Evidence

ACADEMICUS REVIEW CENTER INC.
03 June 2017
EVIDENCE 2017
Dean Ma. Soledad

Deriquito-Mawis
ACADEMICUS REVIEW CENTER INC. 6/3/2017
Rule 128
– Sec. 1. Evidence defined.—Evidence is the means,

sanctioned by these rules, of ascertaining in a judicial
proceeding the truth respecting a matter of fact.
– Sec. 2. Scope.—The rules of evidence shall be the same in
all courts and in all trials and hearings, except as
otherwise provided by law or these rules.
1
ACADEMICUS REVIEW CENTER INC. 03 June 2017
Fact is defined as a thing done or existing. Whether a thing was done or does exist
is a question of fact.
Fact In issue:
- those facts that the plaintiff must prove in order to establish his claim and
- those facts which the defendant must prove to establish a defense set up by him,
but only when the fact alleged by one party is not admitted by the other party
Collateral Issue:
Those that are outside the controversy or are not directly connected with the
principal matter or issue in dispute, as indicated in the pleadings of the parties.
Not allowed because it may only excite prejudice and mislead
Rules of Evidence can be retroactively applied.
Gen. Rule:
Such new rules may validly be made applicable to cases pending at the time of
such change, as the parties to an action have no vested right in the rules of
evidence.
Exception:
In criminal cases, if the alteration of the rules of evidence would, for instance,
permit the reception of a less quantum of evidence than what the law required at
the time of the commission of the offense in order to convict, then the retroactive
application of such amendatory law would be unconstitutional for being ex post
facto. ACADEMICUS REVIEW CENTER INC. 6/3/2017
2
Classification of evidence as to form:
Object (real) evidence:
That which is directly addressed to the senses of the court and consists
of tangible things exhibited or demonstrated in open court, in an ocular
inspection, or at a place designated by the court for its view or
observation of an exhibition, experiment, or demonstration (See Rule
130, sec. 1)
Documentary evidence:
Evidence supplied by written instruments or derived from

conventional symbols, such as letters, by which ideas are
represented on material substances (See Rule 130, secs. 2-19)
Testimonial evidence:
That which is submitted to the court through the testimony or

deposition of a witness (See Rule 130, secs. 20-51)
3
Relevant, material, and competent evidence
Relevant evidence
as having any value in reason as tending to prove any matter provable in an

answer.
The test of relevancy is the logical relation of the evidentiary fact to the fact
in issue (whether the former tends to establish the probability or
improbability of the latter)
Relevancy is determined by logic and experience
Material evidence
as directed to prove a fact in issue as determined by the

rules of substantive law and pleadings. The materiality of
evidence is determined by whether the fact it tends to
prove is in issue
Material facts are the facts that have a direct effect on

the decision or that refer to the legal relationships
between the parties.
4
o Direct and circumstantial evidence
 Direct evidence as that which proves the fact in

dispute without the aid of any inference or
presumption
 Evidence that establishes the fact
Circumstantial evidence, which is the proof of a fact

or facts from which, taken either singly or collectively,
the existence of the particular fact in dispute may be
inferred as a necessary or probable consequence
Circumstantial evidence is evidence of relevant collateral facts
5
Cumulative evidence as evidence of the same kind and to the same state of
facts.
Merely restates what had already been admitted in evidence. For example,
if there are 10 eyewitnesses to the crime and they basically gave the same
account as to what happened, then the evidence is cumulative
Corroborative evidence as additional evidence of a different character to

the same point.
Supports the prior testimony with additional to confirm what the previous
witness has said, without duplicating it
Prima facie and conclusive evidence
Prima facie evidence as that which, standing alone,

unexplained or uncontradicted, is sufficient to maintain
the proposition affirmed
Conclusive evidence as that class of evidence which the

law does not allow to be contradicted
6
Primary and secondary evidence
Primary/best evidence as that which the law regards as affording the

greatest certainty of the fact in question
Secondary/substitutionary evidence as that which is inferior to the

primary evidence and is permitted by law only when the best
evidence is not available
Rule 128, Sections 3 & 4
Sec. 3. Admissibility of evidence.—Evidence is admissible when it is

relevant to the issue and is not excluded by the law or these rules.
Sec. 4. Relevancy; collateral matters.—Evidence must have such a
relation to the fact in issue as to induce belief in its existence or non-
existence. Evidence in collateral matters shall not be allowed,
except when it tends in any reasonable degree to establish the
probability or improbability of the fact in issue.
7
Requisites for the admissibility of evidence: (a) mRelevant; and (b) Competent
RELEVANT EVIDENCE : (INDUCES BELIEF)
That it must be relevant to the issue sought to be proved—that is, according to

sec. 4, it has such a relation to the fact in issue as to induce belief in its existence or
non-existence; and
COMPETENT
That it must be competent—that is, it is not excluded by the law or these rules.
The admissibility of evidence is determined at the time it is offered to the court.

(Rule 132, sec. 5) ACADEMICUS REVIEW CENTER INC. 6/3/2017
RELEVANT EVIDENCE : (INDUCES BELIEF)
That it must be relevant to the issue sought to be proved—that is, according to

sec. 4, it has such a relation to the fact in issue as to induce belief in its existence
or non-existence; and
COMPETENT
That it must be competent—that is, it is not excluded by the law or these rules.
The admissibility of evidence is determined at the time it is offered to the court.

(Rule 132, sec. 5)
8
Object or real evidence:
When the same is presented for its view or evaluation, as in

ocular inspections or demonstrations, or when the party rests
his case and the real evidence consists of objects exhibited in
court
Testimonial evidence:
By the calling of the witness to the stand

Documentary evidence:
Formally offered by the proponent immediately before he rests his case
A document may be an object evidence or a documentary evidence depending

on the purpose of the offer.
When can a document be an object evidence or documentary evidence
When do you object:
Shall be made at the time such evidence is offered, or as soon thereafter as the
objection to its admissibility shall have become apparent. Faliure to object shall
be considered waived.
9
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 on
condition that the other facts will be proved thereafter.
If connection not made, the evidence already given will be stricken

out.
Qualification: no bad faith on the part of the proponent

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 requirements of law
for its admissibility therefor.
 When a material is asked by a party to be admitted as evidence, the

party presenting must inform the court of the purpose which the
material is intended to serve and the court then admits the material as
evidence.
10
 Multiple admissibility may mean either
(i) the evidence is admissible for several purposes or
(2) an evidence is not admissible for one purpose but may be admitted for
a different purpose if it satisfies all the requirements of the other purpose
Rule 128, Section 3; read Regalado annotations

Sec. 3. Admissibility of evidence.—Evidence is admissible when it is relevant to
the issue and is not excluded by the law or these rules.
D. Exclusionary Rules Under the 1987 Constitution

(a) Sections 2 and 3, Art. III
(b) Section 12, Art. III
(c) Section 17, Art. III
3. Statutory Rules of Exclusion

(a) Section 201, Tax Reform Act of 1997
(b) R.A. 1405, Law on Secrecy of Bank Deposits
(c) R.A. 4200, otherwise known as the Wiretapping Act
11
Exclusionary rules under the Philippine

Constitution
– Article III
– Bill of Rights
– Sec. 2. The right of the people to be secure in their persons, houses, papers,
and effects against unreasonable searches and seizures of whatever nature and
for any purpose shall be inviolable, and no search warrant or warrant of arrest
shall issue except upon probable cause to be determined personally by the
judge after examination under oath or affirmation of the complainant and the
witnesses he may produce, and particularly describing the place to be searched
and the persons ACADEMICUS
or things toCENTER
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seized. 6/3/2017
Sec. 3. (1) The privacy of communication and

correspondence shall be inviolable except upon lawful order
of the court, or when public safety or order requires
otherwise as prescribed by the law.
(2) Any evidence obtained in violation of this or the

preceding section shall be inadmissible for any purpose in
any proceeding.
12
Sec. 12. (1) Any person under investigation for the commission of an
offense shall have the right to be informed of his right to remain
silent and to have competent and independent counsel preferably of
his own choice. If the person cannot afford the services of counsel,
he must be provided with one. These rights cannot be waived except
in writing and in the presence of counsel.
(2) No torture, force, violence, threat, intimidation, or any other

means which vitiate the free will shall be used against him. Secret
detention places, solitary, incommunicado, or other similar forms of
detention are prohibited.
(3) Any confession or admission obtained in violation of this or

Section 17 hereof shall be inadmissible in evidence against him.
(4) The law shall provide for penal and civil sanctions for
violations of this section as well as compensation to and
rehabilitation of victims of torture or similar practices, and
their families.
Xxxx
Sec. 17. No person shall be compelled to be a witness against

himself. ACADEMICUS REVIEW CENTER INC. 6/3/2017
13
R.A. 1405
Law on Secrecy of Bank Deposits
General Rule:
All deposits of whatever nature with banks or banking

institutions in the Philippines including investments in bonds
issued by the Government of the Philippines, its political
subdivisions and instrumentalities, are hereby considered as
of an absolutely confidential nature and may not be
examined, inquired or looked into by any person, government
official, bureau or office.
Except:
1. Upon written permission of the depositor, or

2. In cases of impeachment, or
3. upon order of a competent court in cases of bribery or
dereliction of duty of public officials, or
4. in cases where the money deposited or invested is the
subject matter of the litigation.
14
R.A. 4200
Anti-Wiretapping Act
Gen. Rule:
It shall be unlawful for any person, not being authorized by all the parties to any
private communication or spoken word, to tap any wire or cable, or by using any
other device or arrangement, to secretly overhear, intercept, or record such
communication or spoken word by using a device commonly known as a
Dictaphone or dictagraph or walkie-talkie or tape recorder, or however otherwise
described:
It shall be unlawful for any person, xxx xxx:
1. to knowingly possess any tape record, wire, record, disc record, or

any other such record or copies thereof, of any communication or
spoken word secured xxx in the manner prohibited by this law; or
2. to replay the same for any other person or persons; or
3. to communicate the contents thereof, either verbally or in writing,
or to furnish transcriptions thereof, whether complete or partial, to
any other person
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Exceptions:
1. Any peace officer authorized by a written order of the Court, to execute any
of the acts declared unlawful in 2 preceding sections in cases involving the
crimes of
 treason,
 espionage,
 provoking war and disloyalty in case of war,
 piracy,
 mutiny in the high seas,
 rebellion, conspiracy and
 proposal to commit rebellion, inciting to rebellion, sedition, conspiracy to
commit sedition, inciting to sedition, kidnapping as defined by the Revised
Penal Code, and\
 violations of Commonwealth Act No. 616, punishing espionage and other
offenses againstACADEMICUS
national security:
REVIEW CENTER INC. 6/3/2017
• NOTE:
1. A written application should be filed.

2. Application should show the following:
- Reasonable grounds that the cited crime/crimes has been

committed or being committed or about to be committed
- In cases involving the offenses of rebellion, conspiracy and proposal
to commit rebellion, inciting to rebellion, sedition, conspiracy to
commit sedition and inciting to sedition, such authority shall be
granted only upon prior proof that a rebellion or acts of sedition
(PREDICATE CRIME), as the case may be, have actually been or are
being committed;
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- that there are reasonable grounds to believe that evidence

will be obtained essential to the conviction of any person
for, or to the solution of, or to the prevention of, any of such
crimes; and
- that there are no other means readily available for
obtaining such evidence.
- Court must examine applicant and witnesses.
3. Court to examine applicant and witnesses
Tax Reform Act Section 201
17
Rules on Court Annexed Mediation
Judicial Notice
– Sec. 1. Judicial notice, when mandatory.—A court shall take judicial

notice, without the introduction of evidence, of the existence and
territorial extent of states, their political history, forms of government
and symbols of nationality, the law of nations, the admiralty and
maritime courts of the world and their seals, the political constitution
and history of the Philippines, the official acts of the legislative,
executive and judicial departments of the Philippines, the laws of
nature, the measure of time, and the geographical divisions.
18
Sec. 2. Judicial notice, when discretionary.—A court may take judicial

notice of matters which are of public knowledge, or are capable of
unquestionable demonstration, or ought to be known to judges
because of their judicial functions.
Sec. 3. Judicial notice, when hearing necessary.—During the trial, the

court, on its own initiative, or on request of a party, may announce its
intention to take judicial notice of any matter and allow the parties to
be heard thereon.
After the trial, and before judgment or on appeal, the proper court,
on its own initiative or on request of a party, may take judicial notice
of any matter and allow the parties to be heard thereon if such
matter is decisive of a material issue in the case.
Notes:
– 2 kinds of judicial notice:
– Mandatory – insofar as those matters enumerated

under section 1, Rule 129 are concerned
– Discretionary – under section 2, Rule 129 thereof
which are of public knowledge or are capable of
unquestionable demonstration, or ought to be
known to judges because of their function.
19
Courts notice those laws which regulate the relations of the dominant
powers of the earth – the law of nations.
While foreign municipal laws must be proved as facts, those rules

which by common consent of mankind have been acquiesced in as law
stand upon an entirely different footing.
Gen. Rule :
Courts are not authorized to take judicial notice of the contents

of records of other cases in the adjudication of cases pending
before them, even though the trial judge in fact knows or
remembers the contents thereof or even when said other cases
have been heard or are pending in the same court
20
Exception:
When the parties do not object to such notice and that all parties
know of it.
In some instances, courts have taken judicial notice of the

proceedings in other causes because of their close connection
with the matter in controversy because there may be cases so
closely interwoven or so clearly interdependent as to invoke a rule
of judicial notice
Discretionary Judicial Notice

Section 3
– Sec. 3. Judicial notice, when hearing necessary.—During the trial, the

court, on its own initiative, or on request of a party, may announce its
intention to take judicial notice of any matter and allow the parties to
be heard thereon.
– After the trial, and before judgment or on appeal, the proper court, on
its own initiative or on request of a party, may take judicial notice of
any matter and allow the parties to be heard thereon if such matter is
decisive of a material issue in the case.
21
 Judicial notice of a fact may be taken:
During trial
After trial but before judgment
Appeal
 A distinction must be made between judicial notice taken during

trial and judicial notice taken after trial but before judgment or on
appeal.
 After trial but before judgment or on appeal the court may take
judicial notice of any matter and allow the parties to be heard
thereon if such matter is decisive of a material issue in the case.
Judicial Admissions
– Sec. 4. Judicial admissions.—An admission, verbal or written,

made by a party in the course of the proceedings in the same
case, does not require proof.
– The admission may be contradicted only by showing that it
was made through palpable mistake or that no such admission
was made.
22
RULE 10
AMENDED AND SUPPLEMENTAL PLEADINGS
XXXXX
Sec. 8. Effect of amended pleadings.—An amended pleading

supersedes the pleading that it amends. However, admissions
in superseded pleadings may be received in evidence against
the pleader; and claims or defenses alleged therein not
incorporated in the amended pleading shall be deemed
waived.
Judicial admissions may be made in:
The pleadings filed by the parties;
In the course of the trial either by verbal or written manifestations or

stipulations;
In other stages of the judicial proceeding; or
Depositions, written interrogatories, or requests for admission.
23
To be considered as a judicial admission, the

same must be made in the same case in
which it is offered.
If made in another case or in another court,

the fact of such admission must be proved
as in the case of any other fact, although if it
was made in a judicial proceeding, it is
entitled to greater weight.
Judicial admissions cannot be contradicted by the admitter who

is the party himself, unless:
1. They were made through palpable mistake;

