produced during trial is of such character as to
his reputation, unless it to be the very fact at issue or be offensive to decency or public morals; on motion of the
to a fact from which the fact in issue would be accused, the court may exclude the public from trial, except
presumed. But a witness must answer to the fact of court personnel and the counsel of the parties. (Sec 23,
his previous final conviction for an offense. RECW)
Foremost is the right not to give an answer that will

subject the witness to a penalty, unless otherwise provided by
45

The court may also order that the persons attending To shield the child from the accused, the court may
shall not enter or leave the courtroom during testimony of the allow the child to testify in such a manner that the child cannot
child. (Sec. 24, ibid.) see the accused by testifying through one-way mirrors, and
other devices. (Sec. 26)
When a child does not does not understand English
or Filipino language or is unable to communicate in said Reports regarding a child shall be confidential and
language due to his developmental level, fear, shyness, kept under seal. Except upon written request and order of the
disability, or other similar reason, an interpreter who the child court, a record shall only be released to the following:
can understand and who can understand the child may be a. Members of the court staff for administrative use;
appointed by court, motu proprio or upon motion, to interpret b. Prosecuting attorney;
for the child. Being another witness in the same case or a c. Defense counsel;
member of the family of the child is not in itself a d. Guardian ad litem;
disqualification. Such person may be an interpreter if he is the e. Agents of investigating law enforcement agencies;
only one who can serve as interpreter. If the interpreter is also and
a witness, he shall testify ahead of the child. (Sec. 9[b]. ibid.) f. Other persons as determined by the court. (Sec.
31[a])
If the court determines that the child is unable to
understand or respond to the questions asked, the court may, Whoever publishes or causes to be published in any
motu proprio or upon motion, appoint a facilitator. The format the name, address, telephone number, school, or other
facilitator may be a child psychologist, psychiatrist, social identifying information of a child who is or is alleged to be a
worker, guidance counselor, teacher, religious leader, parent victim or accused of a crime or a witness thereof, or an
or relative. (Sec. 10) immediate family of the child shall be liable to the contempt
power of the court. (Sec. 31[d])
A child testifying at a judicial proceeding or making a
deposition shall have the right to be accompanied by one or Where a youthful offender has been charged before
two persons of his own choosing to provide him emotional any city or provincial prosecutor or before any municipal judge
support. Said support person shall remain within the view of and the charges have been ordered dropped, all the records of
the child during his testimony. One of the support persons may the case shall be considered as privileged and may not be
even accompany the child to the witness stand and the court disclosed directly or indirectly to anyone for any purpose
may also allow the support person to hold the hands of the whatsoever. If he is charged and acquitted or the case is
child or to take other appropriate steps to provide emotional dismissed, the records are also privileged, as a rule. (Sec.
support to the child in the course of the proceedings but the 31[g])
court shall instruct the support person not to prompt, sway or
influence the child during his testimony. (Sec. 11) The youthful offender, who fails to acknowledge the
case against him or to recite any fact related thereto in
The support person may be another witness but the response to any inquiry made to him for any purpose, shall not
court shall disqualify him if it could be sufficiently established be held under any provision of law to be guilty of perjury or of
that the attendance of such support person would pose a concealment or misrepresentation. (Ibid.)
substantial risk of influencing or affecting the content of the
testimony of the child. If the court allows the support person NOTE OF THE FOLLOWING PROVISION IN THE RECW:
who is also a witness, he shall testify ahead of the child. (Sec. a. Section 3 – Construction of the Rule;
11[b][c]) b. Section 8 – Examination of a child witness;
c. Section 25 – Live link television testimony in criminal
An application may be made for the testimony of the cases where the child is a victim or a witness;
child to be taken in a room outside the court and be televised d. Section 27 – Videotaped deposition;
to the courtroom by live-link television. The application may be e. Section 28 – Hearsay exception in child abuse cases;
made by the prosecutor, counsel or guardian ad litem at least f. Section 29 – Admissibility of videotaped and
five (5) days before the trial date. (Sec. 25[a]) audiotaped in-depth investigative or disclosure
interviews in child abuse cases;
If the child is testifying by live-link television and it is g. Section 30 – Sexual abuse shield rule.
necessary to identify the accused at the trial, the court may
allow the child to enter the courtroom for a limited purpose of
identifying the accused, or the court may allow the child to KINDS OF EXAMINATIONS
identify the accused by observing his image on a television Section 4. Order in the examination of an individual witness.
monitor. (Sec. 25[g][3]) — The order in which the individual witness may be examined
is as follows;
The testimony of the child shall be preserved on (a) Direct examination by the proponent;
videotape, digital disc, or other similar devices which shall be (b) Cross-examination by the opponent;
made part of the court record and be subject to protective (c) Re-direct examination by the proponent;
order. (Sec. 25[h]) (d) Re-cross-examination by the opponent. (4)
Section 5. Direct examination. — Direct examination is the
46

examination-in-chief of a witness by the party presenting him Two basic purpose of cross-examination: (a) to bring
on the facts relevant to the issue. (5a) out facts favorable to counsel’s client not established by direct
testimony, and; (b) to enable the counsel to impeach or to
Section 6. Cross-examination; its purpose and extent. — impair the credibility of the witness.
Upon the termination of the direct examination, the witness
may be cross-examined by the adverse party as to many Re-direct examination – an examination conducted after the
matters stated in the direct examination, or connected cross examination of the witness. The party who called the
therewith, with sufficient fullness and freedom to test his witness on direct may re-examine the same witness to explain
accuracy and truthfulness and freedom from interest or bias, or or supplement his answer given during the cross examination.
the reverse, and to elicit all important facts bearing upon the
issue. (8a) In re-direct, the counsel may elicit testimony to correct
or repel any wrong impression or inferences created by the
cross; it may also be the opportunity to rehabilitate witness’
Section 7. Re-direct examination; its purpose and extent. — credibility that has been damaged by the during cross.
After the cross-examination of the witness has been
concluded, he may be re-examined by the party calling him, to Subject to court’s discretion, questions on new
explain or supplement his answers given during the cross- matters not touched in the cross may be allowed.
examination. On re-direct-examination, questions on matters
not dealt with during the cross-examination, may be allowed by Re-cross examination – examination conducted upon the
the court in its discretion. (12) conclusion of the re-direct examination.
Section 8. Re-cross-examination. — Upon the conclusion of Here the adverse party may question the witness on
the re-direct examination, the adverse party may re-cross- matters stated in re-direct and also on such matters as may be
examine the witness on matters stated in his re-direct allowed by court in its discretion.
examination, and also on such other matters as may be
allowed by the court in its discretion. (13) DEATH OR ABSENCE OF A WITNESS
Witness dies before his cross-examination is over, his
testimony on direct may be stricken out only with respect to the
Section 9. Recalling witness. — After the examination of a
testimony not covered by the cross examination.
witness by both sides has been concluded, the witness cannot
be recalled without leave of the court. The court will grant or
If the witness is not cross-examined because of
withhold leave in its discretion, as the interests of justice may
causes attributable to the cross-examining party and the
require.
witness had always made himself available for cross-
examination, the direct testimony of witness shall remain in the
Direct examination – examination in chief of the witness by the
record and cannot be ordered stricken off because the cross-
party presenting him on the facts relevant to the issue; a
examiner is deemed to have waived the right to cross-examine
procedure for obtaining information from one’s own witness.
the witness. (De la Paz v Intermediate Appellate Court)
The purpose of direct examination is to elicit facts
RECALLING A WITNESS
about the clients cause of action or defense.
A witness already examined by both sides cannot be
recalled without leave of court.
NOTE: Effective January 1, 2013, direct examination
shall be subject to JAR
Recalling of a witness is a matter of judicial discretion.
(Sec. 9, Rule 132)
Cross examination – examination of the witness by the
adverse party after the witness has given the testimony on
LEADING QUESTIONS
direct examination.
Section 10. Leading and misleading questions. — A question
which suggests to the witness the answer which the examining
The scope of the cross examination is not confined to
party desires is a leading question. It is not allowed, except:
matters stated in the direct examination, it covers matters
which will test the accuracy and truthfulness of the witness,
freedom from interest or bias, or the reverse, and to elicit all (a) On cross examination;
important facts bearing upon the issue (Sec. 6, Rule 132) (b) On preliminary matters;
(c) When there is a difficulty is getting direct and
However, where the witness is an unwilling or a intelligible answers from a witness who is ignorant, or
hostile witness as so declared by the court, he may be cross- a child of tender years, or is of feeble mind, or a deaf-
examined only as to the subject matter of his examination in mute;
chief (Sec. 12, ibid.); also, the same limited scope is imposed (d) Of an unwilling or hostile witness; or
upon the cross-examiner where the witness examined is the (e) Of a witness who is an adverse party or an officer,
accused, he subject to cross-examination on matters covered director, or managing agent of a public or private
by the direct examination. (Sec. 1[d], Rule 115) corporation or of a partnership or association which is
an adverse party.
47

A misleading question is one which assumes as true a fact not The unwilling or hostile witness so declared, or the witness
yet testified to by the witness, or contrary to that which he has who is an adverse party, may be impeached by the party
previously stated. It is not allowed. presenting him in all respects as if he had been called by the
adverse party, except by evidence of his bad character. He
A leading question is one that is framed in such a way may also be impeached and cross-examined by the adverse
that the question indicates to the witness the answer desired party, but such cross-examination must only be on the subject
by the party asking the question; a question which suggest to matter of his examination-in-chief. (6a, 7a)
the witness the answer which the examining party desires.
Section 13. How witness impeached by evidence of
Leading questions are not appropriate in direct and inconsistent statements. — Before a witness can be
re-direct particularly when the witness is asked to testify about impeached by evidence that he has made at other times
major elements of the cause of action or defense. However, statements inconsistent with his present testimony, the
they are allowed in cross and re-cross. statements must be related to him, with the circumstances of
the times and places and the persons present, and he must be
Leading questions are allowed in direct examination asked whether he made such statements, and if so, allowed to
in the following instances: (a) on preliminary matters; (b) when explain them. If the statements be in writing they must be
the witness is ignorant, or a child of tender years, or is feeble shown to the witness before any question is put to him
minded or a deaf-mute; (c) witness is a hostile witness; or (d) concerning them. (16)
witness is an adverse party, or an officer, director or managing
agent of a corporation, partnership or association which is an
adverse party. Section 14. Evidence of good character of witness. —
Evidence of the good character of a witness is not admissible
LEADING QUESTIONS TO A CHILD WITNESS until such character has been impeached.
Sec. 10 should be deemed modified by Sec. 20 of
RECW, where the court may allow leading question in all Section 15. Exclusion and separation of witnesses. — On any
stages of examination of a child under the condition that the trial or hearing, the judge may exclude from the court any
same will further the interest of justice. witness not at the time under examination, so that he may not
hear the testimony of other witnesses. The judge may also
NOTE: Under the ROC, a leading question may be asked only cause witnesses to be kept separate and to be prevented from
if there is difficulty of eliciting from a child a direct and conversing with one another until all shall have been
intelligent answer. examined. (18)
MISLEADING QUESTIONS Section 16. When witness may refer to memorandum. — A

A misleading question is one which assumes as true witness may be allowed to refresh his memory respecting a
a fact not yet testified to by the witness, or contrary to that fact, by anything written or recorded by himself or under his
which he has previously stated. direction at the time when the fact occurred, or immediately
thereafter, or at any other time when the fact was fresh in his
Misleading questions are not allowed in any stages of memory and knew that the same was correctly written or
examination. recorded; but in such case the writing or record must be
produced and may be inspected by the adverse party, who
D. IMPEACHMENT OF A WITNESS may, if he chooses, cross examine the witness upon it, and
Section 11. Impeachment of adverse party's witness. — A may read it in evidence. So, also, a witness may testify from
witness may be impeached by the party against whom he was such writing or record, though he retain no recollection of the
called, by contradictory evidence, by evidence that his general particular facts, if he is able to swear that the writing or record
reputation for truth, honestly, or integrity is bad, or by evidence correctly stated the transaction when made; but such evidence
that he has made at other times statements inconsistent with must be received with caution. (10a)
his present, testimony, but not by evidence of particular
wrongful acts, except that it may be shown by the examination
of the witness, or the record of the judgment, that he has been Section 17. When part of transaction, writing or record given in
convicted of an offense evidence, the remainder, the remainder admissible. — When
part of an act, declaration, conversation, writing or record is
given in evidence by one party, the whole of the same subject
Section 12. Party may not impeach his own witness. — may be inquired into by the other, and when a detached act,
Except with respect to witnesses referred to in paragraphs (d) declaration, conversation, writing or record is given in
and (e) of Section 10, the party producing a witness is not evidence, any other act, declaration, conversation, writing or
allowed to impeach his credibility. record necessary to its understanding may also be given in
evidence. (11a)
A witness may be considered as unwilling or hostile only if so
declared by the court upon adequate showing of his adverse Section 18. Right to respect writing shown to witness. —
interest, unjustified reluctance to testify, or his having misled Whenever a writing is shown to a witness, it may be inspected
the party into calling him to the witness stand. by the adverse party.
48

