Lecture Notes

Rule 128
- Sec. 3 – Admissibility of Evidence
o Added the word, “Constitution” as there basic rights that affect
admissibility of evidence such as those protected by the Consitution
o Right to be secured in their persons, houses, papers, and effects
against unreasonable searches and seizures (Art.3, Sec. 2)

Rule 120,
- Sec. 1 – Judicial Notice
o Recognizes acts of Executive, Legislative and Judicial branches of the
National Government
- Sec. 3 – Judicial Notice, when hearing Necessary
o Expanded to pre-trial
o the court may hear the propriety of taking judicial notice of any
matter “motu proprio” or upon motion. Before, it was based on the
Court’s own initiative or “upon request”
- (Cont.)
o Removed “After the trial”. Thus, the court, motu proprio or upon
motion may take judicial notice of any matter and shall hear the
parties thereon if decisive on a material issue
o Includes any proceeding before judgment and explicitly considers
those cases on appeal
- Sec. 4 - Judicial Admissions
o Used the word “oral”, replacing “verbal”
o From “no such admission was made” to “that the imputed admission
was not in fact made”.
 The additional “imputed admission” refers to the judicial
admission which was in fact, not made.
 Stresses the point that such admission was not made
Rule 130, B, Sec. 2
- Documentary Evidence
o Added “recordings and photographs, and sounds and their equivalent”
o Added a definition of photographs
 Still pictures, drawings, stored images, x-ray films, motion
pictures or videos
 These new additions can now be offered as proof of their
contents
- Original Evidence Rule (no longer the Best Evidence Rule)
o The amendment of the section includes “writings, recordings,
photograph or other record” when such are the subject of inquiry
o The exceptions also apply when such writings, recordings,
photographs or other record cannot be presented
- Sec. 3 (exceptions)
 o Sec. 3 (b) – includes, as an exception, a situation where the original of
the document, writing, recording, photograph or other record cannot
be obtained by local or judicial processes
o Sec. 3 (e) – where the Original is not closely-related to a controlling
issue
 i.e.
- Sec. 4 (Original of Document)
o Sec. 4(a) – definition of Original before was that the contents of which
was the subject of the inquiry
o With the amendments, the document itself or its counterpart intended
to have the same effect by a person executing or issuing it is also
considered an original
o With regard to photographs, the negative or print of which is now
considered an Original document
o As regards data store in computers or similar devices, any printout or
other readable by sight or other means, as long as reflecting data
accurately is an Original.
 Screenshots, picture of a picture (as long as readable by sight
or other means
o Sec. 4(b) – Defined the meaning of “duplicate” as the previous Section
4(b) discussed what a duplicate was, which was previously defined by
the section as “two or more copies executed at or about the same time,
with identical contents”
 Amendment refers to a more detailed definition of duplicate as
a counterpart which is:
 Produced by the same impression as the original
 Produced from the same matrix
 Produced by means of photography
 Produced by mechanical or electric recording
 Produced by chemical reproduction
 Produced by other equivalent techniques
 Ejusdem generis
o Sec. 4 (c) – new provision regarding when the admissibility of a
duplicate is considered an original except on the following instances:
 A genuine question is raised as to the authenticity of the
original, or;
 Under the circumstances, it is unjust/inequitable to admit the
duplicate in lieu of the original
o Sec. 7 – Summaries
 Pertains to a situation where a summary, chart or calculation
may be presented – its counterpart provision in the old rules
was still the same as Sec. 3 (c)
 But the “voluminous” originals must be accessible to adverse
party at reasonable place and time
- Sec. 10 – Evidence on Written Agreements (Parol Evidence Rule)
 o Adds “in a verified” in pleading
o A party may still present evidence to modify, explain or add to the
terms of the written agreement based on the same grounds
aforementioned in the old (and new rules) but the same may only be
raised in a verified pleading.

- Section 21 was deleted in lieu of A.M. 004-07-SC or the Rule on Examination

of Child Witness

- Sec. 23 – Disqualification by reason of Marriage (Qualifications of Witnesses)

o Added the word “cannot” to highlight and emphasize the rule that
neither the husband or wife cannot testify against each other save for
the exceptions
 Civil case filed against spouse
 Criminal case committed by one spouse against the other or
latter’s ascendants or descendants