2. No such admission was made;
3. In the case of a pre-trial admission in civil cases, to prevent
manifest injustice (see rule 18, sec. 7); or
4. In criminal cases, if the pre-trial admission was reduced to
writing and signed by the accused and his counsel (see rule
118, secs. 2 and 4).
24
 Facts subject of a stipulation or agreement entered

into by the parties at the pre-trial of a case
constitute judicial admissions.
 They do not require proof and cannot be

contradicted unless previously shown to have been
made through palpable mistake.
Real and Demonstrative Evidence
– RULES OF ADMISSIBILITY
– OBJECT (REAL EVIDENCE)
– Sec. 1. Object as evidence.—Objects as evidence are those

addressed to the senses of the court. When an object is
relevant to the fact in issue, it may be exhibited to,
examined, or viewed by the court.
25
DOCUMENTARY EVIDENCE
Sec. 2. Documentary evidence.—Documents as evidence

consist of writings or any material containing letters,
words, numbers, figures, symbols or other modes of
written expressions offered as proof of their contents.
Object evidence is a tangible object that played some actual

role in the matter that gave rise to the litigation. (Example:
knife used in the altercation)
Demonstrative evidence is tangible evidence that merely

illustrates a matter of importance in the litigation (Examples
maps, diagrams, summaries and other materials created
especially for the litigation
26
Distinction is important because it helps

determine the standard that the evidence
must meet to be admissible. In particular,
the foundation that must be laid down for
object (real) evidence is different from
demonstrative evidence.
For object evidence, the required foundation

relative to proving that the evidence is indeed
the object used in the underlying event. (Ex: sale
of shabu. The foundation consists of evidence
tending to prove that the shabu is the shabu is
the one sold to the agent)
27
For demonstrative evidence, the foundation does not involve

the showing that the object was the one used in the
underlying event.
Foundation involves showing that the demonstrative object

fairly illustrates what is is alleged to illustrate
(Ex: illustration showing the position of the assailant and the
victim. Then, the foundation will normally consist of the
testimony of the eyewitnesses and the investigators.)
Requisites for admissibility
1. The object must be relevant to the fact in issue
2. There should be a logical nexus between the evidence and

the point on which it is offered
3. The object must be authenticated before it is admitted
28
Authentication normally consists of showing that the

object is the object that is involved in the underlying
event.
If the evidence passed hands since the time it was found or taken,
then the chain of custody comes into play.
The “chain of custody” method of authentication requires that every

“link” in the “chain of custody” --- every person who handled or
possessed the object since it was first recognized as being relevant in
the case, must explain what he did with it.
(Ex: undercover agent, person to whom the cocaine was turned-over,

the chemist who did the analysis, the the custodian and anyone else
who possessed the item up until it is brought to court.
29
Best Evidence Rule
– DOCUMENTARY EVIDENCE
.
– Sec. 2. Documentary evidence.—Documents as
evidence consist of writings or any material
containing letters, words, numbers, figures,
symbols or other modes of written expressions
offered as proof of their contents.
BEST EVIDENCE RULE

– Sec. 3. Original document must be produced; exceptions. —
– When the subject of inquiry is the contents of a document, no evidence shall

be admissible other than the original document itself, except in the
following cases:
– a. When the original has been lost or destroyed, or cannot be produced in
court, without bad faith on the part of the offeror;
– b. When the original is in the custody or under the control of the party
against whom the evidence is offered, and the latter fails to produce it after
reasonable notice;
30
c. When the original consists of numerous accounts or

other documents which cannot be examined in court
without great loss of time and the fact sought to be
established from them is only the general result of the
whole; and
d. When the original is a public record in the custody of a

public officer or is recorded in a public office.
Sec. 4. Original of document.—

The original of a document is one the contents of which are
the subject of inquiry.
When a document is in two or more copies executed at or

about the same time, with identical contents, all such copies
are equally regarded as originals.
When an entry is repeated in the regular course of business,

one being copied from another at or near the time of the
transaction, all the entries are likewise equally regarded as
originals.
31
 A document is any substance having any matter

expressed or described upon it by marks capable of being
read
 A document may constitute object (real) evidence.

Whether it will be considered as real evidence will depend
upon the purpose for which the document was tendered.
 A tombstone is a document if what is being proved is

what is written on it. But if it offered to prove that the
tombstone is found on the tomb, then it is not
documentary evidence but real evidence.
The best evidence cannot be invoked unless the contents of a

writing is the subject of judicial inquiry, in which case, the best
evidence is the original writing itself.
Reason for the rule is for the prevention of fraud
The best evidence rule applies only when the purpose of the
proof is to establish the terms of the writing.
32
PEOPLE VS. ENOJAS, G.R. No. 204894, March 10, 2014
Enojas left his cellphone in his cab.
Text messages are to be proved by the testimony of a person who

was a party to the same or has personal knowledge of them. Here,
PO3 Cambi, posing as the accused Enojas, exchanged text messages
with the other accused in order to identify and entrap them. As the
recipient of those messages sent from and to the mobile phone in his
possession, PO3 Cambi had personal knowledge of such messages
and was competent to testify on them.
The original of the checks could not be presented.

Photocopies were being introduced as secondary evidence.
With the admissions of the petitioner in his counter-

affidavit, the prosecution even no longer needed to adduce
evidence aliunde to prove the existence, due execution and
the authenticity of the charge invoices and the checks.
(LEE vs. PEOPLE OF THE PHILIPPINES, G.R. No. 159288,

October 19, 2004)
33
The best evidence rule is used to compel the production of

the original document, if the subject of the inquiry is the
content of the document itself.
The rule provides that the court shall not receive any
evidence that is merely substitutionary in nature, such as a
photocopy, as long as the original evidence of that
document can be had. (Tegeminta v. Oco, G.R. No. 175369,
February 27, 2013)
Exceptions to the
Best Evidence Rule
1. When the original has been lost, destroyed, or
cannot be produced in court without bad faith on
the part of the offeror;
– Must show that the offeror exerted efforts to

locate the original
– That the search was thorough and diligent
34
2. When the original is in the custody or under the control of the party
against whom the evidence is offered, and the latter fails to produce it
after reasonable notice
• The proponent must show that he has done all in his power to
secure the original by giving the adversary timely notice to produce
it.
• If adversary produces it, then secondary evidence not admissible.
• If the adversary has it but refuses to produce it upon demand, he

cannot later introduce the original in his own behalf.
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
35
Secondary Evidence
– Sec. 5. When original document is unavailable.—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
part, may prove its contents by a copy, or by a recital of its contents in some
authentic document, or by the testimony of witnesses in the order stated.
– Sec. 6. When original document is in adverse party’s custody or control.—If the
document is in the custody or under the control of the adverse party, he must have
reasonable notice to produce it. If after such notice and after satisfactory proof of its
existence, he fails to produce the document, secondary evidence may be presented
as in the case of its loss.
Sec. 7. Evidence admissible when original document is a public

record.—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.
Sec. 8. Party who calls for document not bound to offer it.—A party
who calls for the production of a document and inspects the same is
not obliged to offer it as evidence.
36
Before the contents of the original may be proved by secondary

evidence satisfactory proof must be made of the following:
a) The execution or existence of the original

b) The loss and destruction of the original or its non-production in
court; and
c) Unavailability of the original is not due to bad faith on the part of
the offeror
 Proof of loss or destruction ALONE is not sufficient

foundation. The DUE EXECUTION besides the loss
has to be shown for the introduction of secondary
evidence.
 Execution means the accomplishment of a thing;

the completion of an act or instrument; the
fulfillment of an undertaking
37
The execution and delivery of the document may be established by:
a. the person or persons who executed it,

b. by the persons before its execution was acknowledged,
c. any person who was present and saw it executed and delivered,
d. who after its execution and delivery, saw and recognized the
signatures
e. by a person to whom the parties to the instruments had
previously confessed the execution thereof
f. in the manner provided by Section 20, Rule 132 (proof of private
document)
Kinds of the secondary evidence that may be presented:
1. A copy of the writing;

2. A recital of its contents in some authentic document
3. The recollection of witnesses in the order stated
• Authentic means genuine
• Witness referred in no. 3 must have the read the contents of the original
writing. Need not be with verbal accuracy. Must be able to sufficiently recite
the substance (elements of the contract: consent, subject matter,
consideration and form in certain instances)
• In the absence of timely objection, secondary evidence may be received and
admitted.
38
Requisites for the admissibility of secondary evidence when the

original is in the custody or control of the adverse party (sec. 6,
Rule 130 (secondary evidence)
a. The adverse party’s custody or control of the original document
b. That reasonable notice was given to the adverse party who has
the custody or control of the document
c. Satisfactory proof of its existence
d. Failure or refusal by the adverse party to produce it in court
PAROLE EVIDENCE RULE
Sec. 9. Evidence of written agreements.—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.
39
However, a party may present evidence to modify, explain or add to

the terms of the written agreement if he puts in issue in his pleading:
a. 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.
The term “agreement” includes wills.

Art. 1403, Civil Code
Art. 1403. The following contracts are unenforceable, unless they are ratified:
1. Those entered into in the name of another person by one who has been given no
authority or legal representation, or who has acted beyond his powers;
2. Those that do not comply with the Statute of Frauds as set forth in this number. In
the following cases an agreement hereafter shall be made unenforceable by action,
unless the same, or some note of memorandum, thereof, be in writing, and subscribed
by the party charged, or his agent; evidence, thereof, of the agreement cannot be
received without the writing, or a secondary evidence of its contents:
40
a)An agreement that by its terms is not to be performed within

a year from the making thereof;
b)A special promise to answer for the debt, default, or
miscarriage of another;
c)An agreement made in consideration of marriage, other than
a mutual promise to marry;
c) An agreement for the sale of goods, chattels or things in action, at a price not
less than P500, unless the buyer accept and receive part of such goods and
chattels, or the evidences, or some of them, of such things in action or pay at the
time some part of the purchase money; but when a sale is made by auction and
entry is made by the auctioneer in his sales book, at the time of the sale, the
amount and kind of property sold, terms of sale, price, names of the purchasers
and person on whose account the sale is made, it is a sufficient memorandum;
d) An agreement for the leasing for a longer period than one year, or for the sale
of real property or an interest therein;
)
e) A representation as to the credit of a third person.
f) Those where both parties are incapable of giving consent to a contract.

41
 Parol evidence rule forbids any addition to or contradiction of the

terms of a written instrument by testimony purporting to show
that, at or before the signing, of the document, other or different
terms were orally agreed upon by the parties
 Oral evidence cannot prevail over a written agreement of the

parties. This is to remove the temptation to commit perjury
 Evidence which to vary the terms of the contract is inadmissible
 Parol evidence cannot be invoked against a stranger to the

contract.
Parol evidence is not admissible to validate a void contract, unless it

can be shown that the provision which renders the instrument void
was inserted by mistake.
The parol evidence may be waived by (a) failure to invoke it or (b) if

the party, by his cross-examination, the witness testified in respect to
the contract
The incompleteness of the agreement, or that the execution was

vitiated by mistake, or that it did not reflect the intention of the
parties must be raised in Answer
Agreement includes will

42
Exceptions to the Parole Evidence Rule
Parol evidence is admissible when the following are PUT IN ISSUE:
– Intrinsic ambiguity, mistake or imperfection of the written agreement;

– Failure of the agreement to express the true intent and agreement of
the parties
– The validity of the written agreement
– The existence of other terms agreed by the parties or their successor in
interest after the execution of the written agreement
Ambiguities may be (a) patent (extrinsic) or (b) latent (intrinsic):
Patent
– arises where the instrument on its face is unintelligible
Ex. Name of legatee is wholly blank or when the legatee left a legacy to
Janice, when he has two nieces named Janice)
The rule permits parol evidence to explain an intrinsic (latent)

ambiguity.
43
Latent
– an uncertainty which does not appear on the face of the

instrument, but which is shown to exist for the first time by
matter outside the writing, may be explained by parol evidence
(Ex: I bequeath my house to S and her heirs. There is latent

ambiguity if I have a house in Cavite and Batangas. What house
is testator referring to? Evidence aliunde may be given.)
Parol evidence is not admissible to identify a property where

the description thereof is not admissible to identify the
property where the description thereof is so vague as to
amount to no description at all.
Ex: Donor has two properties. Wrong TCT No. instead of TCT
123, it was typed as TCT 124 in the deed of donation.
44
Rules on admissibility of parol evidence to explain ambiguity:
Where the instrument seem to be clear and certain on its

face, and the ambiguity arises from some extrinsic or
collateral matter the ambiguity may be helped by parol
evidence (Latent [Intrinsic])
Ex: I bequeath my manor to X
No ambiguity if there is only one manor
 But if there are two manors, then there is an ambiguity = parol evidence
allowed
 Where the ambiguity consists in the use of unequivocal words designing the
person or the subject matter, parol evidence of collateral or extrinsic matter
may be introduced for the purpose of aiding the court in arriving at the
language used (Intermediate Ambiguity)
 Where the ambiguity is such that a perusal of the instrument shows plainly
that something more must be added before the reader can determine what of
several things are meant, the rule is inflexible that parol evidence cannot be
admitted to supply the deficiency (Patent [Extrinisc])
 An uncertainty that arises at ONCE ON THE READING OF THE CONTRACT

45
To justify the reformation of a contract on the ground of mistake,

the concurrence of 3 things is required:
 That the mistake should be of fact;

 That the mistake should be mutual or common to both parties
of the instrument
 That the mistake should be alleged and proved by clear and
convincing evidence
DIFFERENCE
PAROL EVIDENCE BEST EVIDENCE
There is no issue as to the contents in The issue is the contents of a writing

writing
The purpose for the offer of parol Secondary evidence is offered to

evidence is to change, vary, modify, prove the contents of a writing, which
qualify, or contradict the terms of a is not allowed unless the case falls
complete written agreement, which is under any of the exceptions
not allowed unless the case falls
under any of the exception
46
DIFFERENCE
Presupposes that the original Contemplates the situation wherein

document is available in court the original writing is not available
and/or there is a dispute as to whether
said writing is the original
Prohibits the varying of the terms of a Prohibits the introduction of

written agreement substitutionary evidence in lieu of the
original document, regardless of
whether it varies with the contents of
the original 6/3/2017
DIFFERENCE
With the exception of wills, this rule Applies to all kinds of writings
applies only to documents which are
contractual in nature (“written
agreements”)
Can be invoked only when the Can be invoked by any party to an

controversy is between the parties to action regardless of whether such
the written agreement, their privies, or party has participated in the writing
any party directly affected thereby
involved 6/3/2017
(ex. Cestui que trust)
47
Considering how the Agreement’s mistake,

imperfection, or supposed failure to express the
parties’ true intent was successfully put in issue in
the pleadings, then this is an exception to the
parol evidence rule. (Paras vs. Kimwa Construction
(G.R. No. 171601, April 8, 2015)
Spousal Immunity
– Sec. 22. Disqualification by reason of marriage.—During their

marriage, neither the husband nor the wife may testify for or
against the other without the consent of the affected spouse,
except in a civil case by one against the other, or in a criminal
case for a crime committed by one against the other or the
latter’s direct descendants or ascendants.
48
Art. 215 Civil Code
– Sec. 22. Disqualification by reason of marriage.—

During their marriage, neither the husband nor
the wife may testify for or against the other
without the consent of the affected spouse,
except in a civil case by one against the other, or
in a criminal case for a crime committed by one
against the other or the latter’s direct
descendants or ascendants.
Requisites:
1. Spouses are legally married
• applies to a lawful wife not to a bigamous one, nor to a paramour nor to an
affiance.
• Disqualification applies where the marriage between the parties is voidable
2. Either spouse must be a party to the case

