EVIDENCE

A. General Principles and Provisions (Rule 128)

Q: What is Evidence?
Evidence is the means, sanctioned by these Rules, of ascertaining in a judicial proceeding the truth respecting a
matter of fact. (Sec. 1, Rule 128)

Q: Discuss the concept of evidence under the Rules.

It is the means of ascertaining the truth, not in all types of proceeding, but specifically in judicial proceeding.

While the purpose of evidence is to know the truth, the truth referred to in the definition is not necessarily the
actual truth but aptly referred to as the judicial truth or legal truth.

Actual truth may not always be achieved in a judicial proceeding because the findings of the court would depend
on the admissible evidence presented before it.

Under sec. 34, Rule 132, the courts, as a rile, are not even authorized to consider evidence which was not formally
offered.

Q: What is the scope of the rules on evidence?

Rules on evidence will not apply to:
1. Election cases
2. Land registration proceeding
3. Cadastral proceeding
4. Naturalization proceeding
5. Insolvency proceeding
6. Other cases non herein provided,
Except by analogy or in suppletory in character and whenever practicable and convenient. (Sec. 1, Rule 132, in
relation to Sec. 4 of Rule 1)

Q: Are the administrative agencies bound by the technical rules on evidence?

No. Administrative agencies are not bound by the technical rules on evidence.

Q: Are technical rules on evidence binding on labor tribunals?

No. Technical rules on evidence are not binding on labor tribunals.

Q: Instances when evidence is no longer required to prove an assertion?

1. When the pleadings in a civil case do not tender an issue of fact.
2. Presentation of evidence is dispensed with by the agreement of the parties.
3. Matters of judicial notice
4. When the law presumes the truth of a fact
5. When a rule presumes the truth of a fact.

Q: What are cases covered by electronic evidence?

It covers not only judicial proceeding but also quasi-judicial, administrative cases, and criminal cases.

Q:
Proof Evidence
The effect or result of proof Medium of proof

Q:
Factum Probandum Factum Probans
Facts to be proved; Facts in issue. Probative or evidentiary fact tending to prove the
fact in issue.
Ultimate facts Evidentiary facts

Q: Is the mere filing of the complaint ipso facto give rise to a factum probandum?
No. Mere filing of the complaint does not ipso facto give rise to a factum probandum. It arises only when the
defendant specifically denies a material allegation in the complaint, the matter denied becomes the factum
probandum, the fact to be established.

Same with criminal cases. The mere filing of an information does not automatically give rise to a factum
probandum. It only arises when the accused enters a plea of not guilty.

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Q: How to construe the rules on evidence?
Rules on evidence must be liberally construed as they are the tools intended to facilitate the attainment of justice;
However, the rule on liberal construction is not a license to disregard the evidence, or lack thereof, or misapply
the laws.

Q: What are the requisites for the admissibility of evidence?

1. The evidence is relevant to the issue (relevancy); and
2. Not excluded by the Constitution, the law or by these rules. (competency) (Sec.3, Rule 128)

Q: What are the exclusions under the Constitution?

1. Right against unreasonable search and seizure
2. Right to privacy and inviolability of communication
3. Right of a person under custodial investigation
4. Right against self-incrimination

Q: What are the exclusions under the law?

1. Any confession admission or statement obtain as a result of torture except if the same is used as evidence
against the person accused of committing the torture. Sec. 8, RA 9745)
2. Any listened to, intercepted and recorded communications, messages, written words which have been secured
in violation of the Human Security Act. (Sec.15, RA 9372)
Evidence obtained in violation of the Anti-Wiretapping. (RA 4200)

Q: What are the exclusions under the rules?

1. Original Document Rule
2. Parole Evidence Rule
3. Hearsay Evidence Rule
4. Offer of Compromise in Civil Case
5. Disqualification by reason of marriage
6. Disqualification by reason of Privileged Communication

Q: What is a relevant evidence?

Evidence which must have a relation to the fact in issue as to induced belief in its existence and non-existence.
Sec. 4, Rule 128)

Q: What is the test for determining the relevancy of evidence?

The test is one of logic, common sense and experience.

Q: What are collateral matters?

It connotes an absence of a direct connection between the evidence and the matter in dispute. (Ex. Motive,
reputation)

Q: Are collateral matters allowed under the rules?

As a rule, evidence on collateral matter is no allowed because it does not have relevance to the issue of the case.

However, under the rules, a collateral matter may be admitted if it tends in any reasonable degree to establish the
probability or improbability of the fact in issue.

Q: What do you mean by competent evidence?

Evidence not excluded by the Constitution, the law or by these rules.

When applied to a witness, the term competent refers to the qualification of the witness.

Q: What is the test of competence?

It is a matter of the Constitution, the law or by these rules.

Q:
Admissibility Weight (probative value) of the evidence
It depends on the relevancy and competency. Its tendency to convince and persuade.

Q: What is multiple admissibility?

Where the evidence is relevant and competent for two or more purposes, such evidence may be admitted for any
or all of the purposes for which it was offered, provided it satisfies all the requirements of law and rules for its
admissibility.

Q: What is conditional admissibility?

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It is where the proponent of the evidence may ask the court that evidence be conditionally admitted in the
meantime, subject to the condition that he is going to establish its relevancy and competency at a later time. If the
connection is not when as promised, the court may, upon the motion of the adverse party, strike out from the
record the evidence that was previously conditionally admitted.

Q: What is curative admissibility (fighting fire with fire)?

It allows a party to introduced otherwise inadmissible evidence to answer the opposing party’s previous
introduction of inadmissible of evidence. Conversely, the evidence should not be invoked where the evidence
was properly admitted.

Q:
Direct Evidence Indirect/Circumstantial Evidence
It proves the fact without the need to make an Evidence which indirectly proves a fact in issue
inference from another fact. though an inference which the fact finder draws
from the evidence established.

Q: In what situation you apply circumstantial evidence?

It applies when no witness saw the commission of a crime.

Q: May an accused be convicted based on circumstantial evidence?

Yes, provided the ff. requisites concur:
1. There is more than circumstantial evidence
2. The facts from which the inferences are derived are proven
3. The combination of all the circumstances is such as to produce a conviction beyond. reasonable doubt. (Sec. 4,
Rule 133)

Q:
Corroborative Evidence Cumulative Evidence
Additional evidence of a different kind and Additional evidence of the same kind and
character from that already given, tending to character from that already given, tending to
prove the same point. prove the same point.

Q: Is it required that the testimony of a single witness has to be corroborated?

No. There is no law which requires that the testimony of a single witness hast to be corroborated. Witnesses are to
be weight, not numbered.

It is necessary only when there is a reason to suspects that the witness falsified the truth or that his observations
are inaccurate.

Even the child’s testimony, corroboration shall not be required as provided under the Rules on Child
Examination.

Q:
Positive Evidence Negative Evidence
When affirms in the stand that a certain state of When the witness states that an event did not
facts does exist or that a certain event happened. occur or that the state of facts alleged does not
actually exist.

Q:
Competent Credible
It has reference to the qualification of a witness as It refers to the believability of the witness, weight
his capacity to perceive and to communicate his of trustworthiness or reliability of the testimony
perception of the witness.
It is a matter of law and/or rule Nothing to do with the law and/or rule

Q: What is the meaning of falsis in uno, falsis in omnibus?

Falsie in one thing, false in everything.

Before this doctrine can be applied, the witness must show to have willfully falsified the truth on one or more
material points.

Q: May alibi serves as a basis for acquittal?

It is settled doctrine that the defense of alibi is inherently weak and must be rejected when the identity of the
accused is satisfactorily and categorically established by the eyewitness to the offense.

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However, alibi may serve as a basis for acquittal if it can be shown by clear and convincing evidence that it was
indeed physically impossible for the accused to be at the scene of the crime at the time of the commission.

Q:
Burden of Proof/Onus Probandi Burden of Evidence/Burden of coming forward
with the evidence
It is the duty of a party to present evidence on the It is the duty of a party to present evidence
facts in issue necessary to establish his claim or sufficient to establish or rebut a fact in issue to
defense by the amount of evidence required by establish a prima facie case.
law.
It never shifts. It may shift from one party to the other in the
course of the proceeding, depending on the
exigencies of the case.
(Sec.1, Rule 131)

Q: Which party has a burden of proof?

In civil case, the party making the allegations has the burden of proving them by preponderance of evidence.

The burden of proof rests with the party who wants to establish a legal right in his favor.

If the defendant has affirmative defenses, he bears the burden of proof as to those defenses which he sets up in
answer to the plaintiff’s cause of action.

Q: Which party has the burden of evidence?

In criminal case, generally, the burden lies upon the prosecution to prove the guilt of the accused beyond the
reasonable doubt rather than upon the accused that he was in fact innocent.

However, if the accused pleads self-defense, the burden of evidence is shifted to him to prove such defense by
clear, satisfactory and convincing evidence than excludes any vestige of criminal aggression on his part.

Q: What is Equipoise rule/Equiponderance doctrine?

It refers to a situation where the evidence of the parties is evenly balance. In such case, the decision should be
against the party with the burden of proof.

Q: What is the effect of presumptions?

A party in whose favor the legal presumption exists may rely on and invoke such legal presumptions to establish
a fact in issue. One need not introduce evidence to prove the fact for a presumption is prima facie proof of the fact
presumed.

Q: What is conclusive presumption/juris et de jure)?

A presumption of law that is irrebuttable and not permitted to be overcome by any proof to the contrary.

Q: What is estoppel by pais?

Whenever a party has, by his own declaration, act, or omission, intentionally and deliberately led to another to
believe a particular thing true, and to act upon such belief, he cannot, in any litigation arising out of such
declaration, act or omission, be permitted to falsify it. (Sec. 2(a), Rule 131)

Q: What is Estoppel by deed?

The tenant is not permitted to deny the title of his landlord at the time of commencement of the relation of
landlord and tenant between them. (Sec. 2(b), Rule 131)

Q: What is disputable presumption/juris tantum?

One which the law permits to be overcome or contradicted by proofs to the contrary.

Q: What is the effect of disputable presumptions?

It creates the need of presenting evidence to overcome the prima facie case created by the presumption. If no
contrary proof is offered, the presumption will prevail.

Q: What is a prima facie evidence?

That which suffices for the proof of a particular fact, until contradicted and overcome by other evidence.

Q: What is pyramiding Presumption or inference?

A presumption cannot arise from the strength of another presumption. It must be based on facts.

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However, an inference may be based on fact which itself is based on an inference justifiable drawn from
circumstantial evidence.

Q: May public officer invokes a presumption of regularity in the performance of official duty when there is a
deviation from the regular performance of duty?
No. The Court emphasized that a presumption of regularity in the performance of official duty obtains only when
there is a deviation from the regular performance of duty. (People vs. Casabuena)

Q: May a prosecutor invoked presumption of regularity in the performance of official duty during in custody
investigation?
No. (People vs. Camat)

Q: May presumption of regularity in the performance of official duty overcome the presumption of
innocence?
No. The presumption of regularity in the performance of official duty cannot, by itself, overcome the presumption
of innocence. Evidence of guilt beyond reasonable doubt, and nothing else, is required to erase all doubts as to the
capability of the accused. (Zafra vs. People)

In case of conflict between the presumption of regularity in the performance of official duty of a police officer and
the presumption of the innocence of the accused, the latter must prevail as the law imposes upon the prosecution
the highest degree of proof of evidence to sustain conviction. (People vs. Guinto)

Q: In what instances when the presumption that evidence, when willfully suppressed, would be adverse, if
produce does not apply?
1. The evidence is at the disposal of both parties;
2. Suppression is not willful;
3. It is merely corroborative or cumulative;
4. The suppression is covered by the privilege communication.

Q: What are the presumptions in civil actions and proceedings?

In all civil actions and proceedings not otherwise provided for by the law or these Rules, a presumption imposes
on the party against whom the presumption is directed the burden of going forward with evidence to rebut or
meet the presumption. (Sec. 5, Rule 132)

Q: What are presumptions against an accused in criminal cases?

If a presumed fact that establishes guilt, is an element of the offense charged or negates a defense, the existence of
the basic fact must be proved by reasonable doubt and the presumed fact follows from the basic fact beyond
reasonable doubt. (Sec. 6, Rule 132)

Q: Define poof beyond reasonable doubt.