- Sec. 24 – Disqualification by reason of privileged information

o Attorneys - Added “or person reasonably believed by the client to be
licensed to engage in the practice of law” or “other persons assisting
the attorney” except in the following cases:
 Furtherance in the crime of Fraud
 If service/advise was sought or obtained to enable or
aid anyone to commit a crime or fraud, or plan to
commit what the client knew or should have know to be
a crime
 Claimants through same deceased client
 As to communication relevant to an issue between
parties who claim through the same deceased client,
whether the claims are testate, intestate or inter-vivos
 Breach of Duty by lawyer or client
 Communication relevant to an issue or breach of duty of
lawyer to client (vice versa)
 Document attested by the lawyer
 Communication relevant to issue concerning attested
document to which lawyer is attesting witness
 Joint Clients
 Communication relevant to matter of common interest
between 2 or more clients, if communication was made
by either clients to a lawyer retained or consulted in
common, when offered in an action between any of the
clients, unless expressly agreed otherwise
o So these instances, the attorney or the person believed by the client to
be licensed to engage in the practice of law can testify as to matters
learned in confidence
 o Section C of Section 24 expands the coverage of the “privilege” and
defines Psychotherapists, and expands it to those members of the
family who participated in the diagnosis or treatment of patient under
the direction of Physician or Psychotherapist
 Phsyicians, Psychotherapists or person reasonably believed by
patient to be authorized to practice medicine or psychotherapy
cannot in a civil case, without consent of patient, be examined
as to any confidential communication made for the purpose of
diagnosis and treatement of the patient’s:
 Physical
 Mental
 Emotional
 Alcohol/Drug Addiction
 Definition of Psychotherapist

o Section D of Section 24 also amended ministers and priests to include

those persons (the confessant or affected person) reasonably believed
to be so, but still regarding the confession or advice given by him
o Section E was amended to extend the privilege even after the tenure
of the said public officer (in the interest of the public)
o Last paragraph of Section 24 was added. It states that for the
communication to remain privileged, even in the hands of a third
person, it must be shown that the concerned parties should have
taken precaution to protect its confidentiality.

- Section 25 – Parental and filial privilege (Testimonial Privilege)

o An exception was added to the old provision which states that the
privilege cannot exercised when the testimony is indispensible in a
crime involving the concerned person or by one parent against the
other

- Section 26 – Privilege relating to trade secrets

o An added provision relating to trade secrets. A person cannot be
compelled to testify about any trade secret unless the non-disclosure
will conceal fraud or otherwise work injustice. When disclosure is
directed, the court shall take additional measures to protect the
interest of owners and parties in furtherance of justice
o Trade secrets – ingredients, formulas, processes
o Generally protected by law (RPC - Articles 291 (revealing secrets with
abuse of office) and 292 (revelation of industrial secrets)
o Foremost, this Court has declared that trade secrets and banking
transactions are among the recognized restrictions to the right of the
people to information as embodied in the Constitution (Air Phils. Vs.
Penswell, G.R. 172835, December 13, 2007)
- Sec. 28 – Offer of Compromise not admissible
o It expands the inadmissibility of evidence of an offer of compromise
against the offeror to “evidence of conduct nor statements made in
compromise negotiations” except for the following:
 Evidence otherwise discoverable
 Evidence offered for another purpose
 Proving bias, prejudice of a witness
 Negativing a contention of undue delay
 Proving effort to obstruct a criminal prosecution or
investigation
o The second sentence in the third paragraph provides that a plea bargaining
with prosecution cannot be used as evidence against him, in the same way
that a plea of guilty later withdrawn or unaccepted plea of guilty to a lesser
offense is not admissible in evidence against the accused who made the
plea or offer.

- Sec. 30 – Admission of Co-partner or Agent

o The addition of “agent authorized by the party to make a statement
concerning the subject” is a clarification of the requirement of the
authority given to a partner or agent making the act or declaration before it
can be used as evidence against such party
- Sec. 31 – Admission by Co-Conspirator
o Amendment is more for style
- Sec. 32 – Admission by Privies
o The addition of “if done while the latter is holding the title” is a
clarification that for the act, declaration or omission of the latter (person
being derived title from) can be used as evidence against the former (one
deriving title to property), the act, declaration or omission in relation to the
property must be done while the latter is holding title thereto.

- Sec. 37 – Hearsay
o The old provision touching on hearsay was transposed to Sec. 22
(testimony confined to personal knowledge)
 Sec. 22. Testimony confined to personal knowledge. – A witness
can testify only to those facts that he or she knows of his or her
personal knowledge; that is, which are derived from his or her own
perception. (36)
o Defined “hearsay” – statement other than one made by the declarant while
testifying at trial or hearing, offered to prove the truth of the facts stated
therein. Statement may be (i) oral or written assertion or (ii) non-verbal
conduct of a person, if it is intended by him or her as an assertion.
Generally inadmissible (except as otherwise provided)
o Second paragraph defines what DOES NOT CONSTITUTE HEARSAY
 When declarant testifies;
  Subject to cross-examination concerning the statement and the
statement is
 Inconsistent with the declarant’s testimony;
 Offered to rebut an express or implied charge against the
declarant; or
 One of identification of a person made after perceiving him
or her
(exceptions to the hearsay rule)
o Sec. 39 – Statement of decedent or person with unsound mind (Dead
Man’s Statute)
 Any statement that will be used in an action against an executor,
administrator or other person of a deceased or person with unsound
mind, should be based on the statement of the deceased or person
with unsound mind made upon the personal knowledge of the latter
at the time when the matter had been recently perceived by him/her
and while his/her recollection was clear
 The statement becomes inadmissible if made under circumstances
indicating its lack of trustworthiness
 Essentially still up to the Court to decide if it is admissible