• the other spouse (that is against whom the testimony is sought must be a
party to the case, not a third person who happened to be involved somehow
in the case; otherwise the testimony does not hurt the other spouse’s legal
interest.
49
RATIONALE OF RULE:
a. The identity of interests between the spouses;

b. The consequent danger of perjury where one spouse testifies
against the other;
c. The legal policy on guarding marital confidences and
preventing domestic disunion; and
d. The danger of punishing one spouse through the hostile
testimony of the other.
 May be waived by: ( a) failure to impose a timely objection; or (b) by calling the
other spouse as witness
Where the marital and domestic relations are so strained, the foregoing
considerations no longer apply
the prohibition includes the making of an affidavit by one spouse for the
purpose of obtaining a search warrant against the other, but does not apply
when such spouse is merely the prosecuting witness in a criminal case
res gestae declarations of husband and wife are admissible for or against each
other even though each is incompetent to testify
The testimony ceases after the death or the divorce of one of the spouses
50
Exceptions to the marital disqualification rule:
1. That the case in which the H or W is called to testify is

a civil case instituted against one against the other.
2. That it is a criminal case for a crime committed by one

against the other
3. Whether civil or criminal committed against the

offended spouse’s direct descendants or ascendants
DEAD MAN’S STATUTE
– Sec. 23. Disqualification by reason of death or insanity of adverse

party.—Parties or assignors of parties to a case, or persons in whose
behalf a case is prosecuted, against an executor or administrator or
other representative of a deceased person, or against a person of
unsound mind, cannot testify as to any matter of fact occurring
before the death of such deceased person or before such person
became of unsound mind.
51
 Constitutes only a partial disqualification as the witness is not

completely disqualified but is only prohibited from testifying
on the matters therein specified, unlike the marital
disqualification rule, which is complete and absolute
 Applies whether the deceased died before or after the suit

against him is filed. The material time is when the testimony
is sought to be given.
 Rules does not apply :
(a) negative testimony not covered by prohibition; and (

b) where the testimony is offered to prove a claim less than what is
established under a written document or
(c) is intended to prove a fraudulent transaction of the deceased,
provided such fraud is first established by evidence aliunde.
 The disqualification under this rule is waived if the defendant would

not timely object to the admission of such evidence or testifies on
the prohibited matters or cross-examinees thereon.
52
REQUISITES
a. The witness is a party or assignor of a party to a case or is a person in

whose behalf a case is prosecuted
b. The action is against the executor or administrator or other
representative of a deceased person or against a person of unsound
mind
c. The subject matter of the action is claim or demand against the
estate of a deceased person or a person of unsound mind
d. The testimony of witnesses and the testimony of the party or
assignor of a party to the case must refer to any matter of fact which
occurred before the death of the deceased or before the person
became insane ACADEMICUS REVIEW CENTER INC. 6/3/2017
FIRST: The witness is a party or assignor of a party to a case or is a

person in whose behalf a case is prosecuted
• It is only parties who assert claims against an estate who are

rendered incompetent to testify
• Mere witnesses who are neither parties nor their assignors, nor
persons in whose behalf a case is prosecuted, are not included in
the prohibition
• Favorable testimony to the representative of such person not

excluded
53
• Testimony of a witness who has no interest in the controversy or

the subject matter or outcome of the action NOT excluded
• Does not disqualify the adverse party if he is called as a witness

of the representative of the deceased or incompetent person or
if the representative introduced evidence as to the transactions
or communications with the deceased or incompetent person
• Interest per se in the outcome of the case does not disqualify a

witness from testifying
SECOND: The action is against the executor or administrator or

other representative of a deceased person or against a person of
unsound mind
 “Representative of a deceased person” REFERS to the

executor or administrator of the deceased person AND the
person or party who has succeeded to the right of the
deceased whether by purchase or descent or operation of law
 Rule does not apply if the case was filed by the administrator
or executor. The defendants are free to testify against the
deceased or insane persons represented by the plaintiffs
54
 Disqualification applies to testimony in support of a

counterclaim set-up by the surviving party.
 However, if the representative sets up the

counterclaim, then the surviving party can testify to
occurrences before the death of the deceased to
defeat the counterclaim
THIRD: The subject matter of the action is claim or demand against the
estate of a deceased person or a person of unsound mind
 “claim or demand” may mean any action or proceeding which may affect
the real or personal properties of a deceased or insane person
 Restricted to debts or demand enforceable by personal action, upon

which money judgments can be rendered
 As to other action against the estate, no incompetency exists.
 “estate of the deceased person” includes all properties real and personal
belonging to the deceased person
55
FOURTH: The testimony of witnesses and the testimony of the party or

assignor of a party to the case must refer to any matter of fact which
occurred before the death of the deceased or before the person became
insane
 “matter of fact” includes not only facts tending to establish the claim or
demand but also incidental facts
 Negative facts are not included in the matters prohibited.
 The testimony of a plaintiff denying the occurrence of a transaction with

the deceased may be admitted on the ground that such plaintiff foes not
testify to a fact “occurring befopre the death of the decedent” but on the
contrary, that such fact has not occurred.
PRIVILEGE COMMUNICATION RULE
1. Marital Privilege Rule

2. Attorney-Client Privilege
3. Doctor-Patient
4. Priest Penitent
5. State Secret
6. Newsman’s Secret
7. Trade Secret
56
Marital Privilege Rule

Sec. 24. Disqualification by reason of privileged communication.—
The following persons cannot testify as to matters learned in
confidence in the following cases:
The husband or the wife, during or after the marriage, cannot be

examined without the consent of the other as to any communication
received in confidence by one from the other during the marriage
except in a civil case by one against the other, or in a criminal case
for a crime committed by one against the other or the latter’s direct
descendants or ascendants;
Requisites:
1. There was a valid marital relation;
2. The privilege is invoked with respect to a confidential

communication between the spouses during said
marriage; and
3. The spouse against whom such evidence is being offered

has not given his or her consent to such testimony.
57
DIFFERENCE
Disqualification by reason Disqualification by reason
of marriage of marital privilege rule
Can be invoked only if Can be claimed whether
one of the spouses were a the spouse is a party to the
party to the action action
Applies only if the marriage Can be claimed even after the

were existing at the time the marriage has been dissolved
testimony is offered
DIFFERENCE
Disqualification by reason Disqualification by reason
of marriage of marital privilege rule
Constitutes a total Applies only to

prohibition against any confidential
testimony for or against communications between
the spouse of the witness the spouses
58
 The privilege applies to any form of confident disclosure. Written or

unwritten.
 W not permitted to disclose a letter written to her by H
 The exhibition of secret diseases, deformities, etc. covered by

prohibition
 Communications between H and W made in the presence of third

persons cannot be regarded as confidential and are not protected by
the privilege.
 If only overheard, the communication does not cease to be
confidential ACADEMICUS REVIEW CENTER INC. 6/3/2017
 The rule on privileged communications is not applicable to

dying declarations. The dying declaration was precisely
made by the declarant to be communicated to other
persons for the purpose of stating the cause of death.
 Privileged marital communication extends even after

death or divorce of spouses.
 The privilege belongs to the communicating spouse, not

to the other one.
59
Exceptions to the marital privileged rule:
a. That the case in which the H or W is called to be examined is

a civil case instituted by one against the other
b. That it is a criminal case for a crime committed by one

against the other
c. Whether civil or criminal, if committed against the offended

spouse’s direct descendants or ascendants.
Attorney-Client Privilege
Rule 130, Section 24(b) ;
Sec. 24. Disqualification by reason of privileged communication.—The following
persons cannot testify as to matters learned in confidence in the following cases:
xxx
An attorney cannot, without the consent of his client, be examined as to any
communication made by the client to him, or his advice given thereon in the
course of, or with a view to, professional employment, nor can an attorney’s
secretary, stenographer, or clerk be examined, without the consent of the client
and his employer, concerning any fact the knowledge of which has been acquired
in such capacity;
60
Requisites:
1. There must be a relation of attorney and client
 Test is whether the communications are made to an

attorney with a view to obtaining professional
assistance or advice
 Communications to an attorney are not privileged
where they are voluntary made after he has refused
to accept employment
 Lawyer need not be in active practice
2. Communication by client to attorney
 To be confidential it is necessary that the communication by

the client to the attorney or his clerk be confidential and
intended to be confidential
 There is no privilege where abstract legal opinions are sought

and obtained on general questions of law, either civil or
criminal;, in such case, no facts are or need be disclosed
implicating the client, and so there is nothing of a confidential
character to conceal
61
3. Communication must have been to the atty. in the course of or with a

view of professional employment
A communication to an atty is said to be in his professional

capacity when the client makes the same with the purpose of
obtaining from his a legal advice and oipinion concerning his legal
rights, obligations or duties relative to the subject matter of the
communication
“with a view” was added to include those communications during

consultancy preparatoryu ro professional employment
 The relation of atty and client cannot exist for the purpose of
counsel in concocting a crime
 When communications is made by the client to the atty in the

presence of third persons, not agents of either client or atty, it
vcannot be regarded as confidential.
 But if 3rd party is agent of the atty or client, privilege remains
 If communication was merely overheard by a 3rd party,

privilege remains
 Privilege remains even after termination of relationship

62
Privilege may be waived:
(a) in client’s failure to object;
(b) in giving evidence on the privilege communication;
(c) when the privilege communication falls into the hands

of the adverse party; and
(d) in calling or cross-exmaining his atty regarding

privileged communication
To constitute professional employment, it is not essential

that the client employed the attorney professionally on
any previous occasion.
It is not necessary that any retainer be paid, promised, or

charged; neither is it material that the attorney consulted
did not afterward handle the case for which his service
had been sought.
(Haduja vs. Madianda, A.C. No. 6711, July 3, 2007)

63
Physician Patient Privilege

Sec. 24. Disqualification by reason of privileged communication.—The
following persons cannot testify as to matters learned in confidence in
the following cases:
xxx
(c) A person authorized to practice medicine, surgery or obstetrics
cannot in a civil case, without the consent of the patient, be examined
as to any advice or treatment given by him or any information which
he may have acquired in attending such patient in a professional
capacity, which information was necessary to enable him to act in that
capacity, and which would blacken the reputation of the patient;
Requisites:
1. The action in which the advice or treatment given or any information

is to be used is a civil case
2. The relation of physician and patient existed between the person

claiming the privilege or his legal representative and the physician
Enumeration is exclusive. Communication made by patient to

dentists, pharmacists and nurses who are not acting as agents of
physician, surgeons or obstetricians are not privileged.
64
3. The advice or treatment given by him or any information was

acquired by the physician, while professionally attending the
patient.
4. The information was necessary for the performance of a

professional duty
5. The disclosure of the information would tend to blacken the

reputation of the patient
 a “dead man” is not a “patient” capable of sustaining the relation of

confidence toward his physician which is the foundation of the rule given in
the statute
 privilege communications between physician and patient include:
communications of the body;

observations;
symptoms,
results of the doctor’s examination,
the patient’s condition as found by the doctor,
the name of the ailment,
the nathre of the operation performed
the injuries that caused the death
prescriptions
x-rays
65
 Statements made by a wounded man as to why he was assaulted,

the name of the persons present at the time of the assault and
similar circumstances, not being necessary for his professional
treatment is not privileged.
 But if the information was obtained through the observation and

inspection of the patient’s body, the privilege applies regardless of
whether or not such information was necessary for the patient’s
treatment
 Death does not extinguish the patient-physician privilege

 Confidental information waivable
 If the child is the patient, the parent may claim the privilege
Josielene claims that the hospital records subject of this case are not
privileged since it is the "testimonial" evidence of the physician that
may be regarded as privileged.
She is wrong. To allow, however, the disclosure during discovery

procedure of the hospital records—the results of tests that the
physician ordered, the diagnosis of the patient’s illness, and the
advice or treatment he gave him—would be to allow access to
evidence that is inadmissible without the patient’s consent. (Chan vs.
Chan, G.R. No. 179786, July 24, 2013)
66
Priest-Penitent
(d) A minister or priest cannot, without the consent of the person

making the confession, be examined as to any confession made to
or any advice given by him in his professional character in the
course of discipline enjoined by the church to which the minister or
priest belongs;
Requisites for the rule to apply:
1. Confessions must be made to the minister or priest in his professional

character, and in the course of discipline enjoined by the rules of
practice of the denomination to which the priest or minister
2. The confessional must be of a penitential character – covers only

confessions of sins with a view of obtaining pardon and spiritual advice
or assistance.
Communications made in the course of religious discipline but in

contemplation of a crime are not privileged.
67
State Secrets
Xxx
(e) A public officer cannot be examined during his term of office or

afterwards, as to communications made to him in official
confidence, when the court finds that the public interest would
suffer by the disclosure.
 Requisites:
1. The communication must have been made to a public officer
• Privilege applies to communication to public officers

who have a responsibility or duty to investigate or to
present public wrongs and not to officials in general
68
2. The communication was made in official confidence
3. Public Interest would suffer by the disclosure of the communication
• This privilege is not for the protection of the public officer but
for the protection of the public interest.
• When there is no public interest that would be prejudiced, this

rule will not be applicable
Exceptions:
1. That which is useful to vindicate the innocence of an

accused person, or lessen the risk of false testimony, or
2. Essential to the proper disposition of the case; or
1. The benefit to be gained by a correct disposition of the

litigation was greater than any injury which could inure to
the relation by a disclosure of the information
69
Parental & Filial Privilege
Sec. 25. Parental and filial privilege.—No person

may be compelled to testify against his parents,
other direct ascendants, children or other direct
descendants.
ART. 215, FAMILY CODE

Art. 215. No descendant shall be compelled, in a
criminal case, to testify against his parents and
grandparents, except when such testimony is
indispensable in a crime, against the descendant
or by one parent against the other.
70
Newsman’s Privilege
– Sec. 1. Without prejudice to his liability under civil and criminal

laws, the publisher, editor, columnist or duly accredited reporter
of any newspaper, magazine or periodical of general circulation
cannot be compelled to reveal the source of any news-report or
information appearing in said publication which was related in
confidence to such publisher, editor or reporter unless the court
or a House or committee of Congress finds that such revelation is
demanded by the security of the State.
Trade Secrets
Section 270 NIRC:
SEC. 270. Unlawful Divulgence of Trade Secrets. - Except as provided in Section

71 of this Code and Section 26 of Republic Act No. 6388, any officer or employee
of the Bureau of Internal Revenue who divulges to any person or makes known in
any other manner than may be provided by law information regarding the
business, income or estate of any taxpayer, the secrets, operation, style or work,
or apparatus of any manufacturer or producer, or confidential information
regarding the business of any taxpayer, knowledge of which was acquired by him
in the discharge of his official duties, xxx xxx xxx.
71
Trade Secrets
There is a privilege not to disclose one’s trade

secrets. This covers usually formulas of manufacture,
but also may include price lists and customer’s list.
This is not absolute especially when it is

indispensable in doing justice
Admissions and Confessions
72
Rule 130, Sections 26 & 32
Sec. 26. Admissions of a party.—The act, declaration or omission of a

party as to a relevant fact may be given in evidence against him.
xxx
Sec. 32. Admission by silence. – An act or declaration made in the
presence and within the hearing or observation of a partuy who does
or says nothing when the act or declaration is such as naturally to
call for action or comment if not true, and when proper and possible
for him to do so, may be given in evidence against him.
 Admission:
An admission is a voluntary acknowledgement in express terms or by

implication by a party interest or by another by whose statement he is
legally bound, against his interest, of the existence or truth of a fact in
dispute material to the issue
 Admissions may be verbal or written, express or tacit, or judicial or

extrajudicial.
 Rule 129, sec. 4 deals with judicial admissions
 Rule 130, secs. 26 and 32 deal with extrajudicial admissions.

73
Difference:
Declarations Against
Admissions Interest
– Need not be made against the
– Must have been made
proprietary or pecuniary
against the proprietary or
interest of the party, although
pecuniary interest of the
of course, it will greatly
party
enhance its probative weight if
it be so made
Made by the party himself Must have been made by a

and is a primary evidence person who is either
and competent though he deceased or unable to
be present in court and testify
ready to testify
Can be made any time Must have been made ante

litem motam (spoken before
a lawsuit is brought)
74
Difference between Confession and Admission”
A confession is a declaration made at any time by a person, voluntarily

and without compulsion or inducement, stating or acknowledging that
he had committed or participated in the commission of a crime
Admission is usually applied in criminal statements of fact by the

accused which do not directly involve acknowledgment of the guilt of
the accuesd or the criminal intent to commit the offense with which he
is charged.
How to introduce admission in evidence:
An admission may be introduced in evidence in

two ways:
(a) as independent evidence; and
(b) as impeaching evidence
75
Independent evidence:
 admissions are original evidence and no foundation is necessary for their

introduction in evidence
 If the admission is oral, may be proved by any competent witness who heard
them or by the declarant himself. A witness may just state the substance of
the conversation or declaration
 If in private writing, there must be proof of the authenticity or identity of the

writing in accordance with Section 20, Rule 132 of the ROC
 If in a public document, the same does not need authentication since section
20, Rule 132
As impeaching evidence
If proof of the admission is sought for impeachment purposes,

a proper foundation must be laid for the impeaching questions,
by calling the attention of such party to his former statement so
as to give him an opportunity to explain before such admissions
are offered in evidence (See Section 13, Rule 132)
76
Admission By Silence
Sec. 32. Admission by silence. – An act or declaration made in

the presence and within the hearing or observation of a party
who does or says nothing when the act or declaration is such as
naturally to call for action or comment if not true, and when
proper and possible for him to do so, may be given in evidence
against him.
Requisites:
1. Hearing and understanding of the statement of the party
Party must have actually heard it

The mere fact that one party was within hearing distance of the speaker is
not sufficient, unless the situation was such that he must have necessarily
heard it
2. Opportunity and necessity of denying the statements
The circumstances and statements must have been such as naturally and
reasonable to call for a reply by him; it must also appear affirmatively that
he ahd an opportunity or right rivht under the cirumstances of the case to
deny the truthfulness of the charges made against him
77
3. Statement must refer to a matter affecting the right
4. Facts were within the knowledge of the party
5. Facts admitted or the inference to be drawn from his silence

would be material to the issue
 No admission by silence when:
1. Silence of an accused under custodial investigation