It is the degree of proof that, after investigation of the whole record, produces moral certainty in an unprejudiced
mind of the accused’s culpability.

Q: What does preponderance of evidence means?

It means greater wight of the credible evidence, or the evidence adduced by one side is, as a whole, superior to or
has greater weight than of the other.

Q: What does substantial evidence means?

Refers to such evidence which a reasonable mind might accept as adequate to support a conclusion.
Q: What degree of proof is required in administrative cases or quasi-judicial proceedings?
Substantial evidence.

Q: What is the effect on the criminal case of failure to prove administrative liability?
It is a fundamental principle that administrative cases are independent from criminal actions for the same act or
omissions. Thus, an absolution from a criminal charge is not a bar to an administrative prosecution, or vice versa.
(Paredas vs. CA)

Q: What is clear and convincing evidence?

It is intermediate, being more than preponderance, but not to the extent of such certainty as is required beyond
reasonable doubt.

Q: Give examples where clear and convincing evidence is required.

1. Granting bail in extradition cases; (Government of Hongkong Special Administrative Region vs. Olaila, Jr.)

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2. Self-defense. (People vs. Fontanilla)

B. Judicial Notice and Judicial Admissions (Rule 129)

Q: What do you mean by judicial notice?

It is based on the maxim “what is known need not proved”; hence, when the rule is invoke, the court may
dispense with the presentation of evidence on judicially cognizable facts.

Q: What is the function of judicial notice?

It takes place of proof and is of equal force. It displaces evidence and fulfills the purpose for which the evidence is
designed to fulfill. Hence it makes evidence unnecessary.

Q: When is judicial notice, mandatory?

A court shall take judicial notice, without the introduction of evidence, of:
1. the existence and territorial extent of states,
2. their political history, forms of government and symbols of nationality,
3. the law of nations, the admiralty and maritime courts of the world and their seals,
4. the political constitution and history of the Philippines,
5. the official acts of legislative, executive and judicial departments of the National Government of the
Philippines,
6. the laws of nature,
7. the measure of time, and
8. the geographical divisions. (Sec.1, Rule 129)

Q: When is judicial notice, discretionary?

A court may take judicial notice of matters which are:
1. of public knowledge; or
2. are capable to unquestionable demonstration; or
3. ought to be known to judges because of their judicial functions. (Sec.1, Rule 129)

Q: Is personal knowledge of the judge considered judicial notice?

No. The mere personal knowledge of the judge is not the judicial knowledge of the court.

Q: Can court take judicial notice of foreign laws?

Except when the foreign law refers to the laws of nation, our courts cannot take judicial notice of foreign laws.
Like any other facts, they must be alleged and proved.

In the absence of proof, the foreign law will be presumed to be the same as the laws of the jurisdiction hearing the
case under the doctrine of processual presumption.

May court take judicial notice of municipal/city ordinances?

In case municipal trial courts, they should take notice of municipal ordinances in force in the municipality in
which they sit. (U.S. vs. Blanco)

In case of RTC, they should also take judicial notice of municipal ordinances in force in the municipalities within
their jurisdiction but only when so required by law. (ex. charter of manila) (City of Manila vs. Garcia)

Also,. RTC must take judicial notice of municipal ordinances in cases on appeal to it from inferior court in which
the layer took judicial notice. (U.S. vs. Hernandez)

The CA may take judicial notice of municipal ordinances because nothing in the Rules prohibits it. (Gallego vs.
People)

Q: May court take judicial notice of the contents of the records of other cases?
No. As a rule, courts are not authorize to take judicial notice of the contents of the records of other cases even
when such cases have been tried or are pending in the same court, and notwithstanding the fact that both cases
may have been heard or actually pending before the same judge. (Land Bank of the Philippines vs. Yatco
Agricultural Enterprises.)

Exceptions:
1. Absence of objection and with knowledge of the opposing party, the contents of said other case are clearly
referred to by title and number in a pending action and adopted and read into the record of the latter; or

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2. when the original record of the other case or any part of it is actually withdrawn from the archives at the
court’s discretion upon the request, or with the consent, of the parties, and is admitted as part of the record of the
pending case. (Tabuena vs. CA)

Q: May court take judicial notice of propriety acts of the GOCCs?

No, because this not among the matters which the courts can take judicial notice of. It cannot be considered an
official act of the executive department of the national government because it was entered into while performing
a proprietary functions. (Asian Terminals, Inc. vs. Malayan Insurance Co.)

Q: May court take judicial notice of presidents powers?

Yes. The official acts of the of the legislative, executive and judicial departments of the National Government of
the Philippines are proper subjects of mandatory judicial notice. (DENR vs DENR Region 12 Employees)

Q: May court take judicial notice of administrative regulation or of a statute that is not yet effective?
No. because a law which is still inexistent cannot be a common knowledge capable of ready and unquestionable
demonstration. (State Prosecutors vs. Muro)

Q: May the court take judicial notice of the complainant’s age?

No. Competent evidence such as birth certificate is required as a proof of the victim’s actual age at the time of the
commission of the offense. (People vs. Metin)

Q: May court take judicial notice that a business transactions may be made by individuals through
teleconferencing?
Yes. In this age of modern technology, the courts may take judicial notice that a business transactions may be
made by individuals through teleconferencing. However, there is no judicial notice that one was conducted in a
particular case. (Expertravel and Tours, Inc. vs. CA)

Q: What are judicial admissions?

It refers to an admission, verbal or written, made by the party in the course of the proceedings in the same case,
which does not require proof. (Sec. 4, Rule 128)

Q: What are the elements of judicial admissions?

1. The admission must be made by a party to the case;
2. It must be made in the course of the proceedings in the same case; and
3. It does not require a particular form for an admission.

Q: Where can a party make his judicial admissions?

1. pleadings and motions filed in court;
2. during trial; or
3. other stages of the judicial proceedings.

Q; What are deem admitted in case the adverse party fails to deny specifically, under oath an action or defense
founded upon an actionable document?
The genuineness and due execution of the actionable document is deemed admitted by the adverse party.

However the failure to deny the genuineness and due execution of an actionable document does not preclude a
party from arguing against the document by evidence of fraud, compromise, payment, statute of limitations,
estoppel and want of consideration. (Acabal vs. Acabal)

Q: Are admissions during per-trial in a civil case treated as judicial admission?

Yes. Admissions in the pre-trial in a civil case are all deemed judicial admissions because there are made in the
course of the proceedings.

Q: Are admissions during pre-trial in a criminal case treated as judicial admission?

An admission made by the accused in the pre-trial of a criminal case is not necessarily admissible against him.

To be admissible, the conditions set forth by Sec. 2 of Rule 118 must be complied with. The conditions are as
follows:
1. Admissions must be reduced in writing; and
2. Signed by the accused and counsel,
Otherwise, they cannot be used against the accused.

Q: Are admission in the modes of discovery judicial admissions?

Yes. Admissions obtained through depositions, interrogatories or requests for admissions are treated as judicial
admissions.

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Q: What are the effects of judicial admissions?
1. Judicial admissions are legally binding on the party making the submissions;
2. It is established principle that judicial admissions cannot be contradicted by the admitter who is the party
himself and binds the person who makes the same;
3. No evidence is needed to prove a judicial admissions.

Q: How judicial admissions may be contradicted?

There are 2 ways provided by the Rule:
1. by showing that the admission was made through palpable mistake;
2. that the imputed admission was not in fact, made. (Sec. 4, Rule 129)

C. Object (Real) Evidence

Q: Discuss the nature of object evidence.

Object evidence does not refer to the perception of the witness and a recollection of that perception. It is the real
thing itself. This kind of evidence appeals directly to the senses of the court.

Object evidence is not visual alone. It covers the entire range of human senses: hearing, taste, smell and touch.

Physical evidence is a mute but eloquent manifestation of the truth, and it ranks high in our hierarchy of
trustworthy evidence – where the physical evidence runs counter to the testimonial evidence, the physical
evidence should prevail. (BPI vs. Reyes)

Q: What are the requisites for admissibility of object evidence?

1. The evidence must be relevant;
2. The evidence must be competent;
3. The authentication mist be made by a competent witness; and
4. The object must be formally offered in evidence.

Q: is it required that the object pass the test of authenticity?

Yes.

Q: How to authenticate an object evidence?

To authenticate the object, there must be someone who should identify the object to be the actual thing involved.
This someone is the witness.

Q: What are the categories of evidence?

1. Unique objects or objects that have readily identifiable marks;
2. Objects made unique, or objects that are made readily identifiable; or
3. Non-unique objects, or objects with no identifiable marks.

Q: What is chain custody in drug cases?

It means the duly recorded authorized movements and custody of seized drugs or controlled chemicals or plant
sources of dangerous drugs or laboratory equipment of each stage, from the time of seizure/confiscation to
receipt in the forensic laboratory to safekeeping to presentation in court for destruction. (People vs. Obmiranis)

Q: What is the procedure to be followed in the custody of handling seized dangerous drugs?
1. The apprehending team having initial custody and control of the dangerous drugs, controlled precursors and
essential chemicals, instruments/paraphernalia and/or laboratory equipment shall, immediately after seizure
and confiscation, conduct a physical inventory of the seized items and photograph the same in the presence of the
accused or the person/s from whom such items were confiscated and/or seized, or his/her representative or
counsel, with an elected public official and a representative of the National Prosecution Service or the media who
shall be required to sign the copies of the inventory and be given a copy thereof: Provided, That the physical
inventory and photograph shall be conducted at the place where the search warrant is served; or at the nearest
police station or at the nearest office of the apprehending officer/team, whichever is practicable, in case of
warrantless seizures.

2. Within twenty-four (24) hours upon confiscation/seizure of dangerous drugs, plant sources of dangerous
drugs, controlled precursors and essential chemicals, as well as instruments/paraphernalia and/or laboratory
equipment, the same shall be submitted to the PDEA Forensic Laboratory for a qualitative and quantitative
examination;

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3. A certification of the forensic laboratory examination results, which shall be done by the forensic laboratory
examiner, shall be issued immediately upon the receipt of the subject item/s: Provided, That when the volume of
dangerous drugs, plant sources of dangerous drugs, and controlled precursors and essential chemicals does not
allow the completion of testing within the time frame, a partial laboratory examination report shall be
provisionally issued stating therein the quantities of dangerous drugs still to be examined by the forensic
laboratory: Provided, however, That a final certification shall be issued immediately upon completion of the said
examination and certification;

4. After the filing of the criminal case, the Court shall, within seventy-two (72) hours, conduct an ocular
inspection of the confiscated, seized and/or surrendered dangerous drugs, plant sources of dangerous drugs, and
controlled precursors and essential chemicals, including the instruments/paraphernalia and/or laboratory
equipment, and through the PDEA shall within twenty-four (24) hours thereafter proceed with the destruction or
burning of the same, in the presence of the accused or the person/s from whom such items were confiscated
and/or seized, or his/her representative or counsel, a representative from the media and the DOJ, civil society
groups and any elected public official.

5. The Board shall then issue a sworn certification as to the fact of destruction or burning of the subject item/s
which, together with the representative sample/s in the custody of the PDEA, shall be submitted to the court
having jurisdiction over the case. (Sec.21 of RA 9165, as amended)

Q: What are the links in Chain of Custody in drug cases?

First, Seizure and marking of the confiscated drugs recovered from the accused;
Second, the turnover of the illegal drug seized by the apprehending officer to the investigating officer;
Third, the turnover by the investigating officer of illegal drug to the forensic chemist for laboratory examination;
Fourth, the turnover and submission of the marked illegal drug by the forensic chemist to the court. (People vs.
Kamad)

Q: Is marking of the evidence part of the chain of custody of seized drugs?

Yes. While marking is not found under RA 9165, SC had consistently held that failure of the authorities to
immediately mark the seized drugs would cast reasonable doubt on the authenticity of the corpus delict. (People
vs. Dahil)

Q: What is the importance of marking?