Impeachment is basically a technique employed requirement before the impeachment process prosper. Under
usually as part of the cross-examination to discredit a witness Sec. 13, these are:
by attacking his credibility. a. The alleged statement must be related to the witness
including the circumstances of the times and places
NOTE: Credibility is linked with a witness ability and and the person present. If the statements are in
willingness to tell the truth. writing, they must be shown to him; and
b. He must asked whether he made such statements
Guideposts in impeaching a witness: and also explain them if he admits making those
a. The impeachment of witness is to be done by the statements.
party against whom the witness is called;
b. Subject to exceptions, the party producing the witness Mere presentation of the prior declaration without the
is barred from impeaching his own witness; same having been read to the witness while testifying in court
c. By way of exception, if a witness is unwilling or is insufficient for the desired impeachment of his testimony.
hostile, the party calling him may be allowed by the
court to impeach the witness; The purpose of laying the predicate is to allow the
d. It is improper for a party calling the witness to present witness to admit or deny the prior statement and afford him an
evidence of good moral character of his own witness. opportunity to explain the same. Non-compliance with the
Evidence of good moral character of witness is elements for this mode of impeachment will be a ground for
allowed only to rebut evidence offered to impeach the objection based on improper impeachment.
witness’ character.
Timely objection over extrinsic evidence of a prior
HOW TO IMPEACH A WITNESS inconsistent statement without the required foundation is not
Under the above rule, a witness may be impeached admissible.
through the following modes:
a. By contradictory evidence; If the witness denies the making of the statement, it is
b. By evidence that his general reputation for truth, imperative for the impeaching party to be prepared to present
honesty or integrity is bad; another witness who would contradict the witness being
c. By evidence that he has made at other times impeached.
statements inconsistent with his present claim.
If statement is in writing, the process of laying the
A witness cannot be impeached by evidence of predicate is fundamentally the same as when the prior
particular wrong acts except evidence of a final conviction of statement is oral. However, rule requires that the writing must
an offense as disclosed by his examination or the record of the be shown to the witness before any question is put to him
judgment. concerning it.
An unwilling or hostile witness or witness who is an IMPEACHMENT BY SHOWING BAD REPUTATION

adverse party cannot be impeached by evidence of his bad Not every aspect of a person’s reputation may be
character. subject of impeachment. Evidence of bad reputation for
purposes of impeachment should refer only to (a) truth; (b)
IMPEACHMENT BY CONTRADICTORY EVIDENCE honesty; and (c) integrity.
Fairness demands that the impeaching matter be
raised in the cross examination of the witness sought to be A witness cannot be impeached for his reputation on
impeached by allowing him to admit or deny a matter to be other grounds, e.g. being too troublesome and abrasive.
used as the basis for impeachment by contradictory evidence.
NO IMPEACHMENT BY EVIDENCE OF BAD CHARACTER
The basis for this mode is the declaration made by BUT BY BAD REPUTATION
the witness in his direct testimony. The cross-examiner’s Sec. 11 does not allow impeachment by evidence of
intention is to show that there were allegations made by the bad character but by bad reputation.
witness that do not correspond to the real facts of the case.
Character is made of thing an individual actually is
This mode may also be used to contradict and does.
conclusions made by expert witnesses during their
testimonies. Reputation is what people think an individual is and
what they say about him.
IMPEACHMENT BY PRIOR INCONSISTENT STATEMENTS
Prior inconsistent statements are statements made by EVIDENCE OF GOOD CHARACTER OF THE WITNESS
a witness on an earlier occasion which contradict the A witness cannot initiate proof of his good character.
statements he makes during the trial; or that he has made at Any question to that effect can be validly objected to as
other times statement inconsistent with his present testimony. “improper character evidence.”
Effectively impeaching a witness by prior inconsistent

statement requires laying the predicate which is a preliminary
49

It is only after his character has been attacked that he
can prove his being good. He must first be discredited before Such memorandum should be written at the time the
his reputation or character can be bolstered. (See Sec. 14) fact occurred or immediately thereafter or at any time when the
event or fact was fresh in his memory. However, the witness
NOTE: Sec 14, Rule 132 refers only to a witness. Under Sec. must affirm that the fact was correctly written and recorded.
51[a][1] Rule 130, an accused in a criminal case may prove his Further, the memorandum must be produced and may be
good moral character relevant to the offense charged even inspected by the adverse party. (Sec. 16, Rule 132)
before his character is attacked. However, the prosecution
cannot initiate proof of bad character of the accused. It can Witness may testify from the memorandum, writing or
only do so in rebuttal. This means that prosecution can only record, although he has no more recollection of the facts
prove bad character if the accused presented evidence of his written therein as long as he swears that the such correctly
good moral character. stated the facts or transaction when the recording was made.
NO IMPEACHMENT BY EVIDENCE OF PARTICULAR This kind of evidence must be received with caution.
WRONGFUL ACT
Sec. 11 disallow the impeachment of a witness by E. ADMISSIONS, CONFESSIONS AND THE RES INTER
evidence of particular wrongful acts. However, There is a ALIOS ACTA RULE
particular wrongful act that is admissible in evidence under the RULE 130
same section – hi prior conviction of an offense.
Section 26. Admission of a party. — The act, declaration or
Prior conviction of the witness is shown through either omission of a party as to a relevant fact may be given in
(a) by his examination, i.e. by cross-examining him, or (b) by evidence against him. (22)
presenting the record of his prior conviction.
Section 27. Offer of compromise not admissible. — In civil
Examining another witness to elicit the prior cases, an offer of compromise is not an admission of any
conviction of another is not the correct procedure, unless the liability, and is not admissible in evidence against the offeror.
witness is one who is competent (like an official custodian of
records) to present in court the record of conviction.
In criminal cases, except those involving quasi-offenses
“Examination of the witness” refers to the one whose (criminal negligence) or those allowed by law to be
prior conviction is the subject of inquiry. compromised, an offer of compromised by the accused may be
received in evidence as an implied admission of guilt.
IMPEACHMENT OF THE ADVERSE PARTY AS A WITNESS
That the witness is the adverse party does not A plea of guilty later withdrawn, or an unaccepted offer of a
necessarily mean that the calling party will not be bound by the plea of guilty to lesser offense, is not admissible in evidence
former’s testimony. He is not bound only in the sense that he against the accused who made the plea or offer.
may contradict him by introducing other evidence to prove a
state of fact contrary to what the witness testifies.
An offer to pay or the payment of medical, hospital or other
expenses occasioned by an injury is not admissible in
Under the rule permitting the impeachment of an
evidence as proof of civil or criminal liability for the injury. (24a)
adverse witness, although the calling party does not vouch for
the witness veracity, he is nonetheless bound by his testimony
if it is not contradicted or remains unrebutted. (Gaw v Chua) Section 28. Admission by third party. — The rights of a party
cannot be prejudiced by an act, declaration, or omission of
Unlike an ordinary witness, the calling party may not another, except as hereinafter provided. (25a)
impeach an adverse party as witness by evidence of his bad
character. Section 29. Admission by co-partner or agent. — The act or
declaration of a partner or agent of the party within the scope
EXCLUSION AND SEPARATION OF WITNESSES of his authority and during the existence of the partnership or
The judge may exclude a witness who, at the time agency, may be given in evidence against such party after the
exclusion, is not under examination so that he may not hear partnership or agency is shown by evidence other than such
the testimony of other witnesses. (Sec. 15, Rule 132) act or declaration. The same rule applies to the act or
declaration of a joint owner, joint debtor, or other person jointly
The judge may cause the witnesses to be kept interested with the party.
separate and be prevented from conversing with one another
until all shall have been examined. (ibid.)
Section 30. Admission by conspirator. — The act or
declaration of a conspirator relating to the conspiracy and
WHEN WITNESS MAY REFER TO A MEMORANDUM
during its existence, may be given in evidence against the co-
During his testimony, in order to refresh his memory,
conspirator after the conspiracy is shown by evidence other
a witness may refer to a memorandum or to anything written or
than such act of declaration. (27)
recorded by himself, or written or recorded by someone acting
under his direction.
50

Section 31. Admission by privies. — Where one derives title to ADMISSION DISTINGUISH FROM DECLARATION AGAINST
property from another, the act, declaration, or omission of the INTEREST
latter, while holding the title, in relation to the property, is Admission Declaration Against Interest
evidence against the former. (28) Admission is admissible even The declarant must be dead
if the person making is alive or unable to testify.
Section 32. Admission by silence. — An act or declaration and is in court.
made in the presence and within the hearing or observation of Made at any time, even Generally made before the
a party who does or says nothing when the act or declaration during trial. controversy.
is such as naturally to call for action or comment if not true, Admissible as long as it is Generally made against one’s
and when proper and possible for him to do so, may be given inconsistent with his present pecuniary or moral interest.
in evidence against him. (23a) claim or defense and need
not be against one’s
pecuniary or moral interest.
Section 33. Confession. — The declaration of an accused
Admissible against the party Admissible even against third
acknowledging his guilt of the offense charged, or of any
making the admission. person.
offense necessarily included therein, may be given in evidence
Admissible not as an Admissible as an exception to
against him. (29a)
exception to any rule. hearsay rule.
Section 34. Similar acts as evidence. — Evidence that one did EFFECTS OF ADMISSION
or did not do a certain thing at one time is not admissible to An admission by a party may be given in evidence
prove that he did or did not do the same or similar thing at against him. The rule is based on the notion that no man would
another time; but it may be received to prove a specific intent make any declaration against himself, unless it is true.
or knowledge; identity, plan, system, scheme, habit, custom or (Republic v Bautista)
usage, and the like. (48a)
Declarations of a party favorable to himself are not
Section 35. Unaccepted offer. — An offer in writing to pay a admissible as proof of the facts asserted.
particular sum of money or to deliver a written instrument or
specific personal property is, if rejected without valid cause, CLASSIFICATION OF ADMISSIONS AND CONFESSIONS
equivalent to the actual production and tender of the money, An admission may be express or implied. An express
instrument, or property. admission is positive statement or act. An implied admission is
one which may be inferred from the declarations or acts of a
CONCEPT OF ADMISSION AND CONFESSIONS person.
Admission is an act, declaration or omission of a party
as to a relevant fact. (Sec. 26) NOTE: A confession cannot be implied. It must be a positive
acknowledgment of guilt and cannot be inferred. Declaration
It is a voluntary acknowledgement made by a party of connotes an affirmative statement from the person making the
the existence of the truth of certain facts, which are confession.
inconsistent with his claims in an action.
An admission may be judicial or extrajudicial. An
Confession is the declaration of an accused admission is judicial when made in the course of judicial
acknowledging his guilt of the offense charged, or of any proceeding. It is extrajudicial when made out of court or even
offense necessarily included therein. (Sec. 33) in a proceeding other than the one under consideration.
Confession may also be judicial or extrajudicial.
NOTE: Confession applies only to criminal actions since the
rule uses the words “accused” and “guilt”. An admission may also be adoptive, which occurs
when a person manifest his assent to the statements of
Confession is the statement by the accused that he another person. It may be received in evidence if it can be
engages in a conduct which constitute a crime. Thus, where shown that a party adopted the statements as his own.
the accused claims self-defense, there is merely an admission
and not a confession. (No acknowledgement of guilt, but there A party may, by his words or conduct, voluntarily
is a declaration of a relevant fact.) adopt or ratify another’s statement. Where it appears that a
party clearly and unambiguously assented to or adopted the
In confession there is acknowledgement of guilt; in statements of another, evidence of those statements is
admission there is merely a statement of fact, not directly admissible against him.
involving an acknowledgment of guilt or intent to commit.
By adoptive admission, a third person’s statement
Admission may be implied like an admission by becomes the admission of the party embracing or espousing it.
silence; confession cannot be implied. Rule describes Adoptive admission may occur when a party:
confession as a declaration unlike admission which can be an a. Expressly agrees to or concurs in an oral statement
act or omission, other than declaration. A confession can only made by another;
be made by express terms. b. Hears a statement and later on essentially repeats it;
51

c. Utters an acceptance or builds upon the assertion of by him; otherwise, such extrajudicial confession shall be
another; inadmissible as evidence in any proceeding.”
d. Replies by way of rebuttal to some specific points
raised by another but ignores further points which he An oral confession before an investigator while under
or she has heard the other make; or custodial investigation does not comply with the mandatory
e. Reads and subsequently signs a written statement provision of RA 7438 and, hence, inadmissible in evidence in
made by another. (Republic v. Kenrick Development any proceeding.
Corp)
RA 7438 refers to extrajudicial confession of a person
In Estrada v Desierto, When Executive Secretary arrested, detained or under custodial investigation. Any
Angara had to allegedly ask Senate President Pimentel to confession of the accused before he is placed under custodial
advise petitioner to consider the option of dignified exit or investigation need not comply with the above. Thus, if he talks
resignation, President Estrada did not object to the suggested to a person in a private meeting with, for instance a Mayor,
option but simply said he could never leave the country. spontaneously, fully and voluntarily confessing to his
According to the Court, his silence on this and other related commission of a crime, the constitutional requirements in a
suggestions can be taken as adoptive admissions by him. custodial investigation do not apply. (People v Cabiles)
An adoptive admission is a party’s reaction to a Custodial investigation has been described as one
statement or action by another person when it is reasonable to which involves any questioning initiated by law enforcement
treat the party’s reaction as an admission of something stated officers after a person has been taken into custody or
or implied by the other person. (Estrada v Desierto) otherwise deprived of freedom of action in any significant way.
It is only after the investigation ceases to be general inquiry
EFFECT OF EXTRAJUDICIAL CONFESSION OF GUILT; into an unsolved crime and begins to focus on a particular
CORPUS DELICTI suspect, the suspect is taken into custody and the police
While judicial confession may sustain a conviction, an carries out a process of interrogation that lend itself to eliciting
extrajudicial confession is not. The Rule requires that the incriminating statements that the rule begin to operate. (Aquino
confession be corroborated by evidence of corpus delicti. (Sec. v Paiste)
3, Rule 133)
ADMISSION BY SILENCE
Corpus delicti is the “body of the crime” or the Section 32. Admission by silence. — An act or declaration
offense; the actual commission of the crime and someone made in the presence and within the hearing or observation of
criminally responsible therefor; the substance of the crime; the a party who does or says nothing when the act or declaration
fact that a crime has been actually committed. is such as naturally to call for action or comment if not true,
and when proper and possible for him to do so, may be given
Corpus delicti has two elements: (1) proof of the in evidence against him.
occurrence of a certain event, e.g. that a man has died or a
building has been burned; and (2) some person’s criminal There is admission by silence when a statement
responsibility for the act. contains assertions against a party which, if untrue, would be
sufficient cause for a party to deny. His failure to speak against
Corpus delicti, and its elements, may be proved by the statement is admissible as an admission.
circumstantial evidence, but the proof must be convincing and
compatible with the nature of the case. If an accusation is made, and a reasonable person
would have denied the same if it were false, the failure to deny
While extrajudicial confession will not be sufficient for the accusation by the person accused may be construed as an
conviction absent of corroborating evidence of corpus delicti, a implied admission of the truth of the accusation and may be
judicial confession will support a conviction without proof of the given in evidence against him.
corpus delicti.
Not every silence is an admission. Silence of a
The rule on extrajudicial confession in the ROC must person under investigation for the commission of an offense
be considered together with applicable constitutional and should not be construed as an admission because of
substantive laws which must be complied with for the constitutional reasons.
confession to be admissible.
For silence to be deemed an admission, it is
Under RA 7438 (Act Defining Certain Right of necessary that (a) he heard and understood the statement; (b)
Persons, Arrested, Detained or Under Custodial Investigation) he was at liberty to make a denial; (c) the statement was about
provides: “Any extrajudicial confession made by a person a matter affecting his rights or in which he was interested and
arrested, detained, or under custodial investigation shall be in which naturally calls for a response; (d) the facts were within
writing and signed by such person and in the presence of his his knowledge; and (e) the facts admitted from his silence is
counsel or in the latter’s absence, upon a valid waiver, and in material to the issue. (People v Paragasa)
the presence of any of the parents, older brothers and sisters,
spouse, the municipal mayor, the municipal judge, district RES INTER ALIOS ACTA; BRANCHES
school supervisor, or priest or minister of the gospel as chosen
52

