UP 2012 Remedial Law (Evidence)

CRIMINAL LAW REVIEWER
2012
UP L AW BAR REVIEWER
Evidence
BAR OPERATIONS COMMISSION 2012 EXECUTIVE COMMITTEE Ramon Carlo Marcaida |Commissioner Raymond Velasco Mara Kriska Chen |Deputy Commissioners Barbie Kaye Perez |Secretary Carmen Cecilia Veneracion |Treasurer Hazel Angeline Abenoja|Auditor
203
REMEDIAL
LAW
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UP LAW BAR OPERATIONS COMMISSION
REMEDIAL LAW REVIEWER
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Criminal Procedure Civil Procedure Evidence Special Proceedings
Evidence
REMEDIAL LAW General Principles Judicial Notice and Judicial Admissions III. Object (Real) Evidence IV. Documentary Evidence V. Testimonial Evidence VI. Offer and Objection I. II.
D. Proof Versus Evidence

Proof NOT the evidence itself, but the probative effect of evidence Evidence The medium or means by which a fact is proved or disproved
E. Factum Probans Versus Factum Probandum

Factum Probans Facts or material evidencing the proposition The evidentiary fact tending to prove the fact in issue Factum Probandum The proposition to be established The fact in issue and to which the evidence is directed
I. GENERAL PRINCIPLES
A. Concept of Evidence B. Scope of the Rules of Evidence C. Evidence in Civil Cases vs. Evidence in Criminal Cases D. Proof Versus Evidence E. Factum Probans Versus Factum Probandum F. Admissibility of Evidence G. Burden of Proof and Burden of Evidence H. Presumptions I. Liberal Construction of the Rules of Evidence J. Quantum of Evidence (Weight And Sufficiency of Evidence)
Classification of evidence
Object, documentary, and testimonial Object Addressed to the senses of the court. [Rule 130, Sec. 1] Documentary Consist of writings or any material containing letters, words, numbers, figures, symbols or other modes of written expressions offered as proof of their contents [Rule 130, sec. 2] Testimonial Testimony or deposition of a witness
A. Concept of Evidence
The means, sanctioned by these rules, of ascertaining in a judicial proceeding, the truth respecting a matter of fact [sec. 1, Rule 128]
B. Scope of the Rules of Evidence

GENERAL RULE: Principle of uniformity Rules of evidence shall be the same in all courts and in all trials and hearings. [sec. 2, Rule 128] EXCEPTIONS: If otherwise provided by: (1) Law (e.g., 1987 Constitution, statutes); (2) Rules of Court. [sec. 2, Rule 128]
Direct and circumstantial evidence Direct Evidence Proves the fact in dispute without the aid of any inference or presumption Circumstantial Indirectly proves a fact in issue through an inference drawn from the evidence established
C. Evidence in Civil Cases Versus Evidence in Criminal Cases

In Civil Cases Preponderance of evidence [sec. 1, Rule 133] Offer of compromise NOT an admission of any liability [sec. 27, Rule 130] In Criminal Cases Proof beyond reasonable doubt [sec. 2, Rule 133] Offer of compromise by the accused may be received in evidence as an implied admission of guilt (except for quasi-offenses or those allowed by law to be compromised) [sec. 27, Rule 130] Presumption of innocence a constitutional guarantee on the accused [sec. 14, Art. III]
Positive and negative evidence Positive Evidence Witness affirms that a fact did or did not occur Negative Evidence Witness states he/she did not see or know of the occurrence of a fact (e.g., denial)
F. Admissibility of Evidence
Requisites for admissibility of evidence
Evidence is admissible when it is (1) relevant to the issue AND
Presumption innocence NOT apply
of does

(2) not excluded by law or the ROC. [Rule 128, Sec. 3] Under the ROC, Rule 130 is the applicable rule in determining the admissibility of evidence. As distinguished from credibility of evidence Competence Eligibility of evidence to be received as such Credibility Worthiness of belief; believability
Relevance of evidence and collateral matters

Relevancy Evidence must have such a relation to the fact in issue as to induce belief in its existence or nonexistence. [Sec. 4, Rule 128] Collateral matters matters other than the fact in issue which are offered as a basis for inference as to the existence or non-existence of the facts in issue General Rule: Evidence on collateral matters is NOT allowed. [Sec. 4, Rule 128] Exception: When it tends in any reasonable degree to establish the im/probability of fact in issue. [Sec. 4, Rule 128] NOTE: What is prohibited by the Rules is not evidence of all collateral matters, but evidence of irrelevant collateral facts. Competence Evidence not excluded by (i) law or (ii) the ROC. Exclusionary rules of evidence by law are either constitutional or statutory. Constitutional Unreasonable searches and seizures; privacy of communication and correspondence. [secs. 2-3, Art. III] Statutory Lack of documentary stamp tax to documents required to have one makes such document inadmissible as evidence in court until the requisite stamp/s shall have been affixed thereto and cancelled. [Sec. 201, NIRC] Any communication obtained by a person, not being authorized by all the parties to any private communication, by tapping any wire/cable or using any other device/arrangement to secretly overhear/intercept/record such information by using any device, shall not be admissible in evidence in any judicial/quasijudicial/legislative/ administrative hearing or investigation. [Secs. 1 and 4, R.A. 4200 (WireTapping Act)] Rules on Electronic Evidence [sec. 1,Rule 9,]
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Doctrines of admissibility
Multiple admissibility Where the evidence is relevant and competent for two or more purposes, such evidence shall be admitted for any or all the purposes for which it is offered, provided it satisfies all the requisites of law for its admissibility therefor. Conditional admissibility Where the evidence at the time of its offer appears to be immaterial or irrelevant unless it is connected with the other facts to be subsequently proved, such evidence may be received, provided that the other facts will be proved thereafter; otherwise, the evidence already given shall be stricken out. Curative admissibility Where the court has admitted incompetent evidence adduced by the adverse party, a party has a right to introduce the same kind of evidence in his/her behalf.
Direct and circumstantial evidence

Direct Evidence Proves the fact in dispute without the aid of any inference or presumption Circumstantial Indirectly proves a fact in issue through an inference drawn from the evidence established
Positive and negative evidence

Positive Evidence Witness affirms that a fact did or did not occur Negative Evidence Witness states he/she did not see or know of the occurrence of a fact (e.g., denial)
Miranda Rights: right to counsel, prohibition of torture, force, violence, threat, intimidation or other means which vitiate the free will; prohibition of secret detention places, solitary, incommunicado. [sec. 12, Art. III]
Competent and credible evidence

Competence Eligibility of evidence to be received as such Credibility Worthiness of belief; believability
No person shall be compelled to be a witness against himself. [Sec.17,Art.III]
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G. Burden of Proof and Burden of Evidence

Burden of Proof Duty of a party to present evidence on the facts in issue necessary to establish his/her claim or defense by the amount of evidence required by law [Sec. 1, Rule 131] Does not shift throughout the trial Burden of Evidence Duty of a party to go forward with the evidence to overthrow any prima facie presumption against him/her [Bautista v Sarmiento (1985)] Shifts from party to party depending upon the exigencies of the case in the course of the trial Generally determined by the developments at the trial, or by the provisions of substantive or procedural law
The prosecution must not rely on the weakness of the evidence of the defense. [Ubales v People (2008); People v Hu (2008)]
Preponderance of evidence
Applicable quantum of evidence in civil cases [sec. 1, Rule 133] Means that the evidence adduced by one side is, as a whole, superior to or has greater weight than that of the other. [Habagat Grill v. DMC-Urban Property Developer, Inc.(2005); Bank of the Philippine Islands v Reyes (2008)] In determining preponderance of evidence, the court may consider: (1) All the facts and circumstances of the case; (2) The witnesses manner of testifying, their intelligence, their means and opportunity of knowing the facts to which they testify, the nature of the facts to which they testify, the im/probability of their testimony; (3) The witnesses interest or want of interest, and also their personal credibility so far as the same may legitimately appear upon the trial; (4) Number of witnesses (although preponderance is not necessarily equated with the number of witnesses). [sec. 1, Rule 133]
Generally determined by the pleadings filed by the party
H. Presumptions 1. Conclusive presumptions 2. Disputable presumptions

Conclusive Presumption becomes irrebuttable upon presentation of the evidence Disputable Satisfactory if uncontradicted, but may be contradicted and overcome by other evidence [sec. 3, Rule 131]
Substantial evidence
Degree of evidence required in cases filed before administrative or quasi-judicial bodies [sec. 5, Rule 133] The amount of relevant evidence which a reasonable mind might accept as adequate to support a conclusion [sec. 5, Rule 133]
I. Liberal Construction of the Rules of Evidence

Like all other provisions under the ROC, rules of evidence must be liberally construed. [sec. 6, Rule 1] Rules on Electronic Evidence shall likewise be construed liberally. [sec. 2, Rule 2, Rules on Electronic Evidence]
Clear and convincing evidence

Standard of proof required in granting or denying bail in extradition cases [Government of Hongkong Special Administrative Region v Olalia, Jr. (2007)] Intermediate in character lower than proof beyond reasonable doubt, but higher than preponderance of evidence
J. Quantum of Evidence (Weight And Sufficiency of Evidence)