The immediate marking upon confiscation or recovery of the dangerous drugs or related items is indispensable in
the preservation of their integrity and evidentiary value. (People vs. Gonzales)

Q: What defense would be available in case there is non-compliance with Sec. 21 of RA 9165?
1. Non-compliance must be because of justifiable grounds; and
2. The integrity and evidentiary value of the seized items were properly preserved. (Sec.21 of RA 9165, as
amended)

Q: What is the meaning of DNA?

It means deoxyribonucleic acid, which is the chain of molecules found in every nucleated cell of the body. (Sec. 3
of Rules on DNA Evidence)

Q: What is DNA Evidence?

It constitutes the totality of the DNA profiles, results and other genetic information directly generated from DNA
testing of biological samples. (Sec. 3 of Rules on DNA Evidence)

Q: What is a biological sample?

It means any organic material originating from a person’s body, even if found in inanimate objects, that is
susceptible to DNA testing. This includes blood, saliva and other body fluids, tissues, hairs and bones. (Sec. 3 of
Rules on DNA Evidence)

Q: How to apply for a DNA testing application?

Any person who has a legal interest in the matter in litigation, or upon the court’s initiative, At any time, order a
DNA testing.

Such order shall issue after due hearing and notice to the parties upon a showing of the following:
1. A biological sample exists that is relevant to the case;
2. The biological sample: (i) was not previously subjected to the type of DNA testing now requested; or (ii) was
previously subjected to DNA testing, but the results may require confirmation for good reasons;
3. The DNA testing uses a scientifically valid technique;
4. The DNA testing has the scientific potential to produce new information that is relevant to the proper
resolution of the case; and

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5. The existence of other factors, if any, which the court may consider as potentially affecting the accuracy of
integrity of the DNA testing. (Sec. 4 of Rules on DNA Evidence)

Q: Is a court order always required before undertaking DNA testing?

No. DNA testing is allowed even without a prior court order, at the behest of any party, including law
enforcement agencies, if done before a suit or proceeding is commenced. (Sec. 4 of Rules on DNA Evidence)
What is the remedy against the court order?
Petition for certiorari under Rule 65 because the order of the court in DNA testing is not appealable and
immediately executory. (Sec. 5 of Rules on DNA Evidence)

Q: Is post-conviction DNA testing allowed? And if allowed, is court order required?

Yes. Post-conviction DNA testing may be available, without need of prior court order, provided that
(a) a biological sample exists,
(b) such sample is relevant to the case, and
(c) the testing would probably result in the reversal or modification of the judgment of conviction. (Sec. 6 of Rules
on DNA Evidence)

Q: Who may avail post-conviction DNA testing?

The prosecution or any person convicted by final and executory judgment. (Sec. 6 of Rules on DNA Evidence)

Q: What is the remedy in case the Post-Conviction DNA testing is favorable to the convict?
The convict or the prosecution may file a petition for a writ of habeas corpus in the court of origin if the results of
the post-conviction DNA testing are favorable to the convict.

In the case the court, after due hearing finds the petition to be meritorious, if shall reverse or modify the judgment
of conviction and order the release of the convict, unless continued detention is justified for a lawful cause. (Sec.
10 of Rules on DNA Evidence)

Q: Is there an automatic admission of the DNA evidence obtained in the testing?

There is none. The grant of DNA testing application shall not be construed as an automatic admission into
evidence of any component of the DNA evidence that may be obtained as a result thereof. (Sec. 5 of Rules on
DNA Evidence)

Q: In assessing the probative value of DNA evidence presented, what must the court consider?
1. The chair of custody, including how the biological samples were collected, how they were handled, and the
possibility of contamination of the samples;
2. The DNA testing methodology, including the procedure followed in analyzing the samples, the advantages
and disadvantages of the procedure, and compliance with the scientifically valid standards in conducting the
tests;
3. The forensic DNA laboratory, including accreditation by any reputable standards-setting institution and the
qualification of the analyst who conducted the tests. If the laboratory is not accredited, the relevant experience of
the laboratory in forensic casework and credibility shall be properly established; and
4. The reliability of the testing result, as hereinafter provided. (Sec. 7 of Rules on DNA Evidence)

Q: In evaluating whether the DNA testing methodology is reliable, what must the court consider?
1. The falsifiability of the principles or methods used, that is, whether the theory or technique can be and has been
tested;
2. The subjection to peer review and publication of the principles or methods;
3. The general acceptance of the principles or methods by the relevant scientific community;
4. The existence and maintenance of standards and controls to ensure the correctness of data generated;
5. The existence of an appropriate reference population database; and
6. The general degree of confidence attributed to mathematical calculations used in comparing DNA profiles and
the significance and limitation of statistical calculations used in comparing DNA profiles. (Sec. 7 of Rules on DNA
Evidence)

D. Documentary Evidence

What is the meaning of documentary evidence?

Documents as evidence consist of writings, recordings, photographs or any material containing letters, words,
sounds, numbers, figures, symbols, or their equivalent, or other modes of written expression offered as proof of
their contents. Photographs include still pictures, drawings, stored images, x-ray films, motion pictures or videos.
(Sec. 2, Rule 130)

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Q: Are writings, materials, picture, sounds containing modes of written expression ipso facto make them
documentary evidence?
No. To be deemed documentary evidence, they must be offered as proof of their contents. If offered for some
purpose, the writings, materials, sounds or pictures would not be deemed documentary evidence but merely
object evidence.

Q: A contract is presented in court to show that it exist or simply to establish its condition, documentary
evidence?
No, but it is considered object evidence.

Q: What are evidentiary concepts involved in the presentation of documentary evidence?

Documentary evidence are subject to the rule on hearsay, original document rule, and parole evidence rule.
Conversely, where the evidence is offered as a object evidence, the original document rule, parole evidence rule
and hearsay rule find no application.

Q: What are the requisites for admissibility of documentary evidence?

1. The evidence must be relevant;
2. The evidence must be competent;
3. The authentication mist be made by a competent witness; and
4. The object must be formally offered in evidence.

Q: What is the meaning of Original Document Rule (ODR)?

When the subject of inquiry is the contents of a document, writing, recording, photograph or other record, no
evidence is admissible other than the original document itself. (Sec. 3, Rule 130)

What are the purposes of ODR?

1. Ensures that the exact contents of a document are brough before the court
2. Acts as an insurance against fraud
3. Protects against misleading inferences resulting from the intentional or unintentional introduction of selected
portions of a larger set of writings.

May ODR be waived?

Yes, if not raised in the trial.

Q: Does ODR applies to all types of evidence?

No. ODR only applies to documentary evidence and not to object or testimonial evidence. Hence, ODR cannot be
invoke unless the contents of a writing is the subject of judicial inquiry.

Q: Where the issue is the execution or existence of the document or the circumstances surrounding its
execution or its deliver (document is collaterally in issues), is ODR applicable?
No, where the issue is the execution or existence of the document or the circumstances surrounding its execution,
ODR is not applicable.

Q: What is the meaning of original document?

An “original” of a document is the document itself or any counterpart intended to have the same effect by a
person executing or issuing it.

An “original” of a photograph includes the negative or any print therefrom.

If data is stored in a computer or similar device, any printout or other output readable by sight or other means,
shown to reflect the data accurately, is an “original.” (Sec.4(a), Rule 130)

Q: What is a duplicate?
A “duplicate” is a counterpart produced by the
1. same impression as the original; or
2. from the same matrix; or
3. by means of photography, including enlargements and miniatures; or
4. by mechanical or electronic re-recording; or
5. by chemical reproduction; or
6. by other equivalent techniques which accurately reproduce the original. (Sec.4(b), Rule 130)

Q: Is a duplicate considered original?

Yes, A duplicate is admissible to the same extent as an original. (Sec.4(c), Rule 130)

Q: What defenses may be raise against the duplicate?

11
1. a genuine question is raised as to the authenticity of the original; or
2. in the circumstances, it is unjust or inequitable to admit the duplicate in lieu of the original. (Sec.4(c), Rule 130

Q: What are the excuses for not presenting the original document?
1. When the original document has been lost or destroyed, or cannot be produced in court, the offeror, upon proof
of its execution or existence and the cause of its unavailability without bad faith on his or her part, may prove its
contents by a copy, or by recital of its contents in some authentic document, or by the testimony of witnesses in
the order stated.

Elements:
1. The offeror must prove the execution or existence of the original document;
2. The offeror must show the cause of unavailability;
3. The offeror must show that the unavailability was not due to his bad faith.

2. If the document is in the custody or under the control of the adverse party, he or she must have reasonable
notice to produce it. If after such notice and after satisfactory proof of its existence, he or she fails to produce the
document, secondary evidence may be presented as in the case of its loss

Elements:
1. that the original exist;
2. said document is under the custody or control of the adverse party
3. the proponent of secondary evidence has given the adverse party reasonable notice to produce the
original.

Q: How do you present the proper foundation in presenting evidence under the first two excuses?
The presentation of evidence should be in the following order?
a. copy of the original
b. a recital of the contents of the document in some authenticated document; or
c. testimony of the witness.

3. The original cannot be obtained by local judicial process or procedures.

4. When the contents of documents, records, photographs, or numerous accounts are voluminous and cannot be
examined in court without great loss of time, and the fact sought to be established is only the general result of the
whole, the contents of such evidence may be presented in the form of a chart, summary, or calculation.
(summaries)

Elements:
1. The original consists of documents, records, photographs, or numerous accounts that are voluminous;
2. Such accounts or documents cannot be examined in court without great loss of time;
3. The fact sought to be established is only the general result of the whole

Note: The source documents must be shown to be original and not secondary. (Republic vs. Mupas)

5. When the original of a document is in the custody of a public officer or is recorded in a public office, its
contents may be proved by a certified copy issued by the public officer in custody thereof.

Q: What is the meaning of electronic evidence?

1. It refers to information or the representation of information, data, figures, symbols or other modes of written
expression, described or however represented;

2. by which a right is established or an obligation extinguished, or by which a fact may be proved and affirmed;

3. which is received, recorded, transmitted, stored processed, retrieved or produced electronically.

4. It includes digitally signed documents and any print-out or output, readable by sight or other means, which
accurately reflects the electronic data message or electronic document.

Note: the term “electronic document” may be used interchangeably with electronic data message

Q: What is an electronic data message?

It refers to information generated, sent, received or stored by electronic, optical or similar means.

Q: What is an electronic signature?

It refers to any distinctive mark, characteristics and/or sound in electronic form.

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Q: What are the factors for assessing evidentiary weight?
In assessing the evidentiary weight of an electronic document, the following factors may be considered:

(a) The reliability of the manner or method in which it was generated, stored or communicated, including but not
limited to input and output procedures, controls, tests and checks for accuracy and reliability of the electronic
data message or document, in the light of all the circumstances as well as any relevant agreement;

(b) The reliability of the manner in which its originator was identified;

(c) The integrity of the information and communication system in which it is recorded or stored, including but not
limited to the hardware and computer programs or software used as well as programming errors;

(d) The familiarity of the witness or the person who made the entry with the communication and information
system;

(e) The nature and quality of the information which went into the communication and information system upon
which the electronic data message or electronic document was based; or

(f) Other factors which the court may consider as affecting the accuracy or integrity of the electronic document or
electronic data message.

Q: How to authenticate electronic document?

Before any private electronic document offered as authentic is received in evidence, its authenticity must be proved
by any of the following means:

(a) by evidence that it had been digitally signed by the person purported to have signed the same;

(b) by evidence that other appropriate security procedures or devices as may be authorized by the Supreme Court
or by law for authentication of electronic documents were applied to the document; or

(c) by other evidence showing its integrity and reliability to the satisfaction of the judge.

Q: How to established matters relation to admissibility or evidentiary wright of an electronic document?

All matters relating to the admissibility and evidentiary weight of an electronic document may be established by
an affidavit stating facts of direct personal knowledge of the affiant or based on authentic records.

The affidavit must affirmatively show the competence of the affiant to testify on the matters contained therein.

The affiant shall be made to affirm the contents of the affidavit in open court and may be cross-examined as a
matter of right by the adverse party.

Q: How to authenticate electronic signature?

An electronic signature may be authenticate in any of the following manner:

(a) By evidence that a method or process was utilized to establish a digital signature and verity the same;

(b) By any other means provided by law; or

(c) By any other means satisfactory to the judge as establishing the genuineness of the electronic signature.