2. Where the failure to answer was caused by constraint,
or
3. The party was not aware at the time that he had an
interest, or
4. believed that he had no interest or was only indirectly
affected
78
Compromises
Sec. 27. Offer of compromise not admissible.—In civil cases, an offer of compromise is
not an admission of any liability, and is not admissible in evidence against the offeror.
In criminal cases, except those involving quasi-offenses (criminal negligence) or those

allowed by law to be compromised, an offer of compromise by the accused may be
received in evidence as an implied admission of guilt.
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.
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.
• An offer of compromise in civil cases does not amount to an admission of

liability. It is not admissible in evidence against the offeror.
• A bare offer of compromise does not constitute an admission on the part of the
offeror
• However, if a statement forming part of the offer to compromise is made in the

course of negotiations to effect a settlement is an admission of an independent
fact pertinent to an issue between the parties, it is admissible on the trial of
such issue, unless it is so closely connected with the offer of compromise as to
be inseparable therefrom
Ex: An express admission of liability made during compromise negotiations is

admissible.
79
• Admission of the correctness of an account or of specific items is

admissible.
• In criminal cases an offer of compromise may be received as

evidence of guilt
• If offer is not admit guilt but to avoid inconvenience, the it should

not be considered as an admission of guilt
• In criminal cases involving quasi-offenses (criminal negligence), an

offer of compromise does not involve an admission of guilt
• A plea of guilty later withdrawn is not admission in evidence against

the accused who made the plea.
• An accepted offer of a plea of guilty to a lesser offense is

inadmissible in evidence against the accused who made the offer. It
would render inutile the rule of plea bargaining if it otherwise)
80
RES INTER ALIOS ACTA RULE
Sec. 28. Admission by third-party.—The

rights of a party cannot be prejudiced by an
act, declaration, or omission of another,
except as hereinafter provided.
• This section refers to the first branch of the res

inter alios acta rule. The second branch thereof
can be found in rule 130, sec. 34.
• The exceptions to this rule can be found in secs. 29

(admission by a co-partner or agent), 30
(admission by a conspirator) and 31 (admission by
privies) of this Rule.
81
GENERAL RULE:
A party to an action cannot be affected by the admission of a person

who does not occupy toward him any relation of privity, agency or joint
interest.
 The act, declaration or omission of another is generally irrelevant

 a person should not be bound by the acts of mere unauthorized
strangers
 A party is not bound by any agreement of which he has no
knowledge
Exceptions to the rule:
1. Unless he assents thereto

2. Admission by co-partner
3. Admission by agent
4. Admission by joint owner or debtor or one jointly interested
5. Admission by a conspirator
6. Admission by privies
82
Exceptions to the Res Inter Alios Acta Rule
1. Partner's/Agent's Admissions
Sec. 29. Admission by co-partner or agent.—The act or declaration

of a partner or agent of the party within the scope of his authority
and during the existence of the partnership or agency, may be
given in evidence against such party after the partnership or
agency is shown by evidence other than such act or declaration.
The same rule applies to the act or declaration of a joint owner,
joint debtor, or other person jointly interested with the party.
For this exception to apply, the following must concur:
1. That the partnership be previously proven by evidence other

than the admission itself
2.The acts or declarations refer to a matter within the scope of his

authority
3. The acts or declarations were made during the existence of the

partnership
83
Admission by Agent
What is done by an agent, is done by the principal
Requisites of the rule:
1. That the agency be previously proved by evidence other

than the admission itself
2. The admission refers to a matter within the scope of his
authority
3. That the admission was made during the existence of the
agency ACADEMICUS REVIEW CENTER INC. 6/3/2017
Exception to Res Inter Alios Acta Rule

2. Admission by conspirator
– Sec. 30. Admission by conspirator.—The act or

declaration of a conspirator relating to the
conspiracy and during its existence, may be given
in evidence against the co-conspirator after the
conspiracy is shown by evidence other than such
act or declaration.
84
1. That the conspiracy be first proved by evidence other than the admission itself
• Prove conspiracy first.
• Once proven, then the act of one is the act of all
• The conspiracy must be proven by independent evidence to admit the

declarations of the conspirators against defendants not present when
the declarations were made
• The conspiracy must be shown as a predicate for the reception of acts
and declarations against one conspirator against the other
2. The admissions relate to the common objective
3. That it has been made while the declarant was engaged in carrying
out the conspiracy
•
• Declarations must be made in aid or execution of the
conspiracy
• Extrajudicial declarations of a co-conspirator made before the

formation of the conspiracy or after the accomplishment of its
object, are inadmissible in evidence as against the co-
conspirator
85
• This rule applies only to extrajudicial acts or statements and not to

testimony given on the witness stand at the trial where the party
adversely affected thereby has the opportunity to cross-examine the
declarant.
• The existence of the conspiracy may be inferred from the acts of the
accused or from the confessions of the accused or by prima facie
proof thereof.
• Where there is no independent evidence of the alleged conspiracy,

the extrajudicial confession of an accused cannot be used against
his co-accused as the res inter alios rule applies to both extrajudicial
confessions and admissions.
Exceptions to the Res Inter Alios Acta Rule
3. Admission by Privies
Sec. 31. Admission by privies.—Where one derives title

to property from another, the act, declaration, or
omission of the latter, while holding the title, in
relation to the property, is evidence against the former.
86
To be admissible, the following requisites must concur:
1. There must be a relation of privity between the party

and the declarant;
2. The admission was made by the declarant, as
predecessor-in-interest, while holding the title to the
property; and
3. The admission is in relation to said property.
 The privity in estate may have arisen by succession, by acts

mortis causa, or by acts inter vivos.
 Privity means mutual successions of relationship to the

same rights of property
 Privies are those who have mutual or successive

relationship to the same right of property or subject matter
such as personal representatives, heirs, devises, legatees,
assigns, voluntary grantees, or judgment creditors or
purchasers from them with notice o facts.
87
 Where one derives title to real property from

another, the declaration, act or omission of the
latter, in relation to that property, is evidence
against the former only when made while the
latter holds the title.
 To be admissible, title must be with the declarant
CONFESSION
Sec. 33. Confession.—The declaration of an accused

acknowledging his guilt of the offense charged, or of
any offense necessarily included therein, may be given
in evidence against him.
88
RELATED PROVISIONS
ART. III, SEC. 17, 1987 CONSTITUTION
Sec. 17. No person shall be compelled to be a witness against himself.
RULE 115(e), RULES OF COURT
Sec. 1. Rights of accused at the trial.—In all criminal prosecutions, the accused
shall be entitled to the following rights:
XXX
(e) To be exempt from being
ACADEMICUS REVIEWcompelled
CENTER INC. to be a witness against himself. 6/3/2017
Constitutional Rights of the accused
1. Right to Remain Silent

2. Right to have Competent and Independent Counsel preferably of
his own choice
3. If he cannot afford counsel, he will be provided one
4. The above rights cannot be waived except in writing and in the
presence of counsel
• The above warnings are required to be given to the suspects
89
• Miranda requirements apply only when a person is in

custody and is being questioned or interrogated.
• It is not applicable on the general on the scene

questioning and volunteered statements
• Custodial investigation – questioning initiated by law

enforcement officers after a person has been taken into
custody or otherwise deprived of his freedoM in any
significant way
• A confession obtained from a person who has not been

informed of his right to silence and counsel is
inadmissible
• It covers admissions
• The illegal confessions and admissions are inadmissible

against the source of confession
90
• CONFESSION is a declaration that he committed

or participated in the crime
• ADMISSION does not directly involve an

acknowledgment of the guilt of the accused or of
criminal intent to comment the offense with
which he is charged
• Confessions are either (a) judicial; or (b) extra-

judicial ACADEMICUS REVIEW CENTER INC. 6/3/2017
GENERAL RULE:
Confession of an accused may be given in evidence against

him and incompetent against his co-accused.
EXCEPTIONS:
1. When several accused are tried together, confession made by

one of them during the trial implicating the others is
evidence against the latter
91
2. When one of the defendants is discharged from the

information and testifies as a witness for the prosecution, the
confession made in then course of his testimony is
admissible against his co-defendants, if corroborated by
indisputable proof.
3. If a defendant, after having been apprised of the

confession of his co-defendant, ratifies or confirms said
confession the same is admissible against him
4. Where several extrajudicial confession has been made by

several persons charged with an offense and there could have
been no collusion with reference to said several confessions.,
the facts that the statements therein are in all material
respects, identical is confirmatory of the confession of the co-
defendant and is admissible against his other co-defendants.
(known as interlocking confession)
92
5. A statement made by one defendant after his arrest, in

the presence of his co-defendant, confessing his guilt and
implicating his co-defendant, who failed to contradict or
deny, is admissible gainst his co-defendant
6. When the confession is of a conspirator and made after

conspiracy and in furtherance of its object, the same is
admissible against his co-conspirator
7. The confession of one conspirator made after the

termination of the conspiracy, is admissible against
his co-conspirator if made in his presence and
assented to by him, or admitted its truth or failed
to contradict or deny it
93
Confession of a conspirator admissible against his co-

conspirator requires the following:
1. Then conspiracy be first proved by evidence other than the

confession
2. The confession be made after, not before, the formation of

such unlawful agreement and before, not after, it has come
to an end
3. The confession be made in furtherance of the objects of the

conspiracy ACADEMICUS REVIEW CENTER INC. 6/3/2017
 The right to counsel attaches upon the start of an

investigation, i.e., when the investigating officer starts
to ask questions to elicit information and/or
confessions or admissions from respondent/accused.
(People vs. Compil)
 Extrajudicial confession extracted without the

assistance of counsel is inadmissible in evidence, even
if such counsel was present at the time of the signing
of the supposed confession.
94
• 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. (Pp.vsYip Wai Ming)
• The exclusionary rule under the bill of rights do not apply

to extrajudicial admissions voluntarily made not in the
course of an investigation or given to a private person
(People vs. Maqueda)
Confession willingly, openly and publicly given in the

presence of newsmen through an interview does not
form part of custodial investigation as it was not given
to police officers but to media men in an attempt to
elicit sympathy and forgiveness from the public. Hence,
it is admissible as evidence (Pp v. Endino)
95
The barangay tanods, including the Barangay

Chairman, in this particular instance, may be deemed
as law enforcement officer for purposes of applying
Article III, Section 12(1) and (3), of the Constitution.
Xxxx For this reason, the confession of accused-

appellant, given to Barangay Chairman x x x, as well
as the lighter found x x x in her bag are inadmissible
in evidence against her x x x.(People vs. Malugan)
Barangay-based volunteer organizations in the nature of watch groups,

as in the case of the "bantay bayan," are recognized by the local
government unit to perform functions relating to the preservation of
peace and order at the barangay level. T
The specific scope of duties and responsibilities delegated to a "bantay

bayan," particularly on the authority to conduct a custodial
investigation, any inquiry he makes has the color of a state-related
function and objective insofar as the entitlement of a suspect to his
constitutional rights provided for under Article III, Section 12 of the
Constitution, otherwise known as the Miranda Rights, is concerned.
(People vs. Lauga)
.
96
Conduct and Character As Evidence
Rule 130, Secs. 34 to 35; Sec. 51
Rule 132, Section 14
Section 30, Rule on Examination of a Child Witness
PREVIOUS CONDUCT AS EVIDENCE
Sec. 34. Similar acts as evidence.—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 a 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.
97
Sec. 35. Unaccepted offer.—An offer in writing to pay a

particular sum of money or to deliver a written
instrument or specific personal property is, if rejected
without valid cause, equivalent to the actual
production and tender of the money, instrument, or
property.
SEC. 30, RULE ON EXAMINATION OF A CHILD WITNESS
Sec. 30. Sexual abuse shield rule.—
Inadmissible evidence.—The following evidence is not admissible

in any criminal proceeding involving alleged child sexual abuse:
Evidence offered to prove that the alleged victim engaged in

other sexual behavior; and
Evidence offered to prove the sexual predisposition of the

alleged victim.
98
Exception.
Evidence of specific instances of sexual behavior by

the alleged victim to prove that a person other than
the accused was the source of semen, injury, or
other physical evidence shall be admissible.
Note: There must be an application before evidence

can be received
 Sec. 34 is the second branch of the rule of res inter alios acta and
applies to both civil and criminal cases.
 EXCEPTIONS TO SEC. 34 ARE WERE THE EVIDENCE OF

SIMILAR ACTS MAY PROVE:
1. A specific intent or knowledge;

2. Identity;
3. A plan, system, or scheme;
4. A specific habit, or
5. Established customs, usages, and the like.
99
PREVIOUS CONDUCT AS EVIDENCE
Sec. 34. Similar acts as evidence.—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 a 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.
• This is the second type of res inter alios acta rule. (Evidence of other
offenses committed by a defendant is inadmissible.)
Reason for the GENERAL RULE:
Evidence of other crimes compels the defendant to meet the charges of

which the indictment gives him no information, confuses him in the
defense, raises a variety of issues, and thus diverts the attention of the
court from the charge immediately before it.
Evidence of collateral offense must not be received as substantive

evidence of the offenses on trial
100
Exception to the general rule

Former conduct may be received in evidence for the purpose of
providing:
1. specific intent or
2. knowledge,
3. identity or
4. plan,
5. system,
6. scheme,
7. habit,
8. customs or
9. usage and the like.
Sec. 35. Unaccepted offer.—An offer in writing

to pay a particular sum of money or to deliver a
written instrument or specific personal
property is, if rejected without valid cause,
equivalent to the actual production and tender
of the money, instrument, or property.
101
 The rule covers (a) payment of sum of money, (b) delivery of

document, and (c) delivery of personal property.
 The offer must be in writing.
 If such offer is rejected, without a valid cause, the money,

document or property need not be actually produced because
the rejected offer is equivalent to its actual production or tender
thereof
While good or bad character may be availed of as an aid

to determine the probability or improbability of the
commission of the offense, such is not necessary in the
crime of murder where the killing is committed through
treachery and premeditation. The proof of such
character may only be allowed in homicide cases to
show that it has produced a reasonable belief of
imminent danger in the mind of the accused and a
justifiable conviction that a prompt defensive action
was necessary. (People vs. Soliman)
102
Generally, the character of a party is regarded as legally irrelevant in

determining a controversy. One statutory exception is that relied upon by
respondent, i.e., Section 51 (a) 3, Rule 130 of the Revised Rules on Evidence,
which we quote here:
“SEC. 51. Character evidence not generally admissible; exceptions. –
(a) In Criminal Cases:

xxx xxx
(3) The good or bad moral 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.”
The above provision pertains only to criminal cases, not to administrative

offenses. (CSC vs. ACADEMICUS
Belagan) REVIEW CENTER INC. 6/3/2017
Not every good or bad moral character of the

offended party may be proved under this
provision. Only those which would establish the
probability or improbability of the offense
charged. This means that the character evidence
must be limited to the traits and characteristics
involved in the type of offense charged. (CSC vs.
Belagan)
103
When the credibility of a witness is sought to be

impeached by proof of his reputation, it is necessary
that the reputation shown should be that which
existed before the occurrence of the circumstances
out of which the litigation arose, or at the time of the
trial and prior thereto, but not at a period remote
from the commencement of the suit.This is because
a person of derogatory character or reputation can still
change or reform himself. (CSC vs. Belagan)
TESTIMONIAL KNOWLEDGE
(Hearsay Evidence Rule
Sec. 36, Rule 130. Testimony generally confined to personal

knowledge; hearsay excluded.—A witness can testify only to
those facts which he knows of his personal knowledge; that
is, which are derived from his own perception, except as
otherwise provided in these rules.
104
Doctrine of independently relevant statements:
A witness may testify to the statements made by a

person if, for instance, the fact that such statements
were made by the latter would indicate the latter’s
mental state or physical condition; Independent of
whether the facts stated are true, they are relevant
since they are the facts in issue or are circumstantial
evidence of the facts in issue.
Affidavit is merely hearsay evidence as hearsay where its

affiant/maker did not take the witness stand. (Dantis vs.
Maghinang, G.R. 191696, April 10, 2013
 When witness testified that the accused, who probably was

bothered by his conscience, admitted the killing to him, there
was no violation of the hearsay rule as the witness was
testifying to a fact which he knows of his own personal
knowledge; that is, be was testifying to the fact that the
accused told him that he stabbed the victim (Pp vs. Gaddi)
(Note: this is actually a confession)
105
Exceptions to the Hearsay Rule:

1. Dying Declaration
2. Declaration Against Interest
3. Pedigree
4. Family Tradition
5. Res Gestae
6. Common Reputation
7. Entries in the Ordinary Course
8. Official Records
9. Commercial List
10. Prior Testimony
Dying Declaration
Rule 130, Section 37;

Sec. 37. Dying declaration.—The declaration of a dying
person, made under the consciousness of an impending
death, may be received in any case wherein his death is the
subject of inquiry, as evidence of the cause and surrounding
circumstances of such death.
106
 A dying declaration is a statement made by the victim of

homicide, referring to the material fact which concern
the cause and circumstances of the killing and which is
uttered under a fixed belief that death is impending and
is certain to follow immediately, or in a very short time,
without an opportunity of retraction and in the absence
of all hopes of recovery.
1. That death be imminent and that declarant is conscious of that

fact
Test is whether the declarant has abandoned hope

Consciousness of an impending death may be shown by the
words or statements of the declarant himself, or it may be
inferred from the nature and extent of the wound inflicted
The fact that a priest administered extreme unction also
shows that he was under the sense of impending death
107
2. That the preliminary facts which bring the declaration within

its scope be made to appear
3. The declaration relates to the facts or circumstances

pertaining to the fatal injury
DD must relate to the cause of death

“cause of death” includes not only the facts of the assault
itself, and the facts surrounding it, but also matters both
before and after the assault having a direct causal
connection with it
4. That declarant would have been competent to

testify had he survived
If declarant is insane or incapable of

understanding his statements by reason of
partial unconsciousness, or a child was too
young to be a competent witness, dying
declaration is inadmissible
108
 A statement may nor be admissible as a dying

declaration, but may be admissible as part of res
gestae (Pp vs. Hernandez; People vs. Laquinon)
Declaration Against Interest

(R. 130, Sec. 38)
– Sec. 38. Declaration against interest.—The declaration made by

a person deceased, or unable to testify, against the interest of
the declarant, if the fact asserted in the declaration was at the
time it was made so far contrary to declarant’s own interest,
that a reasonable man in his position would not have made the
declaration unless he believed it to be true, may be received in
evidence against himself or his successors in interest and
against third persons.
109
Admissions against interest Declarations against interest
Those made by a party to a Those made by a person who is

litigation or by one in privity neither a party nor in privity with
with or identified in legal a party to the suit and are
interest with such party secondary evidence but
constitute an exception to the
hearsay rule
Admissible whether the Admissible only when the

declarant is available as a declarant is unavailable as a
witness witness
There is a vital distinction between admissions against interest and

declarations against interest.
Admissions against interest are those made by a party to a litigation

or by one in privity with or identified in legal interest with such party,
and are admissible whether or not the declarant is available as a
witness.
Declarations against interest are those made by a person who is neither

a party nor in privity with a party to the suit, are secondary evidence,
and constitute an exception to the hearsay rule. (Lazaro vs. Agustin)
110
In order that a statement may be admissible as a declaration

against interest, it is required that:
1. The declarant is dead or unable to testify;

2. It relates to a fact against the interest of the declarant;
3. At the time he made said declaration, the declarant was
aware that the same was contrary to his aforesaid interest;
and
4. The declarant had no motive to falsify and believed such
declaration to be true.
• A testimony made by the accused in a case of

parricide stating that he was married to the
victim is an admission against penal interest
and, hence, is admissible in evidence against
him. (People v. Majuri 96 SCRA 472 (1980)
111
• Three essential requisites for the admissibility of a

declaration against interest:
1. The declarant must not be available to testify;

2. The declaration must concern a fact cognizable by the
declarant; and
3. The circumstances must render it improbable that a motive
to falsify existed (Fuentes vs. CA, 253 SCRA 430)
Pedigree
Rule 130, Sec. 39
– Sec. 39. Act or declaration about pedigree.—The act or declaration of a
person deceased, or unable to testify, in respect to the pedigree of
another person related to him by birth or marriage, may be received in
evidence where it occurred before the controversy, and the relationship
between the two persons is shown by evidence other than such act or
declaration. The word “pedigree” includes relationship, family genealogy,
birth, marriage, death, the dates when and the places where these facts
occurred, and the names of the relatives. It embraces also facts of family
history intimately connected with pedigree.
– ACADEMICUS REVIEW CENTER INC. 6/3/2017
112
 Under these sections, the pedigree of a person may be

proved by:
The act or declaration of a relative (sec. 39);

By entries in family bibles, etc. (sec. 40); and
With respect to marriage, by common reputation in the
community (sec. 41).
 Nevertheless, pedigree may be proved by other species

of direct primary evidence, instead of the foregoing
exceptions to the hearsay evidence rule.
 Pedigree includes relationship, family genealogy, birth,

marriage, death, the dates and places where these facts
occurred, and the names of the relatives. It includes
paternity and legitimacy
113
Requisites for the admissibility of declarations regarding pedigree
1. Declarant is dead or unable to testify
It is the guiding principle applicable in pedigree as in other cases, that

declarations will not be received when better evidence is available
If declarant is deceased, the fact that there are living members of the
same family who could be examined on the same point does not
exclude his declarations
When declarant became insane at the time of the trial, his statement
made before his insanity regarding pedigree may be admissible
2. Necessity that pedigree be in issue
Pedigree should be relevant to the issue in order evidence thereon may be

admitted
3. Declarant must be a relative of the person whose pedigree is in question
As a general rule, for the declaration of pedigree to be admissible, it must

have been made by someone related to the family concerned. The farther
the relation, however, weight thereof will be reduced
H’s declaration on the W’s relatives admissible; however, declaration of

the H’s relatives on the W’s relatives not admissible
114
4. Declaration must be made before the controversy occurred.
The rule which permits declarations to be received in proof of pedigree

requires that the declarations must have been made ante lite motam,
that is, before the controversy, and under such circumstances that the
person making them could have no motive to misrepresent the facts.
Declarant should have been disinterested to the extent of having no

motive which can fairly be assumed to be such as would induce him to
state the fact otherwise than as he understood it
Must be made before commencement of the suit
Suspicions, doubts, rumors do not rise to the dignity of controversy

5. The relationship between the declarant and the person

whose pedigree is in question must be shown by evidence other
than such act or declaration
In order to render a declaration as to pedigree admissible,

the relationship of declarant to the family concerned must
be established by evidence other than the statements of
the declarant himself.
115
Family Tradition
– Sec. 40. Family reputation or tradition regarding pedigree.—The
reputation or tradition existing in a family previous to the
controversy, in respect to the pedigree of any one of its
members, may be received in evidence if the witness testifying
thereon be also a member of the family, either by consanguinity
or affinity. Entries in family bibles or other family books or
charts, engraving on rings, family portraits and the like, may be
received as evidence of pedigree.
Requisites:
1. There is a controversy in respect to the perdigree of any members of the

family
Reputation in the family gives rise to an inference of the existence of

facts of a family genealogy
2. The reputation or tradtion of the pedigree of the person concerned existed

prior to the controversy
116
3. The witness testifying to the reputation or tradition regarding

the pedigree of a person concerned must be a member of the
family of said person, either by consanguinity or affinity
Only the victim testified that she was below 7 when she was raped. Her
testimony is admissible because”
a. Accused never questioned her age; and

b. Such testimony regarding her age is admissible although hearsay, for
she can have no personal knowledge of the date of her birth, as all
knowledge as to one's age is acquired from whatever is told by the
parents or relatives and such testimony constitutes an assertion of
family tradition. It is admissible under Section 40 of Rule 130 of the Rules
of Court (People vs. Llanita, G.R. No. 134101, September 5, 2001)
117
Common Reputation
Rule 130, section 41
Sec. 41. Common reputation.—Common reputation existing

previous to the controversy, respecting facts of public or
general interest more than thirty years old, or respecting
marriage or moral character, may be given in evidence.
Monuments and inscriptions in public places may be received
as evidence of common reputation.
Common/general reputation is admissible to prove:
o Facts of public or general interest more than 30 years old;

o Marriage; and
o Moral character.
Common reputation
the definite opinion of the community in which the fact to be proved

is known or exists
The general or substantially undivided reputation, as distinguished

from a partial or qualified one, although it need not be unanimous
118
 Character refers to the inherent qualities of a person
 Reputation is the opinion of him by others.
 But, under this section, the character of a person is

permitted to be established by his common reputation.
Requisites for the admissibility of common reputation

respecting marriage
• The common reputation must have been

formed previous to the controversy
• The common reputation must have been

formed in the community or among the class
of persons who are in a position to have
resources of information and to contribute
intelligently to the formation of an opinion
119
Res Gestae
Rule 130, Sec. 42
– Sec. 42. Part of the res gestae.—Statements made by a
person while a startling occurrence is taking place or
immediately prior or subsequent thereto with respect to the
circumstances thereof, may be given in evidence as part of
the res gestae. So, also, statements accompanying an
equivocal act material to the issue, and giving it a legal
significance, may be received as part of the res gestae.
To be admissible as part of the res gestae, the

statement must:
1. Be spontaneous;
2. Be made while a startling occurrence is taking
place or immediately prior or subsequent
thereto; and
3. Relate to the circumstances of the startling
occurrence.
120
2 general classes of declaration:
(a) spontaneous statement, and

(b) verbal acts
SPONTANEOUS STATEMENTS
Defined as a statement or exclamation made

immediately after some exciting occasion by a
participant or spectator and asserting circumstances
of that occasion as it is observed by him
121
VERBAL ACTS
Verbal acts are utterances which accompany some act or

conduct to which it is desired to give a legal effect
Ex:
Man and woman cohabiting together and for a certain period of time, they have been
appearing in the public together, there is here an equivocal conduct which may be
interpreted as licit or illicit. In such case, any statements made by the parties during such
equivocal conduct showing it to be matrimonial meretricious or otherwise, are admissible as
verbal acts
 For a statement to be part of the res gestae, it must not only be

spontaneous but also be made at a time when there was no
opportunity to concoct or develop a story. (Peope vs. Lungayan 162
SCRA 100)
122
Entries in the Course of Business

Sec. 43. Entries in the course of business.—Entries made at, or near

the time of the transactions to which they refer, by a person
deceased, or unable to testify, who was in a position to know the
facts therein stated, may be received as prima facie evidence, if
such person made the entries in his professional capacity or in the
performance of duty and in the ordinary or regular course of
business or duty.
1. Entries must have been made at or near the time of the transaction to which
they refer
Must be made within a reasonable time thereafter, in the ordinary course

of the business of the party making them
2. Entrant must have been in a position to know the facts stated in the entries
- the entries may be received, either by calling the entrant alone to the stand or
by the testimony of one who verify the method of compiling them.
123
3. Entries must have been made by entrant in his

professional capacity or in the performance of his duty
4. Entries were made in the ordinary or regular course of

business or duties
An entry made in the ordinary or regular course of
business or duties is a record setting forth a fact or
transaction made by one in the ordinary and usual
court’s of one’s business, employment, office or
profession
5. Entrant must be deceased and unable to testify

There are three requisites for admissibility of evidence:
1. That the entry was made by a public officer, or by another

person, specially enjoined by law to do so;
2. That it was made by the public officer in the performance of

his duties, or by such other person in the performance of a
duty specially enjoined by law; and
3. That the public officer or other person had sufficient

knowledge of the facts stated by him, which must have been
acquired by him personally or through official information.
124
Here, the reports of the police and fire departments do not constitute
an exception to the hearsay rule. For, the facts stated therein were not
acquired by the reporting officers through official information, not
having been given by the informants pursuant to any duty to do so.
To qualify the statements as “official information”, thereby excepting

it from the hearsay rule, it must have been acquired by the officers
who prepared the reports, from persons who had personal knowledge
and duty to give such statements.
Africa vs. Caltex, 16 SCRA 448
But before entries made in the course of business may qualify under the exception
to the hearsay rule and given weight, the party offering them must establish that:
(1) the person who made those entries is dead, outside the country, or unable to
testify;
(2) the entries were made at, or near the time of the transaction to which they refer;
(3) the entrant was in a position to know the facts stated therein;
(4) the entries were made in the professional capacity or in the course of duty of the
entrant; and,
(5) the entries were made in the ordinary or regular course of business or duty.
Here, Land Bank has neither identified the persons who made the entries in the
passbooks nor established that they are already dead or unable to testify as
required by Section 43, Rule 130 of the Rules of Court (LAND BANK OF THE
PHILIPPINES vs. Onate, January 15, 2014)
125
Commercial Lists
– Sec. 45. Commercial lists and the like.—Evidence of
statements of matters of interest to persons engaged in an
occupation contained in a list, register, periodical, or other
published compilation is admissible as tending to prove the
truth of any relevant matter so stated if that compilation is
published for use by persons engaged in that occupation
and is generally used and relied upon by them therein.
 A document is a commercial list if:
1) it is a statement of matters of interest to persons engaged

in an occupation;
2) such statement is contained in a list, register, periodical or
other published compilation;
3) said compilation is published for the use of persons engaged
in that occupation; and
4) it is generally used and relied upon by persons in the same
occupation. (PNOC Shipping vs. CA, 299 SCRA 402)
126
For a document to quality as a commercial list, and hence be

an exemption to the hearsay rule, the statement of matters
contained in a periodical, may be admitted only "if that
compilation is published for use by persons engaged in that
occupation and is generally used and relied upon by them
therein." (Meralco vs. Quisumbing, G.R. No. 127598, February
22, 2000
Learned Treatise
Rule 130, Sec. 46
– Sec. 46. Learned treatises.—A published treatise, periodical

or pamphlet on a subject of history, law, science, or art is
admissible as tending to prove the truth of a matter stated
therein if the court takes judicial notice, or a witness expert
in the subject testifies, that the writer of the statement in
the treatise, periodical or pamphlet is recognized in his
profession or calling as expert in the subject.
– ACADEMICUS REVIEW CENTER INC. 6/3/2017
127
Requisites for admissibility:
 If the court takes judicial notice that the writer of the

statement in the treatise, periodical or pamphlet is
recognized in his profession or calling as expert in the
subject
 Or a witness, expert in the subject testifies that the writer

of the statement in the treatise, periodical or pamphlet is
recognized in his profession or calling as expert in the
subject ACADEMICUS REVIEW CENTER INC. 6/3/2017
Petitioners cited various scientific studies or articles and

websites culled from the internet. However, the said
scientific studies and articles attached to the Petition were
not testified to by an expert witness, and are basically
hearsay in nature and cannot be given probative weight.
(SEC. PAJE VS. CONG. CASIÑO, G.R. No. 207257, February 3, 2015)
128
11. Prior Testimony

Rule 130, Sec. 47
– Sec. 47. Testimony or deposition at a former proceeding.—
The testimony or deposition of a witness deceased or unable
to testify, given in a former case or proceeding, judicial or
administrative, may be given in evidence against the
adverse party who had the opportunity to cross-examine
him.
Requisites:
1. The 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;
129
3. The former case involved the same subject as that in the

present case, although on different causes of action;
4. The issue testified to by the witness in the former trial is

the same issue involved in the present case; and
5. The adverse party had an opportunity to cross-examine

the witness in the former case.
Section 28, Rule on Examination of a

Child Witness
– Sec. 28. 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:
130
– 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.
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:
 Whether there is a motive to lie;

 The general character of the declarant child;
 Whether more than one person heard the statement;
 Whether the statement was spontaneous;
131
 The timing of the statement and the relationship between the

declarant child and witness;
 Cross-examination could not show the lack of knowledge of the
declarant child;
 The possibility of faulty recollection of the declarant child is
remote; and
 The circumstances surrounding the statement are such that
there is no reason to suppose the declarant child misrepresented
the involvement of the accused;
Child Witness Rule

– The child witness shall be considered unavailable under the following situations:
• Is deceased, suffers from physical infirmity, lack of memory, mental illness, or
will be exposed to severe psychological injury; or
• Is absent from the hearing and the proponent of his statement has been
unable to procure his attendance by process or other reasonable means.
– When the child witness is unavailable, his hearsay testimony shall be admitted
only if corroborated by other admissible evidence.
132
Rule 130, Sections 48-50
– Sec. 48. General rule.—The opinion of a witness is not

admissible, except as indicated in the following sections.
– Sec. 49. Opinion of expert witness.—The opinion of a witness

on a matter requiring special knowledge, skill, experience or
training which he is shown to possess, may be received in
evidence.
– Sec. 50. Opinion of ordinary witness.—The opinion of a witness for which proper
basis is given, may be received in evidence regarding—
• The identity of a person about whom he has adequate knowledge;

• A handwriting with which he has sufficient familiarity; and
• The mental sanity of a person with whom he is sufficiently acquainted.
The witness may also testify on his impressions of the emotion, behavior,
condition or appearance of a person.
133
Opinion of a witness is admissible in evidence in the following:
• On a matter requiring special knowledge, skill, experience, or training which he

possesses, that is, when he is an expert thereon;
• Regarding the identity or the handwriting of a person, when he has knowledge of the
person or handwriting, whether he is an ordinary or expert witness;
• On the mental sanity of a person if the witness is sufficiently acquainted with the
former or if the latter is an expert witness;
• On the emotion, behavior, condition, or appearance of a person which he has

observed; and
• On ordinary matters known to all men of common perception, such as the value of
ordinary household articles.
– Expert witness: One who belongs to the profession or calling to which the subject matter of the inquiry
relates and who possesses special knowledge on questions on which he proposes to express an opinion
– There is no definite standard of determining the degree of skill or knowledge that a witness must possess
in order to testify as an expert. It is sufficient that the following factors be present:
• Training and education;
• Particular, first-hand familiarity with the facts of the case; and
• Presentation of authorities or standards upon which his opinion is

based.
134
-Expert evidence is admissible only if:
•The matter to be testified to is one that requires

expertise; and
•The witness has been qualified as an expert.
- Generally, expert evidence is regarded, not as

conclusive, but purely advisory in character.
What should be the form of the question on direct

examination of an expert witness?
Opinion based on facts known personally by the

expert.
•He must state first the facts before his opinion
•Ex: a doctor who examined the mental state of a
person
135
Opinion based on facts of which he does not have any personal knowledge:
•The facts should be given to him hypothetically

•Hypothetical questions must include only facts that are supported by
evidence and should embody substantially all facts relating to the
particular matter upon which an expert opinion is sought to be elicited
•Lay the basis. Do not just “Doctor have you formed an opinion on this…:
•“Assuming that bullet A, shown to you, was taken from the body of the
deceased, would you say that it came from this revolver?” [proper
question]
•Facts, not opinions, must be assumed in the questions. Hence, one
cannot render an opinion on an opinion
How do you impeach an opinion of an expert witness?