Proof beyond reasonable doubt
Applicable quantum of evidence in criminal cases [sec. 2, Rule 133] Only moral certainty is required that degree of proof which produces conviction in an unprejudiced mind. [sec. 2, Rule 133] The burden is on the prosecution to prove guilt beyond reasonable doubt, NOT on the accused to prove his/her innocence. [Boac v People (2008)]
II. JUDICIAL NOTICE AND JUDICIAL ADMISSIONS

A. B. C. D. What Need Not be Proved Matters of Judicial Notice Judicial Admissions Judicial Notice of Foreign Laws, Law of Nations and Municipal Ordinance
A. What Need Not be Proved

(1) Facts of Judicial Notice (2) Judicial Admissions (3) Conclusive Presumptions

(3) may be verbal or written. [sec. 4, Rule 129] [NOTE: Discussed in detail in the succeeding subsections.]
Effect of judicial admissions

(1) It does NOT require proof. [sec. 4, Rule 129] (2) It is conclusive upon the party making it, and hence, CANNOT be contradicted. [sec. 4, Rule 129] An original complaint, after being amended, loses its character as a judicial admission, which would have required no proof. It becomes merely an extrajudicial admission requiring a formal offer to be admissible. [Torres v CA (1984)] A party who judicially admits a fact cannot later challenge that fact as judicial admissions are a waiver of proof; production of evidence is dispensed with. [Alfelor v Halasan (2006]
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B. Matters of Judicial Notice

Mandatory (Without need of introduction of evidence)
(1) Existence and territorial extent of states; (2) Their political history, forms of government, and symbols of nationality; (3) Law of nations; (4) Admiralty and maritime courts of the world and their seals; (5) Political constitution and history of the Philippines; (6) Official acts of the legislative, executive and judicial departments of the Philippines; (7) Laws of nature; (8) Measure of time; and (9) Geographical divisions. [Sec. 1, Rule 129]
How judicial contradicted
admissions
may
be
Discretionary
(1) Matters of public knowledge; (2) Matters capable of unquestionable demonstration; and (3) Matters ought to be known to judges because of their judicial functions. [sec. 2, Rule 129] Judicial notice is NOT judicial knowledge. With Respect to Courts Own Acts and Records: A court MAY take judicial notice of its own acts and records in the same case. [Republic v Court of Appeals (1997)] With Respect to Records of Other Cases General Rule: Courts CANNOT take judicial notice of the contents or records of other cases even if both cases may have been tried or are pending before the same judge. [Prieto v. Arroyo (1965)] Exceptions: (1) When there is no objection, with the knowledge of the opposing party, the contents of said other case are clearly referred to and adopted or read into the record of the latter; or (2) When the original or part of the records of the case is actually withdrawn from the archives at the courts discretion upon the request, or with the consent, of the parties, and admitted as part of the record of the pending case [Tabuena v. CA (1991)]
As an exception to the general rule, judicial admissions may be contradicted only by showing that: (1) It was made through palpable mistake; (2) No such admission was made.
Conclusive presumptions
Instances of Conclusive Presumptions [Sec. 2, Rule 131]
(1) Whenever a party has, by his own declaration/act/omission, intentionally and deliberately led another to believe a particular thing is true and to act upon such belief, he cannot, in any litigation arising out of such declaration/act/omission, be permitted to falsify it. (2) The tenant is not permitted to deny the title of his landlord at the time of the commencement of the relation of landlord and tenant between them.
As Distinguished from Presumptions [Sec. 3, Rule 131]
Disputable
C. Judicial Admissions
Requisites To be a judicial admission, the same: (1) must be made by a party to the case; (2) must be made in the course of the proceedings in the same case; and
(1) Person is innocent of a crime or wrong; (2) Unlawful act is done with an unlawful intent; (3) Person intends the ordinary consequences of his voluntary act; (4) Person takes ordinary care of his concerns; (5) Evidence willfully suppressed would be adverse if produced; (6) Money paid by one to another was due to the latter; (7) Thing delivered by one to another belonged to the latter; (8) Obligation delivered up to the debtor has been paid; (9) Prior rents or installments had been paid when a receipt for the later ones is produced; (10) A person found in possession of a thing taken in

the doing of a recent wrongful act is the taker and doer of the whole act; otherwise, that things which a person possesses or exercises acts of ownership over, are owned by him; (11) Person in possession of an order on himself for the payment of the money or the delivery of anything has paid the money or delivered the thing accordingly; (12) Person acting in public office was regularly appointed or elected to it; (13) Official duty has been regularly performed; (14) A court or judge acting as such, whether in the Philippines or elsewhere, was acting in the lawful exercise of jurisdiction; (15) All the matters within an issue raised in a case were laid before the court and passed upon by it; all matters within an issue raised in a dispute submitted for arbitration were laid before arbitrators and passed upon by them; (16) Private transactions have been fair and regular; (17) Ordinary course of business has been followed; (18) There was a sufficient consideration for a contract; (19) Negotiable instrument was given or indorsed for a sufficient consideration; (20) An indorsement of negotiable instrument was made before the instrument was overdue and at the place where the instrument is dated; (21) A writing is truly dated; (22) Letter duly directed and mailed was received in the regular course of the mail; (23) Presumptions concerning absence: (a) Ordinary but continued absence of: (i) 7 years, it being unknown WON the absentee still lives, he is considered dead for all purposes, except for those of succession (ii) 10 yearsthe absentee shall be considered dead for the purpose of opening his succession; but if he disappeared after the age of 75 years, an absence of 5 years shall be sufficient to open his succession (iii) 4 consecutive yearsthe spouse present may contract a subsequent marriage if s/he has a well-founded belief that the absent spouse is already dead; but where there is danger of death, an absence of only 2 years shall be sufficient for remarriage (b) Qualified absence (i) A person on board a vessel lost during a sea voyage, or an aircraft which is missing, who has not been heard of for 4 years since the loss of the vessel or aircraft (ii) A member of the armed forces who has taken part in armed hostilities, and has been missing for 4 years (iii) A person who has been in danger of death under other circumstances and whose existence has not been known for 4 years (24) Acquiescence resulted from a belief that the thing acquiesced in was conformable to the law/fact; (25) Things have happened according to the ordinary course of nature and ordinary nature habits of life; (26) Persons acting as copartners have entered into a contract of co-partnership; (27) A man and woman deporting themselves as husband and wife have entered into a lawful contract of marriage; (28) Property acquired by a man and a woman who are capacitated to marry each other and who live exclusively with each other as husband and wife without the benefit of marriage or under a void marriage, has been obtained by their joint efforts, work or industry; (29) In cases of cohabitation by a man and a woman who are not capacitated to marry each other and who have acquired property through their actual joint contribution of money, property or industry, such contributions and their corresponding shares including joint deposits of money and evidences of credit are equal; (30) Presumptions governing children of women who contracted another marriage within 300 days after termination of her former marriage (in the absence of proof to the contrary): When Child was Born Before 180 days after the solemnization of the subsequent marriage After 180 days following the celebration of the subsequent marriage Presumption Considered to have been conceived during the former marriage, provided it be born within 300 days after the termination of the former marriage Considered to have been conceived during the subsequent marriage, even though it be born within the 300 days after the termination of the former marriage.
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(31) A thing once proved to exist continues as long as is usual with things of the nature; (32) The law has been obeyed; (33) A printed/published book, purporting to be printed/published by public authority, was so printed/published; (34) A printed/published book, purporting to contain reports of cases adjudged in tribunals of the country where the book is published, contains correct reports of such cases; (35) A trustee or other person whose duty it was to convey real property to a particular person has actually conveyed it to him when such presumption is necessary to perfect the title of such person or his successor in interest; (36) Presumptions regarding survivorship: (Applicable for all purposes except succession) (a) When 2 persons perish in the same calamity, (b) and it is not shown who died first, (c) and there are no particular circumstances from which it can be inferred, (d) the survivorship is determined from the probabilities resulting from the strength and the age of the sexes:

Person presumed to have survived The older The younger The one <15 The male The older The one between those ages Exception: If the charter of the concerned city provides for such judicial notice [City of Manila v. Garcia (1967)]
Situation Both < 15 y/o Both > 60 y/o One < 15 y/o, the other > 60 y/o Both > 15 and < 60 y/o, of different sexes Both > 15 and <60 y/o, of the same sex One < 15 or > 60 y/o, and the other between those ages
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III. OBJECT (REAL) EVIDENCE

A. B. C. D. E. F. Nature of Object Evidence Requisites for Admissibility Categories of Object Evidence Demonstrative Evidence View of an Object or Scene Chain of Custody in Relation to Section 21 of the Comprehensive Dangerous Drugs Act of 2002 G. Rule on DNA Evidence (A.M. No. 06-11-5SC)
(37) As between 2 or more persons called to succeed each other: If there is a doubt as to which of them died first, whoever alleges the death of one prior to the other, shall prove the same. In the absence of proof, they shall be considered to have died at the same time.
A. Nature of Object Evidence