Q: What are the disputable presumptions in relation to electronic signature?

Upon the authentication of an electronic signature, it shall be presumed that:

(a) The electronic signature is that of the person to whom it correlates;

(b) The electronic signature was affixed by that person with the intention of authenticating or approving the
electronic document to which it is related or to indicate such person’s consent to the transaction embodied
therein; and

(c) The methods or processes utilized to affix or verity the electronic signature operated without error or fault.

Q: What are the elements in order that the business records under the Rules on Electronic Evidence be
considered as an exception under the Hearsay Rule?

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1. There is a a memorandum, report, record or data compilation of acts, events, conditions, opinions, or
diagnoses;
2. such memorandum etc. are made by electronic, optical or other similar means;
3. at or near the time of or from transmission or supply of information;
4. by a person with knowledge thereof;
6. kept in the regular course or conduct of a business activity
7. such memorandum, report, record or data compilation of acts, events, conditions, opinions, or diagnoses by
electronic, optical or similar means, all of which are shown by the testimony of the custodian or other qualified
witnesses.

Q: What evidence should be used in order that the business records under the REE falls within the scope of
hearsay rule?
By evidence of the untrustworthiness of the source of information or the method or circumstances of the
preparation, transmission or storage thereof.

Q; Are audio, photographic and video evidencing events, acts or transactions admissible in evidence?
Yes. Audio, photographic and video evidence of events, acts or transactions shall be admissible provided:
1. it shall be shown, presented or displayed to the court; and
2. shall be identified, explained or authenticated by the person who made the recording or by some other person
competent to testify on the accuracy thereof.

Q: How can Ephemeral electronic communications be proven?

Ephemeral electronic communications shall be proven by the testimony of a person who was a party to the same
or has personal knowledge thereof. In the absence or unavailability of such witnesses, other competent evidence
may be admitted.

A recording of the telephone conversation or ephemeral electronic communication shall be covered by the
immediately preceding section.

If the foregoing communications are recorded or embodied in an electronic document, then the provisions of Rule
5 shall apply.

Q: Is a printout of a facsimile transmission an electronic data message?

No The terms of electronic data message and electronic document as defined under the Electronic Commerce Act
of 2000, do not include a facsimile transmission and cannot be considered as electronic evidence.

When Congress formulated the term electronic data message, it intended the same meaning as the term electronic
record in the Canada law which excludes telexes or faxes, except computer generated faxes from the term
electronic data message.

Since a facsimile transmission is not an electronic data message or an electronic document and cannot be
considered as electronic evidence by the Court, the greater reason is a photocopy of such fax transmission not
electronic evidence. (MCC Industrial Sales Corporation vs. Ssangyong Corporation)

Q: May a plaintiff file his pleadings through fax machines?

No. A facsimile is not a genuine and authentic pleading. It is, at best, an exact copy preserving all marks of an
original. Without the original, there is no way in determining on its face whether the facsimile pleading is
genuine or authentic. (Garvida vs. Sales, Jr)

Q: What is Parole Evidence Rule (PER)?

When the terms of an agreement have been reduced to writing, it is considered as containing all the terms agreed
upon and there can be, between the parties and their successors in interest, no evidence of such terms other than
the contents of the written agreement.

Q: What is Parole Evidence?

It means extraneous evidence or evidence aliunde.

Q: When parole evidence becomes operative?

It becomes operative when the issues in the litigation are the terms of a written agreement.

Be it noted that PER does not apply to oral agreements and that not all writings will trigger the application of the
PER. That writing must embody an agreement. There is only one writing, although not legally an agreement is
withing the coverage of PER, This writing is a will.

Q: Are strangers to the written agreement bound by the PER?

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No. Only the parties and their successor in interest of the written agreement are bound the PER. Thus, total
strangers to the writing is not bound by its terms and is allowed to introduce parole evidence against the efficacy
of the writing. (Lechugas vs. CA)

However, strangers to the written agreement cannot invoke PER.

Q: When and how to introduce parole evidence?

A party may present evidence to modify, explain or add to the terms of the written agreement if he or she puts in
issue in a verified pleading:
(a) An intrinsic ambiguity, mistake or imperfection in the written agreement;
(b) The failure of the written agreement to express the true intent and agreement of the parties
thereto;
(c) The validity of the written agreement; or
(d) The existence of other terms agreed to by the parties or their successors in interest after the execution of the
written agreement. (subsequent agreements)

Q: What is intrinsic ambiguity?

One which not apparent on the face of the document. When the language of the writing is clear and intelligible
and suggests but a single meaning, but some matter extraneous to the writing creates the ambiguity.

Q: May PER be waived?

Yes, By failure to invoke the benefits of the rule.

Original Document Rule Parole Evidence Rule

Establishes preference for the original document Not concerned with the primary evidence but
over secondary evidence. presupposes that the original is available.
Precludes the admission of secondary evidence if Precludes the admission of other evidence to
the original document is available. prove the terms of the document other than the
contents of the document itself.
Can be invoke by any litigant to an action Can be invoke only by the parties to the
whether or not said litigant is a party to the document and their successor-in-interest.
document.
Applies to all forms of writing Applies to written contracts and wills

Q: What is the meaning of authentication?

It is the preliminary step in showing the admissibility of an evidence.

Unless a document is considered self-authenticating, it will not be admitted to evidence without prior
authentication.

Q: What are public and private documents?

Public documents are:
(a) The written official acts, or records of the sovereign authority, official bodies and tribunals, and public officers,
whether of the Philippines, or of a foreign country;

(b) Documents acknowledged before a notary public except last wills and testaments;

(c) Documents that are considered public documents under treaties and conventions which are in force between
the Philippines and the country of source; and

(d) Public records, kept in the Philippines, of private documents required by law to be entered therein.

All other writings are private.

Q: What is the importance of knowing whether a document is public or private?

A public document is admissible in court without further proof of its due execution and authenticity. On the
other hand, a private document is required to be authenticated in the manner allowed by or law or these rules
before its acceptance as evidence in court.

Q: When authentication of private document required and how to authenticate private documents?
Where private document is offered in evidence as authentic, as when it is offered that the document is truly
executed by the person purported to have made the same, there is need to prove its due execution and
authenticity; but if it is not offered as authentic, it only needs to be identified as that which is claimed to be.

15
Before any private document offered as authentic is received in evidence, its due execution and authenticity must
be proved by any of the following means:
(a) By anyone who saw the document executed or written;
(b) By evidence of the genuineness of the signature or handwriting of the maker; or
(c) By other evidence showing its due execution and authenticity.
Any other private document need only be identified as that which it is claimed to be.

Q: When authentication is not required?

1. When the document is an ancient one within the meaning of the Rules on Evidence;
2. When the genuineness and authenticity of an actionable document have not been specifically denied under
oath by the adverse party.
3. When genuineness and authenticity of the document have been admitted under the rule on judicial admission;
5. When the document is being offered not as authentic.

Q: How to prove genuineness of a handwriting?

The handwriting of a person may be proved by any witness who believes it to be the handwriting of such person
because:
1. he or she has seen the person write; or
2. he has seen writing purporting to be his or hers upon which the witness has acted or been charged, and has
thus acquired knowledge of the handwriting of such person;
3. By a comparison, made by the witness or the court, with writings admitted or treated as genuine by the party
against whom the evidence is offered, or proved to be genuine to the satisfaction of the judge.

Q: What do you mean by public documents as evidence?

It means that documents consisting of entries in public records made in the performance of a duty by a public
officer are prima facie evidence of the facts therein stated.

However, all other public documents are evidence, even against a third person, of the fact which gave rise to their
execution and of the date of the latter.

Q: If public documents need not be authenticated, how would the court know if there is really an official acts?
By showing proof of official record.

Q: How to prove written official acts, or records of the sovereign authority, official bodies and tribunals, and
public officers, whether of the Philippines, or of a foreign country?
The record of public documents referred to in paragraph (a) of Section 19, when admissible for any purpose, may
be evidenced by either:
1. an official publication thereof; or
2. by a copy attested by the officer having the legal custody of the record, or by his or her deputy, and
3. accompanied, if the record is not kept in the Philippines, with a certificate that such officer has the custody.

Rule on the Certification:

If the office in which the record is kept is in a foreign country, which is a contracting party to a treaty or
convention to which the Philippines is also a party, or considered a public document under such treaty or
convention pursuant to paragraph (c) of Section 19 hereof, the certificate or its equivalent shall be in the form
prescribed by such treaty or convention subject to reciprocity granted to public documents originating from the
Philippines.

For documents originating from a foreign country which is not a contracting party to a treaty or convention
referred to in the next preceding sentence, the certificate may be made by a secretary of the embassy or legation,
consul general, consul, vice-consul, or consular agent or by any officer in the foreign service of the Philippines
stationed in the foreign country in which the record is kept, and authenticated by the seal of his or her office.

A document that is accompanied by a certificate or its equivalent may be presented in evidence without further
proof, the certificate or its equivalent being prima facie evidence of the due execution and genuineness of the
document involved.

The certificate shall not be required when a treaty or convention between a foreign country and the Philippines
has abolished the requirement, or has exempted the document itself from this formality.

Q: May notary public of a foreign country issue the certification required under Rule 132, section 24 of the
Rules of Court?
No. The Court held that a notary public of a foreign country is not one of those who can issue the certification
required under Rule 132, section 24 of the Rules of Court.

16
Q: What attestation of a copy must state?
Whenever a copy of a document or record is attested for the purpose of evidence, the attestation must state, in
substance, that the copy is a correct copy of the original, or a specific part thereof, as the case may be. The
attestation must be under the official seal of the attesting officer, if there be any, or if he or she be the clerk of a
court having a seal, under the seal of such court.

Q: Why are attestation and certification required?

It is required because of the general rule on the irremovability of public records embodied in Sec. 26, Rule 132
which provides that any public record, an official copy of which is admissible in evidence, must not be removed
from the office in which it is kept, except upon order of a court where the inspection of the record is essential to
the just determination of a pending case.

Q: How to prove public record of a private document?

An authorized public record of a private document may be proved:
1. by the original record, or
2. by a copy thereof, attested by the legal custodian of the record, with an appropriate certificate that such officer
has the custody.

Q: How to prove lack of record?

1. A written statement signed by an officer having the custody of an official record or by his or her deputy that
after diligent search, no record or entry of a specified tenor is found to exist in the records of his or her office;
2. accompanied by a certificate that such officer has the custody of official records, is admissible as evidence that
the records of his or her office contain no such record or entry.

Q: How judicial record is impeached?

Any judicial record may be impeached by evidence of:
(a) want of jurisdiction in the court or judicial officer;
(b) collusion between the parties; or
(c) fraud in the party offering the record, in respect to the proceedings.

Q: How to prove notarial documents?

Every instrument duly acknowledged or proved and certified as provided by law, may be presented in evidence
without further proof, the certificate of acknowledgment being prima facie evidence of the execution of the
instrument or document involved.

Q: How to explain alteration in a document?

The party producing a document as genuine which has been altered and appears to have been altered after its
execution, in a part material to the question in dispute, must account for the alteration.

He or she may show that the alteration:

1. was made by another without his or her concurrence; or
2. was made with the consent of the parties affected by it; or
3. was otherwise properly or innocently made; or
that the alteration did not change the meaning or language of the instrument.

If he or she fails to do that, the document shall not be admissible in evidence.

Q: Are documentary evidence in unofficial language admissible?

No. Documents written in an unofficial language shall not be admitted as evidence, unless accompanied with a
translation into English or Filipino.

Testimonial Evidence

Q: What are the qualification of a witness?

All persons who
1. can perceive; and
2. perceiving;
3. can make known their perception to others,

17
may be witnesses.

Further, a witness can testify only to those facts which he or she knows of his or her personal knowledge; that is,
which are derived from his or her own perception.

What do you mean that a witness can make known his perception to others?
It means that he has the ability to remember what he has perceived; and ability tom communicate the
remembered perception.

Q: Are deaf-mutes incompetent to testify?

No, provided:
1. that they understand and appreciate the sanctity of an oath;
2. comprehend facts they are going to testify; and
3. communicate their ideas through a qualified interpreter. (People vs. Tuangco)

Q: Will drug abuse or bias make a person incompetent to testify?