Assail the qualification
Retractions on direct
Contradicted by others of his own class
That he is interested or biased
Inconsistent statements
Expert opinions are not ordinarily conclusive in the sense that they must be
accepted as bible truth.
136
Rule 132: Presentation of Evidence

A. Examination of Witnesses
– Sec. 1. Examination to be done in open court.—The examination of witnesses

presented in a trial or hearing shall be done in open court, and under oath or
affirmation. Unless the witness is incapacitated to speak, or the question calls for a
different mode of answer, the answers of the witness shall be given orally.
– Sec. 2. Proceedings to be recorded.—The entire proceedings of a trial or hearing,
including the questions propounded to a witness and his answers thereto, the
statements made by the judge or any of the parties, counsel, or witnesses with
reference to the case, shall be recorded by means of shorthand or stenotype or by
other means of recording found suitable by the court.
A transcript of the record of the proceedings made

by the official stenographer, stenotypist or
recorder and certified as correct by him shall be
deemed prima facie a correct statement of such
proceedings.
137
To be admissible, the testimony of the witness must be given

in open court, except that such requirement may be
supplanted:
Civil cases: By depositions pursuant to and under the

limitations of rules 23 and 24; and
Criminal cases: By depositions or conditional

examinations, pursuant to rule 119, secs. 12 to 15, and rule
123, sec. 1, or by the records of the preliminary
investigation, under the circumstances of rule 115, sec. 1
(f).
 Mere presentation of the affidavits of prosecution witnesses subject to cross-

examination is not allowed by the RoC. But, summary procedures may be authorized by
SC in special cases (ejectment, violation of traffic laws, rules and regulations, violation of
the rental law, and other cases determined by SC). Also, simplified procedures may be
adopted by the SC which may provide that affidavits or counter-affidavits may be
admitted in lieu of oral testimony.
 The testimony of the witness should be elicited by questions of counsel. Nevertheless,

the court itself may propound questions either on the direct or cross-examination of the
witness or may suggest questions that should be propounded by counsel.
 The testimony of a witness in court cannot be considered self-serving since he can be

subjected to cross-examination. Self-serving evidence is one made out of court and is
excluded on the same ground as hearsay evidence, i.e. deprivation of the right of cross
examination
138

Sec. 3. Rights and obligations of a witness.—A witness must answer questions, although his answer may tend to establish a claim
against him. However, it is the right of a witness:
– To be protected from irrelevant, improper, or insulting questions, and from harsh or insulting demeanor;
– Not to be detained longer than the interests of justice require;
– Not to be examined except only as to matters pertinent to the issue;
– Not to give an answer which will tend to subject him to a penalty for an offense unless otherwise provided by law;
– Not to give an answer which will tend to degrade his reputation, unless it be to 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.
A witness cannot refuse to answer questions material to the

inquiry even if it may tend to establish a claim against him, but he
may validly refuse to answer:
Under the right against self-incrimination, which should be

seasonably invoked and may be waived, if his answer will tend to
subject him to punishment for an offense; or
Under the right against self-degradation, if his answer will have a
direct tendency to degrade his character, unless:
•Such question is directed to the very fact at issue or to a fact

from which the fact at issue would be presumed; or
•It refers to his previous final conviction for an offense.
139
– This section grants the witness the right against self-incrimination “unless otherwise provided by law.” This exception refers
to immunity statutes wherein the witness is granted immunity from criminal prosecution for offenses admitted in his
testimony (i.e. RA 1379, the law providing for the forfeiture of unlawfully acquired property, and PD 749, in prosecutions for
bribery and graft).
– Classes and application of immunity statutes
• Those granting “use immunity:” Prohibits the use of the witness’ compelled testimony and its fruits in any manner in
connection with the criminal prosecution of the witness
• Those granting “transactional immunity:” Grants immunity to the witness from

the prosecution for an offense to which his compelled testimony relates
– Thus, where the statute grants only “use immunity,” merely testifying and/or producing evidence does not
render the witness immune from prosecution despite his invocation of the right against self-incrimination.
He is merely saved from the use against him of such statements or evidence which he has been compelled
to produce notwithstanding his having seasonably invoked said right.
– The right against self-incrimination is granted only in favor of

individuals. Therefore, a corporation cannot invoke that privilege as
the questioned testimony can come only from a corporate officer or
employee who has a personality distinct from that of the corporation.
140

– Sec. 4. Order in the examination of an individual witness.—The order in which an individual witness may be examined is as follows:
• Direct examination by the proponent;
• Cross-examination by the opponent;
• Re-direct examination by the proponent;
• Re-cross-examination by the opponent.
– Sec. 5. Direct examination.—Direct examination is the examination-in-chief of a witness by the party presenting him on the facts relevant to
the issue.
– Sec. 6. Cross-examination; its purpose and extent.—Upon the termination of the direct examination, the witness may be cross-examined by
the adverse party as to any matters stated in the direct examination, or connected therewith, with sufficient fullness and freedom to test his
accuracy and truthfulness and freedom from interest or bias, or the reverse, and to elicit all important facts bearing upon the issue.

– Sec. 7. Re-direct examination; its purpose and extent.—After the cross-examination of the witness has
been concluded, he may be re-examined by the party calling him, to explain or supplement his answers
given during the cross-examination. On re-direct examination, questions on matters not dealt with during
the cross-examination, may be allowed by the court in its discretion.
– Sec. 8. Re-cross examination.—Upon the conclusion of the re-direct

examination, the adverse party may re-cross-examine the witness on
matters stated in his re-direct examination, and also on such other
matters as may be allowed by the court in its discretion.
141
When the question assumes facts not on record
• Cross-examination: It is objectionable for being misleading

•Direct examination: It is objectionable for lack of basis
When cross-examination is not and cannot be done or completed

due to causes attributable to the party who offered the witness,
the uncompleted testimony is thereby rendered incompetent and
should be stricken from the record.

– Sec. 9 Recalling witness.—After the examination of a witness by both
sides has been concluded, the witness cannot be recalled without
leave of the court. The court will grant or withhold leave in its
discretion, as the interests of justice may require.
142
Where all sides in the case have concluded their

examination of the witness, his recall for further
examination is discretionary with the court as the
interest of justice requires.
But, where such examination has not been concluded

or if the recall of the witness was expressly reserved
by a party with the approval of the court, then his
recall is a matter of right.

– Sec. 10. Leading and misleading questions.—A question which suggests to the witness the answer which the
examining party desires is a leading question. It is not allowed, except:
• On cross-examination;
• On preliminary matters;
• When there is difficulty in 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;
• Of an unwilling or hostile witness; or
• 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.
143
Misleading question: one which assumes as true a

fact not yet testified to by the witness, or contrary to
that which he has previously stated. It is not allowed.
Leading question: One which suggests to the

witness the answer desired

– Sec. 11. Impeachment of adverse party’s witness.—A witness may be
impeached by the party against whom he was called, by contradictory
evidence, by evidence that his general reputation for truth, honesty, or
integrity is bad, or by evidence that he has made at other times
statements inconsistent with his present testimony, but not by
evidence of particular wrongful acts, except that it may be shown by
the examination of the witness, or the record of the judgment, that he
has been convicted of an offense.
144

– Sec. 12. Party may not impeach his own witness.—Except with respect
to witnesses referred to in paragraphs (d) and (e) of section 10, the
party producing a witness is not allowed to impeach his credibility.
A witness may be considered as unwilling or hostile only if so declared by

the court upon adequate showing of his adverse interest, unjustified
reluctance to testify, or his having misled the party into calling him to the
witness stand.
The unwilling or hostile witness so declared, or the witness who

is an adverse party, may be impeached by the party presenting
him in all respects as if he had been called by the adverse party,
except by evidence of his bad character. He may also be
impeached and cross-examined by the adverse party, but such
cross-examination must only be on the subject matter of his
examination-in-chief.
145

– Sec. 13. How witness impeached by evidence of inconsistent statements.—
Before a witness can be impeached by evidence that he has made at other
times statements inconsistent with his present testimony, the statements
must be related to him, with the circumstances of the times and places and
the persons present, and he must be asked whether he made such
statements, and if so, allowed to explain them. If the statements be in
writing they must be shown to the witness before any question is put to him
concerning them.
GENERAL RULE: A party who voluntarily offers the testimony of a

witness in the case is, as a rule, bound by the testimony of the said
witness.
EXCEPTIONS:
•In the case of a hostile witness;

•Where the witness is the adverse party or the representative of a
juridical person which is the adverse party; and
•When the witness is not voluntarily offered but is required by law
to be presented by the proponent, as in the case of subscribing
witnesses to a will.
146
A party can impeach the adverse party’s witness by:
•Contradictory evidence;
•Evidence of bad character; and
•Evidence of bias, interest, prejudice, or
incompetence.
A party can impeach his own witness only by:
•Evidence contrary to his testimony; or

•Evidence of prior inconsistent statements.
But, in the case of hostile witnesses, adverse party witnesses or

involuntary witnesses, they can also be impeached by other
modes of impeachment, aside from contradictory statements
and prior inconsistent statements made by them.
Contradictory evidence: Other testimony of the same witness,

or other evidence presented by him in the same case, but not the
testimony of another witness
Prior inconsistent statements: Oral or documentary statements

made by the witness sought to be impeached on occasions other
than the trial in which he is testifying
147
A witness is impeached by prior inconsistent statements by “laying

the predicate”—that is:
1. By confronting him with such statements, with the

circumstances under which they were made;
2. By asking him whether he made such statements; and
3. By giving him a chance to explain the inconsistency.
Unless the witness is given the opportunity to explain

the discrepancies, the impeachment is incomplete.
But, such defect in the impeachment of the witness is
deemed waived if no objection on that ground is raised
when the document involved is offered for admission.
148
The “laying the predicate” rule does not apply:
• If the prior inconsistent statement appears in a deposition of

the adverse party, and not a mere witness, as such statements
are in the nature of admissions of said adverse party
•Where the previous statements of a witness are offered as

evidence of an admission, and not merely to impeach him

Sec. 14. Evidence of good character of witness.—Evidence of the good character

of a witness is not admissible until such character has been impeached.
Sec. 15. Exclusion and separation of witnesses.—On any trial or hearing, the
judge may exclude from the court any witness not at the time under
examination, so that he may not hear the testimony of other witnesses. The
judge may also cause witnesses to be kept separate and to be prevented from
conversing with one another until all shall have been examined.
149
 The power of exclusion applies only to the witnesses and not to

the parties in a civil case. Parties have a right to be present at the
trial either by themselves or by their attorneys, as well as to
reasonable notice of the time fixed therefor. Since they have
such right, by necessary implication, they cannot be divested
thereof by an exclusion order.
 The same right against exclusion also applies to the accused in a

criminal case since he has the right to be present and defend in
person and by counsel at every stage of the proceedings, from
the arraignment to the promulgation of the judgment, unless he
expressly or impliedly waives his presence.
 If the witness violates the order of exclusion, the court

may bar him from testifying or give little weight to his
testimony, aside from his liability for contempt.
 It is within the trial judge’s power to refuse to order

the exclusion of the principal witness of the
government during the hearing of a criminal case and
it may not, on that count alone, be considered as an
abuse of his discretion.
150

Sec. 16. When witness may refer to memorandum.—A witness may be allowed to refresh his
memory respecting a fact, by anything written or recorded by himself or under his direction at
the time when the fact occurred, or immediately thereafter, or at any other time when the fact
was fresh in his memory and he knew that the same was correctly written or be produced and
may be inspected by the adverse party, who may, if he chooses, cross-examine the witness
upon it, and may read it in evidence. So, also, a witness may testify from such a writing or
record, though he retain no recollection of the particular facts, if he is able to swear that the
writing or record correctly stated the transaction when made; but such evidence must be
received with caution.
• In American jurisprudence, the first sentence of sec. 16 is known

as the rule on “revival of present memory,” and the second
sentence is known as “revival of past recollection.”
• The first rule applies if the witness remembers the facts

regarding his entries and is entitled to greater weight, while the
second rule applies where the witness does not recall the facts
involved, and is entitled to less weight.
• The memorandum used to refresh the memory of the witness

does not constitute evidence, and may not be admitted as such,
for the simple reason that the witness has just the same to
testify on the basis of refreshed memory.
151

Sec. 17. When part of transaction, writing or record given in evidence, the
remainder admissible.—When part of an act, declaration, conversation, writing
or record is given in evidence by one party, the whole of the same subject may
be inquired into by the other, and when a detached act, declaration,
conversation, writing or record is given in evidence, any other act, declaration,
conversation, writing or record necessary to its understanding may also be
given in evidence.
Sec. 18. Right to inspect writing shown to witness.—Whenever a writing is
shown to a witness, it may be inspected by the adverse party.
Rule on Examination of a Child Witness
– Sec. 25. Live-link television testimony in criminal cases where the child is a victim or a witness.—
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.
Before the guardian ad litem applies for an order under this section, 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.
152
• The court may motu proprio hear and determine, with notice to the parties, the
need for taking the testimony of the child through live-link television.
• The judge may question the child in chambers, or in some comfortable place
other than the courtroom, in the presence of the support person, guardian ad
litem, prosecutor, and counsel for the parties. The questions of the judge shall
not be related to the issues at trial but to the feelings of the child about
testifying in the courtroom
• The judge may exclude any person, including the accused, whose presence or
conduct causes fear to the child.
• 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.
• If the court orders the taking of testimony by live-link television:
153
 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.
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.
•The court shall issue an order granting or denying the use of live-link
television and stating the reasons therefor. It shall consider the following
factors:
The age and level of development of the child;

His physical and mental health, including any mental or physical
disability;
Any physical, emotional, or psychological injury experienced by him;
The nature of the alleged abuse;
Any threats against the child;
154
His relationship with the accused or adverse party;

His reaction to any prior encounters with the accused in court or
elsewhere;
His reaction prior to trial when the topic of testifying was
discussed with him by parents or professionals;
Specific symptoms of stress exhibited by the child in the days
prior to testifying;
Testimony of expert or lay witnesses;
The custodial situation of the child and the attitude of the
members of his family regarding the events about which he will
testify; and
Other relevant factors, such as court atmosphere and formalities
of court procedure.ACADEMICUS REVIEW CENTER INC. 6/3/2017
If it is necessary for the child to identify the accused at trial, the court may
allow the child to enter the courtroom for the limited purpose of
identifying the accused, or the court may allow the child to identify the
accused by observing the image of the latter on a television monitor.
The court may set other conditions and limitations on the taking of the
testimony that it finds just and appropriate, taking into consideration the
best interests of the child.
155

Sec. 26. Screens, one-way mirrors, and other devices to shield child from
accused.—
The prosecutor or the guardian ad litem may apply for an order that the chair
of the child or that a screen or other device be placed in the courtroom in such a
manner that the child cannot see the accused while testifying. Before the
guardian ad litem applies for an order under this Section, he shall consult with
the prosecutor or counsel subject to the second and third paragraphs of
Section 25(a) of this Rule. The court shall issue an order stating the reasons and
describing the approved courtroom arrangement.
If the court grants an application to shield the child from the accused while
testifying in the courtroom, the courtroom shall be arranged to enable the
accused to view the child.

