RULE 130

Rules of Admissibility
A. OBJECT (REAL) EVIDENCE

More or less, this Rule is the main law of Evidence because this contains almost half of the
entire subject of Evidence. Majority of the Rules of Admissibility are found in other laws such as
the Constitution – the admissibility of a confession, the admissibility of a property taken by virtue
of an illegal search warrant, the admissibility of certain types of documents excluded by special
laws – e.g., admissibility of a taped conversation (Salcedo-Ortales vs. CA) where the evidence
was declared inadmissible pursuant to RA 4200.

TRIVIA: How come the word “real” is enclosed in parenthesis beside the word “object”
evidence? Under the old law, the more popular term used was “real” evidence. Under the ’89
Rules, the framers decided to change the official name to “object” evidence because “real”
evidence always left impression that it was being used with respect to “real” property. “Real”
property refers to land, buildings, etc…”real” evidence refers to things that exists objects.

“Section 1. Object as evidence – Object as evidence are those addressed to 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.

This is known as DIRECT or REAL EVIDENCE RULE.

Theoretically, the court has no senses because the court is an entity which is exists only in
law, and which has no physical existence. It can only act through human beings, just like a
corporation. Therefore, the senses of the court are the senses of the judge. That is why during
the trial, one present material objects – e.g., marijuana, the weapon, etc. to prove the acts of
defense before the judge. Normally, these are addresses to the senses of sight – things which the
court can see: objects, photographs, or the object itself. Kaya nga the purpose of object evidence
is to prove the existence of the condition of the situation or condition of a thing or object. That is
the obvious reason behind real or object evidence.

Q: How does one present object evidence in court?

A: Object evidence may be exhibited, examined or viewed by the court.
Dean I waxing poetic: If a picture is worth a thousand words, then definitely the scene itself must
be worth millions of words.
Sometimes, people are more impressed with what they see rather than with what they only hear.

Q: How is Object or Real Evidence classified?

A: Justice Moran, in his Commentaries on the Rules of Court, classified Real or Object Evidence
into 3 types:
(1) That which consists in the exhibition or production of the object inside or outside the
courtroom.
(2) That which consists in the inspection of the object outside the cpurtroom.
(3) That which consists in the making of an experiment.
Example of the first type: There are things which one can bring into the courtroom. He can mark the
exhibits. For example, the gun, knife, or piece of clothing material – because these are tangible and
one may bring them inside the courtroom and submit them in the court to form part of the records.
But there are personal properties which one cannot appreciate in the courtroom, like a jeepney, for
example. The party presenting it will bring it or cause it to brought to a parking area outside the
courtroom and the judge presiding will go out and inspect the jeepney there. That is what is being
called as “for exhibition and production of the object inside or outside the court”. This can be done
inside the courtroom or within the vicinity of the courtroom to where the judge will go and see the
object by himself.
Example of the second type: But first, how is this second type differentiated from the first type? In
the first type, the evidence or exhibit is PRODCUTED. In the second type, it is INSPECTED.
One may exhibit or produce inside or outside the courtroom MOVABLES. But one cannot bring inside
the courtroom on IMMOVABLE property, such as building, trees or land. So what is the manner by
which the court may see the piece of land? By going to the area and inspecting it. Doon na sa area
mismo. What is this called in popular perhaps? OCULAR INSPECTION of the subject matter in
litigation; or another technical term used is: the court will “TAKE A VIEW” of the object.
One thing that must be remembered about “taking a view” or inspection of the object is that it is
STILL PART OF THE TRIAL. Actually, when the court says that it wishes to see the property which is
the subject matter of investigation – so, for example, they set it on a particular date, time …
Everybody will go there – the judge, court personnel: the stenographer, bailiff, branch clerk of court,
the lawyers of both sides… They are not there for an excursion. That is still part of the trial. Only, the
trial is being done outside the courtroom because the object or thing cannot be brought inside the
courtroom. Everything there is recorded as if they were inside the courtroom. It is scheduled
officially.
This reminds Dean I. of a case which happened in Negros Occidental years ago: This was a collision
case where the defendant maintained that the reason behind the collision was that the visibility of the
vehicle would change upon approaching a certain portion of the road because of the glare of the sun
at 3:00 or 4:00 in the afternoon. That is the time when the sun is about to in the west. “Pababa ‘yung
lugar, kaya when we are going up, you will be blinded by the glare of the sun, you could hardly see
the incoming object.” But the plaintiff said that this was not true and that the defendant was plainly
reckless. In other words, the dispute here was about the glare of the sun at that specific time of the
day, at specific place. Then on one Sunday, the judge happened to attend a private family gathering.
He realized that the area where the accident in the case happened was just 1 kilometer away. He
wanted to evaluate the visibility of the place to incoming vehicles.)
When the judge finally came out with his decision, it was in favor of the defendant. Judge to the
defendant: “You are telling the truth. I went there one day and found out that your version of the
story is true.”
The SC held the judge’s decision as WITHOUT BASIS and ILLEGAL. In effect, the judge conducted a
view of the object not on scheduled date. His visit there could not be considered as part of the trial
because he was alone. It should have been scheduled. There should have been a COURT ORDER. All
the parties concerned should have been there also, if not at least represented. Otherwise, this is
practically taking into account evidence which was not formally offered in the court. That is
tantamount to judicial knowledge. The judge applied what he knows, when he was not actually
supposed to. There must be a record to the effect that that thing mentioned in the judgment was
offered formally in court as evidence.
The third type. EXPERIMENTATION. For example, somebody was caught carrying a pile of newly-
washed clothes. Then he was charged with theft. His defense was that these clothes were his. ISSUE:
Whether or not the clothes really belonged to the accused. The judge examined the clothes and the
accused. The he asked the accused to wear the clothes. But the clothes were too big for the accused.
The court concluded that the accused was lying. The clothes should have fitted him properly if they
were really his. What is the basis for this? So that the court can see this is actually the process of
experimentation. This why some writers also called Object Evidence as DEMONSTRATIVE EVIDENCE.
The above principle was also applied in an American case cited by Moran: Each of the opposing
parties owned a horse. Both horses gave birth but one of the ponies died. Both parties claimed the
surviving pony to be theirs. Under the Law of Property, the owner of the offspring of an animal is the
owner of its mother. So, what the judge did was go to the farm and make the parties bring both
horses and the pony. The owner were asked to hold their respective horses a few meters away from
each other. Then the judge ordered that the pony be place in the middle. The pony was then
released. The pony’s natural reaction would be to go to its mother. Meaning it recognized it mother.
Therefore, through this method, the judge was able to determine who the owner of the pony should
be. This evidence is addressed to the senses of the court so that it may see.
Another example is found in the Old Testament of the Bible. This is the story of King Solomon, said to
be the wises: among the Kings of Israel. The Bible says he decides with utmost fairness and wisdom.
But one day, he was dumbfounded with a very peculiar case. (Similar to the horses and pony. But
this time the quarrel was over a child.) Two women were claiming to be the mother of the child. On
how to solve the problem, King Solomon prayed for enlightenment. Then he said to the mothers: “So,
you are both claiming to be the mother of this child. To be fair, let us split the child into two. So each
of you gets half of him.” Then one mother said that she would rather not assert her claim and that
the child be given to the other mother because she could not bear to see the child harmed.
The story happened thousands of years ago, but whether King Solomon realized or not, he was
already applying Sec. 1 of Rule 130.
Take note the Object of Evidence Rule is not confined to the sense of sight but may also be
addressed to the other senses. Although is not most cases, it applies to the sense of sight.
An example where the Rule applies to the sense of hearing: In an action for damages for violation of
the copyright of a musical composition, according to plaintiff, defendant composed a song or the
melody of a song which was taken from his (plaintiff) composition. Defendant claims that the
composition was original. Therefore, there must be some notes or lyrics in the song which are similar
to the plaintiff’s. Some similarity between the songs is tolerable. Some compositions may be similar to
some extent, maybe 50% or 60% - hindi pa rin kopya iyan. ISSUE: To what extent are the 2 songs
similar? Whether or not the defendant really “copied” the plaintiff’s song?
The parties presented notes of the musical compositions to the judge. Defendant claims that the
songs are not the same. But the judge does not know how to read those notes. So, he asks them to
play the compositions while he listens … until he arrives at a judgment – whether the similarity
between songs are such that he can conclude that one was copied from the other or not.
What did the judge use here? The sense of hearing. That is still covered by Sec. 1.
Take note that before an object can be admitted as evidence, one of the requirements of the law is
that it must be IDENTIFIED. Meaning it must be shown by independent evidence that the object
offered is the thing in dispute.
For example, a knife was used in the killing of a victim. The evidence shows that after the killing
while the accused was holding the knife, the police arrived, disarmed the accused and got the knife.
So the knife will now be offered in evidence. But before the knife can be admitted, it must be first
pass the test of admissibility. There must be a showing that this particular knife he is exhibiting is the
very same knife the accused used in killing the victim. Otherwise, the court will not admit the
evidence.
Normally, the above is done by presenting the policeman. He will testify that he went to the scene of
the crime, saw the dead body and the accused with the knife in his hand. Then the policeman
disarmed him, kept and turned over the latter to their custodian. When the knife is presented in the
court, the policeman will have to show the connection and relation of such knife to the knife that he
took from the accused – that this is the very the same knife used by the accused in killing the victim.
Then, the knife is now properly identified. But if there is no such statement or procedure, then the
object has not been properly identified.
An object not properly identified, when offered as evidence in court, will be objected to by the other
party. THE VERY SAME THING BEING OFFERED IN COURT MUST BE THE VERY SAME THING WHICH
IS IN DISPUTE.
Another author made another classification of Object Evidence:
(1) That evidence that is imparted to the senses of the court with the aid of testimony.
(DEMONSTRATIVE or ILLUSTRATIVE EVIDENC)
(2) That imparted directly to the senses of the court without the intervention of testimony. (REAL
OBJECT EVIDENCE)

DISTINCTIONS:
(a) Demonstrative evidence has NO PROBATIVE VALUE itself but serves merely as a virtual aid to
the court in comprehending verbal testimony of a witness or other evidence; whereas Real
Object Evidence has some HISTORICAL CONNECTION with the transaction giving rise to the
case.
(b) Demonstrative evidence is an item presented to the court, but which has NO CONNECTION
WITH THE CASE; whereas, a Real Object evidence HAS CONNECTION (with the case).

Example: In a murder case, suppose A presents in court the gun which was used to kill the victim.
This is the REAL OBJECT EVIDENCE because the gun is related to the case. It has a historical
connection to the case.
Illustrative or Demonstrative Evidence, EXAMPLE: Suppose the gun used in killing the victim has not
yet been recovered. The gun was seen by the police, but somehow cannot be found.
The witness is asked by the Prosecution:
Prosecutor: What was the accused carrying?
Witness: A gun.
Prosecutor: Describe the gun … (The prosecutor shows the witness samples of guns.)

Which of these guns is similar in appearance to the one used by the accused?

So the samples shown have no historical connection with the case but serve as a visual aid to help
the judge and the parties arrive at a picture of a crime.
This type of object evidence is only illustrative and helps the court in visualizing how the original
weapon looked like. But it has no connection to the case.
When the real object evidence is formally offered in court, there is no need to offer illustrative
evidence.

Q: What is the weight of object evidence?

A: According to Justice Moran, object evidence is the best and higher proof.
It leaves you impressed. As in a movie, when one asks somebody to describe what he watched, it is
still different thing if one saw the movie personally. (To see is to believe.) No matter how good a
narration of the story is by someone who saw it, the listener will not appreciate it as much as when
he saw the movie himself.
A SC Justice described the probative value of object evidence He compared object evidence with an
oral testimony on how a witness describes things: “An immediate witness may forget or exaggerate
or understate what he knows, saw or heard or what he did. He may be biased in imparting the truth
or state half-truths when he speaks before the court, in order to favor one party and prejudice the
other. Not so with silent witnesses such as surrounding circumstances and facts, or real evidence on
the paper of object submitted. Such mute witnesses play, if correctly understood and interpreted,
show and reveal the whole truth in all its nakedness, they did nothing or did add nothing without
prejudice.”
If one will only rely on the witnesses, there is a possibility that they will forget, exaggerate or
understate. Their biases will come out. That is how unreliable witness can be. But a mute and silent
witness – the object itself is the highest form of evidence.
However, there are times the judge may disallow the object as evidence because of certain
constraints or limitations.
The following are the LIMITATIONS:
(1) WHEN THE OBJECT IS IRRELEVANT TO THE FACT ISSUE.

It must have a connection to the fact in dispute. For example, a gun is presented in a case
where somebody was murdered with the use of a gun.

Or, in a case involving the improvement on a piece of land, a photograph will be useful. It
must be have some relevance. Object no matter how beautiful, if not relevant, cannot be
admitted.

(2) INDECENT OR IMPROPER OBJECTS SHOULD BE EXCLUDED UNLESS THE CASE NECESSETIES
THEM FOR ASCERTAINING THE TRUTH.

EXAMPLE: In a rape case, the offended party has to describe what actually happened. “In the scene
of the crime … may the accused be asked to undress the victim so that we may know …” That is too
much. The court will not allow that!
UNLESS the same is necessary. To a certain degree, there might be exceptional cases where the
court may decide to have done it. For example, the victim made a statement about some birth marks
on the body of the accused. How come the girl knows that the birth marks exists? So, as part of the
demonstration the court may require the accused to undress, under exceptional conditions.
(3) REPULSIVE OBJECTS SHOULD ALSO BE EXCLUDED IF NOT ABSOLUTELY NECESSARY FOR
THE ADMINISTRATION OF JUSTICE
EXAMPLE: In a criminal case for consummated homicide or murder, the body of the dead person
(corpus delicti) or cadaver is not necessarily or literally brought to court to prove that a crime was
committed. Death can be proved by the other means such as the testimony of witnesses or the death
certificate. A death certificate is the most convenient proof of the death of somebody. The court will
not allow the cadaver to be brought to court and form part of the exhibit. The court would not allow
that even if a party insists. JOKE: Suppose the case is brought on appeal, ‘yung cadaver ba iaakyat
din? That is very repulsive!
B. DOCUMENTARY EVIDENCE

”Section 2. Documentary evidence – Documents as evidence consist of writing or any

material containing letters, words, numbers, figures, symbols, or other models of
written expressions offered as proof of their contents.”

This is a new provision in the Rules. When one says “ documents consist of writings, ….” this is
normally means that this is in paper. But the law says ANY MATERIAL, containing letters, etc.
Therefore, we can use any material other than paper. For example, in preparing a contract,
instead of using the computer or typewriter, you decide to have the terms and conditions of the
contract carved on wood or engraved in bronze. That is possible. That is still considered as
documentary evidence.
1. BEST EVIDENCE RULE

“Section 3. Original document must be produced; exceptions – When the subject of

inquiry if 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 falls to produce it after reasonable notice;
(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.”

The Best Evidence Rule. This applies only to document evidence. This is also known as the Rule of
Exclusion. The Best Evidence Rule (BER) operates as a rule of exclusion because in order to prove the
contents of a document, one must produce ORIGINAL. Any other evidence is not allowed other than
the original document.
For example: A sues B for breach of contract. There were stipulations in the contract which B
violated. A wishes to prove what those stipulations are. The court ask B if he knows A. B says, yes
because he and A entered into a contract of sale last year involving B’s house and lot. Was the
agreement in writing>? A answers yes. Counsel asks A: “Would you tell the court what are the terms
and conditions agreed upon on the deed of sale?” Counsel for B: ”Objection. It violates the Best
Evidence Rule.”
When one tries to prove the terms and conditions in a contract, the contract itself must be produced.
Oral testimony, even if the contents are memorized verbatim, is objectionable. Even a PHOTOCOPY is
NOT ALLOWED. Even a TRUE COPY is also NOT ALLOWED. What should be presented in court should
be the ORIGINAL document itself.
Suppose the question is: “Mr. A, why do you know Mr. B?” Mr. A: “We entered into a contract.”
“Where is the copy of the contract?” Objection here is improper because what is being proved is that
there is a contract. An objection would be false because what is being prove is not the CONTENTS of
the contract but merely its EXISTANCE or EXECUTION.
So, the principle is: When what is being sought to be established is the execution delivery or location
of the contract it is not covered by the Best Evidence Rule.
The SC also ruled that the BER cannot be invoked when the evidence sought to be introduced
concerns some external facts about the documents such as its existence or delivery without reference
to its contents.
In a case the accused is charged with bigamy. Prosecution presented some witnesses who testified
that they were present in the wedding ceremony (the second marriage) of the accused. Defense
says, “Objection, you Honor. The best evidence to prove the second marriage is the marriage
contract. In the absence of the marriage contract, we are objecting to the testimony of witnesses.”
The invocation here of the BER is improper because the witnesses were presented not to prove the
contents of the marriage contract but to testify that the marriage ceremony did take place. So the
BER here does not apply. According to the SC: the BER does not apply to witnesses who testify on
the marriage ceremony because said ceremony is not the contents of a writing but the fact that she
married.
The contents of a document must be relevant to the fact in issue. For example, A is accused for the
murder of B. Issue: Whether or not A murdered B. The star witness is X. As X’s story goes: On the
night of the murder, X was on his way ti deliver a letter to the house of W. that was when he
accidentally saw the murder. So X was asked in court where he was on this particular date. X
answered he was walking along the street on that night. Where was he headed? To the house of W
to deliver a letter. Counsel for A ask X what the letter was about. Counsel for B objects and interjects
that the best evidence would be the letter itself. But that is not the issue. The letter is not relevant to
the issue; it might have been a mere invitation to a party. So, this can be done for it does not violate
the BER.
The following are the EXCEPTIONS to the Best Evidence Rule:
(a) “When the original has been lost or destroyed or cannot be produced in court, without bad faith
on the part of the offeror”;

We will presume that the document has only one copy because we will know later on that an original
may have two or more copies. In this case when all the copies are lost only then can you present
secondary evidence. But if the original cannot be produced because you destroyed it then there is
bad faith. You cannot offer secondary evidence if you are in bad faith.
(b) “When the original is in custody or under the control of the party against whom the evidence is
offered and the latter fails to produce if after reasonable notice”;

The problem here comes in when the original document is in the custody of the adverse party. For
example, I sue him for breach of contract. What I have are only the TRUE COPIES or PHOTOCOPIES.
I don’t have the original contract. Under the law, I can present secondary evidence but the law
requires that before I am allowed to present such secondary evidence the party offering must first try
to produce the original copy in court. Only if he fails to produce such document and after reasonable
notice to the other party possessing the original copy has been given may the party offering produce
secondary evidence.
(c) “When the original document 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’;

For example, you are the owner of a store such as NCCC. How do you prove your gross sales in one
year? Through receipts, invoice, etc. So when a party wishes to prove its gross sales for the year,
must it present all the invoices and receipts? That would be too tedious and impractical. Is there a
way of proving gross sales other than bringing all the invoices to court? Yes. Since what one intends
to establish is the total (only the general result of the whole) and the court allows the presentation of
Income Tax Returns, Financial Statements or Balance Sheets.
Therefore when there is an objection to the presentation of the Income Tax Return, Balance Sheet or
Financial Statement to prove annual gross sales for example such should not be well-taken by the
court as this case falls under one of the given exceptions.
CASE; Compania Maritima Vs. Allied Free Workers Union, 77 SCRA 24 (1977)

Second Division:

FACTS: On aug. 11, 1952, Cia. Maritima (CM) and Allied Free Workers Union (AFWU) entered into a
written contract whereby the Union agreed to perform arrastre and stevedoring work for the
Company’s vessels at Iligan City, effective for one month.
It was stipulated that the Company would revoke the contract before the expiration of the agreed
term, if the Union failed to render proper service. After a month, the contract was verbally renewed.
CM allowed the Union to continue performing arrastre and stevedoring work.

On July 23, 1954, the Union sent a letter to CM requesting it to recognize it as the exclusive
bargaining unit, to load and unload the cargo of its vessels in Iliigan. The Company ignored the
request. The union subsequently filed in the the CIR a petition for certification election.

Despite the certification case, CM sent notice to the Union for termination of their August
contract. On Aug. 31, 1954, CM entered into a new contract with ILIGAN Stevedoring Association.

CM, in the original complaint, assailed that the termination of the contract was due to the Union
workers’ inefficiency and that the company suffered financial losses due to such inefficient service. To
ascertain its annual losses, Jose Teves, CM Iligan Branch Manager, hired auditors. CM relied only
upon such auditors’ report and presented in court only a summary of damages. The sales invoice
were not produced.

ISSUE: (On Evidence) Whether or not the non-submission as evidence of the records of the alleged
losses of the Company is excused because of the rule exempting voluminous records from being
produce in court.
HOLDING: The best evidence of the Company’s losses would have been the sales invoices instead of
the Manager’s oral testimony.
The rule that “when the original consists of numerous accounts or other documentaries 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, the original writings need not to be produced”, CANNOT
BE APPLIED because the voluminous character of the records on which the accountants’ reports were
based WAS NOT DULY ESTABLISHED. It is also requisite for the application of the rule that the
records of accounts should be made accessible to the adverse party so that the correctness of the
summary may be tested on cross-examination.

An audit made by a private auditor or the testimony by him is INADMISSIBLE in evidence as

proof of the original records, book of accounts, reports of the like. The pertinent record should have
been produced; otherwise, conclusions, interference or opinions of the auditor are inadmissible.

The chief clerk who was not presented as a witness cannot be replaced by statements of the
accountant for it is HEARSAY; for the accountant was not the one who made the alleged records but
the chief clerk.

Note that the records can still be bought to court or outside the courtroom to establish there
voluminous character.
(d0 “When the original is a public record in the custody of a public officer or is recorded in a public
office.”
EXAMPLE: Birth Certificate. That is recorded in the Office of the Civil Registrar. You do not keep the
original copy. If you wish to prove that you were born on this date for the purpose of taking the Bar
Exams, for example, the Civil Registrar will give you a CERTIFIED TRUE COPY. Under the law, a
certified true copy is in violation of the BER because one is supposed to present the original. But the
original is a public document, recorded in public office where one cannot it. The document is owned
by the government.
Because of that exception, a certified true copy issued by a public officer is admissible. It has the
same force and effect as the original itself.
The BER states that the “original must be produced.” But what do we mean by “original”?
“Section 4. Original of Document – (a) The original of a document is one contents of
which are the same of inquiry.
This is so because sometimes the word “original” would refer to two documents executed at the same
time.
EXAMPLE; A case involving a newspaper reporter who typed a story and submitted the same to his
editor. The editor published the story in the newspaper. QUESTION; Which one is considered
original? Is it the story which was typewritten by the reporter or is it the story that was actually
printed or published in the newspaper? ANSWER: It depends. If the issue is the subject of inquiry, the
original would be the story as prepared or typed by the author. But if the issue to be establish is
whether the published story is libelous or not the original is the story which appeared in print.
ANOTHER ILLUSTRATION: I send you a telegram. Naturally, I will prepare a transmission form. Then,
the telegram company transmits it to receiver. QUESTION: Which is now the original? It is the
massage which I wrote down, or is it the copy of the telegraph as received?
ANSWER: It depends on the subject of inquiry. If we are talking about the message as received then
the original in the copy of the message sent to the addressee.
”(b) 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.”
The word “original” has a legal meaning which is stated in this Section b. A good example would be a
typewritten contract. When you type up a contract you prepare also a carbon copy or copies.
Afterwards, the parties sign each and every copy. QUESTION. Which one is the original? From the
viewpoint of the typist, the original includes carbon copies which were signed by the parties.
So when a party produce in evidence a carbon copy to prove the contents of a document, you cannot
object on the ground of violation of the BER because actually he is producing the original. Ang hindi
original ay iyong walang pirma.
This paragraph was not found in the 1964 Rules on Evidence. Carbon copies were then regarded as
originals but the Rules did not expressly state it. Now, the 1989 Revised Rules on Evidence states this
provision.
In the old cases of People vs. Quiñonez and People vs. Tan (107 Phil 1242), the SC said : for a
carbon copy to be original the signature of the parties on all the copies must be made by the same
stroke of the pen.
But that is not how it is done in the actual practice. That is not how parties sign contract sonsisting of
5 or 7 copies. Ususally, the parties sign one copy after another. So every copy is signed by a different
stroke of the pen. Therefore, based on the rulings in the given cases the carbon copies are not
considered originals because the signature were not made by the same stroke of the pen.
However, the SC changed its mind in later cases. In the case of PNB vs. Ulila, the same-stroke-of-th-
pen rule was not applied. Meaning if the parties signed the copies one after another although there
were different strokes of the pen, all of them are equally regarded as originals.
Presently, the same-stroke-of-the-pen rule is not anymore recognized. According to the law,
“executed at or about the same time” – meaning, one after the other.
“© 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 entries are likewise equally regarded as originals.”
Take note that this is different from (b). For example, there are many books where you make entries,
not contracts. Then when you make each entry, you sign each and every one of them. QUESTION:
Which of these books is the original? ANSWER: All of them are considered as originals, because they
were copied from another in the regular course of business.
This may be similar to (b). But this refers to entry books other than the carbon copies. This provision
appears in the 1940 and 1964 Rules. This is actually the basis of the ruling on carbon copies
considered as original prior to the 1989 Rules. That is why the situation being contemplated in the
cases in (b) and (c) seem to be quite identical.
2. SECONDARY EVIDENCE

”Section 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.”