No. They may not be grounds for barring a witness from testifying. However, they may serve as grounds for
attacking the credibility of a witness.

Q: What are the factors which do not affect the competency of a witness?
1. Religious belief
2. Political belief
3. Interest in the outcome of the case; or
4. Conviction of a crime unless otherwise provided by law; those who have been convicted of falsification of a
document, perjury or false testimony are disqualified from being witness to a will.

Q: What is Marital Disqualification Rule (MDR)?

During their marriage, the husband or the wife cannot testify against the other without the consent of the affected
spouse. ( Sec. 23, 130)

Q: What are specific reasons for this rule?

1. There is identity of interest between husband and wife
2. The policy of the law is to guard the security and confidence of private life
3. When there is want of domestic tranquility, there is a danger of punishing one spouse through hostile
testimonies of the other.

Q: Does this rule covers illicit cohabitation?

No. It is essential that they be validly married. If they are not, there is no privilege.

Moreover, the said rule requires only a valid marriage but the existence of that valid marriage at the moment the
witness-spouse gives testimony. Thus, if the marriage is dissolved , this rule can no longer be invoked.

Q: Does it matter if the facts subject of the testimony occurred or came to the knowledge of the witness-spouse
before the marriage?
It does not matter. The affected spouse may still invoke the rule by objecting to the testimony as long as it is
offered during the subsistence of marriage.

Q: May MDR be waived?

Yes.

Q: What are the exceptions of MDR?

A spouse may testify against the other even without the consent of the latter:
1. in a civil case by one against the other; or
2. in a criminal case for a crime committed by one against the other or the latter’s direct descendants or
ascendants.

Q: May a spouse testify in a trial where the other spouse is a co-accused?

Yes. The testimony of the wife in reference to her husband must be disregarded since it is prohibited under the
MDR. However, the said rule does not preclude the spouse from testifying against other parties not his/her
spouse. (People vs. Quindato, Jr.)

Q: May the estranged spouse testify against the other?

Yes. In one case, the Court held that where the marital an domestic relations are so strained and that there is no
harmony to be preserved no peace or tranquility which may be disturbed, the identity of interest disappears and
the consequent danger of perjury based on that identity is non-existent. (Alvarez vs. Ramirez)

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Q: What are the requirements of Marital Privilege Communication (MPC)?
1. There must be a valid marriage;
2. There is a communication received in confidence; and
3. The confidential communication was received during marriage

Q: What if the confidential information was acquired by a spouse before the marriage, can you invoke MPC?
No. Confidential information acquired by a spouse before the marriage will not fall within the prohibition under
MPC. However, divulging the same may be objected to by MDR?

Q:
Marital Privilege Communication Marital Disqualification Rule
This has a reference to confidential It does not refer to confidential communication.
communication received by one spouse from the
other during marriage.
Applies only to confidential information received Includes facts, occurrences or information even
during marriage. prior to the marriage.
May be invoke even after the dissolution of the It can no longer invoked once the marriage is
marriage. The marriage does not cease just dissolved. It may only be asserted during
because marriage has ended. marriage.
Spouse need not be a party to the action. It requires that the spouse against whom the
testimony is offered is a party to the action.

Q: What are the requirements of Attorney-Client Privilege?

1. There must be a communication made by the client to an attorney or person reasonably believed by the client to
be licensed to engage in the practice of law or an advice given by the attorney or person reasonably believed by
the client to be licensed to engage in the practice of law to his client;
2. The communication or advice must be given in confidence;
3. The communication or advice must be given either in the course of, or with a view to, professional
employment.

Q; Who else are covered by the attorney-client privilege?

An (1) attorney’s secretary, (2) stenographer, or (4) clerk, or (5) other persons assisting the attorney cannot be
examined without the consent of the client and his or her employer, concerning any fact the knowledge of which
has been acquired in such capacity.

Q: What are the exceptions of the attorney-client privilege?

1. Furtherance of crime or fraud. If the services or advice of the lawyer were sought or obtained to enable or aid
anyone to commit or plan to commit what the client knew or reasonably should have known to be a crime or
fraud;

2. Claimants through same deceased client. As to a communication relevant to an issue between parties who claim
through the same deceased client, regardless of whether the claims are by testate or intestate or by inter
vivos transaction;

3. Breach of duty by lawyer or client. As to a communication relevant to an issue of breach of duty by the lawyer to
his or her client, or by the client to his or her lawyer;

4. Document attested by the lawyer. As to a communication relevant to an issue concerning an attested document to
which the lawyer is an attesting witness;

5. Joint clients. As to a communication relevant to a matter of common interest between two or more clients if the
communication was made by any of them to a lawyer retained or consulted in common, when offered in an
action between any of the clients, unless they have expressly agreed otherwise.

Q: What are the requirements of Physician/Psychotherapist-client privilege?

1. There must be communication made between the patient and his or her physician or psychotherapist or person
reasonably believed by the patient to be authorized to practice medicine or psychotherapy;
2. The communication is confidential;
3. The communication is for the purpose of diagnosis or treatment of the patient’s physical, mental or emotional
condition, including alcohol or drug addiction; and
4. The communication is being offered in a civil case.

Q: May the Physician/Psychotherapist-client privilege invoke even if the patient is already dead?
Yes. The privilege survives the death of the patient

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Q: May Physician/Psychotherapist-client privilege be waived?
Yes. The waiver may be made expressly or impliedly.

Under Rule 28 of the Rules of Court, the court may order a party to submit to physical or mental examination.
This happens when the mental or physical condition of a party is in dispute. The party examined may request a
report of the examination. By doing so, he waives any privilege he may have in that action regarding the
testimony of every other person who has examined him in respect of the same examination. (Sec. 4, Rule 28)

Q: What are the requirements of Priest/minister-penitent privilege?

1. There is a communication or confession made to a minister, priest or person reasonably believed to be so, or an
advice given by minister, priest or person reasonably believed to be so, to the affected person;
2. That such communication or confession was made, or any advice was given by him or her, in his/her
professional character;
3. That such communication or confession was made, or any advice was given by him or her, in the course of
discipline enjoined by the church to which the minister or priest belongs.

Q: What is privileged communications to public officers?

A public officer cannot be examined during or after his or her tenure as to communications made to him or her in
official confidence, when the court finds that the public interest would suffer by the disclosure.

Q: What are the certain matters which are considered by the State to be privilege and cannot be disclosed to
the public?
1, Military;
2. Diplomatic;
3. Other national security matters;
4. Presidential conversation, correspondence and discussion;
5. In closed-door cabinet meetings. (Chavez vs. PCGG)

Q: What is the rule on privilege communication when it falls in the hands of a third person?
The communication shall remain privileged, even in the hands of a third person who may have obtained the
information, provided that the original parties to the communication took reasonable precaution to protect its
confidentiality.

Q: What is parental and filial privilege rule?

Under parental privilege rule, a PARENT cannot be compelled to testify against his child or other direct
descendants.

Under the Filial Privilege Rule, a CHILD may not be compelled to testify against his parents ot direct ascendants.

Q: What does parental and filial privilege rule seeks to protect?

The rule protects them from any compulsion. Hence, the parents, or their children may voluntarily testify.

Q: Does parental and filial privilege rule applies to both civil and criminal case?
Yes.

Q: What are the exceptions of parental and filial privilege rule?

1. when the testimony is indispensable to the crime committed against that person; or
2. in a crime committed by one parent against the other. (read Art. 125 of the FC)

Q: What is the privilege relating to trade secrets?

A person cannot be compelled to testify about any trade secret, unless the non-disclosure will conceal fraud or
otherwise work injustice.

Q: What are the rights and obligations of a witness?

A witness must answer questions, although his or her answer may tend to establish a claim against him or her.
However, it is the right of a witness:

(1) To be protected from irrelevant, improper, or insulting questions, and from harsh or insulting demeanor;

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

(3) Not to be examined except only as to matters pertinent to the issue;

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(4) Not to give an answer which will tend to subject him or her to a penalty for an offense unless otherwise
provided by law; (Right of a person against self-incrimination) or

Q: May a witness admitted into witness protection program refuse to testify?

No. A witness admitted into witness protection program cannot refuse to testify or give evidence or
produce books, documents, records or writings necessary for the prosecution of offense or offense for
which he has been admitted on the ground of right against self-incrimination. ( Sec. 14 of Witness
Protection, Security and Benefit Act)

(5) Not to give an answer which will tend to degrade his or her reputation, unless it be to the very fact at issue or
to a fact from which the fact in issue would be presumed.

Q: Must a witness answer to the fact of his previous final conviction for an offense?
Yes. A witness must answer to the fact of his or her previous final conviction for an offense.

Q: What is the order of examination?

The order in which an individual witness may be examined is as follows:
(a) Direct examination by the proponent;
(b) Cross-examination by the opponent;
(c) Re-direct examination by the proponent;
(d) Re-cross examination by the opponent.
Q: What is the effect of death or absence of a witness before his cross-examination is over?
The testimony of the witness on the direct may be stricken out but only with respect to the testimony not covered
by the cross-examination. (People vs. Señeris)

However, if the witness was not cross-examined because of causes attributable to the cross-examining party and
the witness had always made himself available for cross-examination, the direct testimony of the witness shall
remain in the record and cannot be ordered stricken off because the cross-examiner is deemed to have waived the
right to cross-examine the witness. (Dela Paz vs. IAC)

Q: What is a leading question? And is it allowed?

It is a question which suggests to the witness the answer which the examining party desires is a leading question.
It is not allowed, except:
(a) On cross-examination;
(b) On preliminary matters;
(c) When there is difficulty in getting direct and intelligible answers from a witness who is ignorant, a child of
tender years, is of feeble mind, or a deaf-mute;
(d) Of an unwilling or hostile witness; or
(e) Of a witness who is an adverse party or an officer, director, or managing agent of a public or private
corporation, or of a partnership or association which is an adverse party.

Q: What is a misleading question? Is it allowed?

It is one which assumes as true a fact not yet testified to by the witness, or contrary to that which he or she has
previously stated. It is not allowed.
Q: What is the meaning of impeachment of a witness?
It is a technique employed usually as part of the cross-examination to discredit a witness by attacking his
credibility.

Q: What are the certain guideposts in impeaching a witness?

1. A witness may be impeached by the party against whom he or she was called (Sec. 11, Rule 132;

2. Except with respect to unwilling or hostile witness; or of a witness who is an adverse, the party presenting the
witness is not allowed to impeach his or her credibility (Sec. 13, Rule 132);

3. Evidence of the good character of a witness is not admissible until such character has been impeached. In other
words, it also improper for the party calling the witness to present evidence of goof character of his own witness.
The same is allowed only if the character of the witness has been impeached. (Sec. 54, Rule 130)

Q: How to impeach a witness?

1. By contradictory evidence;
2. By evidence that his or her general reputation for truth, honesty, or integrity is bad;
3. By evidence that he or she has made at other times statements inconsistent with his or her present testimony
(prior inconsistent statements)

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Take note that a witness cannot be impeached by evidence of particular wrongful acts, except that it may be
shown by the examination of the witness, or record of the judgment, that he or she has been convicted of an
offense.

Q; How to impeach a witness by evidence of prior inconsistent statements?

Before a witness can be impeached by evidence that he or she has made at other times statements inconsistent
with his or her present testimony:
1. If the statements be in writing, they must be shown to the witness before any question is put to him or her
concerning them.
2. the statements must be related to him or her, with the circumstances of the times and places and the persons
present; and
3. he or she must be asked whether he or she made such statements, and if so, allowed to explain them.

Q: When may or may not, that an impeachment by evidence of conviction of a crime be admitted?
(a) the crime was punishable by a penalty in excess of one (1) year; or
(b) the crime involved moral turpitude, regardless of the penalty.

Evidence of a conviction is not admissible if the conviction has been the subject of an amnesty or annulment of the
conviction.

Q: May a party impeached a witness for having a reputation for being troublesome and abrasive?
No. It would be improper for a witness to be impeached because of his reputation for being troublesome and
abrasive. Evidence of bad reputation for the purpose of impeachment should refer to the following specific
aspects:
1. for truth;
2. for honesty; or
3. For integrity

Q: Is there an impeachment by evidence of bad character?