Sec. 27. Videotaped deposition.—
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. Before the guardian ad litem applies for an order under
this Section, he shall consult with the prosecutor or counsel subject to the
second and third paragraphs of Section 25(a).
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. ACADEMICUS REVIEW CENTER INC. 6/3/2017
156

• 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:
 The prosecutor;
 The defense counsel;
 The guardian ad litem;
 The accused, subject to sub-section (e);
 Other persons whose presence is determined by the court to be necessary to the welfare
and well-being of the child;
 One or both of his support persons, the facilitator and interpreter, if any;
 The court stenographer; and
 Persons necessary to operate the videotape equipment.

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

order as provided in Section 31(b).
157
If, at the time of trial, the court finds that the child is unable to testify for a reason stated in
Section 25(f) of this Rule, or is unavailable for any reason described in Section 4(c), Rule 23 of
the 1997 Rules of Civil Procedure, the court may admit into evidence the videotaped
deposition of the child in lieu of his testimony at the trial. The court shall issue an order
stating the reasons therefor.
After the original videotaping but before or during trial, any party may file any motion for
additional videotaping on the ground of newly discovered evidence. The court may order an
additional videotaped deposition to receive the newly discovered evidence.
• If, at the time of trial, the court finds that the child is unable to testify for a reason stated in
Section 25(f) of this Rule, or is unavailable for any reason described in Section 4(c), Rule 23
of the 1997 Rules of Civil Procedure, the court may admit into evidence the videotaped
deposition of the child in lieu of his testimony at the trial. The court shall issue an order
stating the reasons therefor.
• After the original videotaping but before or during trial, any party may file any motion for
additional videotaping on the ground of newly discovered evidence. The court may order an
additional videotaped deposition to receive the newly discovered evidence.
158
RULE 131
BURDEN OF PROOF AND PRESUMPTIONS
Sec. 1. Burden of proof.—Burden of proof is the duty of a

party to present evidence on the facts in issue necessary to
establish his claim or defense by the amount of evidence
required by law.
Burden of Proof :
 is the obligation imposed upon a party who alleges the existence of a fact or
thing necessary in the prosecution or defense of an action to establish it by
proof
 It is the duty of the party to present evidence on the facts in issue necessary
to establish his claim or defense by the amount of evidence required by law
 The burden of proof exists only in connection with the fact in issue
 Facts in issue are those facts which a plaintiff must prove in order to
establish his claim and those facts which the defendant must prove in to
establish his defense, but only when the fact alleged by the one party is not
admitted by the other party
159
Burden of proof/onus probandi: The obligation imposed upon a party who

alleges the existence of facts necessary for the prosecution of his action or
defense to establish the same by the requisite quantum of evidence
In civil cases:
The quantum of evidence required to sustain the proponent of an issue is

preponderance of evidence
The burden of proof is on the party who would be defeated if no evidence

were given on either side
Thus, the burden of proof is generally on the plaintiff, with respect to his
complaint; on the defendant, with respect to his counterclaim; and on the
cross-claimant, withACADEMICUS
respect toCENTER
REVIEW hisINC.
cross-claim 6/3/2017
In criminal cases
The quantum of evidence now required in preliminary investigation is such

evidence as suffices to engender a well-founded belief as to the fact of the
commission of a crime and the respondent’s probable guilt
Prima facie evidence is required to warrant the filing of an information
Evidence of guilt beyond reasonable doubt is required to sustain a conviction
For cases filed before administrative and quasi-judicial bodies
Substantial evidence is required—that is, only such relevant evidence as a

reasonable mind might accept as sufficient to support a conclusion
160
Burden of proof vs. Burden of Evidence
Burden of proof Burden of evidence imposed upon

the parties
Does not shift as it remains Shifts from party to party depending

throughout the trial with the party upon the exigencies of the case in
upon whom it is imposed the course of the trial
Generally determined by the Generally determined by the

pleadings filed by the party developments at the trial or by the
provisions of the substantive law or
procedural rules which may relieve
the party from presenting evidence
ACADEMICUS REVIEW CENTER INC. on the fact alleged 6/3/2017
Burden of proof never shifts Shifts to one party when the other has produced
sufficient evidence to be entitled as a matter of
law to a ruling in his favor
Example: Example:
Prosecution’s burden is to prove the guilt of the A sues B on a contract, alleging breach. The burden
accused beyond reasonable doubt of proof is on A has the burden to prove that a valid
contract was made. A was able to prove that B
breached the contract.
The duty of or the burden of evidence is now on B,

because it is incumbent upon him to go forward
with evidence to controvert A’s prima facie case.
161
In both civil and criminal cases:
The burden of evidence lies with the party who asserts an

affirmative allegation.
Negative allegations do not have to be proved, except where such

negative allegations are essential parts of the cause of action or
defense in a civil case, or are essential ingredients of the offense in
a criminal case or the defenses thereto
But, in civil cases, even if the negative allegation is an essential part

of the cause of action or defense, such negative allegation does
not have to be proved if it is only for the purpose of denying the
existence of a document which should properly be in the custody
of the adverse party.
Thus, where the plaintiff contends that the defendant has no

written authority to dispossess the plaintiff of the property, or to
collect the sum demanded in the complaint, it is for the defendant
to prove the existence of such document.
162
 Burden of Proof in Civil Cases
1. Plaintiff has the burden to prove the material allegations of the

complaint which are denied by the answer .
2. Defendant has the burden of proving the material allegations in his

answer, which sets up a new matter.
3. If the plaintiff fails to show the facts which he bases his complaint,
the defendant is under no obligation to prove his exceptions or
defenses (DEMURRER TO EVIDENCE)
4. The effect of a legal presumption upon burden of proof is to

create the necessity of presenting evidence to meet the prima facie
case created thereby, and which, if no proof to the contrary is
offered, will prevail.
5. Legal Presumption does not shift the burden of proof. There

burden of proof remains where it is, but by presumption the one
who has that burden is relieved for the time being from introducing
evidence in support of his averment, because the presumption
stands the place of evidence.
163
CRIMINAL CASES
1. The burden is on the prosecution to prove, beyond

reasonable doubt, the essential elements of the offense
with which the accused is charged
2. Burden of proof is never on the accused to established

his innocence.
3. It is not incumbent upon the prosecution to adduce positive evidence to

support a negative averment the truth of which is fairly indicated by
established circumstances and which, if untrue, could readily be disproved
by gthe production of documents or other evidence probably within the
defendant’s possession or control
Ex: Where the charge is made that the defendant carried out a business
without a license, the fact that he has a license is peculiarly within his
knowledge and he must established that fact or suffer conviction (burden of
proof is with the accused)
However, when the negative averment is an essential element of the crime,

the burden is on the prosecution to prove the charge
164
WHO HAS THE BURDEN OF PROOF

Alibi Accused. He must show that
the was at another place and
for such period of time that it
was impossible for him to have
committed the crime
Authenticity of Documents In criminal cases, it is the

prosecution who must prove
forgery
Confession Prosecution must prove that the

confession during custodial
investigation was obtained in
strict observance of the accused’s
constitutional rights
Corpus delicti Prosecution has the burden to prove

the corpus delicti.
Insanity Accused has the burden to prove

this affirmative defense
Jeopardy It is the burden of the accused to

prove his plea of former conviction
or acquittal
165
Matters of Defense Accused who sets up the plea of self-

defense has the burden of proof to
substantiate it
Motive and Intent Prosecution has the burden
Provocation Accused
Qualifying or Aggravating Prosecution
Statute of Limitation In criminal cases, the burden of proving
affirmatively the commission of the
offense charged within the period limited
by the statute for its prosecution is with
the state.
Truth and justifiable motive in libel This is for the defense to prove
cases
 Gen. Rule: If the criminal charge is predicated on a negative allegation or

that a negative averment is an essential element of a crime, the prosecution
has the burden of proving the charge.
 Exception: Where the negative of an issue does not permit of direct proof, or
where the facts are more immediately within the knowledge of the accused,
the onus probandi rests on him.
The following facts need not be proved:
1. Facts which are presumed;

2. Facts which are of judicial notice; and
3. Facts which are judicially admitted.
166
Presumption:
An inference of the existence or non-existence of a fact which the

courts are permitted to draw from the proof of other facts
The basic facts constituting a presumption must first be proved.

Otherwise, the presumption does not arise. In the latter case, it is
then incumbent upon the party who has failed to prove these facts to
present competent evidence to establish his allegations. (Lim)
Roles of presumptions, judicial notice, and judicial admissions

distinguished
Presumptions:
The proponent still has to introduce evidence of the basis of the

presumption—that is, he has to introduce evidence of the existence or
non-existence of the basic facts from which the court can draw the
inference of the fact in issue
Judicial notice and judicial admissions:
The proponent does not have to introduce any evidence

167
Classification of presumptions
Presumptions of law
May be conclusive or disputable
Here, a certain inference must be made whenever the facts

appear which furnish the basis of the inference
Reduced to fixed rules and form a part of the system of

jurisprudence
Presumptions of fact
Here, discretion is vested in the tribunal as to

drawing the inference
Derived wholly and directly from the

circumstances of the particular case by means of
the common experience of mankind
168
THE FOLLOWING MATTERS NEED NOT BE PROVED:
1. Allegations contained in the complaint or answer that are immaterial to the

issues
2. Facts which are admitted or which are not denied in the answer prvided
they have been sufficiently alleged. (failure to deny the due execution and
authenticity of an actionable document)
3. Stipulated facts
4. Facts subject of judicial notice
5. Facts which are legally presumed
6. Facts peculiarly within the knowledge of the opposite party (denial of a
document the custody of which belongs to the opposite party)
7. If the evidence in a case is evenly balanced it must be decided against the
party who has the burden of proof, for the case is then found exactly the
same at the conclusion as itCENTER
ACADEMICUS REVIEW was INC. at the beginning 6/3/2017

B. Authentication and Proof of Documents
Sec. 19. Classes of documents.—For the purpose of their presentation in evidence, documents
are either public or private.
Public documents are:
The 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;
Documents acknowledged before a notary public except last wills and testaments; and
Public records, kept in the Philippines, of private documents required by law to be entered
therein.
All other writing are private.
169
A document, to be public, must be an official

written act of a public officer. While public
records, kept in the Philippines of private
writings are also public records, the public
writing is not the writing itself but the public
record thereof.
General Rule:
Public documents generally include notarial documents and are
admissible in evidence without the necessity of preliminary proof
as to its authenticity and due execution.
•Except:
Where a special rule of law requires proof thereof despite its being
a document acknowledged in accordance with sec. 30, as in the
case of the probate of notarial wills where the testimonies of the
attesting witnesses are still required for its probate.
170

Sec. 20. Proof of private document.—Before any private document offered as authentic is
received in evidence, its due execution and authenticity must be proved either:
By anyone who saw the document executed or written; or
By evidence of the genuineness of the signature or handwriting of the maker.
Any other private document need only be identified as that which it is claimed to be.

Sec. 21. When evidence by authenticity of private document not

necessary.—Where a private document is more than 30 years old,
is produced from a custody in which it would naturally be found if
genuine, and is unblemished by any alterations or circumstances
of suspicion, no other evidence of its authenticity need be given.
171
Sec. 22. How genuineness of handwriting proved.—
The handwriting of a person may be proved by (1) any witness who

believes it to be the handwriting of such person because he has
seen the person write, or (2) has seen writing purporting to be his
upon which the witness has acted or been charged, and has thus
acquired knowledge of the handwriting of such person.
Evidence respecting the handwriting may also be given (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. ACADEMICUS REVIEW CENTER INC. 6/3/2017
Authentication
Other modes:
1. doctrine of self-authentication—that is, where the facts in
writing could only have been known by the writer, and
2. rule of authentication of the adverse party—that is, where the
reply of the adverse party refers to and affirms the transmittal
to him and his receipt of the letter in question, a copy of which
the proponent is offering as evidence.
172
Authentication of a document is not required

when:
1. The writing is an ancient document under rule 132, sec. 21;

2. The writing is a public document or record under rule 132, sec. 19;
3. It is a notarial document acknowledged, proved, or certified in accordance
with rule 132, sec. 30; or
4. The authenticity and due execution of the document has been expressly or
impliedly admitted by a failure to deny the same under oath, as in the case of
actionable documents under rule 8, sec. 8.
The handwriting of the maker is proved by:
1. A witness who actually saw the person writing the instrument (rule 132,
sec. 20 (a);
2. A witness familiar with such handwriting (rule 132, sec. 22) and who can
give his opinion thereon, such opinion being an exception to the opinion
rule (rule 130, sec. 50 (b));
3. A comparison by the court of the questioned handwriting and admitted
genuine specimens thereof (rule 132, sec. 22); and
4. Expert evidence (rule 130, sec. 49).
173
Sec. 22 of the rule merely enumerates

the methods of providing handwriting,
but does not give preference or
priority to a particular method.

Sec. 23. Public documents as evidence.—Documents

consisting of entries in public records made in the
performance of a duty by a public officer are prima facie
evidence of the facts therein stated. All other public
documents are evidence, even against a third person, of the
fact which gave rise to their execution and of the date of the
latter. ACADEMICUS REVIEW CENTER INC. 6/3/2017
174
Sec. 24. Proof of official record.—The record of public documents

referred to in paragraph (a) of section 19, when admissible for any
purpose, may be evidenced by an official publication thereof or by
a copy attested by the officer having the legal custody of the
record, or by his deputy, and accompanied, if the record is not kept
in the Philippines, with a certificate that such officer has the
custody. If the office in which the record is kept is in a foreign
country, the certificate may be made by a secretary of the embassy
or legation, consul-general, consul, vice-consul, or consular agent
or by any officer in the foreign service of the Philippines stationed
in the foreign country in which the record is kept, and
authenticated by the seal of his office.

Sec. 25. What attestation of copy must state.—Whenever a copy of a

document or record is attested for the purpose of the 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 be the clerk of a court having a seal, under the
seal of such court.
175
Sec. 26. Irremovability of public record.—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.
A public record cannot be removed from the office in which

it is kept without a court order, such as a subpoena duces
tecum, and even the court cannot order its removal
therefrom, except when essential to the just determination
of a pending case.
This rule, however, refers only to a public record an official

copy of which could be made available to the interested
party and is admissible in evidence.
176
Absent the attestation of the officer having the

legal custody of the records and the certificate to
that effect by a Philippine foreign service officer, a
mere copy of the foreign document is not
admissible as evidence to prove the foreign law.

Sec. 27. Public record of a private document.—An authorized public record of a private
document may be proved by the original record, or by a copy thereof, attested by the legal
custodian of the record, with an appropriate certificate that such officer has the custody.
Sec. 28. Proof of lack of record.—A written statement signed by an officer having the custody of
an official record or by his deputy that after diligent search, no record or entry of a specified
tenor is found to exist in the records of his office, accompanied by a certificate as above
provided, is admissible as evidence that the records of his office contain no such record or entry.
177

Sec. 29. How judicial record 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.
Sec. 30. Proof of 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 acknowledgement being prima facie evidence of
the execution of theACADEMICUS
instrument or document involved.
Public Documents may be proved:
Public documents may be proved by:

1. The original copy;
2. An official publication thereof; or
3. A certified true copy thereof.
178
When a certified true copy is presented, secs.