Seizure proceedings were instituted in the Bureau of Customs against Tan for violation of Sec.
3602 of the Tareiff and Custom Code. A criminal proceeding was also instituted in the Circuit
Criminal Court.
In the Circuit Court, appellant contended that it is an error fir the prosecution to present
secondary evidence to prove the existence of the smuggled goods without presenting the
baggage declaration, which was alleged lost. Secondary evidence presented were the
testimonies of Manansala Diaz and Malud, Customs Policemen and Examiners.
 The Circuit Court found Tan guilty. Tan appealed to the CA, which affirmed to the lower’s court
decision. This petition for certiorari from such decision of the CA.
ISSUE: Whether or no secondary evidence is admissible absent the proof of the loss of the
baggage declaration which is the best evidence?
HOLDING: It is conceded that petitioner’s baggage declaration is the best evidence of the
contents thereof. However, the general rule provides that reasonable search shall be made for it
in the place where it was last found, being the best evidence of the prosecution. It is safe to
assume that the fiscal undertook the necessary search but that the declaration could not be
found.
This justifies then the application of the exception to the best evidence rule which admits
secondary evidence in cases when the original document is lost, destroyed or cannot be produced
in court (Sec. 2, Rule 130) in relation to Sec. 4 which allows proof by a copy, recital of its
contents, or testimony of witnesses – in this case, the officers who searched the baggage.
“Reasonable search shall be made for the lost document in the place where it was last known to
have been, and if such search does not discover it, then inquiries must be made of persons most
likely to have its custody or who have reasons to know of its whereabouts xxx.”

The SC states: “There is no inflexible definition under which you can give a definite pattern. The sole
object of such proof is to raise a reasonable presumptions merely that the instrument is lost. And this
is preliminary inquiry addressed to the discretion of the judge.”
One must satisfy the court that he really looked for the instrument by giving details of his search. He
must prove that he must exhausted by locating the missing document. The search must NOT have
been MERELY PERFUUCTORY.
“Section 6. When original document is in adverse party’s custody or control. If the
document is in custody or under the control of the adverse part, 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.”

This refers to the second exception to the BER. The document is not lost or destroyed but is in the
possession of the adverse party. Obviously here, there is only one copy of the document.
For one to be able to present secondary evidence similar to the case of loss or destruction, the
important requirement is for him to give the ADVERSE PARTY REASONABLE NOTICE to produce
document in court. Then if during the trial he is able to prove to court that he gave the adverse party
notice, but the latter did not bring it he can now ask the court to allow him to present secondary
evidence.
Q: how does one make the adverse party bring the document to the court?
A: By subpoena duces tecum. He can subpoena the adverse party, although that is not necessary.
What the rule only say is that one has to give the adverse party reasonable notice and time to
produce the document.
EXAMPLE: X will have a document brought to court either by way of Notice to Produce to the adverse
party or by subpoena duces tecum. When X looks over the document he finds nothing favorable to or
supporting of his case. X decides not to offer it as evidence. Even if it was X who asked that the
document be produced in court when he inspects it and finds nothing relevant in it with respect to his
case he is under no obligation to offer the same as evidence in court. This is not tantamount to
depriving the court of its opportunity to see the truth. No party to a case is expected to supply its
opponent with the very rope to hang the former’s neck. Anyway the other party is also not prevented
by law from using the said evidence in its favor.
The principle here is similar to that is depositions. A person who takes the deposition of somebody
does not necessarily make him his witness. Unless the part offers the deponent’s deposition in court
as a testimony in its favor.
Section 8 is limited only to production and inspection.
3. PAROL EVIDENCE RULE

“Section 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 between the parties and their successors in interest no evidence of
such terms other than the contents of the written agreement.”

Parol evidence literally translated means ORAL OR VERBAL TESTIMONY of a witness. So

when a witness testifies in court, he says something there; the adverse party through counsel
asks him a question, the witness gives his answer. That is verbal testimony. Other names by
which Parol Evidence is known are EXTRINSIC EVIDENCE (“extrinsic”, meaning it is something
not found in the written agreement itself) and EVIDENCE ALTUNDE.

EXAMPLE: A and B entered into a contract. The stipulations are the matters they have agreed upon.
Subsequently, A sues B for breach of contract because B allegedly violated stipulations 2,3 and 4. B
says that he did not violate the said stipulations. Why? B claims that he cannot be considered to have
violated the said stipulations because of the existence of another condition. He contends that only
under the said additional condition can be held liable. But what is that condition? It is not in the
contract itself. B says that the additional condition was merely verbally agreed upon by them. So, in
effect, B is trying to prove orally that an additional condition or stipulation exists, which cannot be
found in contract.
Under the Parol Evidence Rule, A’s counsel can object. What is the rule? When the agreement is in
writing, the presumption is that all the term and conditions agreed upon are written down in the
contract. So, no one has the authority to quality, alter, vary or charge the terms of a completely
written agreement. No one can inject other qualifications or conditions which are not in writing.
Otherwise, evidence being presented with respect to anything that is not in the contract is
inadmissible.
Another way of saying it is: Once a document has been executed as confirmation of the negotations
between the parties, no one may offer parol or oral evidence – the effect of which would be to vary
or to alter the terms of the contract.
The SC says that the reason for this rule is that: when parties have reduced their agreement to
writing it is presumed that they have made the document the only repository and proof of the truth;
and whatever is not found in the document is understood to have been waived or abandoned.
It is not logical for the parties to produce into writing only some of the terms they have agreed upon
and to not put into writing the rest. When businessmen enter into negotiations and reduce the same
into writing the presumptions is that everything has been agreed upon.
The following are some cases where the SC applied the Parol Evidence Rule:
1) FACTS: In the old case of Pastor vs Caspar, X borrowed from A a certain amount of money to
purchase vehicles for a transportation business. As a security for the payment of the loan, he
pledged certain chattels. So they executed the corresponding document. It was either a
contract of pledge or a contract of chattel mortgage. When X failed to pay on the due date, A
 sued X. During the trial, X tried to prove through his testimony that the real agreement
between him and A was a PARTNERSHIP. Because if the contract was indeed one of
partnership whatever financial losses in the business should be shouldered by both the
partners. A claims that the vehicles were pledged to him as security for the loan. X claims
that as a partner , the money borrowed by X was A’s contribution to the partnership.

ISSUE: Is the testimony of X admissible?

HOLDING: No, X’s testimony is inadmissible. According to the SC: The written agreement
being a loan secured by a pledge under the Parol Evidence Rule, its nature cannot be varied by
oral testimony.

2) FACTS: Evelanet vs. Eastern Mining Co. Eastern Mining hired the plaintiff as its mining
engineer. There was an agreement as to the amount of his salary, his entitlement to housing
allowance, gasoline allowance, entertainment allowance, etc. And then it happened that
plaintiff was not paid his allowances. So plaintiff sued the company.

According to the company, their agreement was that the allowances would be paid to plaintiff
in full only if their business would improve. However, the business did not improve. That is why
plaintiff could not get the promised allowances.

Plaintiff presents the contract in court and does not find any phrase which would support the
company’s contention.

ISSUE: Is the management allowed to prove the alleged condition that the allowances due
the mining engineer would be paid him only if the business would turn out to be successful?

HOLDING: The SC said: The oral testimony to prove the said condition is not admissible
because said oral testimony tends to vary a condition not appearing in the written contract. The
rule is that conditions qualifying the operation of a clear and complete written agreement or
contract cannot be proved by parol or oral evidence.

Q: What happens if there was failure to raise the objection?

A: The result is WAIVER. Meaning the evidence becomes admissible because this rule is for
the benefit of parties in the contract.

“Section 9, 2nd Paragraph. 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) An intrinsic ambiguity, mistake or imperfection in the written agreement;”

If one intends to present oral evidence in court under this exception, the law requires for him
to raise it earlier in his pleading. Otherwise, it will be deemed waived.

EXAMPLE: There is an ambiguity or mistake in the writing or document. How can that be
corrected? By oral evidence. But in order to do that in the pleading, the complaint or defendant
(as the case may be) must raise that as an issue. For example, that the agreement was a
mistake. That the agreement being like this, it has an intrinsic ambiguity in it.

Q: What does “ambiguity” mean?

 A: That the agreement is susceptible of two or more interpretations. And when the law is
vague, one needs to resort to the rules of statutory construction. The same goes with contracts.

Based on the law, there are two types of ambiguity: INTRINSIC and EXTRINSIC. What is
curable by oral, verbal or parol evidence is the INTRINSIC type. The extrinsic type is not
mentioned in the law.

Intrinsic ambiguity means an ambiguity which does not appear on the face of the writing or
agreement but lies hidden in the person or thing or subject whereof the writing or agreement
bespeaks. Nakatago. The ambiguity is hidden; it cannot be detected by simply reading the
document. Another term for intrinsic ambiguity is LATENT AMBIGUITY.

An example of an ambiguity which is hidden. A executes his Last Will and Testament. In it he
said: “I hereby leave a legacy of One Million Pesos if favor of my friend, Juan de la Cruz.” In the
study of Succession, that is valid and allowed. One may leave a legacy in favor of a third person.
So eventually, A died. His will has probated. But the problem now is that he has 3 friends who are
all named Juan de la Cruz and each one is claiming the legacy. Obviously there is an ambiguity in
the Will.

Although there is a problem as to who among the 3 Juan de la Cruz is referred to by A in his
Will, obviously. A was referring to only one Juan de la Cruz. But still when you read the document
there is ambiguity after all. The ambiguity surfaced only later. One of the Juan de la Cruzes wants
to prove that he is the person being referred to in the Will. So he presents oral testimony to
clarify the doubt. Is that allowed? Yes. This is an example of an intrinsic ambiguity which is
curable by parol evidence.

As stated in the last paragraph of Section 9, parol evidence does not apply only to contracts
but also to last will and testament.

ANOTHER EXAMPLE: A sold, donated or willed to B, placing in the document the following: “I
hereby sell, donate or give to B my commercial lot (Lot No. 100) consisting of 350 square meters
situated at the corner of San Pedro and Legaspi Streets…” It was later discover that A does not
actually own a commercial consisting of 350 square meters situated at the corner of San Pedro
and Legaspi Streets. But A does own a commercial lot also 350 square meters in area but located
at the corner of San Pedro and Anda Streets.

SCENARIO: By looking at the instrument or contract, there seems to be nothing wrong. But
when you look at the property, the ambiguity arises.

QUESTION: Can oral testimony be presented precisely to prove that actually there was
merely an erroneous description of the property which is the subject matter of the sale or
donation? That was actually intended by A was the lot located at the corner of San Pedro and
Anda Streets?

ANSWER: Yes. There is a maxim in evidence known as Falsa Demonstratio Non Nocel, which
asked before in the Bar Exams and which simply means that a false description does not vitiate a
writing; provided, sufficient of the description remains as would identify the thing or person
intended.

QUESTION: Is the sale or donation in the above case deemed avoided?

 ANSWER: No, because there is still something in the description which would identify the
subject matter – the same lot number, the same size of area and it is also a commercial lot.
Nagkamali lang ang location ng lot.

The other type of ambiguity is EXTRINSIC. It is defined as an ambiguity which appears on

the face of thewriting or agreement itself. It is sometimes called PATENT AMBIGUITY. By reading
the document, the ambiguity becomes obvious.

EXAMPLE: “I hereby donate to you something.” What “something” is that? The done claims
that that “something” is 100 hectare of land. He will present oral evidence to prove that that is
what it means. But the heirs of the donor disagree and claim that that “something” refers to a
fountain pen only.

QUESTION: Can that type of ambiguity be cured by parol evidence?

ANSWER: No. Since the instrument does not specify the subject matter, it is VOID. Since it is
void, no amount of evidence will validate it. Conclusion: Patent ambiguity cannot be cured by
parol evidence because the instrument or contract is null and void for lack of subject matter.

Q: Differentiate the above from Falsa Demonstratio Non Nocel

A: In Falso Demonstratio Non Nocel, there is an identified subject matter. Only the
description is unclear. There is still something left to be identified. But when “something” will be
given to somebody – this is vague provision which cannot really be implemented. The principle
here is: If the description is totally zero, this is PATENT AMBIGUITY.

To know the language of the SC in matters respecting patent ambiguity, in the case of Borillo
Vs. CA (209 SCRA 130) it commented in the parol evidence rule: parol evidence is not admissible
to identify the property where the description thereof is so vague as to amount to no description
at all. Parol evidence is not permitted to supply a description but only to apply it. Because this is
extrinsic ambiguity.

CASE: Borilo Vs. Court of Appeals, 209 SCRA 130

FACTS: This is a petition for review under Rule 45. Petitioner urges the Court to review and
reverse the decision of the CA promulgated on 3 Sept. 1980 which reversed and set aside the 5
June decision of the CFI of Abra.

On 10 Feb. 1977, petitioner, for herself and on behalf of her children, filed before the court a
complaint against private respondent and Marcos Borillo for the recovery of several parcels of
land located at Abra.

In this complaint, petitioner alleges that the parcels of land were originally owned by her late
husband, Elpidio Borillo. Although said lands were undersigned, they were declared in 1948, in
the name of Elpidio under Tax Declaration. Elpidio had been in peaceful, continuous and
uninterrupted possession thereof in the concept of owner even before his marriage to petitioner
until his death.

The lower court awarded the properties to petitioner herein. Catalina Borillo appealed and
was sustained by the CA.
 ISSUE: Whether or not parol evidence is admissible to prove the description of the subject
matter of a deed or other writing.

HOLDING: The petition is meritorious.

In reversing the findings of the trial court, the CA justifies the deficiencies and discrepancies
saying that the absence of specification as to what property was sold is understandable because
were brothers and sisters. It added that this defect was cured by testimonial evidence.

However before parol evidence to aid the description of the subject matter of a deed of the
other writing, there must be a description that will serve as a foundation for such evidence. Parol
evidence is not permitted to supply a description but only to apply it. Parol evidence is not
admissible to identify the property where the description thereof is so vague as to amount as to
no description at all.

According to Wigmore, aside from the extrinsic and intrinsic ambiguity, there is a third type a
middle-ground. He call it “intermediate ambiguity”. This is an ambiguity arising from the use of
words susceptible of different interpretations. This is curable by parol evidence. Section 10 to 19
on the interpretation of documents will be useful here. So, when the document is vague one does
not declare the contract or document as void but subjects the same to the rules on interpretation.
These rules allow the presentation of parol evidence.

EXAMPLE: In the case of Palanca vs. Wilson, an apparatus or machine used tic invert alcohol
or rhum is the subject of the deed of sale. In the contract, the machine is describe as “of 6000
liters capacity.” It turned out that the word “capacity” can have two meanings – working or
producing. Which could have been intended by the parties? Because if you would look at the
contract, Malabo eh. Thus, the SC said: Parol evidence may be admitted to explain the ambiguity
and to determine the intention of the parties.

Q: Cite at least five (5) rules on interpretation of contracts. (Bar Question)

A: Aside from Section 10 to 19 of Rule 130 of the Rules on Evidence, see also Articles 1370 to
1379 of the New Civil Code.

Under Paragraph (a) of Section 9, aside from intrinsic ambiguity, there can also be a
MISTAKE in the document or agreement. A mistake can be cured. But what kind of mistake? A
mistake of fact; not a mistake of law. The latter is not curable since everybody is presumed to
know the law anyway. For parol evidence to apply, the following are requisites:

(1) There is a factual mistake;

(2) The mistake is common to both parties to the instrument; and
(3) The mistake is proved by clear and convincing evidence.

Another exception to the Parol Evidence Rule under Paragraph (a) is when there is an IMPERFECTION
in the agreement. This imperfection may be explained or cured by parol evidence.
Q: What does “imperfection” mean?
A: It simply means that the writing is imcomplete (kulang) and does not show the whole agreement
of the parties but defines only some of its term.
Q: How does one convience the court that the government is imperfect or incompetent?
A: According to the SC, the best evidence is the document contract or writing itself. By reading it one
would find out if there are terms agreed upon that were omitted. So in order to supply the deficiency,
parol evidence may be allowed; provided that is raised in the pleading.
The second exception:
(b) The failure of the written agreement to express the true intent and agreement of the parties
thereto.

The perfect example here is an action for the reformation of the contract. You raise in your
complaint that the agreement actually does not express the true intent of the parties. You put
that in issue. In effect, you are asking that the written contract be changed to reflect what was
actually agreed upon.

A more specific example: An agreement which appears to be deed of sale but is in reality an
equitable mortgage. This is an agreement which does not reflect the true intention of the parties.
Oral evidence is allowed to prove the real nature of the agreement. According to the SC: Courts
of equity go through and beyond that which appears in a contract, in order to determine the real
agreement of the parties. And toward that end, oral and written evidence are admissible to
determine the real agreement.

The third exception:

(c) The validity of the written agreement.

Here one will present evidence to prove that the contract is not valid , for example. But first it must
be raised in the pleading.
EXAMPLE: A sells to B his land for P1 Million. They draw up and sign a deed of sale. So: “In
consideration of One Million Pesos, receipt of which is hereby acknowledge in full … I hereby sell this
property to B xxx”. But B says that he has to go to the bank to secure manager’s cheques as P1
Million is too large an amount to be paid in cash, A agrees to wait for B, while B brings with him the
deed of sale and the title to the land. But B never came back because he went straight to the
Registry of Deeds to have the title of the property transferred over to him. PROBLEM: How does A
prove that B never paid him the agreed consideration when the deed sale has been duly
acknowledged and the sale duly registered? ANSWER: A will prove through his testimony, that he
never received the consideration.
Based on the general rule, A cannot really prove that he did not receive the money because the
document will show otherwise. Any attempt on the part of A to do so will be objectionable. However
since he filed the case to nullify the deed of sales in effect, he is raising the issue on the validity of
the said instrument. So, in this case, parol evidence is allowed to prove lack of consideration.
As a matter of fact, according to the SC, when one is trying to prove such an issue as the on validity
of the instrument, he is not varying the terms of the agreement. But he may be proving that there is
no agreement or contract at all. He may even be proving that there is actually no agreement which is
binding.
The fourth exception:
(d) The existence of other term agreed to by the parties or their successors in interest after the
execution of the written agreement.
Briefly these are SUBSEQUENT AGREEMENTS. Subsequent oral agreements are not covered by nor
are considered as exceptions to the Parol Evidence Rule.
HSITORY: In the 1964 Revised Rules of Court, this exception does not appear. What appeared there
were only ambiguity, mistake, imperfection, failure to express the true intent and validity. The rest of
the terms were added in the 1989 Rules. But even without this exception in the 1964 Rules, it was
still considered an exception because of judicial pronouncements.
Judicial pronouncement have placed subsequent oral agreements beyond the scope of the parol
evidence rule. The 1989 Rules just formalize or incorporate this. But this has always been
considered as part of the exceptions.
EXAMPLE: B borrowed money from A. For this, B signed a promissory note in favor of A. Maturity
date was fixed at July 3, 1995. When July 3, 1995 came, B did not pay. Thus, A sues B for payment
of the due account. B’s defense is that the amount is not yet due because after the execution of the
promisory note, A agreed to extend the perion of payment until Dec. 3, 1995. But B claims that this
agreement was reached by them only verbally. What is B proving here? An oral agreement which
happened after the execution of the promissory note. Can this be done? Yes. B can testify orally in
court on the subsequent oral agreement that he had with A. The extension result in the novation of
their previous agreement upon maturity date. PRINCIPLE: the parties cannot incorporate in the
contract or instrument something that they will still agree on the future.
TAKE NOTE: What is guaranteed by Sec. 9 is only the ADMISSIBILITY of the evidence. It does not
guarantee the CREDIBILITY or WEIGHT of the evidence. The court may or may not believe your
story. ADMISSIBILITY IS DIFFERENT FROM CREDIBILITY.

ALSO: It is awkward for the parties to make oral agreements, later reduce the agreement into writing
and leave out some of the agreement. All prior agreements are deemed incorporated in the written
agreement. This is sometimes also called the Integration of Agreement Rule.

ILLUSTRATION:

--------- Prior oral agreement NOT PROVABLE

(June 15, 1995) BY PAROL
EVIDENCE

July 3, 1995 ---------- Contemporaneous PROVABLE BY

(date of written agreement) oral agreement PAROL EVIDENCE

-----------Subsequent oral PROVABLE BY

Agreement PAROL EVIDENCE
(Aug. 14, 1995)
 (1) All prior oral agreement are covered by the Parol Evidence Rule. They cannot be provided by
oral testimony because the presumption is everything agreed upon by the parties
incorporated in the written agreement. This provision’s exact opposite is paragraph (d) of
Sec. 9.
(2) Contemporaneous oral agreement – On July 3, 1995, the agreement was put into writing. But
on the same date also, there was another agreement but oral. That is contemporaneous oral
agreement.

Q: Is a contemporaneous oral agreement covered by the Integreation ofAgreement Rule?

A: Yes, it is covered BUT WITH EXCEPTION. Because if on July 3, 1995, the parties really agreed
upon something and subsequently executed the contract governing the transaction dapat isinama
na lahat sa written agreement. The general rule for contemporaneous oral agreement actually is
that it is not provable by parol evidence because of the presumption that everything agreed upon
is integrated in the written agreement.

However, there is an exception if such oral agreement can be classified as a COLLATERAL

AGREEMENT.
An agreement is considered a collateral agreement if it pertains to something SEPARATE and
DISTINCT from the written agreement. Such collateral agreement may be proved by parol
evidence. This was laid down by jurisprudence prior to the 1989 Rules.

(3) Subsequent oral agreements are exceptions to the Parol Evidence Rule because they cannot
be integrated in the July 3, 1995 written agreement. The parties cannot be expected to
incorporate in the written agreement something which they will still agree on in the future.
Q: What oral agreement may be proven by parol evidence based on jurisprudence?
A: (1) Subsequent Oral Agreements or agreement entered into after the execution of the written
agreement; and
(2) Collateral Oral Agreement which separate and distinct.

Q: In contemporaneous oral agreements when are collateral agreements considered as separate and
distinct?
A: (1) They are separate and distinct if the subject matter of written agreement is separate and
distinct from the subject matter of the contemporaneous oral agreement. There is no violation
because the written agreement is not being altered or varied.

(2) The contemporaneous oral agreement is separate and distinct even if the subject matter of the
written agreement and oral agreement are the same if the collateral oral agreement can be separated
from the oral agreement. This can still be proved by parol evidence.

EXAMPLE: A sells his house and lot to B. For a consideration of P2 Million, A transfers ownership over
the same to B. However, for a month after the sale, A refuses to vacate the premises. So B files a
case against A for not surrendering possession of the property. In court A says that he and B agreed
that that after the sale, A would continue occupying the property for 6 months no longer as owner
but as lessee. So what A is trying to prove is an oral agreement of lease of the same subject matter
as in the deed of sale.
Counsel for B objects on the ground of violation of the Parol Evidence Rule. QUESTION: Is this a valid
objection? ANSWER: No, there is no violation of the Parole Evidence Rule. The subject matter in the
written agreement here is the same as in the oral agreement B is trying to prove. But the deed of
sale is different (separate and distinct) from the oral agreement of lease. Therefore, A can validly
present oral evidence to prove whether or not there are actually was an oral agreement of lease
between him and B after the sale of the property. By trying to prove the oral agreement of lease, B is
not altering, modifying or adding to the written contract.
ANOTHER EXAMPLE: C sells his land to D. After one year, C tries to buy back the land. C tells D that
they had a contemporaneous agreement before he (C) would have one year to buy back the land.
During trial, is C allowed to prove that?
According to the SC: A collateral agreement of reconveyance or repurchase may be proved by parol
evidence because an agreement of reconveyance is a distant agreement separate from the sale itself
– although the new agreement is usually contained in one and the same document. A deed to
repurchase is an entirely different contract. This is like a sale with pacto de retro. Although in reality
they are normally incorporate in one document, sometimes they are separate and distinct. This is
provable by parol evidence.