There is none, but only bad REPUTATION.

Note that character is made up of the things an individually is and does, whereas reputation is what people thing
an individual is and what they say about him.

Q: Why is that a party calling a witness cannot initiate proof of his good character?
Because a witness is presumed to be truthful and of good character.

Q: What is Present Recollection Revived/Revival of Present Memory?

A witness may be allowed to refresh his or her memory respecting a fact:
1. by anything written or recorded by himself or herself, or under his or her direction
2. at the time when the fact occurred, or immediately thereafter, or at any other time when the fact was fresh in
his or her memory; and
3. he or she knew that the same was correctly written or recorded.

In such case, the writing or record must be produced and may be inspected by the adverse party who may, if he
or she chooses, cross-examine the witness upon it and may read it in evidence.

Q: What is Past Recollection Recorded/Revival of Past Recollection?

A witness may testify from such a writing or record:
1. though he or she retains no recollection of the particular facts;
2. if he or she is able to swear that the writing or record correctly stated the transaction when made,
but such evidence must be received with caution.

Q:
Present Recollection Revived/Revival of Present Present Recollection Revived/Revival of Present
Memory Memory
Memory is still obscure but there is memory. There is no recollection whatsoever.
The main evidence is the testimony of the witness. The main evidence is the memorandum
The witness simply testify that he knows that the Witness must swear that the writing correctly
memorandum is correctly written by him or states the transaction..
under his direction, no need to swear.

Examination of a Child Witness

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Q: When to apply the Rule on Examination of a Child Witness (RECW)
Unless otherwise provided, this Rule shall govern the examination of child witnesses who are:
1. victims of crime,
2. accused of a crime, and
3. witnesses to crime.

It shall apply in all:

1. criminal proceedings; and
2. non-criminal proceedings involving child witnesses.

Q: What are the objectives of RECW?

1. to create and maintain an environment that will allow children to give reliable and complete evidence;
2. minimize trauma to children;
3. encourage children to testify in legal proceedings; and
4. facilitate the ascertainment of truth.

Q: What is the meaning of child witness?

"Child witness" is any person who at the time of giving testimony is:
1. below the age of eighteen (18) years; or
2. In child abuse cases, a child includes one over eighteen (18) years but is found by the court as unable to fully
take care of himself or protect himself from abuse, neglect, cruelty, exploitation, or discrimination because of a
physical or mental disability or condition.

Q: Is a child presumed qualified to be a witness?

Yes.

Q: When may a court conduct competency examination?

The court shall conduct a competency examination of a child, motu proprio or on motion of a party, when it finds
that substantial doubt exists regarding the ability of the child to:
1. perceive,
2. remember,
3. communicate,
4. distinguish truth from falsehood, or
5. appreciate the duty to tell the truth in court.

A party seeking a competency examination must present proof of necessity of competency examination. The age
of the child by itself is not a sufficient basis for a competency examination.

Q: Who are the persons allowed during competency examination?

Only the following are allowed to attend a competency examination:
(1) The judge and necessary court personnel;
(2) The counsel for the parties;
(3) The guardian ad litem;
(4) One or more support persons for the child; and
(5) The defendant, unless the court determines that competence can be fully evaluated in his absence.

Q: How to conduct competency examination?

Examination of a child as to his competence shall be conducted only by the judge. Counsel for the parties,
however, can submit questions to the judge that he may, in his discretion, ask the child.

Q: What kind of questions are asked at the competency examination?

The questions asked at the competency examination shall be appropriate to the age and developmental level of
the child; shall not be related to the issues at trial; and shall focus on the ability of the child to remember,
communicate, distinguish between truth and falsehood, and appreciate the duty to testify truthfully.

Q: Discuss the procedures on Live-link TV testimony of a child witness.

1. The prosecutor, counsel or the guardian ad litem may apply for an order that the testimony of the child be
taken in a room outside the courtroom and be televised to the courtroom by live-link television.
But before the guardian ad litem applies for an order, he shall consult the prosecutor or counsel and shall defer to
the judgment of the prosecutor or counsel regarding the necessity of applying for an order.
In case the guardian ad litem is convinced that the decision of the prosecutor or counsel not to apply will cause
the child serious emotional trauma, he himself may apply for the order.
The person seeking such an order shall apply at least five (5) days before the trial date, unless the court finds on
the record that the need for such an order was not reasonably foreseeable.

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2. The court may motu proprio hear and determine, with notice to the parties, the need for taking the testimony of
the child through live-link television.

The judge may question the child in chambers, or in some comfortable place other than the courtroom, in the
presence of the support person, guardian ad litem, prosecutor, and counsel for the parties. The questions of the
judge shall not be related to the issues at trial but to the feelings of the child about testifying in the courtroom.

3. The court may order that the testimony of the child be taken by live-link television if there is a substantial
likelihood that the child would suffer trauma from testifying in the presence of the accused, his counsel or the
prosecutor as the case may be. The trauma must be of a kind which would impair the completeness or
truthfulness of the testimony of the child.

4. If the court orders the taking of testimony by live-link television:

(1) The child shall testify in a room separate from the courtroom in the presence of the guardian ad litem;
one or both of his support persons; the facilitator and interpreter, if any; a court officer appointed by the
court; persons necessary to operate the closed-circuit television equipment; and other persons whose
presence are determined by the court to be necessary to the welfare and well-being of the child;
(2) The judge, prosecutor, accused, and counsel for the parties shall be in the courtroom. The testimony of
the child shall be transmitted by live-link television into the courtroom for viewing and hearing by the
judge, prosecutor, counsel for the parties, accused, victim, and the public unless excluded.
(3) If it is necessary for the child to identify the accused at trial, the court may allow the child to enter the
courtroom for the limited purpose of identifying the accused, or the court may allow the child to identify
the accused by observing the image of the latter on a television monitor.
(4) The court may set other conditions and limitations on the taking of the testimony that it finds just and
appropriate, taking into consideration the best interests of the child.
5. The testimony of the child shall be preserved on videotape, digital disc, or other similar devices which shall be
made part of the court record and shall be subject to a protective order as provided in section 31(b).

Q: Discuss the procedures in videotaped deposition.

1. The prosecutor, counsel, or guardian ad litem may apply for an order that a deposition be taken of the
testimony of the child and that it be recorded and preserved on videotape.
But before the guardian ad litem applies for an order, he shall consult the prosecutor or counsel and shall defer to
the judgment of the prosecutor or counsel regarding the necessity of applying for an order.

In case the guardian ad litem is convinced that the decision of the prosecutor or counsel not to apply will cause
the child serious emotional trauma, he himself may apply for the order.

2. If the court finds that the child will not be able to testify in open court at trial, it shall issue an order that the
deposition of the child be taken and preserved by videotape.

3. The judge shall preside at the videotaped deposition of a child. Objections to deposition testimony or evidence,
or parts thereof, and the grounds for the objection shall be stated and shall be ruled upon at the time of the taking
of the deposition.

The other persons who may be permitted to be present at the proceeding are:
(1) The prosecutor;
(2) The defense counsel;
(3) The guardian ad litem;
(4) The accused, subject to sub-section (e);
(5) Other persons whose presence is determined by the court to be necessary to the welfare and well-being of the
child;
(6) One or both of his support persons, the facilitator and interpreter, if any;
(7) The court stenographer; and
(8) Persons necessary to operate the videotape equipment

4. The rights of the accused during trial, especially the right to counsel and to confront and cross-examine the
child, shall not be violated during the deposition.

5. If the order of the court is based on evidence that the child is unable to testify in the physical presence of the
accused, the court may direct the latter to be excluded from the room in which the deposition is conducted. In
case of exclusion of the accused, the court shall order that the testimony of the child be taken by live-link
television in accordance with section 25 of this Rule. If the accused is excluded from the deposition, it is not
necessary that the child be able to view an image of the accused.

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6. The videotaped deposition shall be preserved and stenographically recorded. The videotape and the
stenographic notes shall be transmitted to the clerk of the court where the case is pending for safekeeping and
shall be made a part of the record.

7. The videotaped deposition and stenographic notes shall be subject to a protective order as provided in section
31(b).

8. If, at the time of trial, the court finds that the child is unable to testify for a reason stated in section 25(f) of this
Rule, or is unavailable for any reason described in section 4(c), Rule 23 of the 1997 Rules of Civil Procedure, the
court may admit into evidence the videotaped deposition of the child in lieu of his testimony at the trial. The
court shall issue an order stating the reasons therefor.

9. After the original videotaping but before or during trial, any party may file any motion for additional
videotaping on the ground of newly discovered evidence. The court may order an additional videotaped
deposition to receive the newly discovered evidence.

Q: What is the hearsay exception 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 subject to the following
rules:

(a) Before such hearsay statement may be admitted, its proponent shall make known to the adverse party
the intention to offer such statement and its particulars to provide him a fair opportunity to object. 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. When the child is
unavailable, the fact of such circumstance must be proved by the proponent.

(b) In ruling on the admissibility of such hearsay statement, the court shall consider the time, content and
circumstances thereof which provide sufficient indicia of reliability. It shall consider the following factors:
(1) Whether there is a motive to lie;
(2) The general character of the declarant child;
(3) Whether more than one person heard the statement;
(4) Whether the statement was spontaneous;
(5) The timing of the statement and the relationship between the declarant child and witness;
(6) Cross-examination could not show the lack of knowledge of the declarant child;
(7) The possibility of faulty recollection of the declarant child is remote; and
(8) The circumstances surrounding the statement are such that there is no reason to suppose the
declarant child misrepresented the involvement of the accused.

(c) The child witness shall be considered unavailable under the following situations:
(1) Is deceased, suffers from physical infirmity, lack of memory, mental illness, or will be exposed
to severe psychological injury; or
(2) Is absent from the hearing and the proponent of his statement has been unable to procure his
attendance by process or other reasonable means.

(d) When the child witness is unavailable, his hearsay testimony shall be admitted only if corroborated by
other admissible evidence.

Q: What is Sexual Abuse Shield Rule?

The following evidence is not admissible in any criminal proceeding involving alleged child sexual abuse:
(1) Evidence offered to prove that the alleged victim engaged in other sexual behavior; and
(2) Evidence offered to prove the sexual predisposition of the alleged victim.

However, evidence of specific instances of sexual behavior by the alleged victim to prove that a person other
than the accused was the source of semen, injury, or other physical evidence shall be admissible.

Q: What are the protective orders under the RECW?

Any videotape or audiotape of a child that is part of the court record shall be under a protective order that
provides as follows:

(1) Tapes may be viewed only by parties, their counsel, their expert witness, and the guardian ad litem.

(2) No tape, or any portion thereof, shall be divulged by any person mentioned in sub-section (a) to any other
person, except as necessary for the trial.

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(3) No person shall be granted access to the tape, its transcription or any part thereof unless he signs a written
affirmation that he has received and read a copy of the protective order; that he submits to the jurisdiction of the
court with respect to the protective order; and that in case of violation thereof, he will be subject to the contempt
power of the court.

(4) Each of the tape cassettes and transcripts thereof made available to the parties, their counsel, and respective
agents shall bear the following cautionary notice: "This object or document and the contents thereof are subject to
a protective order issued by the court in (case title) , (case number) . They shall not be examined, inspected, read,
viewed, or copied by any person, or disclosed to any person, except as provided in the protective order. No
additional copies of the tape or any of its portion shall be made, given, sold, or shown to any person without
prior court order. Any person violating such protective order is subject to the contempt power of the court and
other penalties prescribed by law."

(5) No tape shall be given, loaned, sold, or shown to any person except as ordered by the court.

(6) Within thirty (30) days from receipt, all copies of the tape and any transcripts thereof shall be returned to the
clerk of court for safekeeping unless the period is extended by the court on motion of a party.

(7) This protective order shall remain in full force and effect until further order of the court.

The court may, motu proprio or on motion of any party, the child, his parents, legal guardian, or the guardian ad
litem, issue additional orders to protect the privacy of the child.

Admissions and Confessions

Q: What is an admission?
It is an act, declaration or omission of a party as to a relevant fact.

Q: What is the effect of admission?

The act, declaration or omission of a party as to a relevant fact may be given in evidence against him or her.

Q: What is an adoptive admission?