The expression if fully expressed reads: res inter alios The agent performs some service in representation of
acta alteri nocere non debet which literally means that “things his principal. The agent, therefore, is in legal contemplation, a
done between strangers ought not to injure those who are not mere extension of the personality of the principal and unless
parties to them.” the agent acts in his own name, the principal must comply with
all the obligations which the agent may have contracted within
The res inter alios acta rule has two branches: the scope of his authority.
1. The rule that rights of a party cannot be prejudiced by
an act, declaration or omission of another (Sec. 28) Whatever is said by the agent to third person during
2. The rule that evidence of previous conduct or similar the course of agency and within the scope of his actual or
act at one time is not admissible to prove that one did apparent authority is also the statement of the principal and is,
or did not do the same act at another time (Sec. 34) therefore, admissible against the said principal.
First branch holds that whatever one say or does or The relationship among partners is on the same
omits to do should only affect him but should not affect or footing with the relationship of an agent to his principal. Under
prejudice others. the NCC, every partner is an agent of the partnership for the
purpose of its business and act of the partner in carrying out
Section 28 has reference only to extrajudicial the usual course of business binds the partnership as a rule
declarations. Hence, statements made in open court by a (Article 1818 NCC). Hence, under the same principles
witness implicating persons, aside from his own judicial governing agency, the declaration of a partner may be
admissions, are admissible as declaration from one who has admissible against the other partners or the partnership.
personal knowledge of the facts testified to.
For an admission of a co-partner or agent to be
DISTINCTION BETWEEN EXTRAJUDICIAL AND JUDICIAL admissible, the following must concur:
ADMISSION a. The declaration or act of the partner or agent must
An extrajudicial confession may be given in evidence have been made or done within the scope of his
against the confessant but not against his co-accused as they authority;
are deprived of the opportunity to cross-examine him; a judicial b. The declaration or act of the partner or agent must
admission is admissible against the declarant’s co-accused have been made or done during the existence of the
since the latter are afforded the opportunity to cross-examine partnership or agency. (While making the declaration,
the former. he was still a partner or an agent); and
c. The existence of partnership or agency is proven in
An extrajudicial admission or confession is admissible evidence other than the declaration or act of the
only against the said accused and inadmissible against the partner or agent.
other. But if the declarant repeats in court his extrajudicial
admission, and the other accused is accorded the opportunity If A, after the partnership was dissolved, admits that
to cross examine the admitter, the admission is admissible he and his partners was engaged in illegal smuggling, such
both accused because then, it is transposed into a judicial declaration are not admissible against B and C. His
admission. declaration, nevertheless, is admissible against him.
EXCEPTION TO THE RES INTER ALIOS ACTA (FIRST This rule applies to declaration or act of a joint owner,
BRANCH) joint debtor, or other persons jointly interested with the party.
The first branch admits of certain exceptions, to wit:
a. Admission by a co-partner or agent (Sec. 29) ADMISSIONS BY A CO-CONSPIRATOR
b. Admission by co-conspirator (Sec. 30) Section 29. Admission by co-partner or agent. — The act or
c. Admission by privies (Sec. 31) declaration of a partner or agent of the party within the scope
of his authority and during the existence of the partnership or
The basis for admitting the above admission is that agency, may be given in evidence against such party after the
the person making the statements is under the same partnership or agency is shown by evidence other than such
circumstances as the person against whom it is offered. Such act or declaration. The same rule applies to the act or
circumstances give him substantially the same interest and declaration of a joint owner, joint debtor, or other person jointly
same motive to make a statement about certain matters. interested with the party.
ADMISSION BY A CO-PARTNER OR AGENT Conspiracy exist when two or more person comes to
Section 29. Admission by co-partner or agent. — The act or an agreement concerning the commission of a felony and
declaration of a partner or agent of the party within the scope decide to commit it. (Article 8 RPC)
of his authority and during the existence of the partnership or Once the conspiracy is proven, the act of one is the
agency, may be given in evidence against such party after the act of all. The statement, therefor, of one may be admitted
partnership or agency is shown by evidence other than such against the other conspirators as an exception to res inter alios
act or declaration. The same rule applies to the act or acta.
declaration of a joint owner, joint debtor, or other person jointly
interested with the party. To be admissible against co-conspirators, the
following must concur:
53

a. The declaration or act be made or done during the ADMISSION BY PRIVIES
existence of conspiracy; Section 31. Admission by privies. — Where one derives title to
b. The declaration or act must relate to the conspiracy; property from another, the act, declaration, or omission of the
c. The conspiracy must be shown by evidence other latter, while holding the title, in relation to the property, is
than such declaration or act. evidence against the former.
Two months after a successful bank robbery, A was Privies are persons who are partakers or have an
arrested as direct participant in the crime. During the interview, interest in any action or thing, or in relation to another.
he implicated B and C as his companions in the robbery. The
statement is admissible as to him but not against B and D. For an admission of a predecessor-in-interest to be
When the declaration was made, the conspiracy no longer admissible against the successor-in-interest, the following
exist, A was no longer a co-conspirator. requisites must be present:
a. There must be an act, declaration or omission by a
Incriminating declarations of co-conspirators made in predecessor-in-interest;
the absence of or without the knowledge of others after the b. The act, declaration or omission of the predecessor
conspiracy has come to an end is inadmissible. must have occurred while he was holding title to the
property;
The arrest of the declarant is often found to terminate c. The act, declaration, or omission, must be in relation
the declarant’s participation in the conspiracy so that to the property.
declarant’s post arrest statements do not qualify as admissible
co-conspirator statements. Such extrajudicial confession is When a former owner of the property made a
binding only upon the confessant and is not admissible against declaration after he ceased ownership of the property, the rule
his co-accused. As against the latter, the confession is on admission by privies does not apply. What applies is the
hearsay. general rule that rights of a party cannot be prejudice by an
act, declaration or omission of another. (Gevero v IAC)
The rule requiring the concurrence of the above
element does not apply when the accused takes the witness OFFER OF COMPROMISE IN CIVIL CASE
stand and repeats his extrajudicial confession as a witness. In civil cases, an offer of compromise is not an
This is because the statements made by witnesses in open admission of any liability, and is not admissible in evidence
court are admissible as testimonies of a person based on his against the offeror. (Sec. 27, Rule 130)
personal perceptions and knowledge pursuant to Sec. 36 Rule
130. OFFER OF COMPROMISE IN CRIMINAL CASES
An offer of compromise by the accused may be
Repeating the extrajudicial confession in court received in evidence as an implied admission of guilt. (ibid.)
converts it as judicial confession which is admissible against
the co-accused since the latter is afforded the opportunity to However, there is no admission of guilt if the offer
cross examine the former. Sec. 30 Rule 130 applies only to compromise is in relation to: (a) quasi-offenses (criminal
extrajudicial admissions and not to testimonies at trial. negligence); or (b) cases allowed by law to be compromise.
(ibid.)
Extrajudicial admissions confirmed at the trial ceases
to be hearsay. It becomes a judicial admission, being a To be an implied admission of guilt, the offer must be
testimony of an eyewitness admissible in evidence against “an offer of compromise by the accused.” An offer made by the
those he implicates. father of the accused cannot be considered as an implied
admission of guilt.
An extrajudicial confession by an accused implicating
another may not be utilized unless repeated in open court or PLEA OF GUILTY LATER WITHDRAWN
when there is an opportunity for co-accused to cross-examine A plea to lesser offense not accepted is not
the confessant on his extrajudicial statements. admissible in evidence against the accused who made the
plea or offer. (ibid.)
If the only evidence of the conspiracy is the
extrajudicial declaration of the declarant, the statements are OFFER TO PAY OR THE PAYMENT OF MEDICAL,
not admissible against the other; the rule requires independent HOSPITAL OR OTHER EXPENSES (GOOD SAMARITAN
evidence aside from the extrajudicial confession to prove RULE)
conspiracy. An offer to pay expenses occasioned by an injury is
not admissible in evidence as proof of civil or criminal liability
Section 30 of Rule 130 cannot apply if confessions for the injury.
made after the conspiracy has ended and after the
consummation of the crime. Such confessions are binding only Good Samaritan Rule is used to refer to the rendering
upon the confessant and are not admissible against the co- of voluntary aid to a suffering person.
accused.
54

SUBSEQUENT REMEDIAL MEASURES F. JUDICIAL AFFIDAVIT RULE (A.M. 12-8-8-SC)
No direct legal provision under the ROC, but under
the US Federal Rules of Evidence, in Rule 407 thereof, it RATIONALE FOR JAR
prohibits the admission of evidence of subsequent remedial To decongest the courts of cases and to reduce
measures when offered to prove the negligence of the delays in the disposition of cases.
defendant. Evidence on such measures may however, be
admissible to prove some other purposes like the fact that the EFFECTIVITY
defendant had ownership of the property or control over the Effective January 1, 2013 following its publication in
same and all the fixtures therein. two newspaper of general circulation not later than September
15, 2012.
EVIDENCE OF SIMILAR CONDUCT (SECOND BRANCH)
Section 34. Similar acts as evidence. — Evidence that one did It applies to existing cases. Where a case have
or did not do a certain thing at one time is not admissible to already conducted direct testimony orally, the upon the
prove that he did or did not do the same or similar thing at effectivity of the rule, the remaining direct testimonies shall be
another time; but it may be received to prove a specific intent done by judicial affidavit (JA).
or knowledge; identity, plan, system, scheme, habit, custom or
usage, and the like. SIGNIFICANCE OF THE USE OF A JUDICIAL AFFIDAVIT;
EXHIBITS
The general rule is that the law will not consider JA takes the place of the direct testimonies of
evidence that a person has done certain act at a particular time witnesses. It modified the existing practice in the conduct of
as probative of a contention that he has done a similar act in the trial and reception of evidence by doing away with the
another time (propensity evidence). This is the rule of res inter usual oral examination.
alios acta found in Section 34 Rule 130.
Attached to the JA are the documentary and object
Purpose of the rule is to guard the practical evidence of the parties which shall be marked as Exhibits A, B,
inconvenience of trying collateral issues and protracting the C, and so on for the complainant or plaintiff; Exhibits 1, 2, 3
trial and prevents surprise or other mischief prejudicial to and so on for the defendant or respondent.
litigants.
Original document or object evidence need not be
To argue that a person did or did not commit an act attached to the JA. The party or witness may keep the same in
because he did or did not commit a similar thing in the past is his possession after the exhibit has been identified, marked as
certainly non sequitur. an exhibit and authenticated. He must, however, warrant in his
JA that the copy or reproduction attached is a faithful copy or
WHEN EVIDENCE OF SIMILAR ACTS OR PREVIOUS reproduction of the original.
CONDUCT IS ADMISSIBLE
Evidence of similar acts is admissible to prove any of The party or witness is required to bring the original
the following: document or object evidence for comparison with the attached
a. Specific intent; copy, reproduction or pictures, during preliminary conference.
b. Knowledge; In case of failure, the attached copy, reproduction or pictures
c. Identity; shall not be admitted. (Sec. 2[b])
d. Plan;
e. System; SCOPE OF JUDICIAL AFFIDAVIT RULE
f. Scheme; JAR applies to all (a) actions, (b) proceedings, or (c)
g. Habit; incidents requiring the reception of evidence. (Sec. 1)
h. Custom;
i. Usage; and It applies to all courts, other than the SC. It also
j. The likes. applies to certain non-judicial bodies. The Rule specifies the
following courts:
Evidence of similar acts may frequently become a. MeTC, MTCC, MTC, MCTC and Shari’a Circuit
relevant because it sheds lights on the state of mind or Courts but shall not apply to small claims cases;
knowledge of a person, his motive or intent, or they may b. RTC and Shari’a District Courts;
uncover a scheme, design or plan. c. Sandiganbayan, CTA, CA and Shari’a Appellate
Courts;
Admissibility of similar previous act or conduct would d. Investigating officers and bodies authorized by the SC
depend on the purposes for which such acts or conducts are to receive evidence, including the IBP; and
offered. If it is offered to show that the accused is likely to be e. Special courts and quasi-judicial bodies, whose rules
guilty of the charge for having committed the same in the past, of procedure are subject to disapproval of the SC.
it is inadmissible; if it is offered to show signature, handiwork, (Sec. 1)
modus operandi or distinctive feature as the offense for which
the accused is currently charged with, it is admissible and
exception to the rule on res inter alios acta.
55