Q: Distinguish the Best Evidence Rule (BER) from the Parol Evidence Rule (PER).

There is a common confusion during litigation. For example,

Plaintiff: “Yes, this is the contract I entered into with D.”
Court: “What are the other terms and conditions you agreed upon which are not found in the contract
itself?”
Counsel for Plaintiff: “Objection, violation of the Best Evidence Rule!”
Dean Iñigo: I think what you mean is Parol Evidence Rule. You are asking for other terms and
conditions. The best evidence for that is the contract itself. Since you are trying to offer evidence to
vary, modify or alter the terms of the agreement, the correct ground for your objection should be
Parol Evidence Rule.

A: (1) Under the BER, the issue is the CONTENTS of a document; is the CONTENTS of a document;
whereas, under the PER, there is no issue as to the contents of a document. The issue is PER is YOU
ARE TRYING TO ADD OR MODIFY what is already written down.
(2) What the BER prohibits is the OFFER OF SECONDARY EVIDENCE to prove the contents of a
writing or document unless the case falls under any of the exceptions; whereas what PER prohibits is
the OFFER OF ORAL EVIDENCE if the purpose is to change, vary, modify, qualify or contradict the
terms of a complete written agreement unless the case falls under any of the exception.
(3) Any party to the case may invoke the BER whereas only the parties to the document and their
successors in interest may invoke the PER.
(4) The BER applies to any document; whereas the PER applies only to agreements although the
word “agreement” includes wills.

The following sections are applicable to intrinsic and intermediate ambiguities of documents. Also the
Civil Code contains certain rules of interpretation of contracts – notably Articles 1370 – 1379:

“Article 1370. If the terms of a contract are clear and leave no doubt upon the intention of
the contracting parties the literal meaning of its stipulations shall control.
If the words appear to be a contrary to the evident intention of the parties the latter shall
prevail over the former.”

“Article 1371. In order to judge the intention of the contracting parties, their
contemporaneous and subsequent acts shall be principally considered.”
“Article 1372. However general the terms of a contract may be, they shall not be understood
to comprehend things that are distinct and cases that are different from those upon which the parties
intended to agree.”
“Article 1373. If some stipulation of any contract should admit of several meaning, it shall be
understood as bearing that import which is most adequate to render it effectual.”
“Article 1374. The various stipulations of a contract shall be interpreted together, attributing
to the doubtful ones that sense which may result from all of them taken jointly.”
“Article 1375. Words which may have different significations should be understood in that
which is most in keeping with the nature and object of the contract.”
“Article 1376. The usage or custom of the place shall be borne in mind in the interpretation
of the ambiguities of a contract, and shall fill the omission of stipulation which are ordinary
established.”
“Article 1377. The interpretation of the obscure words or stipulation in a contract shall not
favor the party who caused the obscurity.”
“Article 1378. When it is absolutely impossible to settle doubts by the rules established in the
preceding article and the doubts refers to incident circumstances of a gratuitous contract, the least
transmission of rights and interests shall prevail. If the contract is onerous, the doubt shall be settled
in favor of the greatest reciprocity of interests
If the doubts are cast upon the principle object of the contract in such a way that it cannot
be known what may have been the intention or will of the parties, the contract shall be null and
void.”

The above provisions should be read with Rule 130, Section 10 to 19 of the Rules on Evidence. Some
of these rules are similar to the principle of statutory construction.

4. INTERPRETATION OF DOCUMENTS
“Section 10. Interpretation of a writing according to its legal meaning. – The language of
a writing is to be interpreted according to the legal meaning it bears in the place of its
execution unless the parties intended otherwise.”

One must apply the legal word in the place where the document was prepared in order to understand
what it means. Remember these rules. Sometimes they ask in the Bar Exams.
For example, if a contract was prepared in Japan and a legal term is being used there, the meaning
of such legal term according to Japanese Law will be used not as we would understand it in the
Philippines.

”Section 11. Instrument construed so as to give effect all provisions. – In the

construction of an instrument where there are several provision or particulars, such as
construction is, if possible, to be adopted as will give effect to all.”
Q: How does one construe statues?
A: One has to consider the entire law. He does not interpret every article independently of the other
or in isolation from the rest. He must harmonize provisions with each other. The same rule goes for
contracts.
“Section 12. Interpretation according to intention; general and particular provisions. – In
the construction of an instrument, the intention of the parties is to be pursued; and when
a general and a particular provision are inconsistent, the latter is paramount to the
former. So a particular intent will control a general one that is inconsistent with it.”
Q: How should a law be interpreted?
A: One must determine the intent of the framers. In a contract, one must determine the intention of
the parties. If there is a conflict between general law and special law, the special law prevails.
“Interpret the law according to the spirit that giveth life rather than the letters that killeth.”
Section 13. Interpretation according to circumstance. – For the proper construction of
the instrument, the circumstances under which it was made including the situation of the
subject thereof and of the parties to it, may be shown so that the judge may be placed in
the position of those whose language he is to interpret.
If you are to interpret a contact, imagine yourself to be in a judge’s or the parties shoes. What would
your reaction have been at the time the contract was made? Simulate the situation so you may
understand better how the parties guided in the execution of the contract.
“Section 14. Peculiar signification of terms. – The term of writing are presumed to have
been used in their primary and general acceptation but evidence is admissible to show
that they have a local, technical or otherwise peculiar signification and were so used and
understood in the particular instance in which case the agreement must be construed
accordingly.
When interpreting words used in a contract one must apply the general meaning of the words as
understood by the public. Unless it is shown that the parties intended a technical meaning. If a word
carries as general as well as particular meaning the presumption is that the parties intended the
general meaning.
“Section 15. Written words control printed. – When an instrument consist partly of
written words and partly of a printed form and the two are inconsistent, the former
controls the latter.”
In case of inconsistency written words control the printed ones. Common example is a rider in an
insurance policy.
“Section 16. Experts and interpreters to be used in explaining certain writings. – When
the characters in which an instrument is written are difficult to be deciphered or the
language is not understood by the court the evidence of persons skilled in deciphering
the characters or who understand the language is admissible to declare the characters or
the meaning of the language.”
EXAMPLE: A is suing B for breach of contract. But the contract is entirely written in Chinese. The
judge does not know how to read Chinese characters. This section authorized him to secure the aid
of experts. Otherwise he may not be able to decide the case.
“Section 17. Of two construction, which preferred. – When the terms of an agreement
have been intended in a different sense by the different parties to it, that sense is to
prevail against either party in which he supposed the other understood to it and when
different constructions of a provision are otherwise equally proper, that is to be taken
which is the most favorable to the party in whose favor the provision was made.”
EXAMPLE: A and B entered into a contract which turned out with two possible meanings. A asks for
its real meaning. If B tells A what he thinks the meaning is, then they are bound by estoppel. The
interpretation to be used should be that which the other party believed and used.
“Section 18. Construction in favor of natural right. – When an instrument is equally
susceptible of two interpretations one in favor of natural right and the other against it,
the former is to be adopted.
We do no interpret law against a natural right. The natural right must be respected.
“Section 19. Interpretation according to usage. – An instrument may be construed
according to usage, in order to determine its true character.”
EXAMPLE: Interpret a bill of lading according to its use and for which it is intended.

STATUTE OF FRAUDS

Before leaving the subject of parol evidence we will try to compare the rules with the Statute of
Frauds of the Civil Code.
Article 1403. The following contracts are unenforceable unless they are ratified:

(2) Those that do not comply with the Statute of Frauds as set forth in this number. In the following
cases an agreement hereafter made shall be unenforceable by action unless the same or some note
or memorandum thereof be in writing and subscribed by the party charged or by his agent; evidence,
therefore, of the agreement cannot be received without the writing or a secondary evidence of its
contents:
(a) An agreement that by its term 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 promises to marry;
(d)An agreement for the sale of goods, chattels or thing in action at a price not less than five
hundred pesos unless the buyer accepts and receive part of such goods and chattels, or the
evidence, 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, of 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;
(e) An agreement for the leasing for a longer period than one year, or for the sale of real property or
of an interest therein;
(f) A representation as to the credit of a third person.

(3) Those where both parties are incapable of giving consent to a contract.
Even if the Statute of Frauds is not part of the Rules on Evidence, it is considered as ANALOGOUS to
the Rules on Evidence. In Statute of Frauds, oral evidence is also excluded. The only evidence
allowed is the written agreement.
As a matter of fact, in the 1940 Old Rules, the Statute of Frauds could be found in the Rules of Court.
But when the Civil Code took effect, the Statute of Frauds was transferred to the Civil Code. When
the lawmakers revised the Old Rules in 1946, they altogether removed from it the Statute of Frauds.
That is why there were some Bar Examination in the past in Remedial Law where questions on the
Statute of Frauds were asked.

The history of the Statute of Frauds is explained by the SC in the 1991 case of Claudel Vs, CA (199
SCRA 113). The SC explained that: The provisions of the Statute of Frauds originally appeared in the
old Rules of Evidence; however, when the Civil Code was written in 1949, the Statute of Frauds was
taken out in order to be included under the Title on Unenforceable Contracts of the Civil Code. The
transfer was not only a matter of style but to show that the Statute of Frauds is also a substantial
law.

CASE: Claudel Vs. Court of Appeals, 199 SCRA 113

FACTS: As eartly as 28 Dec. 1942, Cecilio Claudel acquired from the Bureau of Lands a parcel
of land. Thereafter, he secured a Transfer of Certificate of Title issued by the Register of Deeds. He
dutifully paid the real taxes thereon until his death in 1937. His widow and later her son, continued
paying the taxes.
The heirs of Cecilio composed of his legitimate children and the brothers and sisters of Cecilio
claim survivorship over the land. The heirs of Cecili partitioned among themselves the land and
obtained the corresponding TCT. But the brothers and sisters of Cecilio filed a complaint for
cancellation of titles and reconveyance once alleging that 46 years earlier, their parents had
purchased from the late Cecilio certain portions of the said land for the sum of P30. They admitted
that the transaction was verified. As proof of sale, they presented a subdivision plan of the land. The
CFI of Rizal dismissed the complaint on the ground that said civil case is barred by the Statute of
Frauds considering that the sale involve real property. Not only that, but the action also has
prescribed since more than 30 years have elapsed since the sale.
However, the CA reversed the decision of the lower court contending that the Statute of
Frauds applies only to executor contracts and not to consummated sales. The CA further reasoned
out that the defense of prescription cannot be set on against the brothers and sisters because the
action was not for the recovery of procession of real property but for the cancellation of tiles and
reconveyance.
ISSUES: (1) Is the verbal contract of sale covered by the Statute of Frauds;
(2) Has the action prescribed?

HOLDING: The CFI decision is reinstated.

As to the first issue, the SC said that clearly, the verbal contract of sale is precluded by the
Statute of Frauds, pursuant to Art. 1403 of the Civil Code. As such, it cannot be proven orally, The
sale in this case is valid but it cannot be enforced until reduced into writing. The subdivision plan
presented by the brothers and sisters in the lower court carries no weight. According to SC, the
torrens title in the possession of the heirs of Cecilio is more conclusive evidence of ownership than
the subdivision plan.
As to the second issue, the highest tribunal stated that the belated claims of the brothers and
sister who filed a complaint in court only in 1979 to enforce a right acquired allegedly as early as
1930 is difficult to comprehend. Art. 1145 of the Civil Code prescribes that an action upon an oral
contract must be commenced within 6 years. Therefore, the action has already prescribed.

Q: Define the Statute of Frauds.

A: According to American jurisprudence, cited by Tolentino in his book on the Civil Code: The term
Statute of Frauds is descriptive of statute which require certain classes of contracts to be in writing
and regulates the formalities of contracts to make them enforceable.

Q: What is the purpose of the above law?

A: According to Supreme Court: To prevent fraud and perjury in the enforcement of obligations,
depending for their evidence, upon the unassisted memory of witnesses.

Meaning, if a party is allowed to sue for alleged breach of contract – where is the contract? What did
you really agree upon? Then the other party disagrees … Magulo! This is an invitation for people to lie
in court. So, in order to avoid this situation the law requires for certain types of contracts to be in
writing and signed by the parties. At least, one can rely on this rather than on the memory of people.

In a suit, one cannot present oral evidence in court to prove the contents of a contract. Such
contract must be proved in writing.
A contract need not be typewritten. It could be in any form. A note or memorandum may
even be written on mere pad paper. These are considered as valid contracts. Provided, all the
elements of a contract are present – no matter how informal the writing seems to appear.

What should appear on these contracts? The names of the parties, the terms and conditions
of the contract, the obligation of the parties, a description of the property sufficient to identify such
property, the signature of the parties sought to be charged, etc. Then they sign. There is here
compliance with the Statute of Frauds.
 As to the first type of contract:
(a) An agreement that by its term is not to be performed within a y ear from the making
thereof;
EXAMPLE: A enters into a contract with B to sell his (A’s) car for P10,000, but which is to be
implemented within more than one (1) year from the date of execution. A year and six months later,
B gives to A money to purchase the car. However, this time A refuses to sell the car. A says he
decided to back out of their agreement. So B sues A for specific performance. How will B prove the
oral agreement? B cannot prove the oral agreement because the prestation was supposed to take
place within a period longer than one (1) year.
But suppose, in the above example, B was able to give a partial payment of P2,000 upon the
execution of the contract and the sale was actually supposed to take place in two (2) more years.
After the second year, A decides to back out of the agreement. A claims the contract is
unenforceable. Can he raise this as a proper defense? No. The Statute of Frauds is applicable only to
executor contracts. It is not applicable to contracts that have already been partially executed.

According to the SC: This rule applies only on agreements not to be performed within one
year on either side. Thus, when one side is to be fulfilled immediately or within the year, the rule
does not apply. So, partial performance may take case out of the operation of the Statute of Frauds.
The reason: it would be fraud upon a party not to perform his part after he included the other party
to enter into the contract.

(b) A special promise to answer for the debt, default, or miscarriage of another;
When one promise to answer for the debt of another, this is a contract of GUARANTY.

EXAMPLE: C promise A that he (C) would pay if B failed to pay to A. When B failed to pay, A sued
him. B contended that A should run after C because of the assurance C gave A. However, this
should have been put into writing. Nagkamali si A. That was a contract guaranty. Otherwise, B
cannot prove C’s promise to pay for B’s debt.

But suppose the agreement is that A would lead B money, and C would be the one to pay to
A. Sabi ni C siya na ang sisingilin ni A. But this was oral. C defaults in payment and A now sues
him. C contends that A cannot go after him because their agreement was not reduced into
writing and evidence of such oral agreement is a violation of the Statute of Frauds. Is C’s
contention correct? In this case, C is SURETY for B.
In a contract of guaranty, the liability of a guarantor is SECONDARY; in a contract of surety; the
liability is not within the Statute. But if promise is merely collateral to the agreement of another
and the promissor becomes the guarantor, the agreement is covered by the Statute.

Take note: A guarantor’s liability is secondary and attaches only when the principal debtor
defaults in payment of the obligation. Pero kapag sinabing siya ang magbabayad ng utang ng iba,
that is not a guaranty. The promissor is now acting as a surety whose liability is primary. The
 case of the surety is not the one that is contemplated in the provision of the Statute of Frauds.
Therefore, the latter case may be proved in court with oral evidence.

(c) An agreement made in consideration of marriage, other than the mutual promise to
marry.
The provision refers to ante-nuptial agreements in the Family Code. Such agreements must
be in writing.

Q: What do ante-nuptial agreements include?

A: Any kind of agreement about marriage such as the marriage settlement. For example, before the
marriage, the parents of a woman ask for a dowry – land, cows or carabaos, etc. Some people really
have in their custom. The family of the groom agree, but the problem is that they did not reduce into
writing the agreement. The marriage takes place and then the man’s father-in-law now asks for the
dowry. The man refuses to give the dowry. Can the father-in-law sue the man to compel him to give
the dowry that he promised? No, if there is no writing to prove it. Sorry na lang ang father-in-law.
This is covered by the Statute of Frauds.

(d) An agreement for the sale of goods, chattels or things in action at price not less than
five hundred pesos unless the buyer accepts and receives part of such goods and chattels
or the evidence or some of the 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, of the amount and kind of
poverty sold, terms of the amount and kind of property sold, terms of whose account the
sale is made it is sufficient memorandum;
So this contemplates the sale of goods or chattel when the price or consideration is beyond P500,
which cannot be proved orally when there is no written evidence or such contract. But if the price
or consideration is below P500 this can be proved orally.

In order to covered, the subject matter (good or chattel) must not have yet been delivered and
the purchase price must not have yet been paid. Otherwise, the Statute of Frauds cannot apply.
The partial performance of an obligation or prestation takes it out of the coverage of the Statute.
The Statute applies only to EXECUTORY contracts.

(e) An agreement for the leasing for a longer period than one year or for the sale of real
property or of an interesting therein;
Contracts of Lease. If the duration is for one year or less, the contract may be proved orally.
But if it is for a period longer than one year, the contract must be in writing in for this to be
enforceable.
So if the contract of lease is for month to month (majority are like that) – one occupies
somebody’s house and he pays monthly rentals – that is provable orally. But if he stays there
for a period longer than one year dapat nakasulat na ang kontrata.
 Suppose if appears in the contract that rental is for a period of one year or less. However,
when the one year period expired, the parties entered into an oral contract to renew the
rental for another year. When the oral agreement was about to expire, they entered again
into another agreement to renew the rental for another more year – is this allowed?

The SC said that the above case is an indirect violation of the Statute of Frauds. Perhaps the
first year can be proved orally but not the second or other succeeding years unless there was
a written extension or renewal.

(f) A representation as to the credit of a third person.

Representation of credits. This is similar to guaranty.
Q: What are the limitations of the applicability of the Statute of Frauds?
A: (1) the Statute of Frauds applies only to actions for violations of the contract or actions for specific
performance.

Either actions purely for damage or specific performance. This is not applicable to other cases.

BAR PROBLEM: A filed a proceeding under the Property Registration Decree to have his piece of
property titled. He claims that he bought this land 30 years ago. But somebody was opposing his
application of registration. A said he actually bought said property from the father of the oppositor
and the he had as matter of fact already paid for the purchase price. The oppositor asks for the deed
of sale. A could not produce any as the sale was made orally. Can the counsel of the oppositor object
on the ground of violation of the Statute of Frauds?

No, the objection will be improper. This is not an action to enforce a contract. This is a proceeding for
registration of property, and the Statute of Frauds is not applicable to this type of a proceeding.
Invocation of the Statute of Frauds is also improper because A said that he had already paid the
purchase price of the land. The prestation on the part of A had already been partially performed.
Partial performance by a party of its obligation removes the matter from the operation of the Statute
of Frauds.
(2) It is applicable only to executor contacts.
(3) It is applicable only to the agreements enumerated in Article 1403 of the Civil Code.
Exclusio Unios Est Inclusio Alterius. Doon lang sa mga sinabi limitado.
(4) It does not apply when a party to a writing offers to prove by oral evidence, that the writing
does not express the true intent of the parties.
This is an exception both to the Parole Evidence Rule and the Statute of Frauds.
(5) It does not render oral contracts void, but merely unenforceable as against the party sought to
be charged, if he decides to claim the benefit of the Statute of Frauds.

Recall in Obligation and Contracts that there are four (4) types of contracts: (a) void; (b) voidable; (c)
rescissible; (d) unenforceable. Unenforceable contracts are defective but are considered valid until
they are annulled or rescinded. But one can waive the benefit of annulment or rescission but the
contract is still valid.

(6) It cannot be invoked by a STRANGER by a contract.

Q: Can one waive the benefit being given by the Statute of Frauds?
A: Yes. The Statute of Frauds is for the benefit of the party being sued. Such party can always
question the evidence presented by the other party.

Q: How may a party waive the right to question such evidence presented by the other party?
A: (1) By not raising it as an issue in his Answer of the Complaint, on in any motion to dismiss; TAKE
NOTE: This is one of the grounds for motion to dismiss under Rule 16 of the Rules of Court.
Remember that defenses not raised in a motion to dismiss or answer are deemed waived.

(2) When the party fails to make a timely objection to parol proof of the contracts;
This shows the significant of the speed with which you must be able to object to the evidences being
presented in court.
(3) When, after an objection was overruled, the party cross examinee the witness on the contract.

Counsel for Defendant: “According to you(plaintiff), my client did not comply with the
stipulations of your contract. But this contract was oral.”
(Counsel for Plaintiff objects … But suppose the court makes a wrong ruling and overrules the
objection. So, the testimony is admitted. Never mind that. What is important is that you were able to
object. Because on appeal, you can question that ruling by the court.)
So, in the above case, the testimony was admitted by the court. Later on, when the counsel for
plaintiff gets his chance to cross-examine this witness, he must not ask about stipulation or contents
of the oral contract. Otherwise, patay siya. If you were in this counsel, pabayaan mo na lang. Do not
cross-examine na lang. Do ask him about the very matter you previously objected to. Because when
you cross-examine him, your objection is deemed waived.

TAKE NOTE OF THE SIMILARITIES BETWEEN BEST EVIDENCE RULE, PAROL EVIDENCE
RULE AND THE STATUTE OF FRAUDS:

(1) A will present as witness B.

A: Mr. B, why do you know the defendant?
B: I know him because I entered a contract with him.
A: Was the contract in writing?
B: Yes.
A: Please tell the court what are the terms and condition of this contract.
 Counsel for the other party: Objection! Best Evidence Rule.

When the issue is the contents of a contract, no other evidence must be presented other than the
written contract itself. In other words, the testimony of B is merely secondary evidence.

2. A will present as witness B.

A: Mr. B, do you know the defendant?
B: Yes, I entered a contract with him.
A: Was the contract in writing?
B: Yes.
A: Is this the contract?
B: Yes.
A: Would you please tell the court if there were other terms and conditions you agreed on
aside from those found in this contract?

(3) A will present as witness B.

A: Mr. B, do you know the defendant?
B: Yes.
A: You are suing Mr. B to compel him to sell to you real property which he agreed to within 5
years from the time you entered into the agreement, is that correct.
B: Yes
A: Was the agreement in writing?
B: No.
A: Since the agreement was oral, what are its terms and agreement?

A here is trying to prove the terms and conditions of the agreement orally. This is not best
evidence; this is not parol evidence either. This is Statute of Frauds. So, do not confuse the
three with each other.

C. TESTIMONIAL EVIDENCE
1. QUALIFICATION OF WITNESSES

“Section 20. Witnesses; their classification. – Except as provided in the next succeeding
section, all person who can perceive, and perceiving, can make known their perception to
others, may be witnesses.
Religious or political belief, interest in the outcome of the case, or conviction of a crime
unless otherwise provided by law, shall not be a ground for disqualification.”

The qualification of a witness: he can see and can tell others to what he saw, or he can hear and tell
other what he heard, or he can feel and narrate to other what he felt. Therefore, practically almost
the entire human race is qualified.
Q: Is a blind person qualified to become a witness?
A: Yes, for as long as what it is to be asked is not on what he saw. But if he still has the sense of
touch, smell – he may testify in these matters.
One need not to be a high school graduate in order to be qualified to be a witness. The
requirement are only those that can be found in the law.

Q: Is a deaf mute qualified to be a witness?

A: Yes. He can still communicate through common sign language. In the case of People vs. Tomentos
(22 SCRA 212), the SC said that a witness is competent to testify even if she could convey ideas only
through signs or body language.

CASE: People vs. Tomentos, 211 SCRA 212

FACTS: A compliant was filed through the Assistant Prosecutor charging Henry Tomentos with the
rape of Salvacion Cabahug.
During the trial, the prosecution presented a testimony evidence of 10 witnesses which
included the victim himself. It was established that the victim is a 21-year old girl with a mind of an
8-10 year old, with an IQ of 55 to 69%; that the victim spent 3 years in Grade One. Being a mental
retarded, she was able to pass Grade Five with only a 75% average; that she is not inclined to verbal
communication and if sent to the store to buy something, a list of things must be written on a piece
of paper clipped together with the money. There were proofs presented as to the victim’s being
mentally retarded which were confirmed by a series of psychological examination conducted by a
medical expert.