Those addressed to the senses of the court [sec. 1, Rule 130] The right against self-incrimination CANNOT be invoked against object evidence.
D. Judicial Notice of Foreign Laws, Law of Nations and Municipal Ordinance

Foreign Laws
General Rule: Courts cannot take judicial notice of foreign laws. [Yao-Kee v. Sy-Gonzales (1988)] Exceptions: The court may take judicial notice of the foreign law: (1) Under the Doctrine of Processual Presumption: In the absence of proof, the foreign law will be presumed to be the same as the laws of the jurisdiction hearing the case. [Northwest Orient Airlines v Court of Appeals (1995)] (2) Where the foreign law is within the actual knowledge of the court such as when the law is generally well-known, had been ruled upon in previous cases before it and none of the parties claim otherwise [PCIB v Escolin (1974)] (3) When the foreign law is part of a published treatise, periodical or pamphlet and the writer is recognized in his/her profession or calling as expert in the subject [sec. 46, Rule 130]
B. Requisites for Admissibility

Relevant
General Rule: When an object is relevant to the fact in issue, it may be exhibited to, examined or viewed by the court. [Sec. 1, Rule 130] Exceptions: Court may refuse exhibition of object evidence and rely on testimonial evidence alone if: (1) Exhibition is contrary to public policy, morals or decency; (2) It would result in delays, inconvenience, unnecessary expenses, out of proportion to the evidentiary value of such object; [People v. Tavera] (3) Evidence would be confusing or misleading. [People v. Saavedra]
Competent
Evidence be Authenticated To authenticate the object is to show that the object is the very thing that is either the subject matter of the lawsuit or the very one involved to prove an issue in the case. Authentication be Made by Competent Witness To authenticate the object, the witness must have the capacity to identify the object as the very thing involved in the litigation. A witness can testify to those facts which he/she knows of his/her personal knowledge; that is, which are derived from his/her own perception. [sec. 36, Rule 130]
Law of Nations
The Philippines adopts the generally accepted principles of international law as part of the law of the land. [Sec. 2, Art. II, 1987 Constitution] Being part of the law of the land, they are therefore in the nature of local laws, and hence, subject to mandatory judicial notice under sec. 1 of Rule 129.
Municipal Ordinances
General Rule: Courts are NOT mandated to take judicial notice of municipal ordinances. [City of Manila v. Garcia (1967)]
REMEDIAL LAW REVIEWER Formally Offered
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The court shall consider NO evidence which has not been formally offered. [sec. 34, Rule 132]
C. Categories of Object Evidence

The Thing Itself Unique Objects - Objects that have readily identifiable marks, e.g., a caliber 45 pistol by virtue of its serial number Objects Made Unique - Objects with no unique characteristic but are made readily identifiable, e.g., a typical kitchen knife with identifying marks placed on it by the witness Non-Unique Objects - Objects with no identifying marks and cannot be marked, e.g., narcotic substances
F. Chain of Custody in Relation to Section 21 of the Comprehensive Dangerous Drugs Act of 2002
Meaning of chain of custody A method of authenticating evidence which requires that the admission of an exhibit be preceded by evidence sufficient to support a finding that the matter in question is what the proponent claims it to be [Lopez v People (2008), as cited in People v Dela Cruz (2008) and People v Agulay (2008)]
D. Demonstrative Evidence
Not the actual thing, rather it represents or demonstrates the real thing, E.g., photographs, motion pictures and recordings Audio, photographic and video evidence of events, acts or transactions shall be admissible provided it shall be: (1) shown, presented or displayed to the court, and (2) identified, explained or authenticated (a) by the person who made the recording, or (b) by some other person competent to testify on the accuracy thereof [sec. 1, Rule 11, Rules on Electronic Evidence] Ephemeral electronic communications Refers to telephone conversations, text messages, chatroom sessions, streaming audio, streaming video, and other electronic forms of communication the evidence of which is not recorded or retained. [sec. 1(k), Rule 2, Rules on Electronic Evidence] Shall be proven (1) by the testimony of a person who was a party to the same; (2) by the testimony of a person who has personal knowledge thereof; or (3) in the absence or unavailability of such witnesses, by other competent evidence [sec. 2, Rule 11, Rules on Electronic Evidence] When recorded, the communication ceases to be ephemeral and shall be proven in the same manner as proving audio, photographic and video evidence [sec. 2, Rule 11, Rules on Electronic Evidence].
In Relation to Drug Cases The apprehending team having initial custody and control of the drugs shall: (1) physically inventory, and (2) photograph the same, (3) in the presence of (a) accused or the person/s from whom the drugs were seized, or his/her representative or counsel (b) representative from the media and the Department of Justice (c) any elected public official (4) who shall be required to sign the copies of the inventory and be given a copy thereof. [sec. 21, Art. II, R.A. 9165 or the Comprehensive Dangerous Drugs Act of 2002] Non-compliance with sec. 21 of R.A. 9165, particularly the making of the inventory and their photographing of the drugs confiscated will not render the drugs inadmissible in evidence. The issue if there is non-compliance with the law is not admissibility, but of weight evidentiary merit or probative value. [People v Del Monte (2008)]
G. Rule on DNA Evidence (A.M. No. 06-11-5-SC)

Meaning of DNA
DNA evidence The totality of the DNA profiles, results and other genetic information directly generated from DNA testing of biological samples. [Sec. 3c]
Application for DNA testing order

With prior court order (1) The appropriate court may, at any time, either (i) motu proprio or (ii) on application of any person who has a legal interest in the matter in litigation, order a DNA testing. (2) Such order shall issue after due hearing and notice to the parties upon a showing of the following: (a) A biological sample exists that is relevant to the case;
E. View of an Object or Scene

When an object is relevant to the fact in issue, it may be viewed by the court. [Sec. 1, Rule 130]

(b) The biological sample: (i) was not previously subjected to the type of DNA testing now requested; or (ii) was previously subjected to DNA testing, but the results may require confirmation for good reasons; (c) The DNA testing uses a scientifically valid technique; (d) The DNA testing has the scientific potential to produce new information that is relevant to the proper resolution of the case; and (e) 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] (c) Compliance with scientifically standards in conducting the tests valid
(3) Forensic DNA laboratory (a) Accreditation by any reputable standardssetting institution (b) Qualification of the analyst who conducted the tests (c) If not accredited, relevant experience of the laboratory in forensic work and its credibility (4) Reliability of the testing result [Sec. 7]
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Rules on evaluation of reliability of the DNA testing Methodology

Factors that Determine the Reliability of the DNA Testing Methodology (1) Falsifiability of the principles or methods used (2) Subject to peer review and publication of the principles or methods (3) General acceptance of the principles or methods by the scientific community (4) Existence and maintenance of standards and controls to ensure the correctness of data generated (5) Existence of an appropriate reference population database (6) General degree of confidence attributed to mathematical calculations used in comparing DNA profiles (7) Significance and limitation of statistical calculations used in comparing DNA profiles
Without prior court order This Rule shall not preclude a DNA testing, without need of a prior court order, at the behest of any party. [Sec. 4]
Post-conviction DNA testing; remedy

How Obtained (1) Without need of prior court order (2) Available to the prosecution or any person convicted by final and executory judgment Requisites: (1) A biological sample exists (2) Such sample is relevant to the case (3) The testing would probably result in the reversal or modification of the judgment of conviction. [Sec. 6] Remedy if Results Favorable to the Convict Convict or the prosecution may file a petition for a writ of habeas corpus in the court of origin, CA or SC or any member of said courts. [Sec. 10] General Rule: If the court, after due hearing, finds the petition meritorious, it shall reverse or modify the judgment of conviction and order the release of the convict. [Sec. 10] Exception: If continued detention is justified for a lawful cause. [Sec. 10]
IV. DOCUMENTARY EVIDENCE

A. B. C. D. Meaning of Documentary Evidence Requisites for Admissibility Best Evidence Rule Rules on Electronic Evidence (A.M. No. 01-7-01- SC) E. Parol Evidence Rule F. Authentication and Proof of Documents
A. Meaning Evidence
of
Documentary
Assessment of probative value of DNA evidence and admissibility

Factors in Assessing the Probative Value of DNA Evidence (1) Chain of custody (a) How the biological samples were collected (b) How they were handled (c) Possibility of contamination (2) DNA testing methodology (a) Procedure followed in analyzing samples (b) Advantages and disadvantages of procedure the the
Consist of writings or any material containing letters, words, numbers, figures, symbols or other modes of written expressions offered as proof of their contents [Rule 130, sec. 2] To be deemed documentary evidence, such writings or materials must be offered as proof of their contents. If offered for some other purpose, they constitute OBJECT EVIDENCE.
B. Requisites for Admissibility

(1) Relevant (2) Competent (a) Document be Authenticated

(b) Authenticated by Competent Witness (3) Formally Offered in Evidence Electronic document (1) Information or the representation of information, data, figures, symbols or other modes of written expression, (2) described or however represented, 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. For purposes of these Rules, the term electronic document may be used interchangeably with electronic data message. Electronic data message Information generated, sent, received or stored by electronic, optical or similar means
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C. Best Evidence Rule