APPLICABILITY OF JAR TO CRIMINAL CASES
JAR shall apply to criminal cases (Sec. 9); in relation The provision, however, does not absolutely bar the
to Sec. 1 stating that the JAR applies to all actions, submission of a compliant replacement judicial affidavit as long
proceedings and incidents requiring reception of evidence. as the replacement shall be submitted before the hearing or
trial and provided that the following requisites are present:
However, JAR applies only to criminal action where a. The submission shall be allowed only once;
the maximum imposable penalty does not exceed six years b. The delay is for a valid reason;
(Sec. 9). In other cases, the use of JA will depend on the c. The delay would not unduly prejudice the opposing
accused. party; and
d. The public or private counsel responsible for the
The Rule will apply, irrespective of the penalty preparation and submission of the affidavit pays a fine
involved, where the accused agrees to the use of JA. of not less than P1,000 nor more than P5,000, at the
discretion of the court. (Sec. 10 [c])
With respect to the civil aspect (action to recover civil
liability arising from the offense charged) of the criminal action, SWORN ATTESTATION OF THE LAWYER
the JA shall apply, irrespective of the penalty involved. Aside from the content requirement under Sec. 3,
also requires a sworn attestation executed by the lawyer who
CONTENTS OF THE JUDICIAL AFFIDAVIT conducted and supervised the examination, attesting the
1. A JA shall be prepared in the language known to the following:
witness. If affidavit is not in English or Filipino, it shall a. That he faithfully recorded or caused to be recorded
be accompanied by a translation in either language. the questions he asked and the corresponding
(Sec. 3); answers that the witness gave; and
2. Name, age, residence or business address, and b. That neither he nor any other person present or
occupation of the witness. (Sec. 3[a]) assisting him coached the witness regarding the
NOTE: there must also be a statement in the affidavit latter’s answer. (Sec. 4[a])
that the witness is answering the questions asked of
him, fully conscious that the does so under oath, and EFFECT OF FALSE ATTESTATION BY THE LAWYER
that he may face criminal liability for false testimony It shall subject the lawyer to disciplinary action,
or perjury. (Sec. 3 [c]); including disbarment. (Sec. 4[b])
3. Name and address of the lawyer [because
examination of the witness shall be conducted and EFFECT OF NON-COMPLIANCE WITH THE ATTESTATION
supervised by a lawyer]. (Sec. 3[b]); REQUIREMENT
4. Indicate the place where the examination is being The court shall not admit the JA in evidence. The
held. (Sec. 3[b]); court may, however, allow the submission of a complaint
5. Contain the questions asked of the witness and his replacement judicial affidavit. (See above; Sec. 10 [c])
answers to the questions, consecutively numbered.
The question and answer shall: FILING AND SERVICE OF THE JUDICIAL AFFIDAVIT AND
a. Show the circumstances under which the EXHIBITS; MODES OF SERVICE
witness acquired the facts upon which he The JA of the witnesses and the documentary or
testifies; object evidence shall be filed by the parties with the court and
b. Elicit from his those facts which are relevant served on the adverse party, not later than five (5) days before
to the issues that the case presents; and; the pre-trial or preliminary conference or the scheduled
c. Identify the attached documentary and hearing, with respect to motions and incidents. (Sec. 2 [a])
object evidence and established their
authenticity. (Sec.3 [d]) Service of papers shall be made either personally or
6. Signed by witness over his printed name. (Sec.3 [e]); by mail, and if service cannot be made through such modes,
7. Jurat, with the signature of the notary public who service shall be done through substituted service by delivering
administers the oath or an officer who is authorized to a copy of the papers to be served with the clerk of court. (See.
administer the same. (Sec.3 [f]) Sec. 8 Rule 13, ROC); however, under JAR, the filing of the JA
and its attached exhibits shall be done, not only personally, but
NOTE: Under the ROC, proof of due execution and also by licensed courier service. Service by mail is not
authenticity of a private document shall be made in case the mentioned in the Rule.
document is offered as authentic. If not offered as authentic,
the private document need only be identified as that which it is In criminal cases, the prosecution shall submit the JA
claimed to be (Sec. 20 Rule 132). Nothing in the provisions of of its witnesses not later than 5 days before the pre-trial.
the JAR dispenses with the application of this principle. Copies of the JA shall be served upon the accused. To be
attached to the JA are such documentary or object evidence
EFFECT OF NON-COMPLIANCE WITH THE CONTENT as the prosecution may have, marking them as Exhibits A, B,
REQUIREMENT OF JAR and C and so on. (Sec. 9[b])
The court shall not admit a judicial affidavit in
evidence those that does not conform to the content In criminal cases, no further JA, documentary or
requirements of Sec. 3 of the JAR. (Sec. 10 [c]) object evidence shall be admitted at the trial (Ibid.); this means
56

that even before the trial, the prosecution has to lay down all his affidavit, or (c) strike out any of the answers found in the
its evidence – testimonial, documentary and object. JA. (Sec. 6)
Since the accused is already aware of the evidence of The court is required to promptly rule on the motion of
the prosecution, he has the option to submit or not to submit the adverse party. If it grants the motion, any excluded answer
his JAs. If the accused desires to be heard on his defense after shall be marked by placing the same in brackets under the
receiving the JAs of the prosecution, the accused may submit initials of authorized court personnel. The other party may,
his JA as well as those of his witnesses, including however, make a tender of excluded evidence under Sec. 40
documentary and object evidences marking them as Exhibits of Rule 132. (Sec. 6)
1, 2 and 3 and so on. The submission shall be done within 10
days from the receipt of the affidavits of the prosecution with The term “promptly” should be taken in literal context
service upon the public and private prosecutor. (Sec. 9[c]) and akin to the word, “immediately,” as used in Sec. 38 Rule
132. Under the said provision, the ruling of the court in case of
EFFECTS OF FAILURE TO SUBMIT THE JUDICIAL an objection must be given immediately. The mandate of
AFFIDAVITS AND EXHIBITS ON TIME giving of an immediate ruling is, however, qualified by the
A party who fails to submit the required JAs and phrase, “unless the court desires to take a reasonable time to
exhibits shall be deemed to have waived their submission. inform itself on the question presented.” Which is not found in
(Sec. 10[a]) the JAR.
The waiver would mean that the party who failed to APPEARANCE OF THE WITNESS AT THE SCHEDULE
submit the JA of a particular witness would have no direct HEARING
testimony for that witness and the documentary or object The submission of the JA of the witness and the
evidence integrated with such affidavit could not be identified, attached exhibits does not exempt the witness from appearing
marked as an exhibit, and authenticated. In effect, the exhibit at the schedule hearing. The rule still requires his appearance.
could not be offered in evidence. (Sec. 10[b])
If the waiver extends to the required affidavits of all The appearance of a witness is necessary because
the witnesses of a party because all the JAs were not filed and the adverse party has the right to cross-examine him. The
served, then said party is deemed to have not presented his cross-examination shall be on his JA and on attached exhibits.
evidence-in-chief for his case. After the cross-examination, the party presenting the witness
may also examine him as on re-direct. (Sec. 7)
REMEDY IN CASE OF LATE SUBMISSION
The failure of a party to submit a judicial affidavit on A postponement of the cross-examination would be
time does not mean a permanent waiver to submit the same. contrary to the spirit of the rule because JAs have been filed
He is given another chance to do so. The remedy is to move and served even before the schedule hearing.
that the late submission of the JA and its exhibits be allowed.
The court, under JAR, is not a mere passive entity
The court may allow late submission of that JA and that merely receives evidence from the parties. The Rule
exhibits provided the following requisites concur: integrates an element of the inquisitorial system which allows
a. A late submission shall be allowed only once; the court to have active role in the proceedings. The rule
b. The delay is for a valid reason; mandates the court to take active part in examining the
c. The late submission will not unduly prejudice the witnesses to (a) determine (i) credibility of the witness and (ii)
opposing party; and truth of his testimony; and (b) elicit the answers that it needs in
d. The defaulting party pays a fine of not less than 1,000 resolving the case (Sec. 7). Thus, the question of the court
pesos nor more than 5,000 pesos, at the discretion of shall not be confine to mere clarificatory questions.
the court. (Sec. 10[a])
EFFECT OF FAILURE OF A WITNESS TO APPEAR AT THE
OFFER OF TESTIMONY IN THE JUDICIAL AFFIDAVIT SCHEDULED HEARING; FAILURE OF COUNSEL TO
In stead offering the oral testimony of the witness, the APPEAR
party using the JA of his witness in place of a direct testimony, The court shall not consider the affidavit of any
shall present such affidavit and state the purpose of the witness who does not appear in the schedule hearing of the
testimony contained therein at the start of the presentation of case as required (Sec. 10[b]). If the affidavit is not considered,
the witness. (Sec. 6) it is as if no judicial affidavit has been executed by the absent
witness. Such witness, hence, shall be deemed as not having
OBJECTION TO TESTIMONY IN THE JUDICIAL AFFIDAVIT; given a direct testimony in the trial.
RULING OF THE COURT
The presentation of the JA and the statement of the It is the duty of the counsel to appeal at the scheduled
purpose of the testimony will give the adverse party the hearing because of the adverse effect of his failure to do so on
opportunity to object to the testimony. the basic right of his client; a counsel who fails to appear
without valid cause despite notice shall be deemed to have
The adverse party may, on the ground of waived his client’s right to confront by cross-examination, the
inadmissibility, move to (a) disqualify the witness, (b) strike out witnesses present (Sec. 10[b])
57

Waiver of client’s right to cross-examine a witness is

obviously an application of the rule that the negligence of the
counsel binds the client. However, if the strict application of the
rules would tend to frustrate rather than promote justice, the
Court is not without power to exercise its judicial discretion in
relaxing the rules of procedure.
WHEN THERE IS A NEED FOR THE ISSUANCE OF

SUBPOENA
A requesting party may avail himself of the issuance
of a subpoena ad testificandum or duces tecum under Rule 21
of the ROC if the witness unjustifiably declines to (a) execute a
judicial affidavit, or (b) refuses without just cause to make the
relevant books, documents, or other things under his control
available for copying, authentication, and eventual production
in court. (Sec. 5)
The witness referred to is a government employee or

official, or a requested witness, who is neither the witness of
the adverse party nor a hostile witness. (Sec. 5)
The rules governing the issuance of subpoena to the

witness shall be the same as when taking his deposition
except that the taking of judicial affidavit shall be understood to
be ex parte. (Ibid.)
ORAL OFFER AND OBJECTION TO EXHIBITS

A party shall immediately make an oral offer of
evidence of his documentary or object exhibits, piece by piece,
in their chronological order, stating the purpose or purposes for
which he offer the particular exhibit. The offer shall be made
upon the termination of the testimony of the last witness. (Sec.
8[a])
It is not necessary to describe each exhibit in the offer

of evidence. It is sufficient that such exhibits are simply cited
by their markings during the offers, the objections, and the
rulings, dispensing with the description of each exhibits from
part of judicial affidavits that describe and authenticate them.
(Sec. 8[c])
After each piece of exhibit is offered, the adverse

party shall state the legal ground for his objection, if any, to its
admission, and the court shall immediately make its ruling
respecting that exhibit. (Sec. 8[b])
Under the Sec. 35 of Rule 132 of ROC, documentary

and object evidence shall be offered after the presentation of a
party’s testimonial evidence. Such offer shall be done orally.
The JAR likewise echoes the same principle, requiring that the
offer of a party’s documentary or object exhibits shall be made
upon the termination of the testimony of his last witness.
NOTE: Sec. 35 Rule 132, allows the offer to be made in

writing, Sec. 8 of JAR requires that the offer be made only
orally.
58

CHAPTER VI The rule bars the admission of evidence that has not
been given under oath or solemn affirmation and more
HEARSAY EVIDENCE, OPINION EVIDENCE AND importantly, has not been subjected to cross-examination by
CHARACTER EVIDENCE (RULE 130) opposing counsel.
A. PRELIMINARIES If the affiants of affidavit do not take the witness stand

to affirm their averments in their affidavits, said affidavits must
HEARSAY EVIDENCE be excluded for being hearsay. (People v Quidato)
Section 36. Testimony generally confined to personal
knowledge; hearsay excluded. — A witness can testify only to Affidavits that have been notarized are still
those facts which he knows of his personal knowledge; that is, considered hearsay unless affiants themselves are placed in
which are derived from his own perception, except as the witness stand to testify thereon. (Republic v Marcos-
otherwise provided in these rules. Manotoc)
An evidence is hearsay when its probative force HEARSAY EVIDENCE NOT OBJECTED TO; EFFECT
depends, in whole or in part, on the competency and credibility Hearsay evidence not objected to is admissible in
of some persons other than the witness by whom it is sought to evidence. However, even if admitted, it has no probative value.
produce it. (Mallari v People)
The reliability of a testimony is based on the personal WHEN EVIDENCE IS HEARSAY