o Sec. 40 – Declaration against interest

 The additional provision provides that when the statement tends to
expose the declarant to criminal liability and offered to exculpate
the accused is not admissible unless corroborating circumstances
clearly indicate the trustworthiness of the statement.
o Sec. 41 – Act or declaration about Pedigree
 The amendment expands the coverage to those adopted or those
involving the pedigree of a person with whose family he or she
was so intimately associated for purposes of determining his/her
pedigree
o Sec. 42 – Family relation or tradition regarding Pedigree
 The amendment includes those members of the family by adoption
who may testify about family reputation or pedigree
o Sec. 43 – Common Reputation
 The amendment replaces “facts or general interest for more than
30 years” to “boundaries of or customs affecting lands in the
community and reputation as to events of general history
important to the Community”
o Sec. 44 – Part of Res Gestae
 Same definition. But the amendment emphasizes the fact that the
statements made by a person while a startling occurrence is taking
place” should be “under the stress of excitement caused by the
occurrence”
o Sec. 45 – Records regularly conducted business activity
 This exception is amended to define the kind of entries are in the
regular course of business. The elements are:
  Memorandum, report, record or data compilation of acts,
events, conditions, opinions or diagnoses;
 Made by writing, typing, electronic, optical or other similar
means;
 At or near the time of or from transmission or supply of
information by a person with knowledge thereof;
 Kept in the regular course of conduct of a business activity
and such was the regular practice to make the
memorandum, report, record or data compilation by
electronic, optical or similar means; and
 All of which are shown by the testimony of the custodian
or other qualified witnesses
o Sec. 49 – Testimony or Deposition at a former proceeding
 The amendment includes the testimony or deposition of (aside
from deceased persons) those witnesses out of the Philippines or
those who cannot, with due diligence, be found therein or
unavailable or otherwise unable to testify, given in a former case or
proceeding involving same parties and subject matter, which may
be given in evidence against the adverse party who had the chance
to cross-examine him or her (deceased or party unable to testify)
o Sec. 50 – Residual Exception (New provision)
 The amendment includes other statements that may be excepted
from the hearsay evidence which were not specifically provided by
the amended rules on evidence. (Sec. 38 to 49) These statements
should have “equivalent circumstantial guarantees of
trustworthiness” and must meet the following requisites:
 The statement is offered as evidence of a material fact;
 The statement is more probative on the point for which it is
offered than any other evidence which the proponent can
procure through reasonable efforts; and
 The general purposes of these rules and the interest of
justice will be best served by admission of the statement
into evidence
 The amendment includes as a pre-condition to invoke this
exception that the proponent must make known to the adverse
party in advance of the hearing or pre-trial stage, the proponent’s
intention to offer such statement and the particulars thereof
(including name and address of declarant)

o Sec. 52 – Opinion of expert witness (opinion rule)

 Adds “education” as an additional requirement for an expert
witness to testify so that his opinion may be received in evidence
o Sec. 54 – Character evidence generally not admissible; exceptions –
 in criminal actions:
 The provision states that as a general rule, evidence of a
person’s character or trait is not admissibly to prove action
 in conformity therewith on a particular occasion and states
the exceptions, which also have amendments in that they
reworded number (3) of the old rule and made it number
(1); and just combined (1) and (2) of the old rule and made
it number (2)
 In civil actions – no amendment
 In civil and criminal actions
 1st sentence - The new provision states that in civil and
criminal actions, evidence of good character of witness is
not admissible until character (or witness) has been
impeached
 2nd sentence – in all cases where evidence of character or
trait of character of witness is admissible, proof may be
made as by testimony as to reputation or by testimony in
the form of an opinion. On cross examination, inquiry is
allowable into relevant specific instances of conduct
 3rd sentence – where character or trait of character of person
is an essential element a charge, claim or defense, proof
may be made of specific instances of that person’s conduct

Rule 131 – Burden of Proof, Burden of Evidence, and presumptions

- Sec. 1 – burden of proof and burden of evidence

o Added, “burden of proof never shifts.”
o Added definition of burden of evidence, which is duty of the party to
present evidence sufficient to establish or rebut a fact in issue to establish
a prima facie case
 Stated that burden of evidence may shift from one party to the
other depending on the exigencies of the case