Meaning of the rule
When the subject of inquiry is the contents of a document, no evidence shall be admissible other than the original document itself. [Rule 130, sec. 3]
When applicable (General Rule)

Only when the subject of inquiry is the contents of a document [Rule 130, sec. 3] The BER does not apply when the issue is only as to WON such document was actually executed or in the circumstances relevant to its execution. [People v Tandoy (1990)]
Meaning of original
Original document (1) One the contents of which are the subject of inquiry (2) All such copies of a executed at or about the same time, and with identical contents NOTE: Carbon copies are deemed duplicate originals. [People v Tan (1959)] (3) All such entries made and repeated in the regular course of business, at/near the time of the transaction [Rule 130, sec. 4]
Probative value of electronic documents or evidentiary weight; method of proof

Factors in assessing evidentiary weight of electronic evidence (Rule 7, 1) In assessing the evidentiary weight of an electronic document, the following factors may be considered: (1) The reliability of the manner or method in which it was generated, stored or communicated, including but not limited to (a) input and output procedures, (b) controls, tests and checks for accuracy and reliability of the electronic data message or document, (c) in the light of all the circumstances as well as any relevant agreement; (2) The reliability of the manner in which its originator was identified; (3) 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; (a) Whether the information and communication system or other similar device was operated in a manner that did not affect the integrity of the electronic document, and there are no other reasonable grounds to doubt the integrity of the information and communication system [Rule 7, sec. 2]; (b) Whether the electronic document was recorded or stored by a party to the proceedings with interest adverse to that of the party using it [Rule 7, sec. 2]; or (c) Whether the electronic document was recorded or stored in the usual and ordinary course of business by a person who is not a party to the proceedings and who did not act under the control of the party using it [Rule 7, sec. 2]
Requisites for introduction of secondary evidence (Exceptions to BER) [Rule 130, sec. 3]
(1) When the original has been lost or destroyed, or cannot be produced in court, without bad faith on the offerors part (2) When the original is in the custody or under the control of the party against whom it is offered, and the latter fails to produce it after reasonable notice (3) When the original consists of numerous accounts or other documents which cannot be examined in court without great loss of time, and the fact sought to be established from them is only the general result of the whole (4) When the original is a public record in the custody of a public officer or is recorded in a public office
D. Rules on Electronic Evidence (A.M. No. 01-7-01- SC)

Meaning of electronic evidence; electronic data message

(4) The familiarity of the witness or the person who made the entry with the communication and information system; (5) 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 (6) Other factors which the court may consider as affecting the accuracy or integrity of the electronic document or electronic data message. In any dispute involving the integrity of the information and communication system in which an electronic document or electronic data message is recorded or stored, the court may consider, among others, the following factors: (1) Whether the information and communication system or other similar device was operated in a manner that did not affect the integrity of the electronic document, and there are no other reasonable grounds to doubt the integrity of the information and communication system; (2) Whether the electronic document was recorded or stored by a party to the proceedings with interest adverse to that of the party using it; or (3) Whether the electronic document was recorded or stored in the usual and ordinary course of business by a person who is not a party to the proceedings and who did not act under the control of the party using it. Text messages have been classified as ephemeral electronic communication under Section 1(k), Rule 2 of the Rules on Electronic Evidence, and shall be proven by the testimony of a person who was a party to the same or has personal knowledge thereof. [Vidallon-Magtolis v. Salud (2005)] Method of Proof (1) Affidavit of Evidence [Rule 9, sec. 1] (a) Must state facts (i) of direct personal knowledge, or (ii) based on authentic records (b) Must affirmatively show the competence of the affiant to testify on the matters contained in the affidavit (2) Cross-Examination of Deponent [Rule 9, sec. 2] (a) Affiant shall affirm the contents of the affidavit in open court. (b) Affiant may be cross-examined as a matter of right by the adverse party. 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 (3) By other evidence showing its integrity and reliability to the satisfaction of the judge. [Rule 5, sec. 2] Of Electronic Signatures [Rule 6, sec. 2] (1) By evidence that a method or process was utilized to establish a digital signature and verify the same; (2) By any other means provided by law; or (3) By any other means satisfactory to the judge
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Electronic documents and the hearsay rule

Business Records as Exception to the Hearsay Rule What Constitute Business Records: Records of any business, institution, association, profession, occupation, and calling of every kind, whether or not conducted for profit, or for legitimate purposes [Rule 2, sec. 1b] Requisites (1) Made by electronic, optical or other similar means (2) Made at or near the time of or from transmission or supply of information (3) Made by a person with knowledge thereof (4) Kept in the regular course or conduct of a business activity, (5) Such was the regular practice to make the memorandum, report, record, or data compilation by electronic, optical or similar means (6) Abovementioned facts shown by the testimony of the custodian or other qualified witnesses [Rule 8, sec. 1] Exception to the Exception (1) Untrustworthiness of the source of information (2) Untrustworthiness of the method of the preparation, transmission or storage thereof (3) Untrustworthiness of the circumstances of the preparation, transmission or storage thereof [Rule 8, sec. 2]
Authentication of electronic documents and electronic signatures (R5, ss1-3; R11, ss1-2, REE)
Of Electronic Documents Burden of Proving Authenticity: The person seeking to introduce the electronic document [Rule 5, sec. 1] Manner of Authentication: (1) By evidence that it had been digitally signed by the person purported to have signed the same; (2) By evidence that other appropriate security
Audio, photographic, video and ephemeral evidence

If the foregoing communications are recorded or embodied in an electronic document, then the provisions of Rule 5 (Authentication of Electronic Documents) shall apply.
E. Parol Evidence Rule

Meaning of parol evidence Any evidence aliunde, whether oral or written, which is intended or tends to vary or contradict a

complete and enforceable agreement embodied in a document.
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Application of the parol evidence rule (General Rule)

When the terms of an agreement (including wills) have been reduced to writing, it is considered as containing all the terms agreed upon and there can be, between the parties and their successors in interest, no evidence of such terms other than the contents of the written agreement. [Rule 130, sec. 9] It does not apply when 3rd parties are involved. [Lechugas v. CA (1986)]
F. Authentication and Proof of Documents

Meaning of authentication
The preliminary step in admissibility of evidence Private and Public Documents Private Documents When offered as authentic, due execution and authenticity must be proved showing the
Public Documents Admissible without further proof of its due execution and authenticity
When parol evidence can be introduced

(1) When a party presents parol evidence to modify, explain or add to the terms of a written agreement (2) Ground/s for presenting parol evidence is put in issue in the pleading Grounds for presenting parol evidence: (1) An intrinsic ambiguity, mistake or imperfection in the written agreement (2) Failure of the written agreement to express the true intent and agreement of the parties thereto (3) Validity of the written agreement (4) Existence of other terms agreed to by the parties or their successors in interest after the execution of the written agreement.
Public and private documents When a private writing requires authentication; proof of a private writing
PRIVATE DOCUMENTS When offered as authentic General Rule: Authentication necessary How to Prove Due Execution and Authenticity (1) By anyone who saw the document executed or written; OR (2) By evidence of the genuineness of the signature or handwriting of the maker [Rule 132, sec. 20]
Distinctions between the best evidence rule and parol evidence rule
Best Evidence Rule Contemplates the situation wherein the original writing is not available and/or there is a dispute as to whether said writing is the original Prohibits the introduction of substitutionary evidence in lieu of the original document regardless of WON it varies the contents of the original Applies to all kinds of documents Can be invoked by any party to an action regardless of WON such party participated in the writing involved Parol Evidence Rule Presupposes that the original document is available in court
When evidence of authenticity of a private writing is not required (ancient documents)

Exception (1) Ancient Documents authentication NOT necessary provided that private document be: (a) More than 30 years old; (b) Produced from the custody in which it would naturally be found if genuine; and (c) Unblemished by any alterations or circumstances of suspicion. [Rule 132, sec. 21] (2) That which it is claimed to be: Authentication not necessary [Rule 132, sec. 20]
Prohibits the varying of the terms of a written agreement
How to prove genuineness of handwriting

Applies only to documents contractual in nature (Exception: wills) Can be invoked only when the controversy is between the parties to the written agreement, their privies or any party directly affected thereby (1) By any witness who believes it to be the handwriting of such person because: (a) he has seen the person write; (b) he has seen writing purporting to be his upon which the witness has acted or been charged, and has thus acquired knowledge of the handwriting of such person [Rule 132, sec. 22] (2) A comparison by the witness or the court of the questioned handwriting, and admitted genuine specimens thereof or proved to be genuine to the satisfaction of the judge [Rule 132, sec. 22]

(3) Expert evidence [Rule 130, sec. 49]
Public documents as evidence; proof of official record

PUBLIC DOCUMENTS Kinds of public documents (1) Written official acts or records of the official acts of the sovereign authority, official bodies and tribunals, and public officers, whether of the Philippines or of a foreign country (2) Public records, kept in the Philippines, of private documents required by law to be entered therein (3) Notarial documents (except last wills and testaments) Proof of public documents Records of Official Acts [Rule 132, sec. 24] (1) By an official publication thereof; or (2) By an attested copy of the document
to exist in the records of his office (2) Certificate (a) Accompanying the written statement (b) Must state that that such officer has the custody
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How a judicial record is impeached