knowledge of the witness. If a witness testifies on the basis of It is the purpose for which the evidence is offered
what others have told him, not on facts that he knows of which would determine whether the same is hearsay or not.
personal knowledge, the testimony would be excluded. This is
because the witness cannot be effectively cross-examined on In Robles v Lizarraga Hermanos, the SC admitted
matters he testified to. unsigned statement of accounts not to prove the truth of its
entries but for the purpose of showing the possessor’s good
Personal knowledge is a substantive prerequisite for faith in making improvement on the property, and to show that
accepting testimonial evidence. A witness bereft of personal such improvements were made pursuant to a verbal contract
knowledge on the disputed fact cannot be called upon because that the leased property will eventually be sold to her.
his testimony derives its value, not according to his personal
knowledge, but from the veracity or competency of the In US v Enriquez, the statements made by another
extrajudicial source, who is neither in court nor under oath; the person was admitted for the purpose of showing his state of
information cannot be tested because the declarant is not mind, his physical and mental condition, knowledge, belief,
standing in court as witness and cannot be cross-examined. intention and other emotions.
NOTE: The rule against hearsay testimony rest mainly on the In Estrado v Desierto, the SC acknowledged that the
ground that there was no opportunity to cross-examine the ban on hearsay does not includes statements which are
declarant; the right to cross-examine being the only means of relevant independently of whether they are true or not, like
testing the credibility of witnesses and their testimonies, is statements of a person to show his state of mind, mental
essential to the administration of justice. condition, knowledge, belief, intention, ill-will, and other
emotions.
NOTE OF THE GENERAL RULE: A witness can testify only to
those facts which the witness knows of his or her personal In Feria v CA, a newspaper articles amount to
knowledge, that is, which are derived from the witness’ own hearsay evidence twice removed and are not only inadmissible
perception. Concomitantly, a witness may not testify on but without any probative value at all whether objected to or
matters which he or she merely learned from the other. Such not, unless offered for the purpose other than proving the truth
testimony is considered as hearsay and may not be received of the matter asserted; however, when it is offered for non-
as proof of the truth of what the witness has learned. hearsay purpose, that is regardless of the truth or falsity of the
statement, it is admissible in evidence.
HEARSAY MAY BE ORAL OR WRITTEN
The rule that excludes hearsay evidence applies to SPECIFIC ELEMENTS OF HEARSAY EVIDENCE
both written and oral statement. (DM Consunji, Inc. v CA) The following are the specific elements of hearsay
evidence:
BASIS FOR EXCLUDING HEARSAY EVIDENCE a. There must be an out-of-court statement
The rule rest mainly on the ground that there is no b. The statement is repeated and offered in court to
opportunity to cross-examine the outside declarant. prove the truth of the matters asserted by the
statement.
In criminal cases, admission of hearsay evidence is a
violation of the right of the accused to confront the witness DISTINGUISH HEARSAY EVIDENCE FROM OPINION
testifying against him and cross-examine them. (People v EVIDENCE
Mamalias) Hearsay evidence is one that is not based on one’s
personal perception but based on the knowledge of others to
59

prove the truth of the matter asserted in an out-of-court Where the statement is not offered for the truth of the
statement. Opinion evidence is based on the personal matter asserted, but merely show what was said, the
knowledge or personal conclusions of the witness based on his statement is not hearsay.
skills, training or experience.
INDEPENDENT RELEVANT STATEMENTS
Short definition of hearsay evidence – out-of-court statement It is the doctrine that a declarant’s statement may
offered for the truth of the matter asserted have relevance to an issue in a case from the mere fact that
the words were spoken or written, irrespective of the truth or
EXAMPLES OF NON-HEARSAY EVIDENCE falsity of the assertion.
A statement having probative worth simply by virtue
of simply by virtue of the fact that it was uttered, if relevant to a They are called as such because the statements are
material fact in issue, is not hearsay and generally admissible. admissible for some relevant reason independent of their truth
or falsity.
Out-of-court statements that have been considered
admissible because they were offered for non-hearsay An out-of-court statement introduced in court to
purpose like statements relating to the state of mind of the impeach a previous witness is another form of independently
declarant; relating to state of mind of listener; is such situation, relevant statement; prior out-of-court declaration of the same
the truth of the statement is not in issue. witness inconsistent with his testimony on the stand are
admissible, not to prove the truth of what was said.
An out-of-court statement may be offered not for the
veracity thereof, but merely to impeach the declarant’s Ban on hearsay evidence does not cover
credibility; where the reasonableness of a person’s conduct is independently relevant statements, those which are relevant
an issue, an out-of-court declaration may be offered to explain independently of whether they are true or not. Estrada v
the person’s reactions to the declaration. Desierto classifies independently relevant statements into: (a)
statements which are the very facts in issue, and (b)
OUT-OF-COURT STATEMENTS OFFERED TO PROVE THE statements which are circumstantial evidence of fact in issue.
MENTAL STATE OF THE DECLARANT
As long as an out-of-court statement is offered for a Under the second class belongs: (a) statements of a
non-hearsay purpose (other than to prove the truth of the person showing his state of mind, mental condition,
matter asserted), the statement is admissible if it has knowledge, belief, intention, ill-will and the like; (b) statement
relevance to the matter in issue. which shows physical condition, as illness and the like; (c)
statement of a person which an inference may be made as to
NOTE: The declarant’s word or conduct constitutes the state of mind of another, that is knowledge, belief, motive,
circumstantial evidence of his statement of mind. It is not the goo and bad faith, etc. of the latter; (d) statement which may
truth or falsity of the conduct or words which matter. In this identify the date, place, and person in question; and (e)
case, the hearer will be testifying as to his personal knowledge statement showing lack of credibility of a witness.
that the statement was uttered. He may, therefore, be cross-
examined as to what he heard, when it was heard, how it was B. EXCEPTIONS TO THE HEARSAY RULE
said, and the circumstances surrounding the making of the
statement. The hearer’s veracity and sincerity can well be The ROC enumerates the following exception to the
tested under a cross-examination because he will not be hearsay rule:
testifying as to the veracity of the assertion or its falsity which a. Dying declarations (Sec. 37, Rule 130);
are totally irrelevant. b. Declaration against interest (Sec. 38, Rule 130);
c. Act or declaration about pedigree (Sec. 39, Rule 130);
OUT-OF-COURT STATEMENT OFFERED TO PROVED ITS d. Family reputation or tradition regarding pedigree
EFFECT ON THE LISTENER/HEARER. (Sec. 40, Rule 130);
When a statement is not offered for the truth of the e. Common reputation (Sec. 41, Rule 130);
matter asserted but is offered to show the mental effect of the f. Part of res gestae (Sec. 42, Rule 130);
statement on the hearer, the statement is not hearsay. In this g. Entries in the course of business (Sec. 43, Rule 130);
situation, it is the hearer’s reaction to the statement is sought h. Entries of official records (Sec. 44, Rule 130);
to be proved. Since the hearer is present in court, he can be i. Commercial list and the like (Sec. 45, Rule 130);
cross-examined on whether or not he heard the statement j. Learned treatises (Sec. 46, Rule 130);
accurately, believed the statement to be true, and whether or k. Testimony or deposition at a former proceeding (Sec.
not he really acted in conformity with his belief. 47, Rule 130).
NOTE: Evidence to show state of mind of the declarant or the The enumeration are hearsay evidence but are
reaction of the hearer involve statements which are deemed admissible hearsays for certain reasons; it possesses
circumstantial evidence of the statement of mind of the circumstantial guarantees of trustworthiness sufficient to justify
declarant or statement of mind of the listener. non-production of the declarant in person, or because it simply
dictated by the necessity to admit an out-of-court statement, or
OUT-OF-COURT STATEMENT OFFERED TO PROVE THAT by the fact that the motivation to lie is less under those
THE STATEMENT WAS MADE situations.
60

does not render the declaration inadmissible, where death in
DYING DECLARATION (Ante Mortem Statements) fact resulted from the same injury; subsequent belief in
Section 37. Dying declaration. — The declaration of a dying recovery before his actual death does not bar admissibility of a
person, made under the consciousness of an impending death, statement.
may be received in any case wherein his death is the subject
of inquiry, as evidence of the cause and surrounding There is nothing in the rules which prohibit the
circumstances of such death. admission of a dying declaration that is favorable to the
accused; a dying declaration which exculpate or exonerate an
Basis for dying declaration is the fact that no person accused, may be introduced and are admissible in his favor; all
who knows of his impending death would make a careless and facts relating to the cause of death are admissible whether the
false accusation. (People v Cabtalan) same are in favor of or against the accused.
The reason for its admissibility is necessity and NOTE: Dying declaration must refer to the cause or
trustworthiness. Necessity because the declarant’s death circumstances of the declarant’s death. If the declaration refers
renders it impossible his taking the witness stand, allowing it to the death of someone else, it is inadmissible.
prevents a failure of justice. Trustworthiness because the
declaration is made in extremity, when the party is at the point ELEMENTS OF A DYING DECLARATION
of death, when every motive to falsehood is silenced and the The following are evidentiary foundation required by
mind is induced by the most powerful consideration to speak Section 37:
the truth. a. The declaration is one made by a dying person;
b. Made under a consciousness of his impending death;
As long as the relevance is clear, a dying declaration c. Declaration refers to cause and circumstances
may be introduced in a criminal or a civil action and the surrounding the death of the declarant;
requirement of relevance is satisfied where the subject of the d. Declaration was offered in a case where the
inquiry is the death of the declarant himself. declarant’s death is the subject of inquiry;
e. The declarant is competent as a witness had he
OBJECTION: No foundation; predicate not laid; no basis. survived;
[Object if the essential elements are not established.] f. Declarant would have died.
The kind of death, which the declarant should be NOTE: If the declarant survives, his declaration may be
conscious of, is a death that is impending; a death that is near admissible as part of res gestae.
and certain.
NOTE: The dying declaration of the deceased need not be
A dying declaration must be uttered, under the fixed directed to a particular person inquiring from the declarant as
belief and moral conviction of the person that his or her death to the circumstances of his death. Anyone who has knowledge
is impending and certain to follow almost immediately. of what the declarant said, whether it be directed to him or not,
or whether he made inquiries from the declarant or not, can
To admit a dying declaration, it must be shown that testify thereto. (People v Valdez)
the declarant believed, at the time the declaration was made,
that he was in a dying condition and had given up the hope of ASSAILING A DYING DECLARATION
surviving. Admissibility of a dying declaration does not create a
conclusive presumption of credibility of the admitted
Apart from the statements of the declarant, declaration. Like any other evidence, the declaration may be
consciousness of an impending death may be established by attacked in the same manner as one would do to a testimony
other circumstances, such as the nature of the injury and the in open court.
conduct of the declarant; the declarant’s belief that he is going
to die soon may be shown circumstantially by the obvious fatal Examples:
quality of the wound, statements made to the victim by the a. That the declarant had previously made a statement
physician that his condition is hopeless, or by some other inconsistent with his supposedly dying declaration;
circumstances. b. Lack of personal knowledge of the declarant as to his
assailant;
It is not necessary that the declarant should state that c. That the declarant would not have been a competent
he is giving up the hope of life. It is enough if, from the witness even if he survived;
circumstances, it can be inferred with certainty that such must d. Other ways by which the credibility of the declarant
have been his state of mind. may be assailed. E.g. under the influence of
sedatives and drugs, revenge or vengeance etc.
Knowledge that death is at hand need not come from
the statement of the declarant. Ut may be deduced from the NOTE: A dying declaration is not meant to confer competency
surrounding circumstances. on an otherwise incompetent witness.
The circumstances that he thereafter recovered

sufficiently to engender the belief that he was going to live,
61

DECLARATION AGAINST INTEREST To be admissible as an exception to the hearsay rule,
Section 38. Declaration against interest. — The declaration it must be shown that:
made by a person deceased, or unable to testify, against the a. The declarant is dead, or unable to testify;
interest of the declarant, if the fact is asserted in the b. The declarant is related by birth or marriage to the
declaration was at the time it was made so far contrary to person whose pedigree is in issue;
declarant's own interest, that a reasonable man in his position c. The declaration was made before the controversy;
would not have made the declaration unless he believed it to and
be true, may be received in evidence against himself or his d. The relationship between the two persons is shown
successors in interest and against third persons by evidence other than such act or declaration.
Declaration against interest is founded on necessity Pedigree includes relationship, family genealogy,
on account of the impossibility of obtaining other evidence from birth, marriage, death, the dates when and the places where
the same source, the declarant being unavailable in person to these facts occurred, and the names of the relatives. It also
testify on the stand on account of death, absence from the embraces facts of family history intimately connected with
jurisdiction or serious illness. pedigree.
The exception refers to a declaration made by a FAMILY REPUTATION OR TRADITION REGARDING

person who, at the time of his declaration is presented in PEDIGREE
evidence, is already dead or unable to testify. This declaration Section 40. Family reputation or tradition regarding pedigree.
must be one which, when made, was known to the declarant to — The reputation or tradition existing in a family previous to
be against his interest, pecuniary or moral, and which would the controversy, in respect to the pedigree of any one of its
not have been made unless he believed it to be true. members, may be received in evidence if the witness testifying
thereon be also a member of the family, either by
It is not enough that the declaration is against his consanguinity or affinity. Entries in family bibles or other family
interest. It is necessary that the declarant knew that the books or charts, engravings on rings, family portraits and the
statement was against his interest and which he would not like, may be received as evidence of pedigree
have made had it not been true.
The exception involves: (a) a statement by a member
The exception will not apply if the declarant is of the family either by consanguinity or affinity; (b) the
available as a witness. However, if his whereabouts are statement is about the reputation or tradition of the family in
known, his deposition may be taken and the exception will not respect to the pedigree of any member of the family; and (c)
apply. the reputation or tradition is one existing previous to the
controversy.
Unavailability, aside from death, is sufficient if: (a)
outside territorial jurisdiction; (b) whereabouts are unknown; (c) Entries in family bibles or other family books or charts,
physical or mental impairments. engravings on rings, family portrait and the like, may be
received in evidence of pedigree aside from family tradition or
If the declaration is favorable to the interest of the reputation.
declarant, it is a mere self-serving statement and does not fall
as an exception to the hearsay rule. COMMON REPUTATION
Section 41. Common reputation. — Common reputation
Interest may refer to either: (a) pecuniary; (b) moral; existing previous to the controversy, respecting facts of public
(c) penal because if one admits to a crime, he is also civilly or general interest more than thirty years old, or respecting
liable, a liability that is pecuniary. marriage or moral character, may be given in evidence.
Monuments and inscriptions in public places may be received
The declaration against interest made by the decease as evidence of common reputation.
is admissible even against the declarant’s successors-in-
interest or even against third person. Common reputation is admissible in evidence where
the reputation refers to a matter of public or general interest, or
DECLARATION ABOUT PEDIGREE respecting marriage or moral character and said matter is
Section 39. Act or declaration about pedigree. — The act or more than 30 years old. The common reputation must be one
declaration of a person deceased, or unable to testify, in existing prior to the controversy. Monuments and inscriptions
respect to the pedigree of another person related to him by may establish this common reputation.
birth or marriage, may be received in evidence where it
occurred before the controversy, and the relationship between While common reputation in the community may be
the two persons is shown by evidence other than such act or establish a matter of public or general interest, marriage or
declaration. The word "pedigree" includes relationship, family moral character, it cannot establish pedigree. This is
genealogy, birth, marriage, death, the dates when and the established by reputation in the family and not in the
places where these fast occurred, and the names of the community.
relatives. It embraces also facts of family history intimately
connected with pedigree.
62