- Sec. 5 – Presumptions in civil actions and proceedings (new provision)

o New provision which states that in all civil actions and other actions not
provided for by law or the rules, a presumption imposes on a party against
whom it is directed the burden of going forward with evidence to rebut or
meet the presumption. Further, if presumptions are consistent, one that is
founded upon weightier conditions would apply. If equal weight, non
applies.
- Sec. 6 – Presumptions against criminal accused (new provision)
o Must prove first beyond reasonable doubt the basic fact before a presumed
fact (if the presumed fact establishes guilt is an element of offense charged
or negates a defense)

Rule 132 – Examination of Witness

- Sec. 12 – Impeachment by evidence of conviction of crime
 o Provision is additional grounds to impeach a witness (against the party
whom the witness was called) which is conviction by final judgment of a
crime:
 Punishable by penalty in excess of one (1) year; and
 Crime involved is moral turpitude (regardless of penalty). But…
 Evidence of conviction is not admissible if the crime was subject
to amnesty or annulment of conviction

- Sec. 15 – Exclusion and Separation of Witness

o The amendment allows the court, motu proprio or upon motion, to order
the exclusion of a witness so that they cannot hear the testimony of other
witnesses. It also clarifies that this rule does not authorize the exclusion of
the following:
 A party who is a natural person;
 A duly designated representative of a juridical entity which is a
party to the case;
 A person whose presence is essential to the presentation of the
party’s cause; or
 A person authorized by a statute to be present
o Second paragraph allows the court to separate witnesses to prevent them
from conversing with each other, directly or through intermediaries, until
all witnesses have been examined.
- Sec. 19 – Classes of Documents (Authentication and Proof of Documents)
o Amendment includes (as public documents) those documents that are
considered public documents under treaties and conventions which are in
force between the Philippines and the country of source.
- Sec. 20 – proof of private documents
o The amendment limited the means (or methods) before offering private
documents may be offered as authentic and may be received in evidence to
the following means:
 By anyone who saw the document executed or written;
 By evidence of the genuineness of the signature or handwriting
therein; or
 (new) by other evidence showing its due execution and
authenticity
- Sec. 24 – Proof of Official Record
o Amended second part of the original provision, in that it qualifies as an
additional requirement that if the office in which the record is kept is in a
foreign country, the foreign country must be a “contracting party to a
treaty or convention to which the Philippines is also a party, or considered
a public document under such treaty or convention pursuant to paragraph
(c) of Section 10 herein (Classes of documents), the certificate or
equivalent shall be in the form prescribed by such treaty or convention
subject to reciprocity granted to public documents originating from the
Philippines.”
 o But for documents originating from foreign countries who are not party to
treaty or convention as above-mentioned, that is when the secretary of the
embassy or legation, consul, consul general, vice consul, consular agent or
any officer in which the record is kept, and authenticated by seal.
o It also provides that a document accompanied by a certificate or its
equivalent may be presented in evidence without further proof, the
certificate or its equivalent being prima facie evidence of due execution
and genuineness of the document involved.
o Last sentence provides that the certificate shall not be required when treaty
or convention between the foreign country and the Philippines has
abolished the requirement or has exempted the document itself from this
formality
o Philippines is a party to Hague Apostille Convention which states that
apostille is sufficient to certify a document’s validity if the convention
applies between both originating and receiving countries
o The new rules maintained the requirement of authentication in the event
that the document originates from a foreign country which is not a
contracting party

- Sec. 35 – When to make offer (Offer and Objection)

o Must be made orally at the time the witness is called to testify
o Offer of document and object evidence must be made orally after the
presentation of a party’s testimonial evidence
- Sec. 36 – Objection
o Objection to offer of evidence must be made orally immediately after offer
is made
o Amended when to object to testimony of witness in that “Objection to the
testimony of a witness for lack of formal offer must be made as soon as
the witness begins to testify”
o No more formal offer of evidence in writing.
- Sec. 39 – Striking out answer
o Adds a condition where court may sustain objection and such answer,
testimony or narration be stricken off the record:
 (1st condition is the same); or
 when a question is not objectionable, but the answer is not
responsive; or
 where witness testifies without a question being posed; or
 testifies beyond limits set by the court; or
 when the witness does a narration instead of answering the
question

Rule 133 – Weight and Sufficiency of Evidence

- Sec. 4 – Circumstantial evidence when sufficient
o Just added “inferences cannot be based on other inferences”
- Sec. 5 – Weight to be given opinion of expert witness, how determined
o New provision
 Provides for grounds where courts may consider opinions of expert
witness
 When opinion is based on sufficient facts and data
 Whether opinion based on reliable principles and methods
 Whether the witness has applied these principles and
methods reliably in the case
 Such other factors
o