What to Establish to Impeach Judicial Record [Rule 132, sec. 29] (1) Want of jurisdiction in the court or judicial officer; (2) Collusion between the parties; OR (3) Fraud in the party offering the record, with respect to the proceedings
Proof of notarial documents

Notarial Documents (except last wills and testaments) [Rule 132, sec. 30] (1) 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. (2) Such notarized documents are evidence, even against 3rd persons, of the facts which gave rise to their execution and of the date of execution. [Rule 132, sec. 23]
Attestation of a copy [Rule 132, sec. 25]

Attestation of Copy [Rule 132, sec. 25] (1) Must be made by the officer having the legal custody of the record, or by his deputy (2) Must state that the copy is a correct copy of the original or a specific part thereof, as the case may be (3) Must be under the official seal of the attesting officer, if there be any, or if he be the clerk of a court having a seal, under the seal of such court If the record is not kept in the Philippines, attested copy must be accompanied with a certificate, which (1) May be made by a secretary of the embassy/legation, consul-general, consul, viceconsul, consular agent or any officer in the foreign service of the Philippines stationed in the foreign country in which the record is kept; (2) Must state that such officer has the custody; and (3) Must be authenticated by the seal of his office.
How to explain alterations in a document

Alterations in a Document [Rule 132, sec. 31] Requisites (1) Document is being presented as genuine; (2) Document has been altered and appears to have been altered; (3) Alteration was made after execution of the document; and (4) Alteration is in a part material to the question in dispute What to Show about the Alteration (1) Was made by another, without his concurrence; (2) Was made with the consent of the parties affected by it; (3) Was otherwise properly or innocently made; or (4) Did not change the meaning or language of the instrument. Whose Burden of Proof Party producing the document must account for the alteration. Failure to do so would result in the inadmissibility of evidence.
Public record of a private document

Public Records of Private Documents [Rule 132, sec. 27] (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. [Rule 132, sec. 27] Note: Please refer to Attestation of Copy under the immediately preceding subsection.
Documentary evidence in an unofficial language [Rule 132, sec. 33]

NOT admissible unless accompanied by a translation into English or Filipino. Parties or their attorneys are directed to have the translation prepared before trial.
Proof of lack of record [Rule 132, sec. 28]

(1) Written statement (a) Signed by an officer having the custody of an official record or by his deputy (b) Must state that after diligent search, no record or entry of a specified tenor is found

Requisites (1) Mental maturity of the witness (child) must render him incapable of perceiving the facts respecting which he is examined. (2) He is incapable of relating his perception truthfully.
216 V. TESTIMONIAL EVIDENCE

A. Qualifications of a Witness B. Competency versus Credibility of a Witness C. Disqualifications of Witnesses D. Examination of a Witness E. Admissions and Confessions F. Hearsay Rule G. Opinion Rule H. Character Evidence I. Rule on Examination of a Child Witness (A.M. No. 004-07-SC)
Incapacity must occur at the time the witness perceives the event.
2. Disqualification marriage
by
reason
of
Also known as Marital Disqualification Rule or Spousal Immunity Requisites (1) Marriage is valid and existing as of the time of the offer of testimony. (2) Other spouse is a party to the action. Exceptions [Rule 130, sec. 22]: Spouse MAY testify for or against the other even without the consent of the latter: (1) In a civil case by one against the other (2) In a criminal case for a crime committed by one against the other or the latter's direct descendants/ascendants. Rationale [Alvarez v. Ramirez (2005)] (1) There is identity of interests between husband and wife; (2) If one were to testify for or against the other, there is a consequent danger of perjury; (3) Policy of the law is to guard the security and confidence of private life, and to prevent domestic disunion and unhappiness; and (4) Where there is want of domestic tranquility, there is danger of punishing one spouse through the hostile testimony of the other.
I. With respect to the witness
A. Qualifications of a [Rule 130, sec. 20]
Witness
All persons who can perceive, and, perceiving, can make their known perception to others, may be witnesses. Religious/political belief, interest in the outcome of the case, or conviction of a crime unless otherwise provided by law, shall not be ground for disqualification.
B. Competency versus Credibility of a Witness

Competency A matter of law and of rules Refers to the basic qualifications of a witness as his capacity to perceive and his capacity to communicate his perception to others Credibility Has nothing to do with the law or rules Refers to the weight and trustworthiness or reliability of the testimony
3. Disqualification by reason of death

or insanity of adverse party
Also known as Dead Mans Statute or Survivorship Rule
C. Disqualifications of Witnesses
1. Disqualification by reason mental capacity or immaturity of
By reason of mental incapacity [Rule 130, sec. 21a] Requisites (1) Person must be incapable of intelligently making known his perception to others (2) His incapability must exist at the time of his production for examination A mental retardate is not for this reason alone disqualified from being a witness. Acceptance of his testimony depends on its nature and credibility or, otherwise put, the quality of his perceptions and the manner he can make them known to the court. [People v. Salomon (1993)] By reason of immaturity [Rule 130, sec. 21b]
Requisites [Rule 130, Sec. 23] (1) Defendant is the executor or administrator or a representative of the deceased or of the person of unsound mind; (2) Suit is upon a claim by the plaintiff against the estate of said deceased or person of unsound mind; (3) Witness is the plaintiff, or an assignor of that party, or a person in whose behalf the case is prosecuted; and (4) Subject of the testimony is as to any matter of fact occurring before the death of such deceased person or before such person became of unsound mind. Exceptions (1) The survivor may testify against the estate of the deceased where the latter was guilty of fraud which fraud was established by evidence

other than the testimony of the survivor. [Ong Chua v. Carr (1929)] (2) He may also testify where he was the one sued by the decedents estate since the action then is not against the estate. [Tongco v. Vianzon (1927)] (3) He may likewise testify where the estate had filed a counterclaim against him or where the estate cross-examined him as to matters occurring during the lifetime of the deceased. [Goi v. CA (1986)] Rationale: To discourage perjury and protect the estate from fictitious claims (3) The communication or advice must have been given either in the course of the professional employment or with a view to professional employment. NOTE: Attorneys secretary, stenographer, or clerk are also covered by the rule and cannot be examined concerning any fact the knowledge of which has been acquired in such capacity without the consent of the client AND their employer. General Rule: The attorney-client privilege may not be invoked to refuse to divulge the identity of the client. Exceptions [Regala v. Sandiganbayan (1996)]: (1) When a strong probability exists that revealing the name would implicate that person in the very same activity for which he sought the lawyers advice; (2) When disclosure would open the client to liability; (3) When the name would furnish the only link that would form the chain of testimony necessary to convict.
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4. Disqualification
by reason privileged communications
of
Husband and wife (Marital privilege) [Sec. 24(a), Rule 130]

Requisites (1) There must be a valid marriage husband and wife; (2) There is a communication confidence by one from the other; (3) The confidential communication during the marriage. between the received in and was received
Physician and patient [Sec. 24(c), Rule 130]

markRequisites (1) Physician is authorized to practice medicine, surgery or obstetrics; (2) Information was acquired or the advice or treatment was given by him in his professional capacity for the purpose of treating and curing the patient; (3) Information, advice or treatment, if revealed, would blacken the reputation of the patient; and (4) Privilege is invoked in a civil case, whether or not the patient is a party thereto. Privilege does not apply when the doctor is presented as an expert witness and only hypothetical problems were presented to him. [Lim v. CA (1992)]
NOTE: A widow of a victim allegedly murdered may testify as to her husbands dying declaration as to how he died the since the same was not intended to be confidential. [US v. Antipolo (1918)] Exceptions (1) In a civil case by one against the other; (2) In a criminal case for a crime committed by one against the other or the latter's direct descendants/ascendants. Rationale: To promote marital harmony. In Contrast to Marital Disqualification Marital Disqualification One spouse should be a party to the case; Applies only if the marriage is existing at the time the testimony is offered; and Constitutes a total prohibition on any testimony for or against the spouse of the witness. Marital Privilege Neither of the spouses needs to be a party; Does not cease even after the marriage is dissolved; and Prohibition is limited to testimony on confidential communications between spouses.
Priest and penitent [Sec. 24(d), Rule 130]

Requisites (1) Confession was made to, or advice given by him pursuant to a religious duty enjoined in the course of discipline of the sect or denomination of the priest. (2) Confession or advice was confidential and penitential in character.
Public officers [Sec. 24(e), Rule 130]

Requisites (1) Communication was made to the public officer in official confidence; and (2) Public interest would suffer by the disclosure of such communication. Elements privilege of presidential communications
Attorney and client [Sec. 24(b), Rule 130]

Requisites (1) There must be a communication made by the client to the attorney or an advice given by the attorney to his client; (2) The communication must have been given in confidence; and