ISSUE: Whether or not the testimony of the victim should be given credit. Is the victim a competent
witness despite her being in a mental retardate?
HOLDING: The victim is a competent witness, even if she could convey her ideas only through signs
or body language.
The medical expert on mental health has proved that the victim does not have hallucinations,
is in touch with realities, does not fantasize but only has the tendency to convey thoughts through
some body languages like checking the name of the accused and looking or gazing at the accused for
quite a few times when he was sealed beside 3 other suspected boys in locality. These make the
victim a competent witness as she can convey her ideas in many forms like signs, writings and body
gestures, aside from words.
 Immaterial and insubstantial lapses as to the exact date or dates and minor details in the
victim’s testimony should not be taken against the victim. These things are expected from a mental
retarded.

Q: How about a person who is interested in the outcome of the case? Can a biased witness testify?
For example, A is the plaintiff and he is suing B. Can B testify for himself? Yes, even the defendant
can testify for himself. But what if A’s witnesses are his relative?
A: Witnesses may testify even if they are biased towards a party, or are relative of a party for whom
they are testifying. The only qualification for any witness is that he or she can perceive and make
known to others such perception. Any such witness may testify, but this does not automatically mean
that the court will give weight to such testimony. Again, do not confuse admissibility from weight or
credibility.

Even if a person is the biggest liar in the world, and he is presented as a witness in court, the court
has no choice but to hear what he has to say. Such testimony will be recorded although later on
when the court decides the judge ill check everything that he said. His being a liar may affect the
credibility of his testimony but still he is not disqualified from testifying.

Q: Is an atheist or one who does not believe in a supreme being or in the afterlife disqualified from
being a witness? Is the testimony of such a person admissible in court?
A: The law says that religious or political belief shall not be a ground for disqualification. The
testimony of such a person is admissible in court.

Q: Is a person convicted of a crime disqualified from testifying in court?

A: General Rule: No.
Exception: Unless the law provides that the crime the person is convicted with carries with it
disqualification from testifying in court.

EXAMPLE: The next witness is Juan de la Cruz. In his criminal record, it appears that he has been
convicted 3 times for false testimony and 7 times for perjury. Is he still qualified to testify? Yes. For
as long as he perceives and make known perception to other people. The court may say that it does
not believe the testimony of Juan de la Cruz. But that is already in the realm of weight or credibility.

The same rule goes for ex-convicts.

As to the exception (“ … unless the law provides …”), there is one which can be considered. That can
be found in the Civil Code, which is taken up in the subject of Will and Succession:
”Article 821. The following are disqualified from being witnesses to a will:
(1) Any person not domiciled in the Philippines;
(2) Those who have been convicted of falsification of a document, perjury or false testimony.”
Under the provision, when a person wishes to have the will probated but he is disqualified from
being a witness, he cannot act as such witness. Being disqualified as a witness in a valid makes a
person disqualification as a witness in court probate.
According to an American writer in Evidence, a prospective witness must show four (4) qualities or
liabilities:
(1) To observe – the testimonial quality of perception
(2) To remember – the testimonial quality of memory
(3) To relate – the testimonial quality of narration
(4) To recognize a duty to tell the truth – the testimonial quality of sincerity

The first three are required in admissibility. Even if a person can see but cannot remember anything
his testimony would be useless. The fourth is more a requirement of credibility.

The disqualification of a witness is covered not only by Section 21 but also by Sections 22, 23, and
24. The next four sections deal with disqualification:
(1) By reason of mental incapacity or immaturity;
(2) By reason of marriage;
(3) By reason of death or insanity of the adverse party;
(4) By reason of privileged communication.

Section 21, the people mentioned here are ABSOLUTELY DISQUALIFIED FROM TESTIFYING IN ANY
CASE, IN ANY TYPE OF PROCEEDING. Such person is not even allowed to take the witness stand. He
is totally disqualified.

Section 22, 23 and 24 are called PARTIAL or RELATIVE DISQUALIFICATION because the witness is
disqualified to be a witness, but is qualified from testifying ON CERTAIN MATTERS. So much witness
may be asked questions on anything except on certain matters. If he is asked on matters that are not
allowed to be asked of him, his answer are inadmissible. Hindi na siya dapat sumagot.

CASE: Cavili vs. Floredo, 154 SCRA 610

FACTS: Private respondents filed a civil case against Quirino, Primitivo and Perfecta Cavili for
Partition, According and Damages. Defendant Perfecta, however, failed to file her answer and was
subsequently declared in default.
Atty. Alamillo, in behalf of the other defendants filed a motion of new trial for lack of jurisdiction over
the persons of Primitivo and Quirino presented Perfecta as their first witness. Respondents moved for
her disqualification as a witness on the ground that, having been declared in default, she had lost her
standing in court and thus cannot be allowed to participate in all proceedings therein even as a
witness. The court sustained the respondents’ contention and disqualification Perfecta from testifying.

ISSUE: Whether or not a party in default is a competent witness.

HOLDING: A party in default may be presented as a witness by his co-defendants, who have the
standing and the right to present evidence, to secure the attendance of witnesses and the production
evidence in their behalf. To reject Perfectas’ presentation of testimonial evidence would be to treat
Primitivo and Quirino as if they, too, were in default.

The respondents argue that to permit a party in default to take the witness stand is to “stand part in
the trial”
The SC explained: “The loss of standing in court is the consequence of an order of default. Thus, a
party declared in default is considered as out of court and cannot appear therein, adduce evidence,
and be heard and for that reason he is not entitled to notice.” However, “loss of standing” must be
understood to mean only the forfeiture of one’s rights as a party litigant contestant or legal
adversary.
A party in default loses his right to present his degree, control the proceedings and examine or cross-
examine the witnesses. He has no right to expect that his pleadings would be acted upon by the
court, nor may he object to or refute evidence or motions filed against him. There is nothing in the
Rules, however, which contemplates a disqualification to be a witness or deponent in a case.
DEFAULT DOES NOT MAKE HIM AN INCOMPTENT WITNESS.

As oppose to a party litigant, a witness is merely a beholder, spectator or onlooker called upon to
testify as to what he had seen, heard or observed. As such, he takes no active part in the contest of
rights between the parties. He remains suffering the effects of an order of default.

There is no provision in the Rule disqualifying parties declared in default from taking the witness
stand for non-disqualified parties. The generosity with which Rule 30, Sec. 18 allows people to testify
is apparent. As a general rule, where there are EXPRESS exceptions (Rule 130, Secs. 21 to 24; Rule
132, Sec. 15), these comprise the only limitations on the operation of a statute and no other
exception will be implied. The Rule should not be interpreted to include an exception not embodied
therein.

TAKE NOTE: Again the only qualification for a person to be a witness is that he can perceive and can
make known to others such perception. Disqualification witness are enumerated in Sec. 21, 22, 23
and 24; the does not include default as one of them.

Q: In the above case, by providing evidence for his co-defendant, will this not also benefit the
defaulting defendant?
A: That is true, but this INCIDENTAL BENEFIT if of minor consequence. Of greater concern or
importance is witnesses and the production of evidence on his behalf. WHATEVER BENEFIT THE
DEFAULTING DEFENDANT DERIVES IS PURELY INCIDENTAL, but definitely one cannot also prejudice
the answering defendant.

“Section 21. Disqualification by reason of mental incapacity or imaaturity. – The

following persons cannot be witnesses:
 (a) Those whose mental condition, at the time of their production for examination, is
such that they are incapable of intelligently making known their perception to
others;
(b) Children whose mental maturity is such as to render them incapable of perceiving
the facts respecting which they are examined and of relating them truthfully.
This is the first disqualification: Take note that the disqualification here is TOTAL. These people are
not qualified to be witnesses at any time at any place. Who are these people?
For example, insane people. They can communicate but it will be a useless dialogue. Insane people
are disqualified from testifying because of their mental incapacity.
Q: What about the feeble-minded, whose memory is impaired – are they of the same category as the
insane people?
CASE: People vs Palma, 144 SCRA 236
FACTS: A complaint was filed with the RTC against Pedro Palma, a 64 year old carpenter, for
the rape of Imelda Telada, a 14 years old metal retarded.
The trial court rendered a decision finding Palma guilty beyond reasonable doubt of rape.
However, it concluded that Telada is “mentally deficient enough to be unable to give valid consent to
(engage in) sexual intercourse with Palma, and that Palma is aware of the mental deficiency of
Imelda and took advantage of it.”
In this appeal, Palma contends, among others, that the trial court erred is giving weight and
credence to the testimony of the mentally deficient complaining witness.

ISSUE: Whether or not a feeble-minded complaint is competent witness.

HOLDING: A feeble-minded complainant is a competent witness as long as she can convey her ideas
by words or signs and give sufficiently intelligent answers to the questions propounded by the court
and the counsels. (Section 18, Rule 130)

Dr. Anemias, who performed a psychiatric evaluation and intellectual assessment of Imelda,
stated that she was able to say “da, da” for the first time when she was already 3 years old. He
noticed that during examination, Imelda was “functioning not in her normal endowment.” While the
defense counsel described Imelda as intelligent, the trial court sized her up as “metal deficient to
point where she is incapable of realizing, moral implications of her sexual relationship with the
accused, in the same manner as a girl below 12 years of age can relate her sexual experience without
understanding the moral implications of said act.”

The record shows that while at times, she would jump ahead of the questions asked her in
court, her answer were coherent enough for the trial to perceive the ideas she wanted to convey. She
was, therefore, a competent and credible witness.

CASE: People vs. Solomon, 229 SCRA 403

FACTS: On Oct. 11, 1987, Sylvia Soria, a 20 year old mental retardate, walking along a highway in
Gandra, Samar when accused, Alejandro Solomon and Feliciano Conge, who were apparently waiting
for her, accosted her and forcibly took her to the nearby ricefield where she was raped by Solomon
with Conge’s assistance. Subsequently, Soria reported her ordeal to her brother and father. The
father then filed a complaint for rape in his daughter’s behalf.

A few days after filling of the complaint, the 2 accused could not be found. After 4 months, they were
finally apprehended. Following a protracted investigation, a information for rape was filed against
Solomon and Conge.
The principal witness for the prosecution was the victim herself. She recounted in detail the manner
of her ravishment by the accused.

Defense suggest that the testimony of Soria is flawed because she is an insane person who was
confined at the National Mental Hospital a few months before the alleged rape incident.

ISSUE: Whether or not Soria is disqualified from being a witness in a rape case in view of her
condition as a mental retardate.

HOLDING: A mental retardate is not for this reason alone disqualified from being a witness. As in the
case of other witnesses, acceptance of his testimony depends on its nature and credibility or,
otherwise put, the quality of his perceptions and the manner he can make them known to the court.
Thus, in People vs. Gerones ( 193 SCRA 263), the Court accepted the testimony of a rape victim
notwithstanding that she had the mentality of a 9 or 10 years old “because she was able to
communicate her ordeal … clearly and consistently.”

The Court noted that although Soria’s speech was blurred and it was necessary at time to ask
her leading questions, her testimony was positive, clear, plain, coherent and credible.
Furthermore, a woman will not expose herself to the humiliation of a rape trial, with its
attendant publicity and the morbid curiosity it will arouse, unless she has been truly wronged and
seeks atonement for her abuse.

NOTE: The assessment of the evidence, especially the credibility of the witnesses, is the primary
function of the judge presiding at the trial.

EXAMPLE: A crime was committed and the only witness was an insane person. Later on, the accused
was charged and the prosecution learned that their star witness used to be insane. Gumaling nga
lang. So during the trial, he had recovered and was presented as the prosecutor’s first witness.
Defense sought to disqualify the witness because at the time the case happened, he was insane –
although now he is normal.

Q: If you were the judge, would you disqualify the witness or not?
A: No, he should not be disqualified. He is qualified because the reckoning point is AT THE TIME OF
HIS PRODUCTION. At the time of the testimony. So the witness in the above case is not covered by
Sec. 21.
But one can rely the memory of a witness? He may be normal now, but he will be testifying on events
which happened when he was mentally sick. Will this affect the credibility or weight of testimony? His
credibility may be affected, but not the admissibility of his testimony. You cannot disqualify a witness
simply because he is not believable.
Second qualification: Children whose mental maturity is as to render them incapable of perceiving the
facts respecting which they examined and if relating them truthfully.

Mental immaturity is sometimes called “Disqualification by reason of infancy”.

Q: Are all children disqualified from being witnesses based on the above provision? Suppose a minor
is capable of perceiving and relating truthfully what he saw, is he qualified? What is the meaning of
“age”?
A: It depends. It is not actually the age of the child that matters but his MENTAL MATURITY. The
child must be capable of relating to the court what he saw or heard. So, there is no minimum age
requirement here. What is important is the degree of mental development of the minor.

Q: If an 11 year old child is called to testify on a crime which he witnessed 10 years ago, may he
validly do so?
A: Yes, as long as he can remember what took place and can communicate these details before the
court. The reckoning is still the same of his production for examination.

Q: But how can a 1 year old child possibly remember the standards?
A: That is now a matter as to credibility of the witness, or the weight of his testimony. But we are not
talking about that now.

Q: How do we know that a minor meet the standards?

A: According to books on Trial Technique, the minor must be subjected to PRELIMINARY QUESTIONS
either by the judge or counsel. He will be asked innocent question dealing with everyday life. Parang
you test first the IQ of the minor.
An adult person, when taking an oath to tell the truth, need not to be reminded of the consequences
of not telling the truth.
But a minor is not expected to understand that. So counsel or the judge must elicit from him the fact
that he knows what his obligations are here. Ask the minor, for example, why he is in court. If he
does not know why, then everything has to be explained still to him. That he is there to tell the truth
about something. Ask him what would happen if he told a lie in court? If he says that telling a lie is
bad and that he can go to hell – then it can be concluded that he is aware of his obligation of telling
the truth. The following case illustrates the process of putting the witness in VOIRE DIRE, which
literally means “to speak thetruth.”
CASE: People Vs. Miscala, 202 SCRA 26
FACTS: Visitacion Pineda filed a case of rape against Fernando Miscala. The victim was a 10 year old
child. The trial court, finding the accused guilty of rape, based its judgment on the fact that the
victim pointed on Miscala as her ravisher.
Hence, this appeal. The accused anchored his defense on the alleged error committed by the trial
court in finding that there was “a direct and categorical accusation of the victim what it was the
accused, and no one else raped her.”

HOLDING: The appeal does not hold ground.

Medical reports showed that there was a presence of sperm cell in the victim’s private genitals.
Undoubtedly, she had been subjected to sexual intercourse.
The complainant’s detailed and straightforward narration on how she had been raped bears earmarks
of credibility. Even if the complainant’s testimony is uncorroborated, it is enough to convict the
accused. For the uncorroborated testimony to suffice, her competence as a witness must be
established in the trial court.
The evidence rule is that in the crime against chastity, the testimony of the injured woman should
not be receive with precipitate credulity, and when the conviction depends at any vital point upon her
uncorroborated testimony, it should not be accepted unless her sincerity and candor are free from
suspicion.

In the case at bar, the record shows that a young victim had been properly place in “vior dire”, which
means “to speak the truth”. When the court submits the witness to voir dire, the court reminds him of
the consequences of the truth.
The examination of a VOIR DIRE is conducted to determine the competency or qualification of the
witness in case it is objected to. When the witness is subjected to the process of voir dire, the court
reminds him of consequences of the truth. When court is satisfied with the influence of fear or hope
has been ruled out, then the confession of the witness deemed voluntary.

However, even if we say that the above provision guarantees only the admissibility of the child’s
testimony but not its believability, we cannot also deny the fact that when a child says that he has to
tell the truth because otherwise “something bad” will happen to him, or that he will go to hell, he
passes the test of voir dire. Ask the child what it means when he is asked to raise his right hand
before the court.

Will the child’s testimony be reliable or not? That is weight now.by nature, it is more difficult to
convince children lie than adults.

CASE: People vs. Mesias, 199 SCRA 20 (9 July 1991)

FACTS: On 26 Sept. 1980, 5 armed men, 4 wearing masks, barged into and robbed house of
Olympia and Vivencio Cruz. Olympia was blindfolded while the robber without a mask stabbed
Vivencio 3 times with what appeared to be an icepick. This was witnesses by their son, Marlon, 6
years old, through the open bedroom door.
 The accused, Danilo Mesias, was recognized by Olympia and Marlon as among the
malefactors. He was found guilty by the lower court.
Questioning the conviction by the lower court, accused Mesias insisted on his innocence. Hos
principle defense was alibi, alleging that on that night, he was asleep in his sister’s house about half a
kilometer away from the crime scene. He also alleged that Olympia and Marlon mistook him for
another man who looked just like him, whom he called “double” and who happened to live in same
area.

HOLDING: Accused Mesias is found guilty beyond reasonable doubt of the crime of robbery with
homicide.

Marlon’s testimony that among the 5 men who entered their home, it was Marlon who totally knifed
his father, should be given full weight and credit.
Children of sound mind more likely to be more observant of incidents which take place within their
view than older people, and their testimony is therefore likely to be more correct in detail than of
older persons; and when once established that they understood the nature and character of an oath,
full faith and credit should be given to their testimony.

Dr. Gross, an Austrian jurist and expert in Criminology, said that an intelligent child is undoubtedly
the best observer to be found. He is, as a rule, little influenced by the suggestion of others and he
describes objects and occurrences as he has really seen them. Generally, children have a good and
retentive memory.
Accused’s defense of alibi deserves little consideration. In no way did it prove that Mesias could not
have been at the scene of the crime at the time of its commission, as his sister’s house was more
than half a kilometer away from the Cruzes’s residence.

In any case of People vs Reunir (157 SCRA 686), it was held that for an effectual alibi, it must be
shown that not only was the accussed at same other place at the same time but that it was physically
impossible for him to be at the scene of the crime when it occurred.
Moreover, Mesias’ alibi, aside from being inherently weak, has been rendered inutile by the fact that
he was conclusively identified by witnesses Olympia and Marlon Cruz.

In another case, the SC said that that lying is distasteful to a child because he thinks it mean. He is
no stranger to the sentiment of self-respect.

CASE: People Vs. Libungan, 220 SCRA 315 (22 March 1995)

FACTS: Spouses Mario and Juanita Libungan had a quarrel. In the end, Mario stabbed his wife with a
“balisong” or knife, killing her. Mario fled to the kitchen, destroying a portion of a wall to make it
appear that there was somebody who entered the house. Before dying, however, Junaita was able to
tell her brothers that it was Mario who stabbed her. The material witness in the case is Crisanto, the
couple’s eldest son who is 7 or 8 year old.
ISSUE: Whether or not a 7 year old boy is a credible witness. Whether or not the testimony of
Juanita’s brothers can be given full credit.

HOLDING: (1) The defense would argue that Crisanto is not a reliable witness because he gave
inconsistent answers. (For example, at first, he told the police that it was only him who saw his father
kill his mother, but he later said that his younger brother saw it too. He could not distinguish a
“balisong” from a “kutsilyo”, etc.) But those inconsistencies pertain to minor details which do not
touch upon commission of the crime.

Minor contradiction are to be expected but must be disregarded if they do not affect the basic
credibility of the evidence as a whole. These inconsistencies, which may be caused by the natural
fickleness of memory, even tend to strengthen rather than weaken the credibility of the witness
because they erase any suspicion of rehearsal testimony.
“Lying is distasteful (to a child), because he thinks it mean; he no stranger to the sentiment of self-
respect and he never loses an opportunity of being right in what he affirms. Thus, he is, as a rule, but
little influence by the suggestion of others, and he describes objects and occurrences as he really
seen them.”

(2) Relationship alone is not a ground for discrediting a witness’ testimony. It is a well-established
rule that the mere fact that the witness is a relative of the victim is not a valid or sufficient ground to
disregard the former’s testimony nor does it render the same less worthy of credit. The closeness of
witnesses’ relationship to the victim should not be deemed erosive of their credibility as witness. The
weight of their evidence must be assessed by the same norms applicable to other witnesses.

In other words, one must be a victim in order to destroy the credibility of a child.
The next three sections refer to disqualification which are PARTIAL or RELATIVE. In this case, the
witness is not insane nor a minor, but is barred from testifying on certain matters.

“Section 22. Disqualifying 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.”

Q: For example, the husband is a party to a case, criminal or civil. Can the opposite party use the
wife as a witness in that case whether in favor of or against her husband?
A: No. A spouse cannot testify in any case where the other spouse is a party, whether for or against
him or her, WITHOUT THE CONSENT OF THE AFFECTED SPOUSE. This is known as the MENTAL
DISQUALIFICATION RULE.
Q: A man committed murder. The only witness is his wife. The state filed a case against the husband
and subpoenaed the wife to testify. Can the wife be compelled to testify?
A: No, without the consent of husband. The reason: To preserve the marriage relation as one of full
confidence, affection, and comfort. However, this rule is WAIVABLE. When the husband calls the wife
as his witness, there is an automatic waiver. This is with the husband’s consent.

The other possibility is that when the wife was called by the opposite party as its witness, the
husband failed to object. This is also deemed as a waiver.

Q: Suppose the marriage is already dissolved, can the wife still be disqualified from testifying in favor
of or against her husband?
A: No more, because the law says, “… during their marriage…”

On the other hand, there is an exception cited by law: The husband and the wife cannot
testify for or against the other, EXCEPT IN A CIVIL CASE FILED BY ONE SPOUSE AGAINST THE
OTHER, in a CRIMINAL CASE FOR A CRIME COMMITTED BY ONE AGAINST THE OTHER OR THE
LATTER’S DIRECT DESCENDENTS OR ASCENDENTS.

A wife may testify against her husband in the following cases:

(1) In a case of legal separation;
(2) In an action for support; or
(3) When there is a criminal case against the husband for a crime which he committed against
the wife, or her direct descendants or ascendants.

In the case of People vs. Natividad (70 Phils 315): (NOTE: The case is entirely Spanish.) A widow has
a son. The widow then remarried. The stepfather killed the widow’s son and the wife filed a case
against her husband. When the wife testified, the husband sought to disqualify her. QUESTION:
Should the wife be disqualified from testifying? ANSWER: Yes, because this is not for a crime
committed by the husband against the wife. The crime here was committed against the wife’s son.

However, in the subsequent case of Ordoño vs. Daaquigan, the above ruling was changed.

CASE: Ordoño vs. Daquigan, 62 SCRA 270

FACTS: Avelino Ordoño was charged in the RTC with having raped his daughter, Leonora, on 11 Oct.
1970. In support of the complaint, Catalino, wife of the accused, executed a sworn statement
wherein he disclosed that on the same date, Leonora had apprised her of the outrage. No
denunciation was filed because her husband threatened to kill their daughters if she reported the
crime to the police.
The wife further revealed that he husband also rape their other daughter, Rosa. The fiscal presented
Catalina as the second prosecution witness.
Defense counted objected to her competency invoking the Marital Disqualification Rule. He further
contended that Avelino had not consented expressly or impliedly to his wife’s testifying against him.

ISSUE: Whether or not the rape committed by the husband against his daughter is a crime committed
by him against his wife (the victim’s mother).

That conclusion is in harmony with the practice and traditions of the Filipino family where, normally,
the daughter is close to the mother, who, having breast-fed and reared her offspring, is always ready
to render counsel and assistance in time of need.
Indeed when the daughter is in distress or suffers physical or moral pain, she usually utters the word
“Inay” (mother) before she invokes the name of the Lord.

Catalina, therefore, could testify against her husband where he is being tried for having rape their
daughter.
When the husband raped their daughter, he had impaired beyond repair their marriage, destroyed
the conjugal harmony. But the new Rule made it more clear by making it more specific by including: “
… or the latter’s direct ascendants or descendants …” The crime does not have to be committed
directly against the wife, but may also be against her direct ascendants or descendants. In this sense,
it is like the crime was also committed against the wife.

“Section 23. Disqualifying 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, upon a claim or demand against the estate of such deceased
person or against such 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.”

This rule is known as the SURVIVOR’S DISQUALIFICATION, also known Dead Man’s Statute.

For example, B died. After his death, A filed a claimed against B’s estate. A narrates his cause of
action: When B was alive, he (B) and A entered into an agreement. However, B never complied with
it. This objectionable because A is creating or trying to claim against the estate of B while testifying
on matters which occurred before the death of B. Under the law, this would be unfair because B
could not anymore rise his grave to testify and deny the statements made by A. Thus, a survivor
cannot testify in an action against a claim or demand against the state of the deceased.

The purpose is to discourage perjury on the part of the survivor, and also to protect the deceased’s
estate against false and unjust claims.
When death has sealed the lips of one party, the law will also close the lips of the survivor. This
applies also when subsequently, the other party becomes insane. This rule contains 4 parts:

FIRST: Whow are the persons disqualified from testifying? The plaintiff, his assignor or the person in
whose behalf the case is prosecuted. EXAMPLE: A enters into a contract with B. B dies. A files a case
against the legal representative of B.