PARTS OF RES GESTAE must concern the occurrence in question and its
Section 42. Part of res gestae. — Statements made by a immediate attending circumstances.
person while a starting occurrence is taking place or
immediately prior or subsequent thereto with respect to the The admissibility of a spontaneous statement is
circumstances thereof, may be given in evidence as part of res anchored on the theory that the statement was uttered under
gestae. So, also, statements accompanying an equivocal act circumstances where the opportunity to fabricate is absent; it is
material to the issue, and giving it a legal significance, may be a reflex action rather than a deliberate act.
received as part of the res gestae.
Justification for the exception is that the spontaneous
The term res gestae literally means, things done, and declaration of an individual who has recently suffered an
originally used by courts to create hearsay exceptions overpowering and shocking experience is likely to be truthful.
whenever it was difficult to justify the admission of a piece of
hearsay evidence; it has reference to events speaking by In spontaneous statement part of the res gestae, the
themselves through instinctive words and acts of participants, statement and the event cannot be taken separately. The
rather than the words and acts of the participants when statement alone without the event, will not qualify for the
narrating the event. admission. The res gestae is the startling occurrence and the
statement is part of the res gestae.
The rationale behind the concept is that it is the event
that speaks for itself through the spontaneous words or A counsel, who intends to object to the presentation
instinctive words or conduct of the witness, and not the witness of a spontaneous statement as evidence, need to analyze the
speaking for and about the event. evidence sought to be admitted. One initial point which needs
to be consider is whether or not the even or occurrence is
Res gestae has been defined as “those indeed a startling one. This is because the res gestae is the
circumstances which are the undersigned incidents of a startling occurrence of which the spontaneous statement is
particular litigated act and which are admissible when only a part of.
illustrative of such act.” Generally, it refers to circumstances,
facts, and declarations that grow out of the main fact and serve To be considered as a startling event, it must be of
to illustrate its character and are so spontaneous and such a nature as to cause an excited reaction in an average
contemporaneous with the main fact as to exclude the idea of individual.
deliberation and fabrication.
Determination as to the spontaneity of the utterance
Test of admissibility of evidence as part of res gestae is a matter of judicial discretion.
is whether the act, declaration, exclamation is so intimately
interwoven or connected with the principal fact or event that it Note every statement made under the influence of the
characterizes as to be regarded as part of the transaction startling event is admissible even if it were spontaneous. Only
itself, and so whether it clearly negatives any premeditation or spontaneous statement made under stress of excitement
purpose to manufacture a testimony. (People v Villarino Sr.) relating to the circumstances of the event qualifies for
admissibility.
RES GESTAE UNDER THE RULES OF COURT
The use of res gestae is limited to two matters: (a) A declaration by a deceased person concerning the
spontaneous statements, and (b) verbal acts. circumstances of his death may not be considered a dying
declaration if it cannot be established that he uttered his
NOTE: The application of the doctrine is restrictive and no statement while conscious of his impending death, but the
other statement, act or evidence may qualify as part of the res utterance of the victim made immediately after sustaining
gestae. injuries may be considered the “incident” speaking through the
victim, thus, may be admitted as part of the res gestae.
In spontaneous statements or exclamations, the res
gestae is the startling occurance, whereas in verbal acts, the In People v Espina, there being no showing in the
res gestae are the statements accompanying the equivocal records that the victim was under the consciousness of an
act. impending death at the time of his declaration that the
accused was the one who shot him, but because it was made
A. SPONTANEOUS STATEMENTS shortly after the startling occurrence and under the influence
Spontaneous statements, to be admitted in evidence, thereof, it is nonetheless admissible as part of the res gestae.
must have the following characteristics:
a. There is a startling event or occurrence; B. VERBAL ACT
b. A statement was made, while the event is taking Verbal act is defined as “statements accompanying
place or immediately prior or subsequent thereto; an equivocal act material to the issue and giving it a legal
c. Statement was made before the declarant have the significance.
time to contrive or devise a falsehood;
d. The statement relates to the circumstances of the It presupposes a conduct that is equivocal or
startling event or occurrence, or that the statement ambiguous, one which, in itself, does not signify anything when
63

taken separately. It only acquires a meaning or legal d. The entries were made in his professional capacity or
significance, because the statements that accompany the act. in the performance of a duty, whether legal,
contractual, moral or religious; and
To be admissible under this category, the following e. The entries were made in the ordinary or regular
must be present: course of business or duty.
a. The principal act to be characterized must be
equivocal; See: Rule on Electronic Evidence, Sec. 1, Rule 8
b. The equivocal act must be material to the issue;
c. The statement must accompany the equivocal act; Entries in the payroll, being entries in the ordinary
and course of business, enjoy the presumption of regularity under
d. The statement must give a legal significance to the Sec. 43 Rule 130 of the ROC. (Sapio v Undaloc Construction)
equivocal act.
ENTRIES IN OFFICIAL RECORDS
Objection to the admissibility of verbal acts depends Section 44. Entries in official records. — Entries in official
upon whether or not the proponent has established the records made in the performance of his duty by a public officer
foundation for admissibility. The objector has to consider the of the Philippines, or by a person in the performance of a duty
following question: specially enjoined by law, are prima facie evidence of the facts
a. Is there an act that is equivocal or ambiguous? If it is therein stated
a clear act, it need no explanation and so there is no
res gestae to speak of. The requisites for admissibility in evidence of entries
b. Will the statement accompanying the ambiguous or in official records are:
equivocal act explain the act or give it legal a. The entry was made by a public office or by another
significance? If it will not, then the statement is not person specially enjoined by law to do so;
admissible. b. It was made in the performance of a duty specially
c. Is the equivocal act material to the issue? Materiality enjoined by law;
is necessary for relevance. c. The public office or other person had sufficient
d. Does the statement accompany the equivocal act? knowledge of the facts by him or her stated, which
must have been acquired by the public officer or other
Compare verbal act to spontaneous statement. In the person personally or though official information.
latter, the statement must be prior to, simultaneous with, or
subsequent to the startling event. This is not so in verbal act. COMMERCIAL LIST AND THE LIKE
The rule requires that the statement must accompany the Section 45. Commercial lists and the like. — Evidence of
equivocal act which evidently means that it must be statements of matters of interest to persons engaged in an
contemporaneous with the act. occupation contained in a list, register, periodical, or other
published compilation is admissible as tending to prove the
ENTRIES IN THE COURSE OF BUSINESS (BUSINESS truth of any relevant matter so stated if that compilation is
RECORDS RULE) published for use by persons engaged in that occupation and
Section 43. Entries in the course of business. — Entries made is generally used and relied upon by them therein.
at, or near the time of transactions to which they refer, by a
person deceased, or unable to testify, who was in a position to Certain commercial list and reports of matters of
know the facts therein stated, may be received as prima facie interest to persons engaged in a particular occupation are
evidence, if such person made the entries in his professional admissible in evidence as exceptions to hearsay rule,
capacity or in the performance of duty and in the ordinary or provided, they are made by persons engaged in that
regular course of business or duty. occupation and are generally used and relied upon by them
and those list and reports are published.
The exception is commonly encountered in breach of
contract suits and suits for collection of sum of money. LEARNED TREATISES
Section 46. Learned treatises. — A published treatise,
The necessity for the admissibility of such evidence periodical or pamphlet on a subject of history, law, science, or
arise from the absence, either by death or is outside the art is admissible as tending to prove the truth of a matter
jurisdiction of the court, or unable to testify, of the person who stated therein if the court takes judicial notice, or a witness
has personal knowledge of the facts. expert in the subject testifies, that the writer of the statement in
the treatise, periodical or pamphlet is recognized in his
Before entries in the course of business could be profession or calling as expert in the subject.
excepted from the hearsay rule, the following must be shown:
a. The person who made the entry must be dead or History books and published findings of scientists fall
unable to testify; within this exception provided that an expert on the subject
b. Entries were made at or near the time of the testifies to the expertise of the writer or the court takes judicial
transactions to which they refer; notice of such fact.
c. The entrant was in a position to know the facts stated
in the entries;
64

TESTIMONY OR DEPOSITION AT A FORMER WHEN OPINION EVIDENCE IS ADMISSIBLE; EXPERT
PROCEEDING TESTIMONY
Section 47. Testimony or deposition at a former proceeding. When opinion is that of an expert (an opinion of a
— The testimony or deposition of a witness deceased or witness requiring special knowledge, skill, experience, or
unable to testify, given in a former case or proceeding, judicial training which is show to possess) it may be received in
or administrative, involving the same parties and subject evidence.
matter, may be given in evidence against the adverse party
who had the opportunity to cross-examine him. The court is not bound by the opinion of an expert.
Expert opinion evidence is to be considered or weighed by
Testimony contemplated is one given in a former court in the light of its own general knowledge and experience
case or proceeding, judicial or administrative, involving the upon the subject of the inquiry.
same parties and subject matter. Said testimony may be given
in evidence against the adverse party provided the latter had NOTE: The probative force of the expert testimony does not lie
the opportunity to cross-examine the witness who gave the in a mere statement of his theory or opinion, but rather in the
previous testimony. aid that he can render to the courts in showing the facts which
serve as a basis for his criterion and the reason upon which
For Sec. 47 to apply, the following requisites must be the logic of his conclusion is founded.
satisfied:
a. The witness is dead or unable to testify; Resort to experts is not mandatory or indispensible
b. His testimony or deposition was given in former case because finding of the court does not depend entirely on their
or proceeding, judicial or administrative, between the testimonies.
same parties or those representing the same interest;
c. The former case involved the same subject as that in Finding of forgery does not entirely depend on the
the present case, although on different cause of testimonies of handwriting experts because the judge must
action; conduct an examination of questioned signature in order to
d. The issue testified to by the witness in the former trial arrive at a reasonable conclusion as to its authority. (Pantaoe v
is same issue involved in the present case; and Pantaoe)
e. The adverse party had an opportunity to cross-
examine the witness in the former case. While credentials of an expert witness play a factor in
the evidentiary and persuasive weight of his testimony, the
same cannot be the sole factor in determining its value. The
C. OPINION EVIDENCE judge must conduct his own independent examination of the
signature under scrutiny. (Tamani v Salvador)
Section 48. General rule. — The opinion of witness is not
admissible, except as indicated in the following sections. OPINION OF AN ORDINARY WITNESS; WHEN
ADMISSIBLE
Section 49. Opinion of expert witness. — The opinion of a Opinion of an ordinary witness may be admitted in
witness on a matter requiring special knowledge, skill, evidence provided proper basis of the opinion is given and the
experience or training which he shown to posses, may be subject of the opinion is any of the following:
received in evidence. a. Identity of a person whom the witness has adequate
knowledge;
Section 50. Opinion of ordinary witnesses. — The opinion of a b. Handwriting of a person with which the witness has
witness for which proper basis is given, may be received in sufficient familiarity;
evidence regarding — c. Mental sanity of a person with whom he is sufficiently
acquainted; and
d. Impressions of the witness of the emotion, behavior,
(a) the identity of a person about whom he has condition or appearance of a person.
adequate knowledge;
(b) A handwriting with which he has sufficient
familiarity; and D. CHARACTER EVIDENCE
(c) The mental sanity of a person with whom he is Section 51. Character evidence not generally
sufficiently acquainted. admissible; exceptions: —
The witness may also testify on his impressions of the (a) In Criminal Cases:
emotion, behavior, condition or appearance of a person. (1) The accused may prove his good moral
character which is pertinent to the moral trait
ADMISSIBILITY OF OPINON EVIDENCE involved in the offense charged.
General rule, opinion of a witness is inadmissible. (2) Unless in rebuttal, the prosecution may
This is because when a witness testifies, a witness does so not prove his bad moral character which is
with respect to facts personally observed by him and it is for pertinent to the moral trait involved in the
the court to draw conclusions from the facts testified to. offense charged.
(3) The good or bad moral character of the
65