(1) Must relate to a quintessential and nondelegable presidential power; (2) Must be authored or solicited and received by a close advisor of the President or the President himself; and (3) Privilege may be overcome by a showing of adequate need such that the information sought likely contains important evidence and by the unavailability of the information elsewhere. [Neri v. Senate (2008)] DIRECT EXAMINATION [Sec. 5, Rule 132] Who conducts: Proponent Why conducted: Examination-in-chief of a witness by the party presenting him, on the facts relevant to the issue. CROSS EXAMINATION [sec. 6, Rule 132] Who conducts: Opponent When conducted: Upon the termination of the direct examination Why conducted: To test the witnesss accuracy and truthfulness, and freedom from interest or bias, or the reverse, and to elicit all important facts bearing upon the issue What matters are covered: Any matters stated in the direct examination, or connected therewith RE-DIRECT EXAMINATION [Sec. 7, Rule 132] Who conducts: Proponent When conducted: After cross-examination of the witness Why conducted: To explain or supplement his answers given during the cross-examination What matters are covered: Those stated in the cross-examination, and matters not dealt with, if allowed by the Court RE-CROSS EXAMINATION [Sec. 8, Rule 132] Who conducts: Opponent When conducted: Upon the conclusion of the redirect examination What matters are covered: Those stated in his re-direct examination, and also on such other matters as may be allowed by the court in its discretion.
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5. Parental and filial privilege rule

[Sec. 25, Rule 130]
General Rule: A person cannot be compelled to testify against his parents, other direct ascendants (parental privilege), children or other direct descendants (filial privilege). Exception [Art. 215, Family Code]: Descendant may be compelled to give his testimony: (1) In a criminal case; and (2) When such testimony is indispensable in a crime committed against said descendant; or (3) In a crime committed by one parent against the other.
D. Examination of a Witness
Rights and obligations of a witness [Sec. 3, Rule 132]
Obligation of a witness: To answer questions, although his answer may tend to establish a claim against him. Rights 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 (4) Not to give an answer which will tend to subject him to a penalty for an offense unless otherwise provided by law, e.g., Sec. 8, RA 1379 and other immunity statutes which grant the witness immunity from criminal prosecution for offenses admitted (5) Not to give an answer which will tend to degrade his reputation, unless it to be the very fact at issue or to a fact from which the fact in issue would be presumed. But a witness must answer to the fact of his previous final conviction for an offense.
Order in the examination of an individual witness [Sec. 4, Rule 132]

(1) Direct examination (2) Cross examination (3) Re-direct examination (4) Re-cross examination

RECALLING THE WITNESS [Sec. 9, Rule 132] Who conducts: either party When conducted: After both sides have concluded the examination of a witness, and with leave of court Why conducted: (1) Particularly identified material points were not covered in cross-examination (2) Particularly described vital documents were not presented to the witness (3) Cross-examination was conducted in so inept a manner as to result in a virtual absence thereof [People vs. Rivera (1991)]
How the witness is impeached by evidence of inconsistent statements (laying the predicate)
Elements: (1) The alleged statements must be related to the witness including the circumstances of the times and places and the persons present. If the statements are in writing they must be shown to him. (2) Witness may be asked whether he made such statements and also to explain them if he admits making those statements. Purpose: To allow the witness to admit or deny the prior statement and afford him an opportunity to explain the same.
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Leading and misleading questions [Sec. 10, Rule 132]

Questions not allowed (1) Misleading Questions [sec. 10, Rule 132] Questions that assume as true a fact not yet testified to by the witness, or contrary to that which he has previously stated. NEVER allowed (2) Leading Questions Questions that suggest to the witness the answer, which the examining party desires. General Rule: Leading questions are not allowed. Exceptions: (1) On cross examination; (2) On preliminary matters; (3) When there is a difficulty is getting direct and intelligible answers from a witness who is ignorant, or a child of tender years, or is of feeble mind, or a deaf-mute; (4) On an unwilling or hostile witness; A witness may be considered hostile only when declared by the court, upon adequate showing of his: [sec. 12, Rule 132] (a) Adverse interest; (b) Unjustified reluctance to testify; (c) His having misled the party into calling him to the witness stand. (5) On a witness who is an adverse party or an officer/director or managing agent of a public/private corporation or of a partnership/association which is an adverse party.
Evidence of the good character of a witness [Sec. 14, Rule 132]

Evidence of the witness good character is not admissible until such character has been impeached.
II. With respect to the testimony
E. Admissions and Confessions

1. Admissions of a Party
By Act, Declaration or Omission
Requisites for Admissibility (1) Made by a party; (2) Outside of court; (3) Relates to a relevant fact; and (4) Is against admitters interest. [sec. 26, Rule 130] Effect (1) May be given in evidence against the admitter [sec. 26, Rule 130] (2) Flight from justice is an admission by conduct and circumstantial evidence of consciousness of guilt. [US v. Sarikala (1918)] Rationale No man would make any declaration against himself unless it is true. [Republic v. Bautista (2007)] As Distinguished from Judicial Admissions Judicial Made in connection with a judicial proceeding in which it is offered Rule 129, sec. 4 Extrajudicial Any other admission Rule 130, secs. 26 and 32
Methods of impeachment of adverse partys witness [sec. 11, Rule 132]

(1) By contradictory evidence; (2) By evidence that his general reputation for truth, honesty or integrity is bad; (3) By evidence that he has made at other times statements inconsistent with his present testimony.
By Silence
Requisites for Admissibility: (1) An act or declaration is made in the presence and within the hearing or observation of a party;

(2) Party does or says nothing; (3) Act or declaration is such as naturally to call for action or comment if not true; and (4) It was proper and possible for the party to do so. [sec. 32, Rule 130] Silence of a person under investigation for the commission of an offense should not be construed as an admission by silence for constitutional reasons. [Sec. 2(b), R.A. 7438] (b) Act or declaration must have been made during the existence of the partnership or agency; and (c) Partnership or agency must be shown by evidence other than the act or declaration. (2) Co-Conspirators Admission [sec. 30, Rule 130] Requisites (a) Act or declaration must relate to the conspiracy; (b) It must have been made during the existence of the conspiracy; and (c) Conspiracy must be shown by evidence other than such act/declaration. Existence of the conspiracy may be inferred from the acts of the accused. [People v. Belen (1963)] Rule 130, sec. 30 applies only to extra-judicial statements, not to testimony given on the stand. [People v. Serrano (1959)] (3) Admission by Privies [sec. 31, Rule 130] Requisites: (a) There must be an act, declaration or an omission by a predecessor-in-interest; (b) Act, declaration or omission must have occurred while he was holding (not after) the title to the property; and (c) Act, declaration or omission must be in relation to the property.
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2. Confessions
A declaration of an accused acknowledging his guilt of the offense charged, or of any offense necessarily included therein [sec. 33, Rule 130] If the accused admits having committed the act in question but alleges a justification therefore, the same is merely an admission. [US v. Tolosa] Any confession, including a re-enactment, without admonition of the right to silence and to counsel, and without counsel chosen by the accused is inadmissible in evidence. [People v. Yip Wai Ming (1996)] General Rule: An extra-judicial confession made by an accused is not a sufficient ground for conviction. [sec. 3, Rule 133] Exception: When corroborated by evidence of the actual commission of a particular crime (corpus delicti). [sec. 3, Rule 133] As Distinguished from Admissions of a Party Admission Merely a statement of fact Maybe express or tacit Maybe made by 3rd parties, and in certain cases, admissible against a party Confession Acknowledgment of guilt or liability Must be express Can be made only by the party himself, and admissible against his co-accused in some instances
With Respect to Similar Acts

General Rule: Evidence that one did or did not do a certain thing at one time is NOT ADMISSIBLE to prove that he did or did not do the same or similar thing at another time. (2nd Branch) [sec. 34, Rule 130] Exceptions: Said evidence may be received to prove: (1) specific intent or knowledge; (2) identity; (3) plan, system, or scheme; (4) habit; (5) custom, usage and the like.
3. Res inter alios acta rule

With Respect to Admissions by a Third Party
General Rule: INADMISSIBLE The rights of a party cannot be prejudiced by an act, declaration or omission of another. (1st Branch) [sec. 28, Rule 130] Exceptions: (1) Partners or Agents Admission [sec. 29, Rule 130] Requisites: (a) Act or declaration must be within the scope of the authority of the partner or agent;
Admission by a party
Please see discussion in previous section (previous page)
Admission by a third party Admission by a co-partner or agent Admission by a conspirator Admission by privies
Please see discussion under the subsection Res inter alios acta rule
REMEDIAL LAW REVIEWER Admission by silence

Please see discussion in previous section (previous page) Requisites for Admissibility (1) Declaration is one made by a dying person; (2) Declaration was made under the consciousness of an impending death; (3) Declaration refers to cause and surrounding circumstances of such death; (4) Declaration is offered in any case wherein his death is the subject of inquiry; (5) Declarant is competent as a witness had he survived [Geraldo v People (2008)]; and (6) Declarant should have died. [People v. Macandog (2001)] Rationale for Admissibility: As a general rule, when a person is at the point of death, every motive to falsehood is silenced. [People v Bacunawa (2001)] The foreboding may be gleaned from surrounding circumstances, such as the nature of the declarants injury and conduct that would justify a conclusion that there was consciousness of impending death. [People v. Latayada (2004)]
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Confessions
Please see discussion in previous section (previous page)
Similar acts as evidence