Q: Is it objectionable if A testifies on matter of fact which happened before B died?

A: Yes.
A entered into a contract with B, then A assigns his rights to X. Then B dies. X files a case
against the legal representative of B. To prove his cause of action, he used as his witness A, the
assigner. So the assigner will be the one to testify on matters of fact occurring before the death of B.

Q: Is the testimony of A admissible?

A: No, because he is covered by the Rule.

SECOND. Who are protected by the Rule? A reading of this Section will show that the Rule protects
the EXECUTOR, ADMINISTRATOR or OTHER REPRESENTATIVE OF THE DECEASED or a PERSON OF
UNSOUND MIND when he is the defendant.

THIRD. In what kind of action may this Rule be invoked? This Rule may be invoke IN ANY ACTION
BASED UPON THE CLAIM OR DEMAND AGAINST THE ESTATE OF THE DECEASED PERSON OR
PERSON OF UNSOUND MIND.

FOURTH. WHAT KIND OF EVIDENCE IS ADMISSIBLE OR EXCLUDED BY THE RULE? THE RULE
EXCLUDES TESTIMONIES ON ANY MATTER OF FACT OCCURRING BEFORE THE DEATH OF THE
DECEASED OR BEFORE THE INSANE PERSON BECAME OF UNSOUND MIND.

Q: Are there exceptions to the Survivor Disqualification Rule?

A: Yes. Jurisprudence provides the following exceptions:
(1) Ordinary witness, not plaintiff, or assignor of plaintiff or person in whose behalf the case is
prosecuted my testify.
EXAMPLE: B transacts with A in the presence of X. Then, A dies. If B were to testify on any matter of
fact occurring, before the death of A, B is covered because B is his (A’s) agent. But if B says that X
will testify on what happened during the transaction, then the rule will not apply. The rule does not
apply to ordinary witness, X, here, is an ordinary witness.

(2) Case: Lichanco vs. Atlantic Gulf & Pacific

When the plaintiff is a corporation, the officers or stockholders thereof are not disqualified. In
behalf of a corporation, B is dealing with X. X dies. The corporation now claims against X’s legal
representative. B, who dealt with X on behalf of the corporation, will now testify on this fact. Is
he qualified? No, because of the second exception. B, here, is not a party but a mere witness.

(3) When there is an imputation of fraud against the deceased, the plaintiff is not barred from
testifying to such fraud.

The reason for this: Fraud cannot be condoned. In effect, the fraudulent act will be protected
simply because you want to protect one who is already dead. The law cannot condoned fraud in
any manner.

(4) When the plaintiff is the executor, administrator or legal representative of the deceased or
the person of unsound mind, the defendant(s) are free to testify against the plaintiff.

This rule covers a claim or demand against the estate of the deceased or person of unsound
mind. Practically here, the state is taking the defensive stances.
If the plaintiff is the estate, and you are the defendant, you may testify on any matter of fact
occurring before the death of the deceased, or before he became of unsound mind. This rule
applies only when the executor or administrator is the defendant, not when the executor or
plaintiff is the witness.

(5) When the survivor’s testimony refers to a negative fact.

Under this rule, one cannot testify on any matter of fact occurring before the deceased died.
When one rule testifies on any matter NOT OCCURING before the deceased died, that is not
covered by this rule.

(6) Case: Icard s. Masigan

When the survivor’s testimony is favorable to the deceased.

What the law seeks to protect is the estate of the deceased against unjust claims. Claims create
liabilities against the estate. In other words, kung ang sasabihin mo ay mabuti for the deceased,
you may testify.

The other exceptions were laid down by the SC in later cases.

(7) CASE: Gon Yi Vs. CA, 144 SCRA 222

FACTS: Three haciendas located in the municipality of Bais, Negros Occidental, were originally
owned by the Compania General de Tabacos de Filipinas (TABACALERA).
In 1949, Praxedes Villanueva, predecessor-in-interest petitioner herein negotiated with the
original owner for the sale of the haciendas. However, Villanueva did not have the sufficient
funds. With the consent of the owner, Villanueva offered to sell one of the haciendas to one
Santiago Village, in this case substituted by Joaquin Villegas. The owner did not agree except
with a guarantor, provided later by Gaspar Vicent, embodied in a document. Apparently, the
money earned from the sale was not enough so Villanueva promised to sell fields of one hacienda
in consideration of the guaranty taken by Vicente for the sale of the 3 haciendas. This was
reduced into writing.

The amount needed to close the original deed was debited to Vicente’s account with
TABACALERA. Allegedly, Villanueva was able to raise funds to pay TABACALERA. However, the
amount was already debited to the account of Vicente. So, it was ORALLY AGREED that lots 4
and 13 of a hacienda … would be LEASED to Vicente for 5 years, with 15% rental gross income,
to be deducted from the money already advanced to Villanueva. Lots 4 and 13 where then
delivered to Vicente.

Villanueva died. Intestate proceedings were instituted in the CFI of Negros Occidental. Among the
properties inventoried were lot 3,4 and 13 of the haciendas … before the delivery of the
properties of the heir, Vicente instituted an action for the RECOVERY OF PROPERTY (lots 4 and
13) and damages, against Gon Yi as Administrator of Villanueva. Basing his entitlement of the
promise to sell, as documented on 24 Oct. 1949. Gon Yi filed an answer and a counterclaim, for
accounting of proceeds of lots 4 and 13 for 5 crop-years.

During the trial, Gaspar presented witnesses testifying on accounts before the death of
Villanueva. Gon Yi testified on the alleged verbal leased agreement.

ISSUE: Whether or not the testimony on the accounts before the death of the deceased is
admissible in evidence.

HOLDING: SC finds that neither the trial nor appellate court erred in ruling for the admissibility in
evidence of private respondent Vicente’s testimony. Under ordinary circumstances, private
respondent Vicente would be disqualified by reason of interest from testifying as to any fact
occurring before the death of Praxedes Villanueva, such disqualification being anchored on Sec.
20(a) of Rule 130.

Such protection, however, was effectively waived when counsel for petitioner Gon Yi as attorney-
in-fact of Villanueva. He has privy to the circumstances surrounding the execution of such
contract and therefore could either confirm or deny any allegations made by the private
respondent Vicente with respect to said contract. The privilege to invoke the Dead Man’s
Statute is waived by the defendant where he files a counterclaim against the plaintiff. If the
executor or administrator is a defendant – but in that action, he files a counterclaim against
the plaintiff, there is an automatic waiver.
(8) Another exception is cited in the case of Gon Yi.

Suppose A dealt with the deceased during his lifetime, but through an agent or attorney-in-fact.
Then, the principal died. A filed a claim against the estate and will testify on what happened
when he dealt with the agent. Is he barred? No. For as long as the agent is alive, A can testify as
to what happened.

If the testimony will refer to the matter of fact occurring prior to the death of the principal – but
in that dealing, the survivor death through the agent or representative, who is still alive,
Survivor’s Disqualification Rule does not apply. The agent can debut the witness’ claim.

According to the SC:

The Survivor’s Disqualification Rule cannot be invoke when a party testifies as to communications
made or contracts entered into with the agent of the decedent while the latter was alive. The
adverse party is competent to testify on transactions or communications with the deceased or
incompetent persons, which were made with the agent of such person in cases in which the
agent is still alive and competent to testify. But the testimony of the adverse party or survivor
must be confined to those transactions or communications which were had with the agent,

The inequality or injustice sought to be avoided by the law does not actually exist in the case
because the agent can testify.
Q: Is this rule waivable?
A: Yes. Through any of the following:
a) By failure to object timely in the trial;
b) When defendant cross-examines plaintiff on prohibited matters;
c) When defendant calls his witnesses to testify on prohibited matters.

“Section 24. Disqualification by reason of privileged communication. – The following

persons cannot testify as to matters learned in the following cases:
(a) 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 of a crime committed by one against the other or
latter’s direct descendants or ascendants;”

Briefly, this provision is known as the MARTIAL COMMUNICATION RULE. This should not be
confused with Marital Disqualification Rule under Sec. 20. They are not the same.

The essence of this rule is: When H, for example, makes a communication to W, W cannot take
the witness stand or vice-versa. Between the husband and the wife, it is very natural for
confidential matters to be discussed during their marriage, because of the trust and confidence
 reposed by one in the other. This is necessary in order to maintain the peace in the family and
the sanctity of the institution of marriage.

That is why it is objectionable for W, for example, to be asked to testify on matter which H
confided in her. ONE CANNOT COMPEL THE SPOUSE TO REVEAL WHAT THE OTHER REVEALED.
The requisite for this rule to apply:
1) That the husband and the wife are LEGALLY MARRIED;
2) That a communication, oral, or written, is made during the marriage;
3) That the communication is CONFEDENTIAL; an
4) That there is no case between the husband and wife.

Q: Does this mean that every communication made by the H to the W, and vice-versa, is
privileged?
A: No. This rule is applicable only to communication made confidentially. The intention of the
spouse is to limit the circle to only 2 of them. Communication made in the presence of other are
not covered.

Q: As a rule, how do we know if the communication is confidential or not?

A: There are certain rules that evolved, based on American jurisprudence, all taken from the
works of Wigmore and which are being followed in the Philippines:

(1) As a rule, any communication between spouses is presumed confidential unless shown
otherwise. (Although this rule is not conclusive.)
(2) Communication made in the presence of third person are not confidential unless the third
person may be considered agent of spouses.
GENERAL RULE: If a spouse says something to his/her spouse in the presence of others, the
presumption is that such matter is NOT CONFIDENTIAL. Except: Unless the third person may be
considered as agent. The presumption of confidentiality is then rebutted.

EXAMPLE: H wants to reveal in confidence something to W. H calls their eldest child. H: “Mayroon
akong sasabihin sa inyo … sikreto, confidential …” But the eldest child is present.
Since the intention of H is to limit the confidentiality of the matter to the three of them, the eldest
child is then covered by the presumption. The eldest child cannot be subpoenaed because he is
considered as agent of the parents.

(3) Communication overhead by third persons remain confidential as between the spouses but
the third person who overheard the communication may be called upon to testify.
EXAMPLE: H to W: “I will reveal something to you in confidential.” What they did not know is that the
nosy housemaid was there, nakikinig. The housemaid heard everything.
In a case where the above communication is material, the housemaid is subpoenaed. H objects on
the ground of privileged communication. Is this a valid objection?

No. As between the spouses, the helper is not covered by the disqualification. She is not an agent of
the spouses.

(4) Communication intended for transmission to third persons are NOT CONFIDENTIAL.

The third person may be called to testify on such communication.

All these rules are applicable to husband and wife. But they are also applicable by analogy to other
privileged communications.

Q: Is the privileged waivable?

A: Yes. By any of the following acts:
(1) By not objecting to the testimony of the spouses; or,
(2) By calling your spouse to testify on the privileged matter.

Q: What are the differences between Marital Disqualification Rule (Sec. 22) and Marital
Communication Rule (Sec. 24)? (Bar Question)
A: (a) The Marital Disqualification Rule requires that one of the spouses be party to a case. Whereas,
the Marital Communcation Rule does not require that (one of the spouses be party to a case.)
(b) The Marital Disqualification Rule applies to any fact. Whereas, the Marital Communication
Rule refers only to confident communication during the marriage.
(c) The Marital Disqualification Rule is claimable only during the marriage. Whereas, the Marital
Communication Rule is claimable during the marriage or afterwards (even when the marriage
is already dissolved). What is important is that the communication was made or given while
they were still married.

”Section 24 (b) 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;”

This known as the ATTORNEY-CLIENT PRIVILEDGE COMMUNICATION. The following are its
elements:
(1) There must be an attorney and client relation;
(2) There must be a communication made by the client to the attorney or advice thereon given
by the attorney to the client;
(3) The communication or advice must have been given confidentially; and,
(4) The communication must have been made in the course of or with a view to professional
employment.

According to Wigmore, the reason for this is: To promote the confidence of the people in lawyers,
for their work is essential to the administration of justice and to encourage the freedom of
consultation of lawyers and clients. Clients will feed confident in revealing to the lawyer
everything that is necessary, because they know that the information will not be leaked out.

Q: Does an attorney – client relationship imply that there is a FORMAL CONTRACT with the
respect to the case?
A: No. The law also covers communications made in the course of or WITH A VIEW to
professional employment.

According to decided case in United States, when a client approaches a lawyer with the intention
of hiring his services, although the client did not turn out to hire such lawyer, communication
made between them are still covered by the privilege because this is “with a view to professional
employment.”

Q: What does “professional employment mean” mean? Does this mean that there should already
be a case? Can there be attorney – client relationship even if there is no case?
A: It is not necessary that there can be a case. Even the mere giving of a legal advice is covered.
There is still professional employment in this case.

Suppose the client, in the course of talking with his lawyer, showed the latter some documents .
Such document are now in possession of the lawyer.

QUESTION: Can the lawyer compelled by subpoena duces tecum to produce the document in
court?
ANSWER: No, without the consent of the client. This is still part of the privilege. The word
“communication” is not limited to only verbal but also ORAL documents.
QUESTION: May the lawyer be asked only about the execution, delivery, existence or possession
of these document?

ANSWER: Yes, for as long as the lawyer is not asked about the CONTENTS of the documents.

The law says that an attorney cannot be examined as to any communication made by the client
to him, or his advice to the client. QUESTION: Since the lawyer cannot be asked about what his
client told him, what if it is the client who is subpoenaed to ask him what he told his lawyer – is
this allowed?
ANSWER: Our lawyers are not clear about this issue. But it would be absurd if the client would
not be covered by the privilege. Otherwise , the privilege would be violated. According to
American courts: Either way – whether it is lawyer or the client – they are all covered by the
privilege. Niether the lawyer not the client can be compelled.

Take note that the above privilege by express provision of law covers not only the lawyer but also
his stuff: secretary, stenographer or clerk. This is really an express agency. Lawyer – client
relationship expressly adheres to the principal of agency. This is because the secretary and staff
of a law office practically know everything because they prepare (i.e. type) and read the
pleadings, see the document, take notes during interviews, etc. That is why these people cannot
be subpoenaed.

Q: If a client wishes to hire the services of a lawyer to give the former advice in order to steal
something, is it covered?
A: No. This is not professional employment within the meaning of the law. A lawyer cannot be
hired for the purpose of seeking his advice on how to commit a crime or wrong in the future.
That is not part of the job of a lawyer.

Q: But if a person has already committed a crime, then he goes to his lawyer and tells the latter
that he did it, is this covered?
A: Yes. This is precisely the reason why there is a Lawyer’s Oath. A lawyer may be compelled to
testify on communication made to him by his client for a future crime or wrong. But a lawyer may
not be compelled to testify on communication made to him as ti a past crime or wrong because
these communication are protected.

Q: What is the duration of this privilege? How long will this last?
A: Forever. For the rest of the lawyer’s life, even when the person is no longer his client.

HOWEVER, the privilege will not apply to an action filed by the lawyer against his client. This
exception is for the protection of the lawyer. In this case, the privilege is waived.

Q: How can the client waive the privilege?

A: The client can waive it by not objecting. He cannot subpoena his lawyer to testify if he wants
his lawyer to do so.

“Sec. 24. (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;”
Briefly, this privilege is known as the PRIVILEGE OF PHYSICIAN AND PATIENT.
The following are its requisites:
1) The privilege is claim in a CIVIL case;
2) It is a claim against a person DULY AUTHORIZED to practice medicine, surgery or
obstetrics;
3) The information was acquired by such person WHILE ATTENDING to the patient in his
professional capacity.
4) The information is NECESSARY to enable the person to act in his professional capacity;
5) The information is CONFIDENTIAL; and
6) If disclosed, the information will blacken the reputation of the patient.

So, the doctor cannot, in a civil case, disclose information as to the illness of a patient, the nature
of the illness, as well as other information obtained by the doctor in the process of consultation
with his patient. Especially when such disclosure will blacken the reputation of the patient (for
example, because he has gonorrheae, ADIS, or HIV, etc.)

The law says: “ person duly authorized to practice medicine xxx “. Who are these people?
Obviously, those who took the Board Exams, passed and are licensed to practice.

Q: Fourth year medical students (Interns) are required to undergo practicum in hospitals. They
are assigned to patients also. Does the privilege apply to them? May an intern be asked any
information regarding his patient?
A: According to Dean I: Yes, because the rule uses the word “authorized” instead of “licensed”. A
medical intern is not yet licensed but is authorized to practice medicine.

The purpose of this privilege: To promote confidence between the doctor and his patient, similar
to lawyer – client. So that the patient will not be afraid that what he is revealing to his doctor
may divulged to the courts of justice.

According to American jurisprudence: This privilege is intended to facilitate and make safe, full
and confidential disclosure by patient to physician of all facts, circumstances and symptoms,
untrammeled by apprehension of their subsequent and enforced disclosure and publication on the
witness stand, to the end that the physician may form a correct opinion and be enabled safely
and efficaciously to treat his patient.

If vital information is withheld from a lawyer or doctor, his theory and preparations may be
affected.
Q: When is there “professional employment ” in order for the privilege here to apply?
A: it is not necessary that there be an ailment on the part of the patient in order for the privilege
to apply. There is employment of such physician when he is called for the purpose of treatment
whether curative, palliative or preventive.

Sometimes, when one consults a physician, it is precisely to avoid getting risk. One doe not go to
a physician only when he actually sick. This is covered by the privilege.
Q: Is there a professional relationship when a doctor is engage to abort a fetus of a pregnant
woman?
A: None. That is a criminal act under Philippine Law. Abortion is punishable under the RPC. The
woman here is criminally liable as well as the doctor. So, this is not covered by the privilege.
There is no privilege which can be created or embodied in a crime of, or in violation of law.

There is no physician – patient relationship when the patient solicits the physician’s services for
the procurement of a crime such aborting a fetus.
The above privilege extends to charts, medical records, etc. It covers not only the medical
testimony of the doctor but also includes his affidavits, certificates, prescriptions and hospital
records.

As in lawyer – client privilege, doctor – patient privilege last forever, even after the termination of
the doctor – patient relationship. After the patient is cured, it is possible that he will not come
back to the same physician. When he goes to another physician, the first physician is not free to
announce to everybody what happened to the patient before.

CASE: Krohn vs. CA, 233 SCRA 146 (1994)

First Division; J. Bellosillo:

FACTS: On 14 June 1946, Edgar Krohn, Jr. and Ma. Paz Fernandez were married. Their
marriage was a stormy one, which prompted Paz to undergo psychological testing, an effort to
ease the marital strain, which later prove to be futile, because in 1973, they finally separated in
fact.
In 1975, Edgar was able to secure a copy of the confidential psychiatric report, which was
prepared and signed by Paz’s doctors. Such report was presented by Edgar to the “Tribunal
Metropolitan Matrimoniale”, which nullified the church wedding on 1979.

On Oct. 1990, Edgar filed a petition for the annulment of his marriage and cited the
confidential psychiatric evaluation report. During the hearing, Edgar tried to testify as to the
contents of the psychiatric report which was objected to on the ground that it violated the rule on
privileged communication between physician and patient under Sec. 24(c) of the 1989 Revised
Rules on Evidence.
The trial court ruled in favor of Edgar thus admitting his testimony, which was also upheld by
the CA. Hence, this instant petition for review.
 ISSUES: (1) Whether or not the testimony of the husband as to the contents of the confidential
psychiatric evaluation report violates the rule on privileged communication between physician and
patient.
(2) Whether or not such testimony is admissible in evidence.

HOLDING: Petitioner’s discourse is misplaced. In Lime vs. CA (214 SCRA 273), the requisites in
order that the privilege may be successfully invoked were laid down:
(a) The privilege is claimed in a civil case;
(b) The person against whom the privilege is claimed is one duly authorized to practice
medicine, surgery or obstetrics;
(c) Such person acquired the information while he was attending to the patient in his
professional capacity and,
(d) The information was confidential and if disclosed would blacken the reputation of the
patient.
In the instant case, the person against whom the privilege is claimed is simply the patient’s
husband, who does not plainly and clearly fall within the claimed probation. Neither can his
testimony be considered a circumvention of the law, because his testimony cannot have the force
and effect of the testimony of the physician who examined the patient and executed the report.

As to the second issue, due to petitioner’s counsel’s failure to object to the testimony on the
ground that it was hearsay, counsel waived his right to make such objection and consequently,
the evidence offered may be admitted.

Q: Are incidental check-ups given by a doctor outside his clinic or hospital covered by the
privilege? (Similar to the case where a lawyer, while drinking coffee, is approached by somebody
who asks for legal advice.)
A: As to the lawyer, there is no lawyer – client relationship there. The prospective client is merely
seeking free legal advice. This is the same with the doctor who is approached by somebody
asking for free medical advice. Such advice would not likely blacken the reputation of the
prospective patient. Furthermore, professional employment is not the only requirement.
Therefore, this is not covered by the privilege.

Q: If there is an AIDS patient in one of the hospitals here in Davao City, may his doctor be
summoned by the City Council to answer questions regarding the patient?
A: The City Council is not a court of justice. Dean I. believes that the Council will as much as
possible refer to anonymous subjects to protect also the patient. But if the Council does identify
the patient, its purpose would not be to blacken the reputation of the patient but to isolate him in
order to prevent the further spread of the disease. This is even covered by the police power of
the state.

Q: Does the privilege on physician – patient extend also to the doctor’s secretary, medical,
technologist, clerks, etc?
 A: The law is silent but by analogy – yes. They are covered under the principle of agency. One
cannot subpoena the medical clerk, for example, to bring the medical records, instead of the
doctor.

“Sec. 24 (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 the discipline enjoined by the church to
which the minister or priest belongs;”

This is called the PRIVILEGE BETWEEN THE PRIEST AND THE PENITENT. Its purpose
is: To preserve the sanctity of the professional institution. This practically applies
most to the Catholic Church with respect to confession – the Sacrament of
Reconciliation. (Its old name was “Penance”.)

The following are its elements:

a) There must be a relationship of Priest and Penitent
b) There must a confession or advice given thereon by the priest to a pinetent;
c) The confession must have been made in the course of the discipline enjoined by the
church to which the minister or priest belongs.
(Confession given in the priest’s professional capacity.)

It does not necessarily mean that every time one approached a priest, he is making a confession
hereby creating a Priest-and-Penitent relationship. (Especially if it is Fr. Nazareno. He might confide
Fr. N a labor problem instead.) One must apply for the sacrament of confession in order for the
privilege to apply. Ask for the ministry, not the person.
PROBLEM: Somebody was confessing a priest. They did not notice that the Sacristan (altar boy) was
eavesdropping. The boy heard everything, which turned out to be a confession regarding a murder.
Then the boy subpoenaed to testify on what the accused confessed.

QUESTION: Is the boy disqualified?

ANSWER: The marital privilege is applicable by analogy here. “The Sacristan is not disqualified
because he is an eavesdropper here. He overheard the confession. UNLESS, there is a clear agency or
if it was intended that he was to be the agent of the priest – in which case, he is to be covered by the
privilege. BUT there is no such thing as agency in confession!

If a priest is suspecting his assistant to be stealing money from the church and the priest catches
him, the priest is not prohibited from revealing the truth, because the assistant did not ask for the
priest’s service.
Or, for example, somebody confessed to a priest that he was planning to kill somebody on a
particular date at a particular place. The priest cannot reveal that. The priest may only attempt to
save the intended victim’s life by himself or choose to keep silent about the entire thing …

Q: Is there waiver of this privilege?

A: None. There is no such thing as authorizing the priest to testify on the matters communicated
during the confession. If the penitent decides to reveal the communication during the confession,
then he should testify himself instead of the priest doing it. There is no waiver of the privilege here.

“Sec. 24 (e) A public officer cannot be examined during his term of office or afterwards,
as to communication made to him in official confidence, when the court finds that the
public interest would suffer by the disclosure.”

Briefly, this is the PRIVILEGE OF STATE SECRETS

Its elements:

(a) There must be CONFIDENTIAL OFFICIAL communication;

(b) The communication must have been MADE BY A PUBLIC OFFICER; and
(c) The disclosure of the communication would AFFECT PUBLIC INTEREST.

When one work in the government, because of the nature of such a job, he gets hold of confidential
matters – secrets on violation of law, those affecting national security and national interest. Such
person cannot be subpoena to reveal such matters in court. These matters covered by the privilege
are classified information.

Q: What is meant by “public interest”?