offended party may be proved if it tends to character trait as evidence so long as each trait is germane to
establish in any reasonable degree the some issue in the case.
probability or improbability of the offense
charged. Accused may not prove his character by evidence of
(b) In Civil Cases: specific instances of good conduct. However, when the
Evidence of the moral character of a party in civil specific acts are the very issue in the case, an inquiry into such
case is admissible only when pertinent to the issue of act is permissible.
character involved in the case.
(c) In the case provided for in Rule 132, Section 14, EVIDENCE OF CHARACTER OF THE OFFENDED PARTY
The good or bad moral character of the offended
Character is the aggregate of the moral qualities party may be proved by the accused if it tends to establish in
which belong to and distinguish an individual person – a any reasonable degree the probability or improbability of the
general result of one’s distinguishing attributes. It refers to offense charged.
what a man is and depended on the attributes he possesses.
The rule applies only to criminal cases, not to
Reputation is what a man is supposed to be in administrative offenses.
accordance with what the people say he is, and is dependent
on how people perceive him to be Not every good or bad moral character of the
offended party may be proved under this provision but only
Character evidence is, as a rule, not admissible. It is those which would establish the probability and improbability of
generally irrelevant in determining a controversy because the the offense charged.
evidence of person’s character is not admissible to prove that Character evidence must be limited to the traits and
a person acted in conformity with such character in a particular characteristics involved in the type of the offense charged. E.g.
occasion. for rape – character for chastity; for assault – character for
peacefulness or violence; for embezzlement – character for
EVIDENCE OF BAD MORAL CHARACTER OF THE honesty.
ACCUSED
In criminal case, the prosecution cannot prove the CHARACTER EVIDENCE IN CIVIL CASE
bad moral character of the accused in its evidence-in-chief. It In civil cases, evidence of moral character of a party
can only do in rebuttal. is admissible only when pertinent to the issue of character
involved in the case.
The prosecution may not offer evidence of the
character of the accused unless the accused himself has EVIDENCE OF GOOD CHARACTER OF A WITNESS
offered evidence of his good moral character. Evidence of good character of a witness is not
admissible until such character has been impeached.
Where the accused proves his good moral character
pertinent to the moral trait involved in the offense charged, he
opens the door to the prosecution to prove his bad moral E. RULE ON EXAMINATION OF A CHILD WITNESS (AM
character. 004-07-SC)
NOTE: Reason for allowing evidence of bad moral character APPLICABILITY OF THE RULE
only in rebuttal is to prevent the pronouncement of guilt on Unless otherwise provided, the Rule on Examination
account of his being a bad man instead of anchoring a of a Child Witness shall govern the examination of the
conviction on the basis of sufficiency of evidence of his guilt; it following witnesses:
prevents inference that being a bad person, the accused is a. Child witnesses who are victims of the crime;
more likely to commit a crime; it discourages the presentation b. Child witnesses accused of the crime; and
of propensity evidence – evidence that one acts in accordance c. Child witnesses to a crime. (Sec. 1)
with one’s character.
The rule does not only apply to criminal proceedings.
Offering of evidence of good moral character is a It also applies to non-criminal proceeding as long as such
privilege of the accused and the prosecution cannot even proceedings involve child witnesses. (Sec. 1)
comment on his failure to produce such evidence.
DEFINITION OF CHILD WITNESS
EVIDENCE OF GOOD MORAL CHARACTER OF THE Child witness is any person who at the time of giving
ACCUSED testimony is below the age of 18 years. (Sec. 4a)
The general rule against propensity evidence does
not apply to the accused who is allowed to offer evidence of Whether or not a person is a child witness is
his good character. determined as of the time of the giving of the testimony.
Not all aspect of the character of the accused may be Above definition is qualified by the rule that a child
proven. Only those moral traits involved in the offense charged over eighteen years may be considered a child. This rule
are provable. An accuse may advance more than one applies only in child abuse case and if it is found by the court
66

that a person, due to physical or mental disability or condition, RECW, the court may allow leading questions in all stages of
is unable to (a) fully take care of himself, or (b) protect himself examination of a child if the same will further the interest of
from (i) abuse; (ii) neglect; (iii) cruelty; (iv) exploitation, or (v) justice.
discrimination. (ibid.)
LIVE-LINK TELEVISION TESTIMONY OF A CHILD
COMPETENCY OF A CHILD WITNESS WITNESS
Every child is presumed qualified to be a witness. An order that the testimony of the child be taken in a
(Sec. 6) This presumption, however, does not preclude the room outside the courtroom and be televised to the courtroom
court from conducting a competency examination of the child. by live-link television may be applied for by (a) prosecutor, (b)
counsel, or (c) guardian ad litem where the child is the victim
Competency examination shall be conducted when or the witness.
the court finds that there is a substantial doubt on the following
matters: Before a guardian ad litem applies for an order, he
a. Ability of child to perceive; shall consult the prosecutor or counsel and shall defer to the
b. Ability of child to remember; judgment of the prosecutor or counsel regarding the necessity
c. Ability of child to communicate; of applying for an order.
d. Ability of child to distinguish truth from falsehood; or
e. Ability of child to appreciate the duty to tell the truth in The rule in the immediately preceding paragraph is
court. not absolute because in case the guardian ad litem is
convinced that the decision of the prosecutor or counsel not to
NOTE: Doubt that will justify a competency examination must apply will cause the child serious emotional trauma, he may
be a substantial one and must refer to specific matters apply for the order.
mentioned.
The court may, motu propio, hear and determine, with
Competency examination may be conducted motu notice to the parties, the need for taking the testimony of the
propio or on motion of a party. child through live link television. (Sec 25b) The judge may
question the child in chambers, or in some comfortable place
EXAMINATION OF A CHILD WITNESS other than the courtroom, in the presence of the support
The examination of a child witness shall be done in person, guardian ad litem, prosecutor, and counsel of the
open court when the child is presented in a hearing or any parties. The questions of the judge shall not be related to the
proceeding. (Sec. 8) issues at trial but to the feelings of the child about testifying in
the courtroom. (25c)
The answer of the witness shall be given orally except
if the witness is (a) incapacitated to speak, or (b) the question The court shall issue an order granting or denying the
calls for a different mode of answer. (ibid.) use of live-link television but it is required to state the reasons
for such order. In issuing the order, it shall consider certain
The party who presents a child witness or the factors like the age and level of development of the child his
guardian ad litem of such child witness, may move the court physical and mental health and such other factors enumerated
hat he be allowed to testify in the manner provided under the under 25e.
rules. (ibid.)
The court may order that the testimony of the child be
An interpreter may be appointed, motu propio or on taken by live-link television if there is a substantial likelihood
motion, to interpret for a child when said child (a) does not that the child would suffer trauma from testifying in the
understand english or Filipino; (b) unable to communicate in presence of the accused, his counsel or the prosecutor as the
said languages due to his (i) developmental level, (ii) fear, (iii) case may be. Trauma must be a kind which would impair the
shyness, (iv) disability, or (v) other similar reasons. (Sec. 9) (a) completeness, or (b) truthfulness of the testimony of the
child. (25f)
A facilitator may be appointed by the court, motu
propio or on motion, if the court determines that the child is If the court order the taking of testimony by live-link
unable to understand or respond to questions asked. television:
Facilitator may be any of the following: (a) child psychologist, a. The child shall testify in a room separate from the
(b) psychiatrist, (c) social worker, (d) guidance counselor, (e) courtroom in the presence of guardian ad litem; one
teacher, (f) religious leader, (g) parent, or (h) relative. or both of his support persons; the facilitator and
interpreter, if any; a court officer appointed by the
A child testifying at a judicial proceeding or making a court; persons necessary to operate the closed-circuit
deposition shall have the right to be accompanied by one or television equipment; and other persons whose
two persons (support persons) of his own choosing to provide presence are determined by the court to be
him emotional support. (Sec. 11) necessary to the welfare and well-being of the child;
b. The judge, prosecutor, accused, and counsel for the
LEADING QUESTIONS parties shall be in the courtroom. The testimony of the
As a rule, a leading question is not allowed in direct child shall be transmitted by live-link television into
examination (Sec. 10 Rule 130). However, under Sec. 20 the courtroom for viewing and hearing by the judge,
67

prosecutor, counsel for the parties, accused, victim • Section 31, Confidentiality of Record; Protective
and public, unless excluded; orders under RECW
c. If it is necessary for the child to identify the accused
at the 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.
EXCEPTION TO THE HEARSAY RULE IN CHILD ABUSE

CASES
A statement made by a child describing any act or
attempted act of child abuse, not otherwise admissible under
the hearsay rule, may be admitted in evidence in any criminal
or non-criminal proceeding.
The testimony is admissible provided the same be

offered in child abuse cases and the statement made by the
child is one describing any act or attempted act of child abuse.
Aside from the above requirement, the following must

be complied with:
a. The 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;
b. If the 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; and
c. When the child is unavailable, the fact of such
circumstance must be proved by the proponent. (Sec.
28a)
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. (Sec. 28b)
Certain factors are also to be considered by the court

before deciding to admit the statement like the motive to lie;
the general character of the declarant child; number of persons
who heard the statement; timing of the making of the
statement; the relationship between the declarant and the
child, the remoteness of possibility of faulty recollection and
other circumstances surrounding the statement. (Sec. 28b)
CHARACTER EVIDENCE IN CHILD ABUSE CASES

(SEXUAL ABUSE SHIELD RULE)
Under Section 30, the following are not admissible in
any criminal proceeding involving alleged sexual child abuse:
1. Evidence offered to prove that the alleged victim is
engaged in other sexual behavior, and
2. Evidence offered to prove the sexual predisposition of
the alleged victim.
Exception – Evidence of specific instances of sexual behavior

by the alleged victim is admissible to prove that a person other
than the accused was the source of semen, injury, or other
physical evidence.
NOTE OF THE FOLLOWING PROVISIONS

• Section 27, Videotaped Deposition of Child Witness;
68

CHAPTER VII On proper motion, the court may also order the striking out of
answers which are incompetent, irrelevant, or otherwise
OFFER OF EVIDENCE AND TRIAL OBJECTIONS improper.
(RULE 132)
Section 40. Tender of excluded evidence. — If documents or
Section 34. Offer of evidence. — The court shall consider no things offered in evidence are excluded by the court, the
evidence which has not been formally offered. The purpose for offeror may have the same attached to or made part of the
which the evidence is offered must be specified. record. If the evidence excluded is oral, the offeror may state
for the record the name and other personal circumstances of
Section 35. When to make offer. — As regards the testimony the witness and the substance of the proposed testimony.
of a witness, the offer must be made at the time the witness is
called to testify. IMPORTANCE OF OFFER OF EVIDENCE
Evidence must be formally offered. Under the ROC,
Documentary and object evidence shall be offered after the the court shall consider no evidence which has not been
presentation of a party's testimonial evidence. Such offer shall formally offered. (Sec. 34, Rule 132)
be done orally unless allowed by the court to be done in
writing. Offer of evidence is necessary because it is the duty
of the court to rest its findings of fact and judgment only and
Section 36. Objection. — Objection to evidence offered orally strictly upon the evidence offered by the parties. To allow
must be made immediately after the offer is made. otherwise would deprived the party their chance to examine
the document and object to its admissibility.
Objection to a question propounded in the course of the oral Only after evidence is offered and admitted that the
examination of a witness shall be made as soon as the court can appreciate and properly evaluate it.
grounds therefor shall become reasonably apparent.
No evidentiary value can be given to pieces of
An offer of evidence in writing shall be objected to within three evidence submitted that were not formally offered. (Dizon v
(3) days after notice of the unless a different period is allowed CTA) In the same case, although the CTA is not strictly
by the court. governed by technical rules of evidence, presentation of
evidence is not a mere procedural technicality which may be
disregarded considering that it is the only means by which the
In any case, the grounds for the objections must be specified.
CTA may ascertain and verify the truth of any claims.
Section 37. When repetition of objection unnecessary. —
Where the absence of an offer to a testimonial
When it becomes reasonably apparent in the course of the
evidence was not objected to as when the witness was cross-
examination of a witness that the question being propounded
examined by the adverse party despite failure of counsel to
are of the same class as those to which objection has been
make an offer of the testimony of the witness, the court must
made, whether such objection was sustained or overruled, it
consider the testimony. [Waived] Compare to the case of Sps
shall not be necessary to repeat the objection, it being
Tan v Republic, a document submitted for the first time on
sufficient for the adverse party to record his continuing
appeal should be refused. The document should have been
objection to such class of questions.
offered during the trial in the RTC.
Section 38. Ruling. — The ruling of the court must be given A document or any article for that matter is not
immediately after the objection is made, unless the court evidence when it is simply marked for identification; it must be
desires to take a reasonable time to inform itself on the formally offered, and the opposing counsel given an
question presented; but the ruling shall always be made during opportunity to object to it or cross-examine the witness called
the trial and at such time as will give the party against whom it upon to prove or identify it.
is made an opportunity to meet the situation presented by the
ruling. Identification of documentary evidence is done in the
course of the trial and is accompanied by the marking of the
The reason for sustaining or overruling an objection need not evidence as an exhibit. Formal offer of evidence is done only
be stated. However, if the objection is based on two or more when the party rests its case.
grounds, a ruling sustaining the objection on one or some of
them must specify the ground or grounds relied upon. WHEN FORMAL OFFER OF EVIDENCE IS NOT REQUIRED
Formal offer of evidence is not required in certain
Section 39. Striking out answer. — Should a witness answer cases:
the question before the adverse party had the opportunity to a. Summary proceeding;
voice fully its objection to the same, and such objection is b. Judicial admission;
found to be meritorious, the court shall sustain the objection c. Judicial notice;
and order the answer given to be stricken off the record. d. Documents, affidavits and depositions used in
rendering summary judgment;
69