24 and 25 provide what should appear in the
certification or attestation of said true copy
and which must have the documentary stamp
affixed thereto in order to be admissible (sec.
201, RA 8424), unless specifically exempted
therefrom, as in the case of baptismal or birth
certificates of contracting parties to a
marriage. ACADEMICUS REVIEW CENTER INC. 6/3/2017
Even public instruments do not have uniform

probative value. The law does not specifically
provide that the contents of public instruments
without distinction are equally evidence against
third parties. The probative value of public
instruments depends on the kind of document
that is presented in evidence.
179

Sec. 31. Alterations in document, how to explain.—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 may show that the alteration was made by another, without his
concurrence, or was made with the consent of the parties affected by it, or was
otherwise properly or innocently made, or that the alteration did not change the
meaning or language of the instrument. If he fails to do that, the document shall
not be admissible in evidence.
Sec. 32. Seal.—There shall be no difference between sealed and unsealed private
documents insofar as their admissibility as evidence is concerned.

– Sec. 33. Documentary evidence in an unofficial language.—

Documents written in an unofficial language shall not be admitted as
evidence, unless accompanied with a translation into English or
Filipino. To avoid interruption of proceedings, parties or their
attorneys are directed to have such translation prepared before trial.
180

C. Offer and Objection
– Sec. 34. Offer of evidence.—The court shall consider no evidence which has not been
formally offered. The purpose for which the evidence is offered must be specified.
– Sec. 35. When to make offer.—As regards the testimony of a witness, the offer must be
made at the time the witness is called to testify.
Documentary and object evidence shall be offered after the presentation of a party’s
testimonial evidence. Such offer shall be done orally unless allowed by the court to be done
in writing.
The literal import of sec. 34 has been relaxed in the sense

that evidence not formally offered can be admitted by the
trial court, provided the following requirements are
present:
•The same must have been duly identified by testimony

duly recorded; and
•The same must have been incorporated in the records
of the case.
181

– Sec. 36. Objection.—Objection to evidence offered orally must be made
immediately after the offer is made.
Objection to a question propounded in the course of the oral examination of a
witness shall be made as soon as the grounds therefor shall become reasonably
apparent.
An offer of evidence in writing shall be objected to within three days after notice
of the offer unless a different period is allowed by the court.
In any case, the grounds for the objections must be specified.

– Sec. 37. When repetition of objection 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
continuing objection to such class of questions.
– .
182
Sec. 38. Ruling.—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
The reason for sustaining or overruling an objection need not be

stated. However, if the objection is based on two or more grounds,
a ruling sustaining the objection on one or some of them must
specify the ground or grounds relied upon

– Sec. 39. Striking out answer.—Should a witness answer the

question before the adverse party had the opportunity to voice
fully its objection to the same, and such objection is found to be
meritorious, the court shall sustain the objection and order the
answer given to be stricken off the record.
On proper motion, the court may also order the striking out of
answers which are incompetent, irrelevant, or otherwise improper.
183
Sec. 40. Tender of excluded evidence.—If documents or

things offered in evidence are excluded by the court,
the offeror may have the same attached to or made
part of the record. If the evidence excluded is oral, the
offeror may state for the record the name and other
personal circumstances of the witness and the
substance of the proposed testimony.
– The formal offer of testimonial evidence at the time the

witness is called to testify is necessary to enable the court
to intelligently rule on any objection to the questions asked.
– As a rule, the proponent must show its relevance,
materiality, and competence, and the adverse party must
promptly raise any objection thereto.
184
- Court must make a ruling when an objection is made
- The reservation of a ruling made by the court on an

objection to the admissibility of evidence, without
subsequently excluding the same, amounts to a denial of
said objection. At any rate, the courts should consider the
evidence only for the purpose for which it was offered.
– If the objecting party does not insist on such ruling

during the trial, he cannot be heard to complain
thereof for the first time on appeal, except where such
act of the trial court has resulted in serious prejudice to
the substantial rights of the objecting party in which
case the appellate court may consider that omission as
reversible error.
185
The trial courts should permit all exhibits

presented by the parties, although not admitted,
to be attached to the records so that, in case of
appeal, the appellate court may be able to
examine the same and determine the propriety
of their rejection. (Also see sec. 40)
– Where documentary evidence was rejected by the trial court and

the offeror did not move that the same be attached to the record,
the same cannot be considered by the appellate court
– Documents forming no part of proofs before the appellate court
cannot be considered in disposing of the case. Otherwise, that
would infringe upon the constitutional right of the adverse party to
due process of law.
186
The purpose for which the evidence is offered must be specified

because such evidence may be admissible for several purposes
under the doctrine of multiple admissibility, or may be admissible
for one purpose and not for another, otherwise the adverse party
cannot interpose the proper objection.
Evidence submitted for one purpose may not be considered for

any other purpose.
– The identification of documentary evidence is different from its

formal offer.
– Identification of the evidence is made in the course of the trial and
marked as exhibits, and it is only when the proponent rests his case
and formally offers the evidence that an objection thereto may be
made. Any objection prior thereto is premature.
– The evidence identified at the trial and marked as exhibits may be
withdrawn before the formal offer thereof or may not at all be
offered as evidence.
187
Sec. 37 provides that the repetition of objections to the same

class of evidence is not required.
The party may just enter a general and continuing objection

to the same class of evidence and the ruling of the court shall
be applicable to all such evidence of the same class.
It has been held that the court itself may motu proprio treat
the objection as a continuing one.
– An erroneous admission or rejection of evidence of the trial court is not a

ground for a new trial or reversal of the decision if there are other
independent evidence to sustain the decision, or if the rejected evidence, if it
had been admitted, would not have changed the decision.
– Otherwise, a new trial is warranted by reason of such erroneous ruling which

goes into the merits of the case and would have affected the decision.
– If the trial court erroneously ruled out the evidence and discovered such
error before the judgment had become final or before an appeal
therefrom had been perfected, it may re-open the case.
188
The rulings of the trial court on procedural questions and on

admissibility of evidence during the course of a trial are
interlocutory in nature and may not be the subject of separate
appeals or review on certiorari. These are to be assigned as errors
and reviewed in the appeal taken from the trial court on the merits
of the case.
JUDICIAL
AFFIDAVIT RULE
A.M. No. 12-8-8-SC
189
To all actions, proceedings, and incidents requiring

the reception of evidence before:
METC, MTCC, MTC, Shari'a Circuit Courts

EXCEPT small claims
RTC, Shari'a District Courts
The Sandiganbayan, the CTA, CA, and the Shari'a

Appellate Courts
Applicable to…
The investigating officers and bodies

authorized by the Supreme Court to receive
evidence, including the Integrated Bar of the
Philippine (IBP); and
The special courts and quasi-judicial bodies,

whose rules of procedure are subject to
disapproval of the Supreme Court, insofar as
their existing rules of procedure contravene
the provisions of this Rule 1
190
HOW - personal or by licensed courier

service
WHEN - not later than 5 days before pre-

trial or preliminary conference or
the scheduled hearing with respect to

motions and incidents
WHAT WILL BE FILED
(1)The judicial affidavits of their witnesses, which

shall take the place of such witnesses' direct
testimonies; and
(2) The parties' documentary or object evidence, if

any, which shall be attached to the judicial affidavits
and marked as Exhibits A, B, etc. (for complainant or
the plaintiff), and as Exhibits 1, 2, 3, ( for respondent
or the defendant).
191
N.B. Party can only keep original if:
• after the same has been identified,

marked as exhibit, and authenticated
• warrants in his judicial affidavit that the

copy or reproduction attached to such
affidavit is a faithful copy or
reproduction of that original.
• If you fail to bring the original document

or object evidence for comparison during
the preliminary conference with the
attached copy, reproduction, or pictures,
the photocopy shall not be admitted.
• The above is without prejudice to the

introduction of secondary evidence in
place of the original when allowed by
existing rules.
192
CONTENTS OF JUDICIAL AFFIDAVIT
AS TO LANGUAGE:
• language known to the witness
• If not in English or Filipino must be

accompanied by a translation in English or
Filipino,
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
C) the place where the examination is being held;
D) 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;
193
CONTENT PROPER ……..
E) Questions asked of the witness and his

corresponding answers, consecutively numbered, that:
(1) Elicit from him those facts which are relevant to the issues that the
case presents;
(2) Identify the attached documentary and object evidence and establish
their authenticity in accordance with the Rules of Court;
(3) The signature of the witness over his printed name;
(4) 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.
JUDICIAL AFFIDAVIT MUST ALSO CONTAIN A SWORN

ATTESTATION 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.
A false attestation shall subject the lawyer mentioned to

disciplinary action, including disbarment.
194
IF WITNESS IS A GOV’T EMPLOYEE OR OFFICIAL, OR

THE REQUESTED WITNESS IS NOT ADVERSE PARTY OR
HOSTILE WITNESS
• unjustifiably declines to execute a judicial affidavit or
• refuses without just cause to make the relevant books,

documents, or other things under his control available for
copying, authentication, and eventual production in court,
REMEDY
The requesting party may ask for the issuance of a subpoena

ad testificandum or duces tecum.
Offer of testimony in judicial

affidavit
• Must state purpose of direct
testimony at the start of the
presentation of the witness.
195
• Adverse party may move to disqualify the witness or
• Strike out his affidavit or any of the answers found in it on

ground of inadmissibility.
• The court shall promptly rule
• 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
evidenceACADEMICUS
under Section 40 of Rule 132 of the Rules of
Court.
Examination of the witness on his judicial affidavit.
- The adverse party shall have the right to cross-examine

the witness on his judicial affidavit and on the exhibits
attached to the same.
- The party who presents the witness may also examine

him as on re-direct. (N.B. NO RE-CROSS??)
- court shall take active part in examining the witness to

determine his credibility as well as the truth of his
testimony and to elicit the answers that it needs for
resolving the issues.
196
Oral offer of and objections to exhibits.
1. Oral offer of evidence of his documentary or object

exhibits, piece by piece, in their chronological order,
stating the purpose or purposes for which he offers the
particular exhibit.
Since the documentary or object exhibits form part of the

judicial affidavits that describe and authenticate them, it is
sufficient that such exhibits are simply cited by their markings
during the offers, the objections, and the rulings,
DISPENSING with the description of each exhibit.
Continuation of offer …..
1. Adverse party shall state the legal

ground for his objection, if any, to
its admission
2. Court shall immediately make its

ruling respecting that exhibit.
197
Application of rule to criminal actions.

- (a) 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.
CONTINUATION OF APPLICABILITYY TO CRIM

CASES
FOR THE PROSECUTION
MUST submit the judicial affidavits of its witnesses

not later than five days before the pre-trial, serving
copies upon the same upon the accused.
The complainant or public prosecutor shall attach to

the affidavits such documentary or object evidence
as he may have, marking them as Exhibits A, B, C,
and so on.
198
FOR THE ACCUSED
 Accused has the option to submit his judicial

affidavit as well as those of his witnesses to the
court within 10 days from receipt of such affidavits
and serve a copy of each on the public and private
prosecutor, including his documentary and object
evidence previously n1arked as Exhibits 1, 2, 3, and
so on.
 These affidavits shall serve as direct testimonies of

the accused and his witnesses when they appear
before the court to testify.
Effect of non-compliance:
1. deemed to have WAIVED their submission.
- The court may allow only once the late submission of the same
provided, the delay is for a valid reason, would not unduly
prejudice the opposing party, and the defaulting party pays a fine of
not less than Pl,000.00 nor more than P5,000.00, at the discretion
of the court.
2. The court shall NOT CONSIDER the affidavit of any witness

who fails to appear at the scheduled hearing of the case as required.
3. 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.
199
Failure to comply …
4. The court shall not admit as evidence judicial affidavits that

do not conform to the content requirements and the attestation
requirement.
• The court may, however, allow only once the subsequent

submission of the compliant replacement affidavits before
the hearing or trial provided the delay is for a valid reason
and would not unduly prejudice the opposing party and
provided further, that public or private counsel responsible
for their preparation and submission pays a fine of not less
than Pl,000.00 nor more than P5,000.00, at the discretion of
the court.
RULE NOT APPLICABLE TO:
a.Hostile witness
b.Adverse party
c.Child witness
200
 Section 5 of the JAR expressly excludes from its

application adverse party and hostile witnesses.
For the presentation of these types of witnesses,
the provisions on the Rules of Court under the
Revised Rules of Evidence and all other correlative
rules including the modes of deposition and
discovery rules shall apply. (Ng Men Tam vs. China
Banking Corp., G.R. No. 214054, August 5, 2015 )
The Judicial Affidavit Rule
The attachments of documentary or object evidence to the affidavits is required when there
would be a pre-trial or preliminary conference or the scheduled hearing.
Where a defendant fails to file an answer, the court shall render judgment, either motu proprio
or upon plaintiff’s motion, based solely on the facts alleged in the complaint and limited to
what is prayed for. Thus, where there is no answer, there is no need for a pre-trial, preliminary
conference or hearing. Section 2 of the Judicial Affidavit Rule reads:
Section 2. Submission of Judicial Affidavits and Exhibits in lieu of direct testimonies. - (a) The
parties shall file with the court and serve on the adverse party, personally or by licensed courier
service, not later than five days before pre-trial or preliminary conference or the scheduled
hearing with respect to motions and incidents, xxx
(Fairland Knitcraft Corp. vs. Po, G.R. No. 217694 , Jan 27, 2016 – this is an unlawful detainer case
where no answer was filed. Judgment based on the complaint. No need for the judicial affidavit
rule) ACADEMICUS REVIEW CENTER INC. 6/3/2017
201
THE END
202

Evidence

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Evidence

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ACADEMICUS REVIEW CENTER INC.

Dean Ma. Soledad

ACADEMICUS REVIEW CENTER INC. 6/3/2017

– Sec. 1. Evidence defined.—Evidence is the means,

Rules of Evidence can be retroactively applied.

Classification of evidence as to form:

Object (real) evidence:

ACADEMICUS REVIEW CENTER INC. 6/3/2017

Evidence supplied by written instruments or derived from

That which is submitted to the court through the testimony or

ACADEMICUS REVIEW CENTER INC. 6/3/2017

Relevant, material, and competent evidence

as having any value in reason as tending to prove any matter provable in an

Relevancy is determined by logic and experience

ACADEMICUS REVIEW CENTER INC. 6/3/2017

as directed to prove a fact in issue as determined by the

Material facts are the facts that have a direct effect on

o Direct and circumstantial evidence

 Direct evidence as that which proves the fact in

 Evidence that establishes the fact

ACADEMICUS REVIEW CENTER INC. 6/3/2017

Circumstantial evidence, which is the proof of a fact

Circumstantial evidence is evidence of relevant collateral facts

ACADEMICUS REVIEW CENTER INC. 6/3/2017

Corroborative evidence as additional evidence of a different character to

ACADEMICUS REVIEW CENTER INC. 6/3/2017

Prima facie and conclusive evidence

Prima facie evidence as that which, standing alone,

Conclusive evidence as that class of evidence which the

ACADEMICUS REVIEW CENTER INC. 6/3/2017

Primary and secondary evidence

Primary/best evidence as that which the law regards as affording the

Secondary/substitutionary evidence as that which is inferior to the

ACADEMICUS REVIEW CENTER INC. 6/3/2017

Rule 128, Sections 3 & 4

Sec. 3. Admissibility of evidence.—Evidence is admissible when it is

RELEVANT EVIDENCE : (INDUCES BELIEF)

That it must be relevant to the issue sought to be proved—that is, according to

The admissibility of evidence is determined at the time it is offered to the court.

RELEVANT EVIDENCE : (INDUCES BELIEF)

That it must be relevant to the issue sought to be proved—that is, according to

The admissibility of evidence is determined at the time it is offered to the court.

ACADEMICUS REVIEW CENTER INC. 6/3/2017

Object or real evidence:

When the same is presented for its view or evaluation, as in

By the calling of the witness to the stand

Formally offered by the proponent immediately before he rests his case

A document may be an object evidence or a documentary evidence depending

When can a document be an object evidence or documentary evidence

When do you object:

Where the evidence at the time of its offer appears to be

If connection not made, the evidence already given will be stricken

Qualification: no bad faith on the part of the proponent

 Where the evidence is relevant and competent for two or more

 When a material is asked by a party to be admitted as evidence, the

ACADEMICUS REVIEW CENTER INC. 6/3/2017

 Multiple admissibility may mean either

(i) the evidence is admissible for several purposes or

ACADEMICUS REVIEW CENTER INC. 6/3/2017

Rule 128, Section 3; read Regalado annotations

D. Exclusionary Rules Under the 1987 Constitution

3. Statutory Rules of Exclusion

ACADEMICUS REVIEW CENTER INC. 6/3/2017