It is a party’s reaction to a statement or action of another person when it is reasonable to treat the party’s reaction
as an admission of something stated or implied to the other person.

Q: What are the elements of admission by silence?

1. The admitter heard and understand the statement;
2. he was at liberty to make a denial;
3. the statement was about a matter affecting his rights, or which he was interested and which naturally calls for a
response
4. the facts are within his knowledge;
5. the fact admitted by his silence is material to the issue, (People vs. Paragsa)

Q: Are all silence considered implied admission?

No. For instance, the silence of a person under investigation for commission of an offense should not be construed
as an admission by silence because right to be silent is one of the rights of the accused provided under the
Constitution.

Q: What is res inter alios acta rule?

1st branch: The rights of a party cannot be prejudiced by an act, declaration, or omission of another;

2nd Branch: Evidence that one did or did not do a certain thing at one time is not admissible to prove that he or
she did or did not do the same or similar thing at another time; but it may be received to prove a specific intent or
knowledge, identity, plan, system, scheme, habit, custom or usage, and the like.

Note: These rules only apply to extrajudicial admissions.

Q: What are the exceptions of the 1st branch?

1. Admission of a co-partner or agent;

Elements:
1. The declaration or act of the partner or agent must have been made or done within the scope of his
authority;

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 2. The declaration or act of the partner or agent must have been made or done during the existence of the
partnership or agency; and
3. The existence of the partnership or agency is proven by evidence other than the declaration or act of the
partner or agent.

The same rule applies to the act or declaration of a joint owner, joint debtor, or other person jointly interested
with the party.

2. Admission by a co-conspirator;

Elements:
1. The declaration or act be made or done during the existence of the conspiracy;
2. The declaration or act must relate to the conspiracy;
3. The conspiracy must be shown by evidence other than such declaration or act.

3. Admission by privies; privies are persons who are partakers or have interest in any action or thing , or any
relation to another.

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

Q: When may evidence of similar acts or previous conduct admissible (second branch)?
Evidence of similar acts is admissible for any of the ff. purpose:
1. Specific intent or
3. knowledge,
3. identity,
4. plan,
5. system,
6. scheme,
7. habit,
8. custom or
9. usage, and
10. the like

Note: The admissibility of similar acts or previous conduct would depend on the PURPOSE for which such acts
or conduct are offered. If such act or conduct is offered for the purposes mentioned-above, then it is admissible.
However, if such act or conduct is offered for the purpose of showing that he was likely to commit the crim
charged in the indictment, then it is not admissible.

Q: What is confession?
The declaration of an accused acknowledging his or her guilt of the offense charged, or of any offense necessarily
included therein, may be given in evidence against him or her.

Q: What is the effect of an judicial and extrajudicial confession of guilt?

While judicial confession may sustain conviction even without proof of corpus delicti, an extrajudicial confession
is not sufficient for conviction, unless corroborated by evidence of corpus delicti.

Q: What is corpus delicti?

The body of the crime or the actual commission of the crime and someone is criminally liable responsible
therefore.

Q: What is the doctrine of interlocking confession?

It is an "extra-judicial confessions independently made without collusion which are identical with each other in
their essential details and are corroborated by other evidence on record are admissible, as circumstantial
evidence, against the person implicated to show the probability of the latter's actual participation in the
commission of the crime." Clearly, the doctrine is inapplicable if there is only a solitary confession of the
appellant.

Q: Is offer of compromise, in civil case, an admission of liability?

No. In civil cases, an offer of compromise is not an admission of any liability, and is not admissible in evidence
against the offeror. Neither is evidence of conduct nor statements made in compromise negotiations admissible,
except evidence otherwise discoverable or offered for another purpose, such as proving bias or prejudice of a

27
witness, negativing a contention of undue delay, or proving an effort to obstruct a criminal investigation or
prosecution.

Q: Is offer of compromise an admission of guilt?

Yes. In criminal cases, an offer of compromise by the accused may be received in evidence as an implied
admission of guilt except, those involving quasi-offenses (criminal negligence) or those allowed by law to be
compromised.

Q: Is a plea of guilty later withdrawn or an unaccepted offer of a plea of guilty to a lesser offense admissible
in evidence against the accused who made the plea or offer?
No. A plea of guilty later withdrawn or an unaccepted offer of a plea of guilty to a lesser offense is not admissible
in evidence against the accused who made the plea or offer.

Neither is any statement made in the course of plea bargaining with the prosecution, which does not result in a
plea of guilty or which results in a plea of guilty later withdrawn, admissible.

Q: Is offer to pay or payment of medical, hospital or other expenses occasioned by an injury, admissible in
evidence as proof of civil or criminal liability for the injury?
No. An offer to pay, or the payment of medical, hospital or other expenses occasioned by an injury, is not
admissible in evidence as proof of civil or criminal liability for the injury.

Q: Is an offer in writing to pay a particular sum of money or to deliver a written instrument or specific
personal property equivalent to the actual production and tender of the money, instrument, or property?
Yes. If rejected without a valid cause, it is equivalent to the actual production and tender of the money,
instrument, or property.

Hearsay Rule

Q: Does Hearsay Rule applies to both oral and written statement?

Yes.

Q: What is the meaning of hearsay rule?

Hearsay is a statement other than one made by the declarant while testifying at a trial or hearing, offered to prove
the truth of the facts asserted therein.

Q: What is the meaning of a statement under the hearsay rule?

A statement is:
(1) an oral or written assertion; or
(2) a non-verbal conduct of a person,
if it is intended by him or her as an assertion

Note: The present definition of hearsay makes an out of statement by an “at-trial” witness hearsay, that is not
admissible as substantive evidence for the truth of the matter asserted therein.

Q: Are hearsay statements admissible?

Hearsay evidence is inadmissible except as otherwise provided in these Rules.

Q: When may a statement be considered non-hearsay?

A statement is not hearsay if:
1. the declarant testifies at the trial or hearing; and
2. the declarant subject to cross- examination concerning the statement; and
3. the statement is:

(a) inconsistent with the declarant’s testimony, and was given under oath subject to the penalty of perjury
at a trial, hearing, or other proceeding, or in a deposition;

Note: This is used for impeaching a witness

(b) consistent with the declarant’s testimony and is offered to rebut an express or implied charge against
the declarant of recent fabrication or improper influence or motive; or

(c) one of identification of a person made after perceiving him or her.

Note: Based on the established practice , our courts and lawyers treat out-of-court statements by “at trial witness”
as non-hearsay and they are usually admitted without any objections. In other words, we treat all prior

28
statements of a witness on stand, regardless of their nature, as exempted from the ban of hearsay rule. This based
upon the rationale that when the declarant becomes a witness who can be examined about the prior statement,
the purpose of the hearsay rule is satisfied because all the ideal conditions for giving testimony are met: The
witness is under oath, subject to cross-examination, and his demeanor can be observed by the judge

Q: What are the reasons for exclusion of hearsay evidence?

1. There is no opportunity to cross-examine the person to whom statements or writings are attributed; and
2. The court is without the opportunity to test the credibility of hearsay statements by observing the demeanor of
the person.
3. Not under oath

Q: A witness known not to be present at the scene of an accident stated, “Hannah told me that the accident
was cause when the Porsche ran a red, light.” If the statement is being offered to prove the Porsche ran a red
light, what would be the proper objection, lack of firsthand knowledge or hearsay?
Hearsay. The witness here is testifying from firsthand knowledge. He knows firsthand what Hannah told him
and since the statement is being offered to prove the facts asserted therein, it is hearsay.

However, if such statement is offered for other purpose other than to prove the facts asserted therein, then it may
be admitted. (Doctrine of Independent Relevant Statement)

Q: What if in the above problem, the witness had said instead “ the accident was cause when the Porsche ran a
red light, Hearsay or lack of firsthand knowledge?
Lack of firsthand knowledge. Here, the witness is merely reporting an event which he has no personal contract. It
is, of course, likely that the witness is reporting the statements of others without attribution, in which case the
firsthand knowledge objection is really all objection to anonymous hearsay.

Q:
Hearsay Rule Lack of Firsthand Knowledge
There is firsthand knowledge There is no personal knowledge or lack of
firsthand knowledge.
There are exceptions No exceptions

Q: What are Independently relevant statements (IRS)/operative acts?

These are statements that are admissible for some relevant reason independent of their truth or falsity. They are
relevant because the statement itself is either the very fact in issue or a circumstantial evidence of a fact in issue.

Q: Is IRS hearsay?
No. IRS is not hearsay and therefore not banned under the hearsay evidence rule.

Q: IRS includes what kind of statements?

1. Statement of a person showing his state of mind;
2. Statement of a person which show his physical condition;
3. Statements of a person from which an inference may be made as to the state of mind of another;
4. Statement which may identify the date, place and person in question
5. Statement showing the lack of credibility of a witness
. Statement to show that such statement was made.

Q: What are the requisites of a dying declaration?

1. The declaration is made by a dying person under the consciences of an impending death;
2. The declaration refers to the cause and surrounding circumstances of such death;
3. It was made by a declarant competent to testify as witness, had the person been called to testify;
4. The statement is complete itself;
5. The declarant thereafter died; and
6. The declaration is offered in a case wherein the declarant’s death is the subject of the inquiry.

Q: May dying declaration be admitted in a civil case?

Yes. Whether civil or criminal action, it is admissible provided, the subject of the inquiry is the death of the
declarant himself.

Q: May a dying declaration be admitted if it favorable to the accused?

Yes. (U.S. vs. Antipolo)

Q: May a dying declaration be admitted if the subject of the inquiry is the death of someone else?
No. The declaration must offered in a case wherein the declarant’s death is the subject of the inquiry.

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Q: What if the declarant statement goes like this “that another person told him who hacked him in the back
with a bolo, is it a dying declaration?
No. because he has no firsthand knowledge hence, he is not competent to testify, had he was been called to
testify. A dying declaration, as an exemption to hearsay rule, is not meant to confer competency on otherwise
incompetent witness.

Q: What are the requirements for statement of decedent or person of unsound mind to be as an exception to
the hearsay rule?
The statement of the decent or person of unsound mind may be received in evidence if the ff requisites are
present:
1. The suit is upon a claim by the plaintiff against the estate of deceased person or against person of unsound
mind;
2. The defendant in this case is the against an executor or administrator or other representative of a deceased
person, or against a person of unsound mind;
3. A party or assignor of a party or a person in whose behalf a case is prosecuted testifies on a matter of fact
occurring before the death of the deceased person or before the person became of unsound mind;
4. Statement of the deceased or the person of unsound mind was made upon the personal knowledge of the
deceased or the person of unsound mind at a time when the matter had been recently perceived by him or her
and while his or her recollection was clear.

Note: The Rules now permits the survivor to testify without restriction because in seeking to avoid injustice to the
dead, it may cause injustice to the living. However, in order to minimize the danger of injustice to the decedent’s
estate, their rules render admissible any writings of the deceased or evidence of oral statements made by him
which would ordinarily be excluded as hearsay.

Q: What is now the effect of the statement of the decedent or person of unsound mind?
It may now be received in evidence as an exception to the hearsay rule.

Q: What would be your defense against statement of decedent or person of unsound mind?
If made under circumstances indicating its lack of trustworthiness, then it may not be admissible.

Q: What are the two matters in part of res gestae?

1. Spontaneous Statements; and
2. Verbal acts

Q: What are the requisites of spontaneous statements?

1. There is a startling event or occurrence taking place;
2. A statement was made while the event is taking place or immediately prior to, or subsequent thereto;
3. The statement was made under the stress of excitement caused by the occurrence; and
4. The statement is with respect to the occurrence thereof – that is, the statement must describe the event
perceived;

Q: What are the requisites of verbal acts?

1. The principal act to be characterized must be equivocal act;
2. the equivocal act must be material to the issue;
3. the statement must accompany the equivocal act;
4. the statement gives a legal significance to the equivocal act.

Q: What are the requirements of records of regularly conducted business activity?