e. Documents or affidavits and depositions used in Objections may be made for any of the following
deciding quasi-judicial or administrative cases; purposes:
f. Lost objects previously marked, identified described a. To keep out inadmissible evidence;
in the record, and testified to by witnesses who had b. To protect the record;
been subjects of cross-examination in respect to said c. To protect a witness from being embarrassed or from
objects. being harassed;
d. To expose the adversary’s unfair tactics;
Instances when the Court allowed the admission of e. To give the trial court an opportunity to correct its own
evidence not formally offered, provided certain requirements error and warn the court that a ruling adverse to the
are present: objector may supply a reason to invoke the higher
a. The evidence must have been duly identified by court’s appellate jurisdiction;
testimony duly recorded, and f. To avoid waiver of the inadmissibility of an otherwise
b. The same must have been incorporated in the inadmissible evidence.
records of the case.
GENERAL AND SPECIFIC OBJECTIONS
The court shall consider no evidence which has not An objection must point out the specific ground of the
been formally offered is true only when the failure to offer an objection, and if it does not do so, no error is committed in
evidence has been objected to. Failure to object to the overruling it. (See Sec. 36)
omission of party and the cross-examination of the witness by
the adverse party, taken together, constitute a waiver of the General objection are those which do not clearly
defect. indicate to the judge the ground upon which the objections are
predicated.
WHEN EVIDENCE IS TO BE OFFERED
As to when the offer of evidence is made depends An objection that evidence is ‘incompetent’,
upon the nature of evidence: ‘irrelevant’, or ‘immaterial’ is ordinarily regarded as not
a. Testimonial evidence, the offer is made at the time sufficiently definite to present any question for review, it does
the witness is called to testify; not convey specific point of objection.
b. Documentary and object evidence, offered after the
presentation of a party’s testimonial evidence. The For practical reason, the objection must be specific
offer is orally made unless allowed by the court to be enough to adequately inform the court the rule of evidence or
in writing. the substantive law that authorizes the exclusion of the
evidence.
Presentation of a documentary or object evidence for
marking and identification during the course of the trial is not The rule on specific objection is dictated by the need
offer contemplated in the Rules. Failure to object to the to allow the court to intelligently rule on the objection and give
evidence at this time should not be construed as a waiver of the other party an opportunity to withdraw the evidence or
the objection to the evidence. correct an error in his presentation.
Mere fact that a document is marked as an exhibit However, there is no compelling need to specify the
does not mean that it has thereby already been offered as part ground if the ground for exclusion should have been obvious to
of the evidence of a party. (People v Gecomo) the judge or to counsel; as where the incompetency of
evidence is so palpable that a general objection is deemed
The objection to documentary evidence shall be sufficient or when its illegality is apparent on its face.
made after it is offered and the offer of such evidence shall be
made after the presentation of the party’s testimonial evidence. FORMAL AND SUBSTANTIVE OBJECTIONS
(Macasiray v People) Formal objection is one directed against the alleged
defect in the formulation of the question. E.g. defective
Failure to object to the admissibility of certain items formulation, ambiguous question, leading and misleading,
during their formal offer results to waiver of his right against repetitious, multiple, argumentative.
their admissibility. (People v Diaz)
Substantive objection is one made and directed
HOW AN OFFER OF EVIDENCE IS MADE against the very nature of the evidence. E.g. parol; best
When a party makes a formal offer of his evidence, evidence; hearsay; privileged communication; not
he must state the nature or substance of the evidence, and the authenticated; opinion; res inter alios acta.
specific purpose for which the evidence is offered. (Sec. 34)
OBJECTIONS MUST BE TIMELY
The court shall consider the evidence solely for the Aside from the requirement that an objection must
purpose for which it is offered, not for any other purpose. (Sps state the ground relied upon, it is necessary that the objection
Ragudo v Fabella Estate Tenants Assoc., Inc.) be timely – must be made at the earliest opportunity.
OBJECTIONS; PURPOSES OF OBJECTIONS Evidence offered orally, the objection must be made
immediately after the offer is made.
70

party may waive. Without such objection, a party cannot raise
An objection to a question propounded in course of the question for the first time on appeal.
the oral examination of the witness shall be made as soon as
the ground therefor shall become reasonable apparent. Where a continuing objection had been interposed on
prohibited testimony, the objection is deemed waived where
Evidence in writing shall be objected to within three the objecting counsel cross-examined the witness on the very
days after notice of the offer unless the court allows different matters subject of the prohibition.
period.
EXTENT OF WAIVER FOR FAILURE TO OBJECT
An objection to a witness’ disqualification in general When an objection to evidence is deemed waived,
must be made as soon as he is called to the stand and before what the party waives is the objection to its admissibility – thus,
his examination begins, provided his disqualification is then it becomes admissible.
known.
However, waiver should not be construed as an
Objection to evidence cannot be made first time on admission that the evidence is credible. It does not also mean
appeal because: (a) party who failed to timely object becomes that the non-objecting party waives his right to present
estopped from raising the objection afterwards, and (b) to controverting evidence.
assail the judgment of the lower court as to cause which the
lower court had no opportunity to pass upon and rule is Waiver to the objection involves only two matters: (a)
contrary to basic fairness and procedural orderliness. (Land relevance and (b) competence – components of admissibility.
Bank of the Philippines v Nable)
Admissibility of evidence must not be equated with
An objection to evidence before it is offered is weight of evidence.
premature and no adverse inference may be had against a
party who does not object to the evidence before it is offered. RULING ON OBJECTIONS
Ruling of the court must be given immediately after
Should a witness answer the question before the the objection is made except when the court desires to take a
adverse party had the opportunity to voice fully its objection to reasonable time to inform itself on the question presented.
the same, and such objection is found to be meritorious, the However, the court must give its ruling during the trial and at
court shall sustain the objection and order the answer given to such time as will give a party an opportunity to meet the
be stricken out of the record. (Sec. 39) situation presented by the ruling. (Sec. 38)
STRIKING OUT AN ANSWER OR TESTIMONY An ruling that the objection “will be taken into
A motion to strike may be availed of in the following consideration” is prejudicial to the interest of the litigant since it
when the: deprives the party against whom the ruling was made an
a. Answer is premature; opportunity to meet the situation presented by the ruling.
b. Answer of the witness is irrelevant, incompetent or (Lopez v Valdez)
otherwise improper;
c. Answer is unresponsive; If the court fails to rule on the objection, the same
d. Witness becomes unavailable for cross-examination should be brought to the attention of the court through
through no fault of the cross-examining party; or appropriate motion to strike.
e. Testimony was allowed conditionally and the
condition for admissibility was not fulfilled. Sustain – the judge considers the question as
improper and the witness will not be allowed to answer the
When an apparently unobjectionable question brings question. This means the exclusion of a testimonial evidence.
out an objectionable and inadmissible response, as when the
infirmity becomes apparent only after it is completed, and if the Overruled – means that for the court, the question is
answer is damaging, then relief may be obtained by motion to proper and the witness will be allowed to answer.
strike.
The ruling of the court sustaining or overruling the
WAIVER OF OBJECTIONS; BELATED OBJECTIONS objection need not be stated except if the objection is based on
Any objection against the admission of any evidence two or more grounds. In such case, ruling sustaining the
must be made at the proper time, otherwise, it will be objection must specify the ground or grounds relied upon.
understood to have been waived. (Sec. 38)
If no objection is made to an otherwise inadmissible REPETITION OF OBJECTIONS

evidence, the objection is deemed to have been waived by the It shall not be necessary to repeat an objection when
party upon whom making the objection is incumbent. it becomes reasonable apparent while the witness is being
examined, that he is asked questions which are of the same
Failure to object to an evidence is a waiver of the class as those to which an objection was sustained or over
objection. The right to object is merely a privilege which the ruled. Instead of repeating the objection, it is sufficient for the
71

objection to be recorded as “continuing objection” to such class
of objectionable questions. (Sec. 37)
TENDER OF EXCLUDED EVIDENCE (OFFER OF PROOF)

Section 40. Tender of excluded evidence. — If documents or
things offered in evidence are excluded by the court, the .
offeror may have the same attached to or made part of the
record. If the evidence excluded is oral, the offeror may state
the witness and the substance of the proposed testimony
Reason for making a tender of excluded evidence: (1)

to allow the court to know the nature of the testimony or the
documentary evidence and convince the trial judge to permit
the evidence or testimony; (2) even if he is not convinced to
reverse his earlier ruling, the tender is made to create and
preserve the record for appeal.
How is tender done? Depend upon the type of

document excluded. If documentary evidence – tender is made
by having the document or object attached to or made part of
the record. If 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.
An objection may be interposed to the manner of

tender of excluded evidence. If the document tendered is not
described or identified, its substance stated in vague and
general term or when the purpose for which it is offered is not
declared, or when the testimony offered is in a form of a
conclusion, then evidence has to be objected.
DISTINGUISH FORMAL OFFER FROM OFFER OF PROOF

Formal offer of evidence refers to either to the offer of
the testimony of a witness prior to the latter’s testimony, or the
offer of the documentary or object evidence after a party has
presented his testimonial evidence.
Offer of proof is the process by which a proponent of

an excluded evidence tenders the same. If what has been
excluded is testimonial evidence, the tender is made by stating
the proposed witness and the substance of his proposed
testimony. If the evidence excluded is documentary or of
things, the offer is made by having the same attached to or
made part of the record.
ADDITIONAL EVIDENCE AFTER CASE IS RESTED

The ROC does not prohibit a party from requesting
the court to allow it to present additional evidence even after it
has rested its case. (Republic v Sandiganbayan)
72

Dean Riano Evidence Notes Rosuello: Principle of Uniformity - Rules On Evidence Shall Be

Uploaded by

Copyright:

Available Formats

Dean Riano Evidence Notes Rosuello: Principle of Uniformity - Rules On Evidence Shall Be

Uploaded by

Document Information

Original Title

Copyright

Available Formats

Share this document

Share or Embed Document

Sharing Options

Did you find this document useful?

Is this content inappropriate?

Copyright:

Available Formats

Dean Riano Evidence Notes Rosuello: Principle of Uniformity - Rules On Evidence Shall Be

Uploaded by

Copyright:

Available Formats

DEAN

RIANO EVIDENCE NOTES ROSUELLO

admitted in a judicial proceeding where the Rules of Court are

PRELIMINARY CONSIDERATION Technical rules of procedure are not strictly applied in

Administrative agencies are not bound by technical

Competence in general refers to the eligibility of an CURATIVE ADMISSIBLITY

It is only where the objection was incorrectly

Common carriers – the passenger plaintiff does not

EQUIPOISE RULE OR EQUIPONDERANCE DOCTRINE EFFECT OF PRESUMPTION

In confirmation of imperfect or incomplete title on the

EVIDENTIARY WEIGHT OF ELECTRONIC EVIDENCE

All matters relating to admissibility and evidentiary

The affiant shall be made to affirm the contents of the

JUDICIAL NOTICE OF THE LAW OF NATION JUDICIAL NOTICE OF OTHER MATTERS

However, in cases where reckless or gross

EFFECTS OF JUDICIAL ADMISSIONS

Judicial admissions are waiver of proof; production of

It cannot be controverted and is conclusive to such

A party cannot subsequently take a position contrary

HOW JUDICIAL ADMISSIONS MAY BE CONTRADICTED

The mistake that would relieve a party must be one

‘No such admission’ may be invoked when the

The rule does not absolutely require that the

Written official acts and records of official acts of

In case of persons overhearing without the knowledge

PHYSICIAN-PATIENT PRIVILEGE NOTE: When there is disclosure by the patient of the

Parental Privilege Filial Privilege

Foremost is the right not to give an answer that will

Section 5. Direct examination. — Direct examination is the

MISLEADING QUESTIONS Section 16. When witness may refer to memorandum. — A

An unwilling or hostile witness or witness who is an IMPEACHMENT BY SHOWING BAD REPUTATION

Effectively impeaching a witness by prior inconsistent

Waiver of client’s right to cross-examine a witness is

WHEN THERE IS A NEED FOR THE ISSUANCE OF

The witness referred to is a government employee or

The rules governing the issuance of subpoena to the

ORAL OFFER AND OBJECTION TO EXHIBITS

It is not necessary to describe each exhibit in the offer

After each piece of exhibit is offered, the adverse

Under the Sec. 35 of Rule 132 of ROC, documentary

NOTE: Sec. 35 Rule 132, allows the offer to be made in

A. PRELIMINARIES If the affiants of affidavit do not take the witness stand

The reliability of a testimony is based on the personal WHEN EVIDENCE IS HEARSAY

The circumstances that he thereafter recovered

The exception refers to a declaration made by a FAMILY REPUTATION OR TRADITION REGARDING

EXCEPTION TO THE HEARSAY RULE IN CHILD ABUSE

The testimony is admissible provided the same be

Aside from the above requirement, the following must

In ruling on the admissibility of such hearsay

Certain factors are also to be considered by the court

CHARACTER EVIDENCE IN CHILD ABUSE CASES

Exception – Evidence of specific instances of sexual behavior

NOTE OF THE FOLLOWING PROVISIONS

If no objection is made to an otherwise inadmissible REPETITION OF OBJECTIONS

TENDER OF EXCLUDED EVIDENCE (OFFER OF PROOF)

Reason for making a tender of excluded evidence: (1)

How is tender done? Depend upon the type of

An objection may be interposed to the manner of

DISTINGUISH FORMAL OFFER FROM OFFER OF PROOF