Please see discussion under the subsection Res inter alios acta rule
F. Hearsay Rule
Meaning of hearsay
(1) Out-of-court statement (2) Offered by the witness in court to prove the truth of the matters asserted by the statement Any evidence, whether oral or documentary, if its probative value is not based on personal knowledge of witness but on knowledge of some other person not on witness stand [Regalado 11th ed.] Doctrine of Independently Relevant Statements Statements or writings attributed to a person not on the witness stand, which are being offered not to prove the truth of the facts stated therein, but only to prove that such were actually made. These are NOT covered by the hearsay rule [People v. Cusi (1965)]
2) Declaration against interest

Requisites for Admissibility (1) Declarant is dead or unable to testify; (2) Declaration relates to a fact against the interest of the declarant; (3) At the time he made said declaration, declarant was aware that the same was contrary to his interest; and (4) Declarant had no motive to falsify and believed such declaration to be true [sec. 38, Rule 130; Ong v. Court of Appeals (1980)] Inability to testify means that the person is dead, mentally incapacitated or physically incompetent. Mere absence from the jurisdiction does not make him ipso facto unavailable. [Fuentes v. CA (1996)] As Distinguished from Admissions Admission Admitter is a party himself, or in privity with such party; Admissible whether or not admitter is available as a witness Can be made any time, even during trial; Admissible only against the admitter; and Admissible NOT as an exception to any rule Declaration against Interest Declarant is neither a party nor in privity with a party; Admissible only when declarant is unavailable as a witness; Must have been made ante litem motam; Admissible even against 3rd persons; and Admissible as an exception to the hearsay rule
Reason for exclusion of hearsay evidence

Lack of opportunity to cross-examine the outside declarant GENERAL RULE ON HEARSAY A witness can testify only as to those facts which he knows of his personal knowledge, or those derived from his own perception. [Rule 130, sec. 36] The hearsay rule is not limited to oral testimony or statements; it applies to written, as well as oral statements. [Consunji vs. CA (2001)] If a party does not object to hearsay evidence, the same is admissible, as a party can waive his right to cross-examine [People vs Ola (1987)] Repeated failure to cross-examine is an implied waiver [Savory Luncheonette vs Lakas ng Manggagawang Pilipino (1975)]
Exceptions to the hearsay rule (Asked 7x)

1) Dying declaration
Also known as antemortem statement or statement in articulo mortis [Sec. 37, Rule 130]
3) Act or declaration about pedigree

Requisites for Admissibility (1) Declarant is dead or unable to testify; (2) Declarant must be related by birth or marriage to the person whose pedigree is in issue;

(3) Declaration was made before the controversy; and (4) Relationship between the declarant and the person whose pedigree is in question must be shown by evidence other than such declaration. [sec. 39, Rule 130] Meaning of Pedigree (1) Relationship; (2) Family genealogy; (3) Birth; (4) Marriage; (5) Death; (6) Dates when these facts occurred; (7) Places where these facts occurred; (8) Names of relatives; and (9) Facts of family history intimately connected with pedigree. [sec. 39, Rule 130] Admissible Statements (1) Spontaneous statements - Statements made by a person while a startling occurrence is taking place or immediately prior or subsequent thereto, with respect to the circumstances thereof (a) Principal act be a startling occurrence (b) Statement made before declarant had opportunity to contrive (c) Statement refer to occurrence in question and attending circumstances (2) Verbal acts - Statements, which accompany an equivocal act material to the issue and give it a legal significance (a) Principal act must be equivocal (b) Act must be material to the issue (c) Statement must accompany the equivocal act (d) Statement gives legal significance to equivocal act (e) Must be made at the time, not after, the equivocal act was being performed A dying declaration can be made only by the victim after the attack while a statement as part of the res gestae may be that of the killer himself after or during the killing. [People v. Reyes] A statement not admissible as dying declaration because it was not made under consciousness of impending death, may still be admissible as part of res gestae if made immediately afer the incident. [People vs. Reyes]
222
4) Family reputation or tradition regarding pedigree

Requisites for Admissibility: (1) Witness must be a member, by consanguinity or affinity, of the same family as the subject; and (2) Such reputation or tradition must have existed in that family ante litem motam. [sec. 40, Rule 130] Other Admissible Evidence (1) Entries in family bibles or other family books; (2) Charts; (3) Engravings on rings; (4) Family portraits and the like [sec. 40, Rule 130] This enumeration, by ejusdem generis, is limited to "family possessions," or those articles which represent, in effect, a family's joint statement of its belief as to the pedigree of a person. [Jison v. CA (1998)] A persons statement as to his date of birth and age, as he learned of these from his parents or relatives, is an ante litem motam declaration of a family tradition. [Gravador v. Mamigo (1967)]
7) Entries in the course of business

Requisites for Admissibility [sec. 43, Rule 130] (1) Entries were made at, or near the time of the transactions referred to; (2) Such entries were made in the ordinary or regular course of business or duty; (3) Entrant was in a position to know the facts stated in the entries; (4) Entrant did so in his professional capacity, or in the performance of duty and in the regular course of business; and (5) Entrant is now dead or unable to testify. If the entrant is available as a witness, the entries will not be admitted, but they may nevertheless be availed of by said entrant as a memorandum to refresh his memory while testifying on the transactions reflected therein. [Cang Yui v. Gardner (1916)] Business records are exempt from the hearsay rule. [Rule 8, sec. 1, Rules on Electronic Evidence]
5) Common reputation
Requisites for Admissibility (1) Reputation pertains to: (a) facts of public or general interest more than 30 years old, (b) marriage, or (c) moral character (2) Common reputation existed ante litem motam. [sec. 41, Rule 130] Other Admissible Evidence (a) Monuments (b) Inscriptions in public places [sec. 41, Rule 130] Pedigree may be established by reputation in the family, but NOT in the community. [Rule 130, secs. 40-41]
8) Entries in official records

Requisites for Admissibility (1) Entries were made by a public officer in the performance of his duties or by a person in the performance of a duty specially enjoined by law [sec. 44, Rule 130];
6) Part of the res gestae [Sec. 42, Rule 130]

(2) Entrant must have personal knowledge of the facts stated by him or such facts acquired by him from reports made by persons under a legal duty to submit the same [Salmon, Dexter & Co. v. Wijangco (1924)]; and (3) Entries were duly entered in a regular manner in the official records. Entries in official records, just like entries in the course of business, are merely prima facie evidence of the facts therein stated. [secs. 43-44, Rule 130] Entries in a police blotter are not conclusive proof of the truth of such entries. [People v. Cabuang (1993)] Baptismal certificates or parochial records of baptism are not official records. [Fortus v. Novero (1968)]
Opinion of expert witness [sec. 49, Rule 130]

On a matter (1) Requiring (a) special knowledge, (b) skill, (c) experience, or (d) training (2) Which he is shown to possess Expert witness is one who belongs to the profession or calling which the subject matter of the inquiry relates and who possesses special knowledge.
223
9) Commercial lists and the like

Requisites for Admissibility [Sec. 45, Rule 130] (1) Such statements are contained in a list; (2) Compilation is published for use by persons engaged in that occupation; and (3) It is generally used and relied upon by them.
Opinion of ordinary witness [sec. 50, Rule 130]

(1) If proper basis is given, and (2) Regarding: (a) Identity of a person about whom he has adequate knowledge; (b) Handwriting with which he has sufficient familiarity; (c) Mental sanity of a person with whom he is sufficiently acquainted; and (d) Impressions of the (i) emotion, (ii) behavior, (iii) condition, or (iv) appearance of a person.
10) Learned treaties

Requisites for Admissibility [Sec. 46, Rule 130] (1) Published treatise, periodical or pamphlet is on a subject of history, law, science, or art; and (2) Court takes judicial notice of it, or (3) Witness expert in the subject testifies that the writer of the statement in the treatise, periodical or pamphlet is recognized in his profession or calling as expert in the subject
H. Character Evidence
GENERAL RULE [sec. 51, Rule 130]: Character evidence is not admissible. EXCEPTIONS (1) Criminal cases [sec. 51(a), Rule 130] (a) Accused May prove his good moral character, which is pertinent to the moral trait involved in the offense charged. (b) Prosecution May not prove the bad moral character of the accused, except in rebuttal. (c) Offended Party His/her good or bad moral character may be proved if it tends to establish in any reasonable degree the im/probability of the offense charged. (2) Civil cases (a) Moral character is admissible only when pertinent to the issue of character involved in the case. [sec. 51(b), Rule 130] (b) Evidence of the witness good character is not admissible until such character has been impeached. [sec. 14, Rule 130]
11) Testimony or deposition at a former trial

Requisites for Admissibility [sec. 47, Rule 130; Manliclic v. Calaunan (2007)] (1) Witness is dead or 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 interests; (3) Former case involved the same subject as that in the present case although on different causes of action; (4) Issue testified to by the witness in the former trial is the same issue involved in the present case; and (5) Adverse party had the opportunity to crossexamine the witness in the former case.
G. Opinion Rule
GENERAL RULE: The opinion of a witness is not admissible. [Sec. 48, Rule 130] EXCEPTIONS [NOTE: Please refer to succeeding subsections for discussion] (1) Expert witness (2) Ordinary witness
224
I. Rule on Examination of a Child Witness (A.M. No. 004-07-SC)