A: According to American jurisprudence. Public interest more than a mere curiosity; it means
something in which the public, the community at large, has some pecuniary interest by which their
legal rights or liabilities are affected. It does not mean anything so narrow as to interest the particular
localities which may be affected by the matters in question.

In an American case, it was said that: The privilege of a public office not to reveal information is
strictly construed. The burden is upon the party seeking to suppress the evidence to show that it is
within the terms of the rule of statute.

The general rule is: People should have access to public information. There should be freedom of
disclosure of information. But if one claims that public interest requires the disclosure of the
information, the burden fall upon the public officer. This is the exception: it must be shown to affect
public interest.
Q: Is this privilege waivable?

A: No. Because this affects public interest.

Q: What is the duration of the privilege?

A: There is still a bar when public officer is no longer in government services.

The most prevalent violators of this privilege are American CIA retirees. Some of them write books
where they reveal CIA secrets. They are actually putting in jeopardy the operations and identities of
their agents by what they are doing.

2. TESTIMONIAL PRIVILEGE

“Section 25. Parental and filial privilege. – No person may be compelled to testify against
his parents, other direct ascendants, children or other direct descendants.”

Suppose a man committed a crime and his son or daughter, or grandchild witnessed the commission
of the crime. So the star witness is the descendants of the killer.

Or, vice versa. A man committed a crime, witnessed by his parent(s) or grandparent(s). the
prosecution now utilize the descendants or ascendants against the killer.

Q: Can the witness refuse to testify against the killer?

A: Yes. This is covered by parental and filial privilege. “No person may be compelled to testify against
his PARENTS, OTHER DIRECT ASCENDANTS, CHILDREN, OR OTHER DIRECT DESCENDANTS.

Q: What is the REASON for the privilege?

A: To preserve the sacred sentiments between members of the same family.

If you look at the general rule, a witness, in the commission of the crime, is a witness for the People
of the Philippines. So, he can be compelled to testify for the State. But this is different. So if the
accused is the witness cannot be compelled to testify against the accused.

Q: Suppose the witness is a child of the accused, and the former voluntarily testifies against the
latter. Can the father disqualify his child?

A: No. The father cannot prevent his son from testifying him, where the latter himself voluntarily
offered to testify. What is prohibited is the compulsion of the witness mentioned in Sec. 25.

If the witness voluntarily testifies, it is alright because there is no prohibition. That is why this is not a
disqualification where the witness can be barred from testifying. It is a privilege, not a
disqualification. So if the witness wants to testify, the accused who is his ascendant or descendant
cannot prevent him from doing so. But if the witness does not want to testify against the accused,
the former cannot be compelled to do so.

NOTE: There are 2 privilege under this Section:

(1) The PARENTAL privilege; and (2) The FILIAL privilege.

In parental privilege, the witness cannot be compelled to testify against his child or other direct
descendant.

In filial privilege, the witness cannot be compelled to testify against his parent or other direct
ascendant.

HISTORY: Under the 1964 Rules, there was a filial privilege, but was no parental privilege so that
technically, under the said rule, an ascendant could be compelled to testify against his descendant.
But a descendant cannot be compelled to testify against his ascendant.

Now, under the 1989 amendments, the rule works both ways – filial and parental.

Under the old law – and we will try to compare this with the new law – the old was Art. 315 of the
Civil Code. The counterpart revision is the Remedial Law is Sec. 20 (c), Rule 130 of the 1964 Revised
Rules of Court. The new law is Art. 215 of the Family Code and its counterpart is the Sec. 25, Rule
130, 1989 Revised Rules on Evidence. Art. 215 of the Family Code originated from Art. 315 of the
Civil Code; Sec. 25, Rule 130 of the 1989 Rules on Evidence originated from Sec. 20 (c), Rule 130 of
the 1969 Rules.

Prior to Family Code and the 1989 Revise Rules on Evidence, the language from the two old
provisions was: “No descendant can be compelled, on a criminal case, to testify against his parents
and ascendants.”

However the language now of Art. 215 of the Family code is not the same as the language of Sec. 25,
Rule 130, 1989 Revised Rules on Evidence. There is no problem had these 2 provisions been the
same but if you go over them, they are different from each other.

Art. 215 of the Family Code reads: “ No descendants 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.”

Compare this with Sec. 25, Rule 130 of the 1989 Rules: “No person may be compelled to testify
against his parents, other direct ascendants, children or other direct descendants.” So, there is a
variation between these 2 new provisions.

Q: Can an ascendant be compelled to testify versus his children or other direct ascendants?
A: No, based on Sec. 25, Rule 130 – Parental privilege.

Yes, under Art. 215, Family Code. Because it only says “ NO DESCENDANT xxx “. There is no
mention, about ascendants. So Art. 215, Family Code borrowed the language of Art. 315, Civil Code.
There is filial privilege but no such thing as parental privilege.

Q: A descendant is being compelled in a civil case to testify against his parents. Is this allowed?

A: Yes, because Art. 215, Family Code, says: “No descendant shall be compelled, in a CRIMINAL case
xxx .” So, if the case is civil, a descendant can be compelled to testify against his parent or
grandparent because, again, Art. 215 borrowed the language of Art. 315, Civil Code.

But look at the law now (Sec. 25, Rule 130): “No person may be compelled to testify xxx “ without
stating whether the case in which he cannot be compelled to testify is criminal or civil.

So what is “yes” in the Family Code is “no” under the 1989 Rules of Evidence.

Q: A man killed his wife in the presence of their child. If the child is willing testify there is no problem
about that. But suppose the child does not want to testify and the prosecution says that it has no
other choices but to compel the child. Can the child be compelled to testify against his father in a
parricide case committed against his mother?

A: Yes, the child may compelled to testify against his father in a parricide case committed against his
mother, because Art. 215 of the Family Code says: “ xxx except when such testimony is indispensable
in a crime against the descendant or BY ONE PARENT AGAINST THE OTHER.”

But under the 1989 Rules on Evidence, Sec. 25, Rule 130, the child cannot be compelled to testify
against his father even in a crime of parricide committed against his mother, because Sec. 25 does
not provide for any exception. The filial and parental privilege rule is ABSOLUTE, whoever is the
victim. This is a gray are a since there is no complete harmony between the Family Code and the
1989 Rules of Evidence.

TRIVIA: There is no author yet who discussed this issue, the seeming differences between Art. 215,
Family Code and Sec. 25, Rule 130, 1989 Rules. And there is no decided case on this issue yet.

Q: But, assuming there is a conflict, which will prevail?

A: Remember that the family code took effect in 1988, while the Revised Rules on Evidence took
effect in 1989. When the UP Law Center was drafting the Family Code and a Committee was
amending the Rules on Evidence almost at the same time, they did not consult each other. So they
came out with two different provisions.

Q: How come under the old code and rules, there was harmony?
A: The reason is simple. The Civil Code was passed in 1950 and the Supreme Court, when they
drafted the 1964 Rules of Court, patterned it after and harmonized it with the substantive law.

Q: Which will now prevail between Art. 215, Family Code and Sec. 25, Rule 130, 1989 Rules on
Evidence?

A: While the 1989 Rules on Evidence is more recent in time, the Family Code prevails because
substantive law prevails over procedural law. The Rule of Court cannot amend or modify the Family
Code, which is a substantive law.

3. ADMISSIONS AND CONFESSIONS

“Section 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.”

Q: Define ADMISSION.

A: Admission is the act, declaration or omission of a party as to a relevant fact, and which may be
given in evidence against him.

When we hear the word “admission”, what come to our minds is that it is an oral statement. But
under the law, an admission is not limited to verbal or written statements. It may be an ACT. Without
saying anything, what one does may considered as an admission, it may also be an OMISSION.
Failure to act or silence may be considered an admission.

EXAMPLE: A owes X money, and here comes X saying to A, “Yong utang mo, hindi mo pa
binabayaran.” Assuming there is no promissory note – so there is no evidence of A’s obligation to X.
When X sues A for collection, A denies having borrowed money from him. So the issue is: Whether or
not A borrowed from X.

Suppose X, the plaintiff, uses Y as witness for the latter to testify that 2 years ago, Y had a
conversation with A(defendant) wherein Y mentioned that he owes A a big amount of money. So
what defendant said years ago to another person is now being used against him.

However, suppose the act, declaration or omission of a party as to a relevant fact is FAVORABLE to
him. His admission is evidence AGAINST him, but is it evidence FOR him?

Q: May the defendant use his admission as evidence to favor him?

A: No. That is considered as a SELF-SERVING EVIDENCE OR ADMISSION.

Q: Define SELF-SERVING EVIDENCE OR ADMISSION.

A: Self-serving evidence is an admission FAVORABLE to the party making it. Meaning, such party
wants to use it as evidence for himself. But the law says it is INADMISSIBLE in evidence FOR or TO
FAVOR the offeror.

EXAMPLE: A talks to Y

A to Y: Do you know X.

Y: Yes.

A: Iyang taong iyan – ang sabi niya, may utang ako sa kanya.

But I do not owe him anything. I never borrowed money from him.

One year later, X sues A to collect the loan. A’s position is the same – that he does not owe X any
money. And in order to prove this, A uses Y as his witness. So, Y is now called to the witness stand;

Counsel to Y: Mr. Y, do you remember the conversation that you had with A one year ago?

Y: Yes.

Counsel: What was the conversation about?

Y: It was about the suppose debt which X claimed that A owed him.

Counsel: So, does A owe X any amount?

Y: No.

Counsel: Why do you say that A does not owe X any amount?

Y: Iyon ang sabi ni A, eh. Ang sabi niya sa aking, wala raw siyang utang kay X.

So A now says: You see? Wala akong utang kay X. Iyon ang sinabi ko, eh.

What kind of evidence is that? A is using his own statement to favor himself. It I a different matter if
the testimony is being used AGAINST A. The statement Y against A may be used by X against A. But
the statement made by Y in A’s favor cannot be used by A in his own favor.

Q: What is the reason why self-serving statement are inadmissible to favor the offeror?
A: A person can be believe when he says something AGAINST himself, but no when he says
something to FAVOR his own interest. So, a person’s own admission is evidence against him, but is
not evidence for him.

The classic example of this principle was asked in the Bar Exams years ago.

A was walking along the street with his dog. While walking, A met X. X remarked, “Oh, what a
beautiful dog. Whose dog is that?” A answered, “Mine, of course.” Later on, that dog bit a woman
(B). So B sued A for damages. In his answer, A said that he does not own the dog.

Q: Can B present X as witness to testify that A is the owner of the dog that bit B? Would X’s
testimony be admissible?

A: Yes, because here X is being used against A.

But here is another problem: While A was walking along the street with his dog, he met X. X
remarked, “What a beautiful dog. Whose dog is that?” A answered, “Mine, of course.” Later on, B
filed a case against A for replevin to recover the dog because according to B, the dog is really his. But
A says that the dog is his, not B’s. ISSUE: Who owns the dog, A or B?

This time, it is A who called X to testify on the ownership of the dog.

Counsel to X: Who owns the dog?

X: A.

Counsel: Why do you say that A is the owner?

X: Because A said so. A told me that he is the owner, so he is the owner.

So that is the illustration of self-serving statement. In the plaintiff and defendant quarrel over the
ownership of the dog, the defendant (A) cannot use the statement of X to prove that he (A) is the
owner. But if A denies ownership of the dog, because it bit somebody, A’s statement to X is
admissible against him (A).

Self-serving statements and hearsay belong to the same family.

In the previous example, every time a party testifies in his favor, his statement is inadmissible.
Suppose in a collection suit, the issue is: Does defendant owe the plaintiff (a particular amount)?
Plaintiff claims that the defendant owes him an account. But the defendant denies the existence of
the debt. So the plaintiff testifies for himself.
 Counsel: Does the defendant owe you a particular amount?

Plaintiff: Yes

That testimony is self-serving, so that is inadmissible. If it is the defendant who testifies that he does
not owe the plaintiff anything, that is also inadmissible. That is also self-serving.

When a party testifies, hi statement would be self-serving. That is tantamount to saying that a person
cannot testify for himself. An accused cannot testify for himself. He cannot deny committing the
crime, because such testimony would be self-serving.

Q: Is the statement of a party in the witness stand and considered self-serving?

A: No. The statement that is self-serving evidence and cannot be received refers to statements made
out of court. If a party said something before and uses it now as his evidence, that statement is
inadmissible. But if he says something now in court, that statement is not covered by the rule. So, it
is admissible.

The following case emphasizes the above distinction:

CASE: Cuison vs. CA, 227 SCRA 391 (26 October 1993)

FACTS: Petitioner Rue Cuison is a sole proprietorship engaged in the purchase and sale of newsprint,
bond paper and scrap, with places of business at Quezon City and Binondo Manila. Private
respondent, Valiant Investment Associates, is a partnership duly organized and existing under
Philippine Laws with business address at Caloocan City.

Private respondent delivered various kinds of paper products amounting to almost P300,000 to a
certain Lilian Tan if ET Trading. The deliveries were made pursuant to orders allegedly placed by Tn
Huy Tiae who was then employed in petitioner’s Binondo branch office. Upon delivery, Lilian Tan paid
for the merchandise by issuing several cheques payable to cash at the specific request of Tiu. In turn,
Tiu issued post-dated cheques as payments for the paper products. The said cheques were
subsequently dishonored by the drawee bank.

Private respondent made several demands upon petitioner to pay for the merchandise, claiming that
Tin was duly authorized by petitioner as manager of his Binondo branch office, to enter into the
questioned transaction entered into by Tiu and refuse to pay private respondent the amount
corresponding to the selling of price of merchandise delivered.

Petitioner, in trying to discredit witness, Villanueva, alleged that his (Villanueva) testimony is clearly
self-serving inasmuch as he worked for private respondent as his branch manager.
ISSUE: (1) Whether or not Tiu possessed the required authority from petitioner to hold the latter
liable for the disputed transaction.

(2) Whether or not Villanueva’s testimony is self-serving and thus inadmissible.

HOLDING: (1) It is evident from the records that by petitioner’s acts and admissions, he held out Tiu
to the public as manager of his store in Binondo. The following are specific instances:

(a) Petitioner explicitly introduced Tiu to respondent’s manager, Villanueva, as his branch
manager. This was testified to by Villanueva. (This is a self-serving testimony adverted to.)
(b) Lilian Tan, who had been doing business with petitioner for quite a while, also testified that
she knew Tiu to be the manager of petitioner’s Binondo store.
(c) Tiu is known in the community to be the “kinakapatid” (godbrother) of petitioner.
(d) Petitioner himself admitted in open court his close relationship with Tiu – that they are “like
brothers”.

Thus, there was no reason for anybody especially those transacting business with petitioner to
doubt the authority of Tiu as manager of petitioner Binondo’s branch.

(2) The argument that Villanueva’s testimony is self-serving and therefore inadmissible on the
lame excuse of his employment with private respondent utterly misconstrues the nature of “self-
serving” evidence and the grounds for its exclusion. As pointed out by SC:

Self-serving evidence is evidence made by a party OUT OF COURT at one time; it does not
include a party’s testimony as a witness in court. It is excluded in the same ground as any
hearsay evidence, that is the lack of opportunity for cross-examination by the adverse party, and
on the consideration that its admission would open the door to fraud and to fabrication of
testimony. On the other hand, a party’s testimony in court is sworn and affords the other party
the opportunity for cross examination.”

Of greatest weight than any of the above testimonies is petitioner’s categorical admission on the
witness stand that Tiu was the manager of his store in Binondo. Such admission, spotenous no
doubt, and standing alone, is sufficient to negate all the denial made by the petitioner regarding
the capacity of Tiu to enter in transaction in the question.

The above act, taken together with the declaration of petitioner in open court amount to
admission under Rule 130, Section 22 of the Rules of Court, to wit: “The act, declaration of
omission of a party as to a relevant fact may be given in evidence against him.”

Well settled is the rule that: “A man’s act, conduct and declaration, whenever made, it voluntary,
are admissible against him, for the reason that it is fair to presume that they correspond with the
truth, and it is his fault if they do not. If a man’s extrajudicial admissions are admissible against
him, there seems to be no reason why his admission made in open court, under oath, should not
be accepted against him”.
 Moreover, petitioner’s unexplained delay in disowning the transactions entered into by Tiu despite
several attempts made by respondent to collect the amount from him, proved all the more that
petitioner was aware of the questioned transactions. Such omission was tantamount to an
admission by silence under Rule 130, Section 23 of the Rules of Court, thus: “Any act or
declaration made in the presence of and within 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, may be
given in evidence against him.”

So when a party makes a statement in court, everything is in writing. It is under oath. There is a
presumption that he is telling the truth. Anyways, he is subject to cross-examination.

But when he makes the statement out of court, that is not under oath and there is no opportunity
to cross-examine. A party cannot use a statement he made out of court as evidence in his favor.
But when he testifies in his favor that is not considered as self-serving – that is admissible. When
the court believes him or not that is another thing. That is weight not admissible.

Q: What are the types or classification of admissions?

A: They are:

1. (A) Judicial Admission

(B) Extrajudicial Admission

Q: Define JUDICIAL ADMISSION

A: Briefly, they are admissions made in the judicial proceeding under consideration. Section 4 of Rule
129 gives a complete definition of judicial admissions. They are: “admissions, verbal or written, made
by a party in the course of the proceedings in the same case xxx.”

Q: Define EXTRAJUDICIAL ADMISSION

A: They are admission made OUT OF COURT, or in a judicial proceeding other than the one in
consideration.

An admission made in a party’s pleading in a certain civil case is a judicial admission in that case. But
a statement made by a party outside the court is an extrajudicial admission. An admission made in
one civil case is not an admission in another civil case.

So, a statement made by a party in his pleading in Civil Case # 1 is a judicial admission only insofar
as Civil Case # 1 is concered. But insofar as Civil Case # 2 is concerned, it is an extrajudicial
admission, because it is not made in the same proceedings, in the same case.
Admission may be further classified into:

(a) Judicial – (i) Formal

(ii) Informal

(b) Extrajudicial – (i) Express

(ii) Implied

Q: Define FORMAL judicial admission.

A: They are those made IN WRITING such as in pleadings, motions or stipulation of fact.

Q: Define INFORMAL judicial admission.

A: They are those made ORALLY, in the course of the testimony of a party or his witness, or to
depositions or affidavits or statements of counsel.

When a lawyer makes an admission in court, his client is bound by that admission under the principle
of agency.

Q: Define EXPRESS extrajudicial admissions

A: They are those made in a definite, certain and unequivocal language.

EXAMPLE: “ X owes A P10,000 which he has not paid until now.”

That statement is clear. There is no doubt that P10,000 is still outstanding.

Q: Define IMPLIED extrajudicial admission.

A: They are those which may be INFERRED from the act, conduct, declaration, silence or omission of
a party.

Here, a party does not say anything, but his conduct, silence or omission implies an admission.
Example: Section 32, Rule 130 (Admission by silence).

The following principles show implied admission:

(1) LACHES: which is (an equitable rule) unreasonable delay in the prosecution of a suit, civil or
criminal, gives rise to an implied admissions of lack of merit because a person really
aggrieved will lose no time in seeking redress for his grieveness.
 (2) FLIGHT AND CONCEALMENT: The flight and concealment of an accused is an implied
admission of guilt, for, as the old saying goes: “The guilty man flees even if no one pursues,
but the innocent stands bold as a lion.”

EXAMPLE: X is a suspect in a crime and he is tried. Evidence shows the after the crime was
committed, he left his hometown, went into hiding and it took the authority several years to arrest
him.

Flight and concealment is considered as circumstantial evidence. It is evidence on collateral matters

which shows the probability or improbability of the fact in issue. It is a SUBSEQUENT collateral matter
because after the commission on the crime, the offender run away.

Suppose the accused claims that he did not flee from the scene of the crime. That after its
commission, he stayed all along and even attended the wake of the victim. Since he did not flee, he is
not guilty.

The SC said: There is no contrary rule. There is a rule that flight is indicative of guilt but there is no
rule that non-flight is evidence of innocence.

(3) INFLUENCE. An attempt to influence witness, whether the influence tended to bring forth
false testimony or to suppress evidence, is an implied admission by the party making it that
he has NO CASE, for if he had, it would not be necessary for him to fabricate or suppress
evidence.

EXAMPLE: One tries to influence the witnesses against him not to testify through friends or through
reward. Others “buy” witnesses. Sometimes, others solicit the assistance of influential people to
pressure the other party not to file a case.

These things can be proven in the court. And the implications are as stated above.

(4) Efforts of an accused to have the case dropped through the help of relatives and various
influential people is a strong indication of guilt for the innocent depends on the strength of
his case.

(5) The unreasonable refusal of plaintiff in personal-injury case to submit to a physical or medical
examination is evidence bearing upon his good faith, just as in any other case of a party
declining to produce the best evidence. Said refusal gives rise to an adverse inference.
EXAMPLE: The refusal of Hubert Webb to submit to a sperm test is a point against the defense. The
result of the sperm test is not really accurate, but it will help the case of the prosecution. The refusal
is not a conclusive indication of Webb’s guilt, but definitely it will weaken the defense.

(6) A change for the better in the financial condition of a person accused of a crime involving
money, immediately or shortly after the date of the crime may be shown upon the theory
that sudden and unexplained possession of funds has a tendency to connect said person with
the crime.

EXAMPLE: There is a robbery, X is a suspect. One piece of evidence against him is that after the
crime, he suddenly become very affluent. The sudden change in his financial status may show that he
is connected with robbery committed. Before the robbery, X would bet only P30 – P50 in cockfights,
but after the robbery, his bet ranged by the hundreds and thousands.

BAR QUESTION: There was an accident involving the derailment of a train. The passengers sued the
railroad company for damages due to non-repair of defective railroad tracks, which the company is
denying. “No, our tracks and our train are in good condition.”

However, after the accident, the company hired people to extensively examine the condition of the
railroad tracks, trains and machines. With this, the passengers established evidence of negligence on
the theory that if the company was really maintaining their railroad tracks, there would be no need
for it to hire mechanics to check on the tracks. Is that theory correct?

A: The SC said: No, the theory is incorrect. The rule cannot be applied that just because they are
checking their equipment, they are negligent. Because if they will apply that rule, there is no more
incentive for the common carriers to inspect their machines. On the contrary they would be deferred
from inspecting their vehicles because it would be used as evidence of negligence when the policy of
the law is precisely encourage them repair their vehicles, vessels, or aircrafts.

The United States SC said: “Repairs and other precautionary measure made by the owner of the
appliances after an accident or injury is not competent evidence upon the issue of negligence,
because a contrary rule would discourage the making of improvements after an incidents.”

“Section 27. Offer of compromise not admissible. – In civil cases, an offer of compromise
is not an admissible of any liability and is not admissible in evidence against the offeror.”

EXAMPLE: A file against B a civil case for damages, to hold liable for an injury sustained by A in an
accident. A claims for P100,000; B offers to A P50,000. Despite B’s offer of P50,000, he claims he is
not liable because he is not at fault, or if it were B’s employees who were responsible for the
accident – that B’s employees exercised diligence.

Q: Is B’s offer P50,000 to A tantamount to an admission that he (B) is liable for the inquiries suffered
by A in the accident, and may be used as evidence of B’s guilt in court?

A: No, B’s offer to compromise cannot be used against him. An offer of compromise IN A CIVIL CASE
is NOT an admission and is not admissible in evidence against the offeror of the same.

The said compromise is not tantamount to and admission which may be used as evidence against its
offeror because:

(1) In civil cases, the parties are encourage by the court to compromise. If an offer of the
compromise were to be admissible, it would discourage the parties from coming up with a
compromise.

(2) There are persons who offer to compromise not because they are at fault but because they
simply want to avoid trouble. They would be able to avoid the expenses and litigation;
therefore, it would be cheaper to compromise. One may win a case, but if may have cost a
lot of his time in litigation.

How about in CRIMINAL CASES?

“Section 27, Second paragraph: 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.”

The general rule is: An offer of compromise by the accused is an implied admission of his guilt. Why?
Because under substantive law, the victim cannot compromise in criminal case. Especially where the
offense is against the State, there should be no compromise.

Q: So when one is charged with murder and as the accused the offers a compromise (e.g. to reduce
the crime charged to homicide), can such compromised be offered in evidence as an implied
admission of his guilt?

A: Yes. The compromise is admissible. Take note: This is not really an express admission, but merely
an implied admission. But for as long as there is no consideration, the offer cannot be used against
the offeror.

How about in quasi – offenses (criminal negligence)?

EXAMPLE: You bump somebody while driving your car. The victim was hospitalized. Then you are
accused of physical injuries. You offer a compromise. QUESTION: Is that offer an implied
admission of your guilt? ANSWER: No, this is an exeption.