1. There is a memorandum, report, record or data compilation of acts, events, conditions, opinions, or diagnoses;
2. Such memorandum, report, record or data compilation of acts, events, conditions, opinions, or diagnoses is
made by writing, typing, electronic, optical or other similar means;
3. Such memorandum, etc., was made at or near the time of or from transmission or supply of information;
4. Such memorandum, etc., was made by a person with knowledge thereof;
5. Such memorandum, etc., was kept in the regular course or conduct of a business activity, and such was the
regular practice to make the memorandum, report, record, or data compilation by electronic, optical or similar
means; and
6. all of which are shown by the testimony of the custodian or other qualified witnesses, is excepted from the rule
on hearsay evidence.

Q: What are the requisites or deposition at a former proceeding?

1. The witness is dead or is out of the Philippines or cannot, despite due diligence be found therein or is
unavailable or otherwise is unable to testify;
2. his testimony or deposition was given in a former case or proceeding, judicial or administrative, between the
same parties or those representing the same interest;

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3. the former case involved the same subject as that in the present, although different cause of action;
4. the issue testified to by the witness in the formal trial is the same issue involved in the present trial;
5. the adverse party had an opportunity to cross-examine the witness in the former case.

Q: What is residual exceptions?

A statement not specifically covered by any of the foregoing exceptions, having equivalent circumstantial
guarantees of trustworthiness, is admissible if the court determines that :
(a) the statement is offered as evidence of a material fact;
(b) the statement is more probative on the point for which it is offered than any other evidence which the
proponent can procure through reasonable efforts;
(c) the general purposes of these Rules and the interests of justice will be best served by admission of the
statement into evidence; and
(d) the proponent must makes known to the adverse party, sufficiently in advance of the hearing, or by the pre-
trial stage in the case of a trial of the main case, to provide the adverse party with a fair opportunity to prepare to
meet it, the proponent’s intention to offer the statement and the particulars of it, including the name and address
of the declarant.

Opinion Rule

Q: Is opinion of a witness, admissible?

Generally, the opinion of a witness is not admissible.

Q: What are the exceptions?

1. Opinion of expert witness; and
2. Opinion of ordinary witnesses.

Q: What do you mean by opinion of an expert witness?

The opinion of a witness on a matter requiring special knowledge, skill, experience, training or education, which
he or she is shown to possess, may be received in evidence.

Q: What do you mean by opinion of ordinary witness?

The opinion of a witness, for which proper basis is given, may be received in evidence regarding:
(a) The identity of a person about whom he or she has adequate knowledge;
(b) A handwriting with which he or she has sufficient familiarity; and
(c) The mental sanity of a person with whom he or she is sufficiently acquainted.

The witness may also testify on his or her impressions of the emotion, behavior, condition or appearance of a
person.

Character evidence

Q: In criminal case, may the offended party proved his character?

Yes. The character of the offended party may be proved if it tends to establish in any reasonable degree the
probability or improbability of the offense charged.

Q: In criminal case, may the accused proved his good moral character?
Yes. The accused may prove his or her good moral character, pertinent to the moral trait involved in the offense
charged.

Q: In criminal case, may the prosecution proved the bad moral character of the accused?
The prosecution may not prove his or her bad moral character unless on rebuttal.

Q: In civil case, is evidence of moral character admissible?

Yes. Evidence of the moral character of a party in a civil case is admissible only when pertinent.

Q: Is evidence of good character of a witness, whether civil or criminal action, admissible?

Evidence of the good character of a witness is not admissible until such character has been impeached.

Q: How do to prove evidence of character or a trait of character of a person when admissible?

In all cases, in civil or criminal action, proof may be made by testimony as to reputation or by testimony in the
form of an opinion.

Judicial Affidavit Rule

Q: What is the scope of the Judicial Affidavit Rule?

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This Rule shall apply to all actions, proceedings, and incidents requiring the reception of evidence. In effect it
applies to all court, other than the SC.

Q: Is Judicial Affidavit Rule applicable to criminal cases?

Yes. This rule shall apply to all criminal actions:
(1) Where the maximum of the imposable penalty does not exceed six years;
(2) Where the accused agrees to the use of judicial affidavits, irrespective of the penalty involved; or
(3) With respect to the civil aspect of the actions, whatever the penalties involved are.

Q: What are the significance of the use of judicial affidavit?

1. The judicial affidavits of their witnesses, which shall take the place of such witnesses' direct testimonies;
2. The parties' documentary or object evidence, if any, which shall be attached to the judicial affidavits and
marked as Exhibits A, B, C, and so on in the case of the complainant or the plaintiff, and as Exhibits 1, 2, 3, and so
on in the case of the respondent or the defendant.
3. Should a party or a witness desire to keep the original document or object evidence in his possession, he may,
after the same has been identified, marked as exhibit, and authenticated, warrant in his judicial affidavit that the
copy or reproduction attached to such affidavit is a faithful copy or reproduction of that original. In addition, the
party or witness shall bring the original document or object evidence for comparison during the preliminary
conference with the attached copy, reproduction, or pictures, failing which the latter shall not be admitted.

Q: What are the contents of judicial affidavit?

A judicial affidavit shall be prepared in the language known to the witness and, if not in English or Filipino,
accompanied by a translation in English or Filipino, and shall contain the following:

(a) The name, age, residence or business address, and occupation of the witness;

(b) The name and address of the lawyer who conducts or supervises the examination of the witness and the place
where the examination is being held;

(c) A statement that the witness is answering the questions asked of him, fully conscious that he does so under
oath, and that he may face criminal liability for false testimony or perjury;

(d) Questions asked of the witness and his corresponding answers, consecutively numbered, that:

`(1) Show the circumstances under which the witness acquired the facts upon which he testifies;

(2) Elicit from him those facts which are relevant to the issues that the case presents; and

(3) Identify the attached documentary and object evidence and establish their authenticity in accordance
with the Rules of Court;

(e) The signature of the witness over his printed name; and

(f) A jurat with the signature of the notary public who administers the oath or an officer who is authorized by law
to administer the same.

Q: What are the contents of the attestation by the lawyer?

The judicial affidavit shall contain a sworn attestation at the end, executed by the lawyer who conducted or
supervised the examination of the witness, to the effect that:

(1) He faithfully recorded or caused to be recorded the questions he asked and the corresponding answers that
the witness gave; and

(2) Neither he nor any other person then present or assisting him coached the witness regarding the latter's
answers.

Q: What is the effect of non-compliance with the contents and attestation requirements?
The court shall not admit as evidence judicial affidavits that do not conform to the content requirements of
Section 3 and the attestation requirement of Section 4 above.
The court may, however, allow only once the subsequent submission of the compliant replacement affidavits
before the hearing or trial provided:
1. the delay is for a valid reason;
2. would not unduly prejudice the opposing party; and
3. that public or private counsel responsible for their preparation and submission pays a fine of not less
than P 1,000.00 nor more than P 5,000.00, at the discretion of the court.

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Q: Discuss the offer of and objections to exhibits
1. The party presenting the judicial affidavit of his witness in place of direct testimony shall state the purpose of
such testimony at the start of the presentation of the witness;
2. The adverse party may move to disqualify the witness or to strike out his affidavit or any of the answers found
in it on ground of inadmissibility.
3. The court shall promptly rule on the motion and, if granted, shall cause the marking of any excluded answer by
placing it in brackets under the initials of an authorized court personnel, without prejudice to a tender of
excluded evidence under Section 40 of Rule 132 of the Rules of Court.

Q: Is appearance of the witness at the scheduled hearing necessary?

Yes. The submission of the judicial affidavit of the witness and attached exhibits does not exempt the witness
from appearing at the scheduled hearing. The rule still requires appearance because the adverse party has the
right to cross examine the witness

Q: What is the effect if a party fails to submit the required judicial affidavits and exhibits on time?
It shall be deemed to have waived their submission.

The court may, however, allow only once the late submission of the same provided,
1. the delay is for a valid reason,
2. would not unduly prejudice the opposing party, and
3. the defaulting party pays a fine of not less than P 1,000.00 nor more than P 5,000.00 at the discretion of the
court.

Q: What is the effect if a witness fails to appear at the scheduled hearing of the case as required?
The court shall not consider the affidavit of any witness who fails to appear at the scheduled hearing of the case
as required.

Q: What is the effect if a counsel fails to appear at the scheduled hearing?

Counsel who fails to appear without valid cause despite notice shall be deemed to have waived his client's right
to confront by cross-examination the witnesses there present.

Offer and Objection

What is the importance of offer?

The court shall consider no evidence which has not been formally offered. A formal is necessary since the judge
are required to based their findings of fact and judgment only and strictly, upon the evidence offered by the
parties at the trial.

Is marking a document considered as a formal offer?

No. A document or any article is not evidence when it simply marked for identification (Candido vs. CA)

Q: When formal offer of evidence not required?

1. In summary proceeding
2. When taken by judicial notice;
3. Documents, affidavits and depositions used in rendering a summary judgment;
4. Documents or affidavits used in deciding quasi-judicial or administrative cases;
5. Lost objects previously marked, identified, described in the record, and testified to by the witness who had
been subjects of cross-examination in respect to said objects; Tabuena vs. CA)
6. When the evidence have been duly identified by testimony duly recorded and the same must have been
incorporated in the records of the case. (Medina vs. People_

Q: When to make an offer?

1. As regards the testimony of the witness, The offer of the testimony of a witness in evidence must be made at
the time the witness is called to testify;
2. As regards documentary and object evidence, they are offered after the presentation of a party’s testimonial
evidence.

Q: How to make an offer?

The purpose for which the evidence is offered must be specified.

Q: How to object?
1. Objection to offer of evidence must be made orally immediately after the offer is made.
2. Objection to the testimony of a witness for lack of a formal offer must be made as soon as the witness begins to
testify.

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3. Objection to a question propounded in the course of the oral examination of a witness must be made as soon as
the grounds therefor become reasonably apparent.
4. The grounds for the objections must be specified.

Q: What is formal objections?

It is one directed against defect in the formulation of questions like leading, misleading questions.

Q: What is substantive objections?

One made and directed against the very nature of the evidence like irrelevant, incompetent, hearsay.

Q: When repetition of objections unnecessary?

When it becomes reasonably apparent in the course of the examination of a witness that the questions being
propounded are of the same class as those to which objection has been made, whether such objection was
sustained or overruled, it shall not be necessary to repeat the objection, it being sufficient for the adverse party to
record his or her continuing objection to such class of questions.

Q: When must the court ruled on the objections?

The ruling of the court must be given immediately after the objection is made, unless the court desires to take a
reasonable time to inform itself on the question presented; but the ruling shall always be made during the trial
and at such time as will give the party against whom it is made an opportunity to meet the situation presented by
the ruling.

Q: If the ruling of the court is stated like “submitted or the objections are noted”, is this proper ruling?
No, because it is prejudicial to the interest of a litigant since it deprives the party against whom the ruling was
made an opportunity to meet the situation presented by the ruling.

Q: What is the effect of belated objections?

A failure to assert an objection promptly and specifically is a waiver.

Q: What is the extent of the waiver for failure to object?

He waives objections to admissibility. The evidence becomes admissible but the waiver involves no admission
that the evidence possesses weight attributed to it by the offering party.

Q: When striking of an answer allowed?

1. Should a witness answer the question before the adverse party had the opportunity to voice fully its objection
to the same, or
2. where a question is not objectionable, but the answer is not responsive, or
3. where a witness testifies without a question being posed or testifies beyond limits set by the court, or
4. when the witness does a narration instead of answering the question,
and such objection is found to be meritorious, the court shall sustain the objection and order such answer,
testimony or narration to be stricken off the record.
5. On proper motion, the court may also order the striking out of answers which are incompetent, irrelevant, or
otherwise improper.

Q: What do you do if you are a victim of an objection sustained by the trial court on a testimony which is
crucial to your cause of action or defense?
Make a tender of excluded evidence or offer of proof.

How to tender an excluded evidence or offer of proof?

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 for the record the name and other personal circumstances of
the witness and the substance of the proposed testimony.

Q: May an objection be interposed to the manner of tender of excluded evidence?

Yes. To rule otherwise and confer immunity to such type of evidence would be to grant a favored status to
evidence initially excluded by the trial court.

Formal offer of evidence Offer of proof

It refers to the offer of the testimony of a witness The process by which a proponent of an excluded
prior to the latter’s testimony, or offer of the evidence tenders the same.
documentary and object evidence after a party
has presented his testimonial evidence.

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