Applicability of the rule
(1) Shall apply in all criminal proceedings and noncriminal proceedings involving child witnesses. [Sec. 1] (2) The ROC provisions on deposition, conditional examination of witnesses and evidence shall be applied suppletorily. [Sec. 32]
(b) Videotaped Deposition of a Child Witness [Sec. 27] (i) 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. (ii) 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.
Meaning of child witness

(1) Any person who at the time of giving testimony is < 18 years; (2) In child abuse cases, a child includes one over 18 years but is found by the court as (a) unable to fully take care of himself, or (b) protect himself from abuse, neglect, cruelty, exploitation, or discrimination (c) because of a physical or mental disability or condition.;
Live-link TV testimony of a child witness [Sec. 25]

Live-link television testimony, in criminal cases where the child is a victim or a witness 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. The trauma must be of a kind which would impair the completeness/truthfulness of the childs testimony. 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.
Competency of a child witness

Every child is presumed qualified to be a witness. To rebut the presumption of competence enjoyed by a child, the burden of proof lies on the party challenging his competence. [Sec. 6(b)] Requisites of competency of a child as witness [People v. Mendoza (1996)]: (1) Capacity of observation; (2) Capacity of recollection; (3) Capacity of communication. When the court finds that substantial doubt exists regarding the ability of the child to perceive/remember/ communicate, distinguish truth from falsehood, or appreciate the duty to tell the truth in court, a competency exam shall be conducted. The age of the child by itself is not a sufficient basis for a competency examination. [Sec. 6(a)] The court has the duty of continuously assessing the competence of the child throughout his testimony. [Sec. 6(f)]
Videotaped deposition of a child witness [Sec. 27]

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. 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.
Hearsay exception in child abuse cases [Sec. 28]

Proponent of hearsay statement shall make known to the adverse party the intention to offer such statement and its particulars. If the child is available, court shall require the child to be present at the presentation of the hearsay statement for cross-examination by the adverse party. If unavailable, the fact of unavailability must be proved by the proponent and his hearsay testimony must be corroborated by other admissible evidence.
Examination of a child witness

(1) In open court [Sec. 11] (2) Alternative Modes (a) Live-Link TV Testimony, in Criminal Cases where Child is a Victim or a Witness [Sec. 25] (i) 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. (ii) Trauma must be of a kind which would impair the completeness or truthfulness of the childs testimony.
Sexual abuse shield rule

General Rule [Sec. 30(a)]: The following are INADMISSIBLE in any criminal proceeding involving

alleged child sexual abuse: (1) Evidence offered to prove that the alleged victim engaged in other sexual behavior; (2) Evidence offered to prove the sexual predisposition of the alleged victim. Exception [Sec. 30(b)]: 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 Kind of evidence Testimonial When to offer At the time the witness is called to testify Documentary and After the presentation of a Object partys testimonial evidence Offer shall be done orally unless allowed by the court to be done in writing. Absence of an offer is a defect which is waived when a party fails to object when the ground became reasonably apparent, as when the witness is called to testify without any prior offer. [Catuira v. CA (1994)] The defect caused by the absence of formal offer of exhibits can be cured by the identification of the exhibits by testimony duly recorded and the incorporation of the said exhibits in the records of the case. [People v. Mate (1981)]
225
Protective orders
Video/audio tapes that are part of the court record may be viewed only by parties, their counsel, their expert witness and the guardian ad litem. [Sec. 31(b)] The court may issue additional orders to protect the childs privacy. [Sec. 31(c)] Publication (or causing it) in any format any identifying information of a child who is or is alleged to be a victim/accused of a crime or a witness thereof, or an immediate family of the child, shall be liable for contempt of court. [Sec. 31(d)] A child has a right at any court proceeding not to testify regarding personal identifying information that could endanger his physical safety or his family. [Sec. 31(e)]
C. Objection
Concept What to object to Testimonial evidence When to object Immediately after offer is made Question propounded in As soon as the grounds the course of oral become reasonably examination apparent Offer done in writing Within 3 days after notice of the offer, unless a different period is allowed by the court The grounds for objection must be specified in any case.
VI. OFFER AND OBJECTION

A. B. C. D. E. F. G. Offer of Evidence When to Make an Offer Objection Repetition of an Objection Ruling Striking Out of an Answer Tender of Excluded Evidence
D. Repetition of an Objection
[Sec. 37, Rule 132] When it becomes reasonably apparent in the course of the examination of a witness that the questions being propounded are of the same class as those to which objection has been made, whether such objection was sustained or overruled, it shall be sufficient for the adverse party to record his continuing objection to such class of questions. A court may, motu proprio, treat the objection as a continuing one. [Keller v. Ellerman & Bucknall Steamship]
A. Offer of Evidence
Concept [Sec. 34, Rule 132] (1) Court shall consider no evidence which has not been formally offered (2) Purpose for which the evidence is offered must be specified (3) As Distinguished from Identification of Documentary Evidence [Interpacific Transit v. Aviles (1990)] Identification of Documentary Evidence Done in the course of the trial and accompanied by the marking of the evidence Formal Offer of Exhibit Done only when the party rests his/her case
E. Ruling
Ruling on the objection [Sec. 38, Rule 132] Should be given immediately after the objection is made, unless the court desires to take a reasonable time to inform itself on the question presented. Reason for sustaining or overruling an objection need not be stated. However, if the objection is based on two or more grounds, a ruling sustaining the objection on one or some of them must specify the ground/s relied upon. Reservation of a ruling by the court on an objection to the admissibility of evidence,
B. When to Make an Offer

[Sec. 35, Rule 132]

without subsequently excluding the same, amounts to a denial of an objection. [People v. Tavera]
226
F. Striking Out of an Answer

Motion to strike [sec. 39, Rule 132] (1) Court may sustain an objection and order the answer given to be stricken off the record if: (a) witness answers the question before the adverse party had the opportunity to object, and (b) such objection is found to be meritorious. (2) The court may also, upon motion, order the striking out of answers, which are (a) incompetent, (b) irrelevant or (c) otherwise improper.
G. Tender of Excluded Evidence

[Rule 132, Sec. 40] Documents marked as exhibits during the hearing but which were not formally offered in evidence cannot be considered as evidence nor shall they have evidentiary value. [Vda. De Flores v. WCC (1977)] How to Tender Evidence Kind of evidence Documentary Testimonial How to tender the evidence Offeror may have the same attached or made part of the record Offeror may state for the record the name and other personal circumstances of the witness and the substance of the proposed testimony

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CRIMINAL LAW REVIEWER

UP LAW BAR OPERATIONS COMMISSION

REMEDIAL LAW REVIEWER

D. Proof Versus Evidence

E. Factum Probans Versus Factum Probandum

B. Scope of the Rules of Evidence

C. Evidence in Civil Cases Versus Evidence in Criminal Cases

Presumption innocence NOT apply

REMEDIAL LAW REVIEWER

Relevance of evidence and collateral matters

Direct and circumstantial evidence

Positive and negative evidence

Competent and credible evidence

No person shall be compelled to be a witness against himself. [Sec.17,Art.III]

REMEDIAL LAW REVIEWER

G. Burden of Proof and Burden of Evidence

Generally determined by the pleadings filed by the party

H. Presumptions 1. Conclusive presumptions 2. Disputable presumptions

I. Liberal Construction of the Rules of Evidence

Clear and convincing evidence

J. Quantum of Evidence (Weight And Sufficiency of Evidence)

II. JUDICIAL NOTICE AND JUDICIAL ADMISSIONS

A. What Need Not be Proved

REMEDIAL LAW REVIEWER

Effect of judicial admissions

B. Matters of Judicial Notice

How judicial contradicted

As Distinguished from Presumptions [Sec. 3, Rule 131]

REMEDIAL LAW REVIEWER

REMEDIAL LAW REVIEWER

III. OBJECT (REAL) EVIDENCE

A. Nature of Object Evidence

D. Judicial Notice of Foreign Laws, Law of Nations and Municipal Ordinance

B. Requisites for Admissibility

REMEDIAL LAW REVIEWER Formally Offered

C. Categories of Object Evidence

G. Rule on DNA Evidence (A.M. No. 06-11-5-SC)

Application for DNA testing order

E. View of an Object or Scene

REMEDIAL LAW REVIEWER

Rules on evaluation of reliability of the DNA testing Methodology

Post-conviction DNA testing; remedy

IV. DOCUMENTARY EVIDENCE

Assessment of probative value of DNA evidence and admissibility

B. Requisites for Admissibility

REMEDIAL LAW REVIEWER

C. Best Evidence Rule

When applicable (General Rule)

Probative value of electronic documents or evidentiary weight; method of proof

D. Rules on Electronic Evidence (A.M. No. 01-7-01- SC)

REMEDIAL LAW REVIEWER

Electronic documents and the hearsay rule

Audio, photographic, video and ephemeral evidence

E. Parol Evidence Rule

REMEDIAL LAW REVIEWER

Application of the parol evidence rule (General Rule)

F. Authentication and Proof of Documents

When parol evidence can be introduced