Also, it is not an implied admission of one’s guilt where the offer is made in criminal case which are
allowed by law to be compromised.

As a general rule, the law does not allow compromise of criminal cases. But if the law allows it, such
is not considered an implied admission of guilt.

So, where the general rule is that in criminal cases, an offer of compromise by the accused is an
implied admission of his guilt, the following are the exeptions:

(1) In quasi offenses (negligence) where there is no criminal intent. There is a crime but it is not
as bad. For example: reckless imprudence.
(2) In criminal cases allowed by law to be compromised.

In the above-given exeptions, an offer of compromise by the accused cannot be used against him as
an implied admission of his guilt.

To compromise means to settle. The following are instances where the law allows compromise:

(1) Under the National Internal Revenue Code, the Commissioner of Internal Revenue has the
power to compromise tax cases. Even in a criminal case for tax evasion, a compromise may
be allowed. However, such compromise is not allowed if pardon is given prior to a case.
(2) Under the Barangay Law, there must be barangay conciliation first, even in criminal cases. A
criminal case will not be entertained by the court if it does not pass through barangay
conciliation. But this covers only minor offenses the penalty for which is imprisonment for one
(1) year or less, but not grave offenses such as murder. Such criminal cases may be subject
to compromise in the barangay level.

Q: What is the purpose of the above law in imposing the condition that a case must first pass through
barangay conciliation before the same may be entertained by the court?

A: To preserve unity and harmony in the barangay.

In the above exception, the plaintiff, may accept payment (compromise) with respect to the civil
aspect, but the criminal aspect is not subject to compromise.

“Section 27, Third paragraph: 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.”

HISTORY: The 1964 Rules of Court did not contain this particular paragraph. This was introduced for
the first time in the 1989 Rules on Evidence.

Q: May a plea guilty be later withdrawn?

A: Yes, before trial.

Q: During the trial, may it be presented that a person who at first pleaded guilty later changed his
plea during the pre-trial?

A: No. So changing the plea cannot be considered against the person who made the same.

RECALL: There can be a plea of guilty to a lesser offense; provided, the fiscal and Protection agree.

ILLUSTRATION: A is charged with murder. As the accused, he says it should be only homicide. The
offended party disagrees, and contends that by saying that murder should be reduced to homicide, A
has already pleaded guilty to homicide.

Q: May the offer of a plea guilty to a lesser offense in a plea bargaining be offered as evidence
against the accused? Is it admissible?

A: No.

The rule of offer of compromise, being expanded, provides the last paragraph as another
addition:

“Section 27, last paragraph: An offer to pay or the payment of medical, hospital or other
expenses occasional by an injury is not admissible in evidence as proof of civil or criminal
liability for the injury.”

This is very wise amendment in the law because in the past, people injuring others had been
forced into not complying with their obligations as good Christians.

EXAMPLE: B, while driving his car, suddenly bumps a pedestrian. The victim is hospitalized. B claims
that he was not a fault because he was driving carefully. It was the pedestrian who was negligent
when he suddenly crossed the street. Therefore, B here claims to be free from any imprudent or
negligent act, and he thus will not admit of any liability because he was totally without any
carelessness or fault.

But sometimes, one has to have humanitarian sentiments. The victim is already in the hospital, and
he(B) should be morally obligated to help him(victim). As good Christian, B should help the victim.

Later, the victim files a case against B. Then during the trial, the victim asks B that if he (B) were not
guilty, why did he(B) pay for the his(victim’s) medical expenses? If such a contention of a victim may
be used against the defendant – eh di wala na talagang tulungan!

If B acts like a Christian and shows his kindheartedness by helping the victim, and such help would be
used against him (B), then people would not be helping each other anymore. Really, situation cannot
be avoided where one is not at fault or liable, but because of humiliation reasons, he will help the
person. His conscience cannot bear seeing the victim suffering in the hospital.
The last paragraph in Section 27 encourages humanitarian gestures by people who injure others
accidentally without fault. Payment of medical, hospital or other expenses is not admissible in
evidence as liabilities for the injury.

“Section 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.”

ILLUSTRATION: D tells some people that he owes E a sum of money. Later, E files a case against D
and all his(D’s) defenses are identical: That D does not know anything about the debt; that he denies
the existence of the debt.

In the case against D, one of the person he talked to before testifies that long before the case was
filed, D told him that he owed E a sum of money. QUESTION: Is the statement of the person
admissible? ANSWER: Yes, the admission of a party is evidence against him(D). The statement, act or
declaration made by D may be used as evidence against him.

Another example: In a civil case against F, G is asked to testify. G says that F owes the plaintiff
money and that he (G) knows so because F told him so.

PRINCIPLE: THE ACT OR DECLARATION OF A PARTY CANNOT PREJUDICE ANOTHER.

Common sense will tell us that we are bound by what we say. Whatever may say may be
evidence against us. But it would be unfair or unconceivable that we would be bound by the
statement of other people. Why should one be bound by the statement of another? IF ONE WISHES
TO CONFESS SOMETHING, HE MUST CONFESS IT HIMSELF. When one wishes to object to a
statement which should not bind him, he must invoke the Res Inter Alios Acta Rule: “Objection, your
Honor. The statement of that person is Res Inter Alios Acta to me. I am not bound by his statement.”

Whatever statement a person makes may be used as evidence against him, but not against others.

The general rule under the Res Inter Alios Acta Rule is: An act or admission of a party does not bind
another.

But the Res Inter Alto Acta Rule is NOT ABSOLUTE.

Q: When may the statement or admission of another bind another person?

A: The exception to the Res Inter Alios Acta Rule are found in Section 29, 30 and 31.

A statement of admission made by A is receivable in evidence against B who is third person or

another person; Provided, there exists a distinct relationship between parties such as in the following:
 (1) Partnership;
(2) Agency; (4) Joint Interest; and
(3) Conspiracy; (5) Privity

“Section 29. Admission by co-partnership or agen. – The act or declaration of a partner or

agent of a party within the scope of his authority and during the existence of the
partnership or agency, maybe 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.”

The law says that the act of the partner of the party must be made within the scope of his authority,
and within the existence of the partnership.

EXAMPLE: A and B are partners in a business. Since there is a mutual agency, there is “delectus
personae” which binds both of the partners. Suppose A makes an admission that the partnership
owes a bank or some other person some amount of money. Then later on, the partnership is sued by
such bank or other person and the defense of the partnership is that it does not owe any bank or
person any amount of money. QUESTION: May the admission of A be used to prove the obligations of
the partnership? B objects and contends that he should not be affected by the declaration made by A.
Is such contention tenable? ANSWER: B’s contention is untenable. B is affected by the declaration
given by A because this is an example to the Res Inter Alios Acta Rule.

WHEN THE DECLARATION IS MADE BY A PARTNER, THE SAME IS BINDING UPON THE
PARTNERSHIP PROVIDED the following requisites are present:

(1) The statement refers to a matter within the scope of the partner’s authority;
(Anything beyond the partner’s scope is not covered.)
(2) The admission or statement is made DURING the existence of the partnership;
(If the partnership is dissowed, any statement made by a partner will no longer bind his co-
partner.)
(3) The existence of a partnership must be proven by evidence other than such act or declaration
(one must show that there really is a partnership) the existence of the partnership must be
shown by independent evidence other than such act or declaration.

ILLUSTRATION of the third requisite: A introduces himself to you as managing partner of B and C in a
particular partnership. That, in behalf of the partnership, A is making this order from you. It turns out
that the account was not paid. The partnership is sued by you and it denies the account. You claim
that the partnership is bound by the acts of A.

But how did you know that A is really the partner of B and C? You say you know because A
said so. No, this is not a proper defense because in this manner you are actually using the admission
as the very evidence of the existence of the alleged partnership. It must have first been shown that
A, B and C really are partners. There must be another evidence would be, for example, to present in
the court the Articles of Partnership. In this way, you are showing the existence of the partnership by
the independent evidence other than the statement of the person who made the declaration.

The other exception is AGENCY. The person making the statement is the agent, and now such
statement or admission is being used as evidence against the principal. For example, A authorizes B
to be his attorney-in-fact in business. A is the principal; B is the agent.

The requisites for this exception are the following:

(1) That the agent made the admission or declaration within the scope of his authority as agent;
(2) That the admission or declaration was made while the agency was in effect; (Not when there
has already been revocation of the power of attorney.)
(3) That the existence of the agency is established by the independent evidence other than the
act of declaration.

The best way of proving the existence of the agency is through presenting the power-of-attorney.

Q: Does the act, declaration or admission made by the husband bind the wife for the purpose of
creating liability upon the absolute community property or conjugal partnership of the spouses?

A: Yes. The husband and the wife are agents of each other. Either one may bind the conjugal
partnership or absolute community; Provided:

(1) The act, declaration or admission was made within the scope of the husband’s or wife’s
authority;
(2) The property regime is still existing; (It has not been dissolved and that they are really
married.)
(3) The existence of the agency must be proved by evidence other than such act, declaration or
admission.

Another example of agency: When a lawyer makes a statement in court or makes an admission,
the client cannot say that he cannot be bound by his lawyer’s statement or admission. In court
proceedings, the lawyer is the agent of the client. So the acts, conduct or declaration of a lawyer
binds his client in matter concerning the case. The client principal here.

The rule that the existence of the agency must be proved by the evidence other than the act or
declaration is also applicable to the act or declaration of a JOINT OWNER, JOINT DEBTOR or
OTHER PERSON JOINTLY INTERESTED IN THE PARTY. An admission made by a co-owner binds
the other co-owners.

TAKE NOTE: When the law talks of joint debtors – so there are two debtors – the admission of
Joint Debtor 1 is binding on Joint Debtor 2.

RECALL: But under the Law of Obligation, there are two types of obligations: Joint Obligation and
Solidarity Obligations. In solidarity (joint and several) obligations, the creditor may collect the
entire obligation from only one debtor. In joint obligations, the creditor may collect from a debtor
only up to his share in the obligation.

ILLUSTRATION: B and C are joint debtors for an amount of P200,000. The shares of B and C are
P100,000 each. The creditor cannot collect from C the share also of B. QUESTION: But is it not
that the admission of a joint co-debtor binds the other co-debtor?

ANSWER: According to the SC, what is contemplated under this provision is a SOLIDARY
obligation. There is no joint obligation in solidarity agency. Even if the word used in the law is
“joint:, what is actually meant by it is solidary. There is only one obligation. Each debtor is
answerable for each other’s share. This is but logical because if the law intended for this to be a
“joint” obligation, then the implication is that there are actually two obligations. And therefore,
one cannot bind the other debtor with his acts, declaration, or admissions..

Another instances where the law uses the word ‘joint” when actually the obligation is solidary is in
the case of JOINT-TORTFEASORS. In Torts & Damages, the Civil Code provides that the
defendants in a case for damages is P100,000. How much can the plaintiff collect from each one
of them? As each of the defendant’s liability is SOLIDARY, the plaintiff can collect the entire
amount from either one. Therefore, an admission by a joint-tortfeasor binds the other because
the obligation is in solidum.

The liability of surety is SOLIDARY also.

ILLUSTRATION on the rules on evidence and how one can appreciate his knowledge of them in a
courtroom (SCENARIO: There are 2 competing lawyers, Attorneys A,and B, & a witness, W.)

ATTY. A: (To W) Mr. W did you hear the statement of X?

W: Yes

ATTY. A: Will you tell this Court what X said about Y?

(As soon as ATTY. B hears this, he immediately objects …)

ATTY. B: Your Honor, Counsel is practically trying to ask the witness to say what X
said about Y so that in effect, such statement of X will be binding upon Y. Res Inter Alios
Acta. The act of declaration of a third person is not binding.

JUDGE: Atty, A, what will you say?

ATTY. A: Your Honor, Counsel forget that there are exceptions to the Res Inter Alios
Acta Rule. In this case, you will read in the pleading that X and Y are partners. Partnerships is
one of the exceptions to the said Rule. In this case, the admission of a partner binds the
other.

JUDGE: Atty. B, what will you say?

 ATTY. B: But Your Honor, Counsel has so far failed to prove the existence of the
partnership. (He enumerates the requisites because he remembers.)

Under the law , the admission of a partner binds the other partner within the scope of his authority;
Provided, the partnership is shown by INDEPENDENT evidence. So far, there has been no
such independent evidence yet presented other than X’s act or declaration.

JUDGE: Atty. A, what can you say? Naipit ka na diayn.

ATTY A: Well, your Honor, we admit that, really, under the law, the existence
of a partnership must be established first. So, for the moment the testimony of the witness is
inadmissible for lack of basis. But may be ask for the conditional admissibility of the evidence
subject to the condition that we will present evidence of existence of the partnership. If we
cannot, then everything will have to be disregarded.

JUDGE: Okay, granted.

So, this is the reason why we need to master the Rules on Evidence. We must remember the general
rule, the exceptions, the requisites, …. We cannot go to court with vague ideas on the Rules on
Evidence because we have no more time while in court to consult the books.

Another name for the Res Inter Aliso Act Rule is “VICARIOS ADMISSIONS”. In law, “vicarious” means,
the act of one binds another. That is a generic term. In Labor Law, in the case of an illegal strike,
wherein the strike is declared illegal by the officers of the Union, is there vicarious admission?
Vicarious, in the sense that officers elect to answer for illegal strike, which will, in effect, mean loss of
employment – where they are automatically fired. What about the other members who took part in
the illegal strike, are they also be covered by the termination? No, the union members are not bound
by the acts of their officers. There is no vicarious liability, except when the members individually
committed illegal acts.

“Section 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.”

This is the fourth exception to the Res Inter Alios Acta Rule. This is similar to the previous exception,
except that the one who makes theadmission in Section 30 is a conspirator. This applies to criminal
cases.

Basaed on the law, the following are requisites:

(1) That the statement, act or declaration relates to the purpose or object of the conspiracy.
(2) The statement, act or declaration must be made during the existence of the conspiracy, NOT
before or after;
 (3) The conspiracy is shown by evidence other than such act or declaration (independent
evidence).

The existence of the conspiracy must be established by evidence other than such act or declaration.

BAR PROBLEM: A robbery was committed. A week later, a subject, X, was caught. Upon interrogation,
he admitted that he was one of the robbers. When asks who is his companions were, he named X, Y
and Z. QUESTION: Is the admission or confession made by X about the robbery admissible against
the companions W,Y and Z?

ANSWER: No, because the problem says X was caught one week after the robbery. The conspiracy
has been accomplished. The law says that the statement must be made during the existence of
conspiracy. Meaning, while the conspiracy is going on, one of the robbers made the admission. The
crime has already been consummated.

However, suppose the case was filed against X, w, Y and Z, and the prosecution moved that X be
discharged in order to be a state witness. Remember the rule in Criminal Procedure. So, in the
witness stand, X admitted that he was one of the robbers. He divulged also who his companions
were. QUESTION: Would X’s statement be admissible?

Then W, Y and Z say that there is more reason for the Res Inter Alios Acta Rule to apply, because the
statement was made long after the conspiracy. QUESTION: Is such a contention correct?

The above contention is wrong because Section 30 refers to extrajudicial statements. This is the
meaning of the law: When X made the statement to the police, that was done outside the court. This
time, X is in the court and under oath. According to the SC, the statement can be rebutted by W, Y
and Z. They can be cross-examined. So statement made in court are not covered by the rule and it
must be made during the existence of the conspiracy. As a matter of fact, the rule will also apply to
Section 29 – when the statement was made in court.

“Section 31. Admission by privies. – Where one derives title to property from another,
like act, declaration, or omission of the latter, while holding the title, in relation to the
property, is evidence against the former.”

This is the last exception. There is privity when one is a successor in interest of another person.

EXAMPLE: When one inherits property from his father, or when property is donated to him by another
person, his predecessor-in-interest is the donor. Or, when one acquires property by assignment, there
is privity between him and the prioer owner. Now, he is only a successor-in-interest.
PROBLEM: Suppose when the father was still the owner of a piece of land, he made a statement to
the effect that his neighbor enjoys a right-of-way over such piece of land, that he had given the
neighbor the privilege, the right to enter his property. Then, the father dies. The children now inherit
the property. They then decide to close the land and deny the neighbor access to it. The neighbor
says that when their father was still alive, the former and the latter agreed upon the right-of-way.
The children deny it.

QUESTION: Suppose a witness testifies that the father did agree with the neighbor over the right-of-
way, are the children bound by such statement of their father?

ANSWER: Yes, the children are bound because they are merely derived from their title to the property
from their father. The act, declaration or omission by the prior owner, while holding the title, may
given in evidence against the successor-in-interest.

So, this Section actually applies to one who derives his title over property from another. The
admission of the predecessor are binding upon his successor-in-interest.

“Section 32. Admission by silence. – Any 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 natural 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.”

This means that when one talks of “admission”, such is not confined merely to what is being said. It
includes also the instance when one does not say anything. This is an admission by silence. Another
name given to this Section is the law on ADOPTIVE ADMISSION.

When somebody says something in someone else’s presence, and the latter did not correct the
former, when actually he should have been corrected because statement given was untrue, in effect,
he is saying that what was said is true. He had adopted his statement.

EXAMPLE: A said to C, in B’s presence that B owes him (A) a big amount of money. B did not say nor
do anything. Later on, A sued B for the collection of the debt. B’s defense is that he did not borrow
money from A. Then A presents as his witness C. B says now that C actually does not know anything
about any debt of his in A’s favor. So C narrated in court the events that he remembered on that
particular day when he was with the plaintiff and the defendant wherein A told him (C) in B’s
presence that B owed him a big amount of money, which B heard but did nothing about.

The reaction of B when A made the statement to C is practically an admission. It is considered an

admission by silence. The theory is: If a person says something which is false, he must be corrected.
B should have denied the obligation right there and then when he heard A make the statement to C.
Since, B did not correct A, then there must be a truth of the statement.
Q: What is the philosophy behind this rule?

A: When a man ought to speak, and he did not speak, he will be barred from speaking later. There is
a Latin maxim which supports this theory: Qui Tacet Consentere Videtur. Silence mean consent. This
is an admission by consent.

Q: Suppose when a statement is made, it is beyond hearing distance is this covered by the rule?

A: No, the law says the statement must have been made “within the hearing” of the party concerned.

Q: Suppose the statement are written in a letter and the addressee never wrote back, never denied
it. Is that an admission by silence?

An American jurisprudence says, No, there may have been many reasons, why he never wrote books.
One is, he might be lazy in writing letters. Another of course the law provide that the statement must
have been made within the hearing of the party.

The law generally applies to oral statements, not to correspondence. It applies to written
correspondence – a letter of demand or statement of account.

EXAMPLE: Juan is sent a detailed statement of accounts for his purchases. He did not respond. Then,
he denied the obligation. QUESTION: Is Juan bound by the statement sent to him even though he did
not respond to the same?

ANSWER: This time, Juan is bound – even if it is a letter. Because while normally the statement must
be made within his hearing, when it comes to accounts, the reaction should be denial of the debt.
This is an exception, according to American jurisprudence. Otherwise, the party concerned is
accountable. This is common sense. You must answer if you no obligation.

There are other exceptions. Among them, as stated by American jurisprudence and our SC, are the
following:

(1) When no good reason exist for the party to comment on the act or declaration;
(2) When it is not proper for the party to comment on the act or declaration.

These exceptions are now incorporated in the law – Section 32: “When proper and possible for him to
do so.” So, if it is not proper or possible to comment or act, then there is no admission by silence.

(3) When the act or declaration was made in the course of an official investigation.

EXAMPLE: Custodial investigation of a suspect in a crime. Under the Constitution, the requirement is
that he has the right to remain silent – meaning he cannot be compelled to talk. Is this an admission
by silence then?
If the suspect invokes his right to remain silent, there is no admission by silence. A right cannot be
the source of an obligation at the same time.

(4) When the silence is upon the advice of the lawyer.

“Section 33. Confession – The declaration of an accused acknowledging his guilt of

offense charged , or of any necessarily included therein, may be given in the evidence
against him.”

When one enters a plea of guilty in a criminal case, that is confession. That is why there is no need
anymore for a trial, because that is the basic of conviction. This is judicial confession. We are not
interested in this because there is no more trial here.

What are we interested in is the situation wherein the accused, for example, while he was being
investigated in a case, confessed that he committed the crime. Later on, upon arraignment, he
pleaded not guilty.

Q: in the above case, what will be the main evidence to be presented by the prosecution to prove the
guilt of the accused?

A: The confession of the accused. This evidence is called an “extrajudicial admission” subject to
constitutional guidelines. So, the confession of the accused is admissible in evidence against him.

Q: Distinguish a confession from an admission.

A:

ADMISSION CONFESSION

(1) It is a statement of fact without It is an acknowledgement of the

necessarily acknowledging guilt. guilt of the offense charged.

(2) It may express or implied. It must always be express.

(3) It applies to both civil and It applies only to criminal cases

criminal cases.

EXAMPLE: X was killed. Y is being investigated Y is asked, “Who killed X?” Y answer that he killed X.

Q: Is that an admission or a confession?

A: That is an admission. Y admitted that he killed X, but he did not necessarily confess that he
committed homicide. He may have some defenses for killing. He can say that he killed X because X
tried to kill him. So, Y may have admitted that he killed X, but he is not confessing his guilt because
he may be invoking the justifying circumstance of self-defense.
A confession is always an acknowledgment of guilt of the offense charged, or any offense necessarily
included therein. It is always express; there is no such a thing as an implied confession. It applies
only to criminal cases; there is no such thing as confession in civil cases.

At this stage, it is important to know the rules on the admissibility of extrajudicial confessions but this
will involve dabbling into the field of Constitutional Law, the Bill of Rights. We will go to that when we
reach Rule 133, Sec. 3.

4. PREVIOUS CONDUCT OF EVIDENCE

“Section 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.”

There are 2 positive situations here:

1) The positive situation: evidence that did a certain thing at one time is not admissible to prove
that he did the same or similar thing at another time.
2) The negative situation: evidence that one did not do a certain thing at one time is not
admissible to prove that he did not do a similar thing at another time.

This section is also known as Res Inter Alios Acta, Part 2. Part 1 is Section28. So, there are two parts
to the Res Inter Alios Acta Rule:

Part 1: The rights of a party cannot be prejudiced by an act, declaration of omission of another.
(Section 28)

Part 2: This section.

EXAMPLE: X is accused for the death of Y, but there is no eye witness. So, the prosecution has to
build its case based on circumstantial evidence – proof of collateral matters which will point to the
probability or improbability of the fact in issue.

So Y was killed in June. Prosecution tries to prove that six months ago, and every month
thereafter until May, X has been attempting against the life of Y. Then, suddenly, in June, Y was
found dead.

If the prosecution says that its purpose in presenting such evidence is to prove that X killed Y, this is
inadmissible because this is Res Inter Alios Acta. Evidence that one did something before is not
evidence that he did the same thing now. Evidence that X tried to kill Y in the part does not
necessarily mean that X is the killer today.

But such evidence may be received to prove only that out of 60 million Filipinos, X has the intent and
the plan to kill the victim. With this purpose the court will admit the evidence, because the second
part of Section 34 states that: “ xxx it may be received to prove the specific intent or knowledge of
collateral manner – an antecedent collateral matter, circumstantial evidence. So, while the evidence
does not

prove the guilt of X, it points to the issue that he is the possible killer.

An example which happened to Dean I: In a case of damages arising from reckless imprudence, both
the plaintiff and defendant claimed that they were both careful, but there were no witnesses. Dean I,
was counsel for the plaintiff. Dean I, dug into the police files of the defendant and found out that in
the past year, he (defendant) was booked 3 to 4 times for reckless driving. Dean I. told the judge
that he was not trying to prove that the defendant was guilty, because Dean I. was aware of the Res
Inter Alios Acta Rule, but only to prove that the defendant has the HABIT of being reckless driver.
What he was trying to say to the court was that in all probability, the defendant must have been
reckless and not that he was actually reckless.

The same rule hold true when trying to establish a pattern of conduct, to prove that the defendant
did not pay to the creditor his debt, by presenting evidence of the debtor’s other unpaid obligations to
other debtors.

“Section 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 reflected upon without a
cause, equivalent to the actual production and tender of the money, instrument or
property.”

A good example of this is in the case of redemption or repurchase. Redemption of property sold
under the Public Land Act. Recall that when one holds an original patent, he has the right of
redemption within 5 years from the time of the sale. He has the right to repurchase when the
property is homestead. If the original owner does not offer repurchase the same within 5 years, his
right to redeem or repurchase is lost.

ILLUSTRATION: A writes within the redemption period. He formally offers to buy back or redeem the
property within the 5-year period. Then the offer was rejected. It was refused without valid cause.
The original owner then files a case to compel reconveyance. Then other party claims that there is
no valid tender of payment within the 5-year period, because he just wrote a letter.

Q: What constitutes a valid tinder of payment?

A: A valid tender of payment must be accompanied by delivery of money. Under the law, if the offer
of payment is in writing and is refused without a valid cause, the law presumes that at the time of the
giving of letter, there was already a tender of payment. This because “tender” means offer of money.
But if it was rejected, and if the supporting letter was given within one year, but the case is filed
beyond one year, one cannot claim that there was a valid tender of payment.

It is a different case when one writes the letter: “I am offering to buy back the property within 5
year.” The other party accepts and asks for the money (payment). The repurchase ask for a month to
produce the amount. In this case, tender will be computed not from the time the letter containing the
offer was given, but from the time the money is finally received by the other party. Because tender
must be accompanied by money. However, if the party makes the tender, and the other party refuses
it without a valid cause, the offer is considered to be payment.
Q: In what form must tender of payment be made?

A: Generally, when one says “tender” it must be cash.

Q: Is payment made through a manager’s cheque considered legal tender?

A: No. Payment through manager’s cheque is not legal tender. The same goes with post-dated
cheques. Payment in cheque is not deemed as payment until it is encashesd.

So when a cheque is given as payment, one must compute tender not from the time it is
given but from the time it is converted to cash. So, effective payment is from the date the cheques is
encashed and not from the date of giving of the cheques,

Q: How about a personal cheque?

A: No, with more reason. A personal cheque is not even considered as legal tender.

Q: Suppose X is tendering to Y an amount worth P1 million. He asks Y if he prefers to be paid in cash

or in manager’s cheque. Then Y answer that he prefers to be paid in manager’s cheque. Is this legal
tender?

A: Yes. Y is now in estoppel. He cannot say that there was no valid tender of payment because it was
given in cash. He was given the option to choose. But definitely, the rule is that payment made in a
cheque is not a valid tender because a cheque is not valid until it is encashed. One may validly refuse
to receive a cheque because it is not a valid tender.

Q: Is partial payment a valid tender?

A: No. Partial payment is not a valid tender. One may refuse to accept it. There is a valid cause for
the refusal because payment must be complete.

5. TESTIMONIAL KNOWLEDGE

“Section 36. 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.”
This Section talks about the Hearsay Rule. The testimony of the witness must be based on his
personal knowledge – not on what he just heard from other people.

EXAMPLE: The witness is shy; he does not want to appear in court. Instead, he narrates everything
to W who will deliver the witness’ testimony in court. This is not allowed because the witness is not
testifying on what he personally knows, but on what another knows. So it is the eyewitness himself
who should testify.

The hearsay rule can be waived by failure to make a timely objection.

Q: What is the test in order to determine whether or not evidence is hearsay? Is the test based on
the fact that one does or does not testify upon his personal knowledge?

A: The real test is: Whether or not the adverse party is deprived of the opportunity to confront and
cross-examine the witness. The right to cross-examination is an essential part of the due process –
that the person who testifies against you will be confronted by you, cross-examined by you. Thus, a
denial of the right to cross-examination is a denial of due process. Hearsay evidence is actually a
denial of the right to cross-examination.

Q: What is an Independent Relevant Statement? (Bar Question)

A: Independent Relevant Statement is part of the concept of hearsay. An independent relevant

statement appears to be hearsay in character, but is not actually legal hearsay. Therefore, an
independent relevant statement is not covered by hearsay.

EXAMPLE: A witness is asked these question …

Counsel: Where were you in this date?

Witness: I was in the United States.

Counsel: Did you meet anybody there?

Witness: Yes.

Counsel: Who did you meet?

Witness: I met A.

Counsel: Did you have a conversation with A?

 Witness: Yes.

Counsel: What was the conversation about?

Witness: The conversation was about an incident which he witnessed earlier.

Counsel: Please tell the Court what Pedro told you …

TAKE NOTE: If the purpose of the last question propounded by counsel is to prove that the
witness had a conversation with A, and that A told him this thing, or that he met A and the latter told
him this story, that is NOT COVERED by the hearsay rule. Because the answer is not really hearsay.
The purpose here is actually only to prove the fact that A told the witness something.

BUT if the purpose of the question is to prove that the story told by A to the witness is true, that is
COVERED by the hearsay rule.

If the purpose of the testimony of the witness is to prove that he had a conversation with A and that
this was what the conversation was about, that is not covered by the rule.

If the purpose of the testimony of the witness is to prove the truth of the statement of A, which he
told the witness, that is covered by the rule. If the purpose of the question is to prove the truth of the
statement, that is covered by the hearsay rule.

In the first case, the testimony is not really hearsay because the witness is talking about his own
perception. That he met A, that they had a conversation, that this was what A said … It is not
hearsay if the witness quotes exactly what A said to him.

When the purpose of the question is to prove merely the fact that such a statement was made, this
appears to be hearsay in character. But this does not constitute legal hearsay and is therefore not
covered by the hearsay rule. As a matter of fact, this is not even hearsay. This is what is called an
INDEPENDENT RELEVANT STATEMENT.

EXAMPLE:

Counsel for Plaintiff : What did B tell you when you met him?

Counsel for Defense : Objection, your Honor! The question calls for a hearsay
answer.

Counsel for Plaintiff : Your Honor, we are asking this question merely to prove the
tenor of the statement.
 Court : If that is the purpose, then the objection is overruled. The
question is allowed.

Meaning the question is an independent relevant statement. Counsel for Plaintiff is asking the
question only to prove the FACT of the conversation, but not to prove the TRUTH of the conversation.
However, take note that such question must be RELEVANT to the case.

EXAMPLE: The prosecution is trying to prove that C is the killer. A witnessed is being
questioned:

Prosecutor : What did B tell you?

Witness : According to B, C killed the victim.

Defense: Objection, your Honor! Hearsay.

Prosecutor : Your Honor, we are only asking the question to prove the TENOR of
the main statement. It is not being presented to prove that C is
the killer.

Q: What does “tenor” mean?

A: That the question is being asked only to prove that B said something, but not to prove the truth of
what B said. That is not considered violative of the hearsay rule, because in reality that is not
hearsay. That is not hearsay because, really, the witness had a talk with B. it is based on his
(witness) own perception.

The basic distinction is: to prove only the statement but not to prove the truth of his
statement. That is what is called an “Independent Relevant Statement”. The statement, by itself,
presented independently, is relevant. But that cannot be done in all cases. That can be done only in
certain cases where, really, the fact that the statement was made is relevant to the case.

According to Dean I.: The question is even irrelevant to the case because the issue is not what B
told the witness. This can only be done when the fact that the statement was uttered is relevant to
the case. That is why it is called: “independent relevant statement”.

According to SC: The theory of the hearsay rule is that when a human utterance is offered as
evidence of the truth of the fact asserted to it, the credit of the assertor becomes the basis of
inference, and therefore the assertion can be received in evidence only when made on the witness
stand subject to cross examination. However, if an extrajudicial utterance is offered not as an
assertion to evidence in the matter asserted, but without reference to the truth of the matter
asserted, the hearsay rule will not apply.

In other words, one must distinguish between:

(1) The fact that the statement was made; and,

(2) The truth of fact asserted in the statement.
One must prove that a statement was made (#1), To prove the purpose of that statement (#2) If his
purpose is only to prove the fact that a statement was made, that is not hearsay. But to prove the
truth of that statement that is hearsay.

Q: When may an utterance be considered an “independent relevant statement”?

A: (1) When the utterance or statement constitutes the issue or parts of the issue in the case;

(2) When the utterance or statement is circumstantial evidence of the issue or the issues in the case.

EXAMPLE of the first instance: When the statement constitutes the issue in the case. That you made
a statement in the issue in case.

How is slander committed? This is a Crime Against Honor. Slander is committed by making a public
statement which is derogatory. The offender impulse a crime, vice or defect which causes dishonor,
discredit or contempt upon other person.

For example, the statement is: “You are a thief.” That is slanderous. When one is called a thief in the
presence of other people, that is embarrassing.

QUESTION: What is the main issue in a case of slander? ANSWER: Did the accused make or not
make such statement? If he did, then there is a crime. If he did not, then there is no crime.

So it has to be proven that the accused made such a statement. Definitely, there must be a witness,
because the statement is made publicly. Many people must have heard him say it.

The star witness testifies that during a particular occasion, the accused, D, was delivering a speech:

Prosecutor : What was the speech about?

Witness : D was talking about E, the complainant.

Prosecutor : What did D exactly say about E in the speech?

Witness : D said that E is a thief.

Q: Can the defense object to that kind of questioning?

A: No. The purpose is to prove that the record made the statement. That is the issue in slander. The
issue is not to prove the E is a thief. The witness is being presented and questioned not to prove that
the complainant is a thief, but to prove that the accused did call him thief. This is an independent
relevant statement and is not covered by hearsay rule.

The above testimony is not hearsay because the witness is present in the occasion in which the
speech was delivered. He himself heard the accused calling the complainant a thief.

EXAMPLE of the second instance: When the statement is circumstantial evidence of the issue in the
case. Circumstantial evidence refers to evidence tending to prove the probability of the issue.
For example, the issue in the case is whether or not the defendant was mentally insane when he
signed a contract. He invokes such defense in order to prove that he is not bound such contract.
Plaintiff claims that defendant was perfectly normal when he signed the contract.

A witness is presented who testifies as to the state of mind during that particular period. The witness
says that he was introduced to the defendant for the first time in that occasion only:

Counsel for Defendant: When you met the defendant, how did he introduce himself to you?

Witness: He introduced himself to me as the President of United States.

The purpose of the Counsel here is to prove that there was “something wrong” with the defendant
during that period, at least. Counsel is trying to prove the state of mind of the defendant and the
mere fact that he made that statement is circumstantial evidence that he was insane.

The purpose of Counsel in his question is not to prove the truth that defendant is the President of the
United States. The purpose is to prove that because of what he said to the witness, there is
circumstantial evidence that “something was wrong”. The statement of the witness is admissible
being an independent relevant statement.

Section 36 tells us what hearsay is all about, what it covers, what it does not cover, the philosophy
behind it, the test to determine it. However, there are exceptions to the hearsay rule. They can be
found in Section 37 to 47.

6. EXCEPTIONS TO THE HEARSAY RULE

”Section 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.”

Another name of a Dying Declaration is ANTE MOREM STATEMENT.

ILLUSTRATION: Somebody was stabbed. As he lay dying, a policeman went over to him and ask him,
“Who stabbed you?” The victim answered, “X stabbed me”. Afterwards, the victim expired.

So, X is prosecuted in killing the victim. The policeman is a witness and testifies that he was present
when there was a commotion and came across a dying man whom he identified as the victim. And
then he was able to talk to the victim before the latter died.

Cousel: What did you as the dying victim?

Policeman: I asked him: “Do you know who stabbed you?” and he said yes. I asked him “Who
stabbed you?” He said that it was X, the accused, who stabbed him.
 Actually, the policeman’s testimony is hearsay. The policeman did not actually see X stab the
victim. And yet, according to Section 37, the testimony is admissible as an exception to prove truth
that; really, X is the killer.

Q: What are the reasons behind this exception?

A: There are 2 grounds or justification cited by Wigmore.

(1) NECESSITY (2) TRUSTWORTHINESS

NECESSITY. According to the SC: In crime against person, such as physical injuries, or homicide, the
best person to identify the accused would be the victim himself. But in such crimes. It is impossible
for the victim to testify if he has died. He cannot now be used on the witness stand because he is
already dead. Necessarily, the prosecution has to present somebody to whom the victim mentioned
the identity of his killer. That is the reason.

The declarant’s death makes it impossible to obtain his testimony in court, and usually in crime
against person, the victim’s testimony is the best evidence of the crime. But out of necessity, since
the prosecution can no longer present the victim in court, it presents somebody whom the victim was
able to talk before he died.

TRUSTWORTINESS. Meaning, it can be relied upon and trusted. The statement is made at the point
of death. It is a situation so solemn and awful as creating an obligation equal to that created by a
positive oath, administered by a court of justice.

What is the guarantee if the statement is the truth? We cannot really be 100% sure that the witness
will tell the truth. But when a witness takes a stand and take an oath to tell the truth, he understands
the consequences of giving false testimony. That is why a statement not under oath is not admissible.
But taking the oath does not necessarily mean that the witness will tell the truth.

However, according to the SC: When a person is dying, that is a very solemn and awful situation.
That the solemnity of the occasion is such that the statement of a dying person is almost the same if
not higher that a person who is under oath.

When a person is dying, and he is aware that he is dying, what is in his mind is probably the thought
of heaven or hell – that he must cleanse himself immediately because he does not know what will
happen to him when he finally dies. So, in this instance, he must be really telling the truth, at least
maybe for the first time in his life. According to the United States SC, describing this meaning: “Truth
is on the lips of a dying man. It is a situation so solemn and awful that the presumption is that the
dying man will not lie.”

There is a possibility for the dying person to commit a mistake. But at least he thought that he was
telling the truth. What is important is for the statement to be admissible in court.

Q: When will the statement qualify as DYING DECLARATION?

A: The elements are based on Section 37:

1) The declaration refers to the cause and surrounding circumstances of the declarant’s
death;
2) It (declarant) was made under the consciousness of impending death;
3) The declaration is offered in a case wherein the subject of inquiry is the declarant’s
death; and,
4) The declarant was a competent witness
(This element is not found in Section 37, but is understood to be an element)

“Competent” – meaning, had the victim been alive, there is nothing which would disqualify him from
testifying. If the victim was an insane person, even if he were alive, he would still not qualify to take
the witness stand. So his declaration also makes him a disqualified witness.

The 1st element: The declaration refers to the cause and surrounding circumstances of the
declarant’s death.

EXAMPLE: As the father laying dying, he told his son: “Son, please come here because I will tell
you something. My compadre, X borrowed money from me 3 years ago. There was no promissory
note. Until now, he has not yet settled hi debt. So I am telling you now, X owes me something .”
Then, the father expired.

So the son sues X. The son testifies and to prove the obligation he presents in court what his
father told him. “That is what my father said when he was at the point of death. The truth sits on the
lips a dying man, so what he told me must be true.” X denies the obligation.

Q: Is the statement of the witness’ dying father admissible in evidence as a dying declaration, an
exception to the hearsay rule.

A: No. The son is not talking in court about the cause and surrounding circumstances if his father’s
death. The statement made by the father pertained to be debt, an obligation – about business. The
statement is considered a DYING STATEMENT, but not a dying declaration. The statement made by
the declarant had nothing to do with his death.

The 2nd statement: The declaration was made under the consciousness of impending death.

Meaning the declaration must know that he would be dying soon when he made the declaration.
Another term for this: the statement is “MADE IN EXTREMIS” – at the point when every hope for
recovery is faint or extinct.

EXAMPLE: A person was shot. When he could still walk, he met Y. Y asked him: “O, kumusta?”
The victim answered, “I’m alright. This is just a flesh wound.” He was not aware how serious his
would was. So, he died. But before that, he was able to tell Y that “it was X who shot him”.

Q: Will the above statement of the victim qualify as a dying declaration?

A: No, because when the victim made the statement, he thought he would still live. In order to
qualify as a dying declaration, the declarant must first think that he is dying. That is a requirement.

When veteran police investigators investigate a dying man who is a victim of murderous assault, he
would usually ask so many questions. “How do you feel?” “What do you think is your condition now?”
Then the victim would say, “I am dying I don’t think I would last one week.” So the victim knows. In
other words, there is now a basis.

Q: Must the dying man really say, “I know I am going to die”?

There was a case before wherein a man was stabbed. He sustained so many wounds. He
asked by the investigator or other person; “Do you think you will die?” He answered in this manner:
“Siguro po.” So this was objective to and attacked in court on the ground that it is not a dying
declaration.

According to the SC: When a person sustained so many wounds and is breathing, but he could hardly
talk, he does not have to say it. He knows his condition. There are many cases decided by the SC
wherein there is no evidence really that before the declarant die, he said: “I will tell you now
because I think I will die.” This is unnecessary considering that he could hardly talk. As a matter of
fact, when a person makes a dying declaration, chances are he could hardly write. And considering
the nature of his many wounds, he must know that he will soon die. There this matter has to be
taken case to case basis. The dying declaration does not really have to be an express statement. But
if it is possible to make it expressly, it would be more preferable.

There are some people who cannot talk even though conscious:

Investigator: Do you understand me?

Declarant: (Nods his head)

Investigator: I will ask you question answerable by yes or no. if the answer is yes, press
my hand once; if the answer is no, please press my hand twice.

Do you understand?

Very weakly, the declarant answers the questions by pressing the investigator’s hand.

Investigator: Do you know who stabbed you?

Declarant: Yes. (Presses once.)

Investigator: Is it X?

Declarant: No. (Presses twice.)

The admissibility of the above as evidence is attacked when brought upon in the court. The defense
claims that there is no showing that the statements were made by the deceased under the
consciousness of impending death. The court will then analyze whether or not the second statement
is present.
Q: What if the declarant survived?

A: Then the declaration is inadmissible.

The third element: The declaration is offered in a case wherein the subject of inquiry is the
declarant’s death. So, if the declarant lives, then there is no evidence.

Q: What about those cases clinically – dead persons?

A: The person must die. In dying declaration, the declarant must die because the said evidence is
offered only in a case where his death is the subject of inquiry.

Therefore, there is no dying declaration in the following crimes:

(a) attempted homicide, murder or parricide;

(b) frustrated homicide, murder or parricide;

Dying declaration is applicable only in cases of CONSUMMATED homicide, murder or parricide. It is

applicable also in civil cases or in civil actions for damages arising from a crime where the family of
the deceased has served the right to file a separate civil action against the accused. In the latter
case, the issue is: whether or not the defendant (accused) was responsible for the death of a
plaintiff’s relative.

Q: What if the victim lapses into coma? The victim said: “I think I am going to die.” And the he goes
into a coma.

A: It is clear that the dying man must die before his statement may be offered in court as a dying
declaration.

TAKE NOTE: The statement of a person who did not die, although he believed at that moment that
he would die, is NOT ADMISSIBLE AS A DYING DECLARATION. Dean I. never said that the statement
is not admissible as an exception to the hearsay rule. Remember that here are eleven (11)
exceptions. We are here only of the first one.

The following are ILLUSTRATIVE CASES:

CASE: People Vs. Baguio, 196 SCRA 459

J. Narvasa:

FACTS: The Lidovina and her husband, Alfredo Paulino, were conversing with a certain Benny in front
of their house at about 10PM on 31 March 1981. Then a group of about 9 to 10 people passed by.
Among these people, Lidovina recognized Rodolfo Baguio (also known as “Bebot”), with whom her
husband, as Barangay Tanod, earlier had same unpleasant dealings. Lidovina went inside her hosue
to get some money to buy cigarettes. While inside, she heard her husband cry out, “Aray ko po!”. She
rushed out and saw her husband spawled on the ground whil “Bebot” and his companions were
stabbing him. She saw “Bebot” himself thrust his weapon at her husband twice. Then, the assailants
fled.

Lidovina went to her husband. In a weak voice, he said. “Kung ako ay bibigyan pa ng Diyos
ng pangalawang buhay, hindi maaring hindi mananagot si Bebot at Frankie.”

ISSUE: Whether or not the utterance of the victim were made “under the consciousness of impending
death”

HOLDING: Yes, the utterance ware made under the consciousness of impending death. The
statement opens with the hope of God might somehow give him a second life. That wish for a second
life cannot but indicate his awareness that his first life was draining away with the blood flowing from
his many and grievous wounds. This being so, AND it appearing that the other requisites of a dying
declaration are present, the admission and appreciation thereof can hardly be faulted.

On Res Gestae: Even if the declaration in question be somehow still refused admission as
dying declaration, there can be no question about its admissibility AS PART OF RES GESTAE – a
statement made while a startling occurrence is taking place; his statement being “the reflex product
of immediate sensual impressions, unaided by retrospective mental action, xxx pure emanations of
the occurrence itself.”

CASE: People Vs. Padrones, 189 SCRA 496

FACTS: On 3 August 1986, Lorenzo Sison, the victim, was at the MGR Disco at Surallah, South
Cotabato celebrating his birthday over beer and refreshments. Whereupon, the 2 accused, Joseph
Biare and Alex Padrones, arrived one after another.

Later the victim approached Padrones, squeezed his mouth and uttered challenging words: “Are you
not afraid of the Sisons?” (In apparent reference to the Sisons of South Cotabato, a family with a long
history of local and national political authority and clout.) It was then a picture of pandemonium as
men engaged in a brawl, while bottle flew.

Sison suffered stab wounds; Padrones likewise suffered physical injuries. On 12 August 1986, Sison
signe a handwritten statement in his hospital bed which he made to the Surallah Police accusing
Padrones of having inflicted on him one stab wound on him and another from Biare. Subsequently,
Sison died.

The lower court then convicted the 2 accused based on the alleged ante-mortem statement of the
late Lorenzo Sison.

ISSUE: Whether or not the alleged ante-mortem statement is admissible in evidence?

HOLDING: No, the statement is inadmissible.

 The victim’s alleged ante-mortem statement is not, in fact, an ante-mortem statement. It was
executed on 13 August 1986, when the decease died on 21 August 1986.

A dying declaration to be, one must have been “under the consciousness of an impending
death”. At the time Sison rendered it, he could not say that he was on the pangs of death, based on
his actual condition that time and that he believed that death was soon at hand.

It bears stressing too, that a mere examination of the 3 signature appearing on the 3 page
statement in bold and clear strokes, with 2 of them occupying 4 inches of the pages and in grand
flourishes, pronounced and considered by the trial judge as a dying declaration, precludes any
indication that the signer thereof was under an impending death. Further, if the disease were truly at
the point of death, he could not have had the strength to affix 3 signatures above-described.

CASE: People Vs. de Joya, 203 SCRA 343

FACTS: Pioquinto de Joya was charged with the crime of robbery with homicide.

In the afternoon of 31 January 1978, the 88-year old victim, Eulalia Diamse, was alone in her
house watching television when Alvin, grandson of Diamse (victim), went home. He found his
grandmother drenched in her own blood. He then held her hands and asked her, “Apo, apo, what
happened?” Diamse answered, “Si Paqui …”, let go of Alvin’s hands and passed away.

The trial court relied heavily upon such dying declaration and made it the basis in convicting
the accused, de Jova, with the penalty of life imprisonment. De Joya appealed the decision of the
RTC.

ISSUE: Whether or not the last statement of Diamse can be considered a complete and proper dying
declaration.

HOLDING: The SC ruled that the dying statement of Diamse was incomplete and as such cannot be
considered as a dying declaration.

It has been held that a dying declaration, in order to be admissible, must be complete itself.
To be complete in itself does not mean that the declarant must recite everything that constituted the
res gestae of the subject of his statement but that his statement of any given fact should be a full
expression of all that he intended to say as conveying his meaning in respect of such fact.

It is clear to the Court that the dying declaration of the decreased victim here was
incomplete. It other words, the deceased was cut off by death she could convey a complete or
sensible communication to Alvin. The trial court simply answered that by uttering the words, “Si Paqui
…”, the decease had intended to name the person who had thrust some sharp instrument through-
and-through her neck just below her ears. But Diamse did not say so and the Court cannot speculate
on what the rest of her communication might have been, had death not interrupted her.
 The SC is unable to regard the dying statement as a declaration naming the appellant as the
door of the bloody deed.

Accordingly, the accused was acquitted on the ground of reasonable doubt.

Dean I’s additional comments:

According to Justice Feliciano, Diamse’s dying statement does not qualify as a dying
declaration because the two words, “Si Paqui …” do not by themselves constitute a sensibke
sentence. Those two words may be intended to designate either: (1) a subject of a sentence, or (2)
the object of a verb. If they have been intended to designate a subject of a sentce, it must be noted
that no predicate was uttered by the deceased. It would be different if the deceased uttered, “Si
Paqui and sumaksak sa akin.” On the other hand, if the words were designed to the object of a verb,
it must be noted that no verb was used. The phrase, “Si Paqui …” should have been completed and
must be related to the question asked by Alvin (Lola, what happened to you? … Not: Lola who did
this to you?)

Although the statement must not recite everything, it must be a full expression of all that he intended
to say as conveying its meaning with respect to such fact. Professor Wigmore calls this the
DOCTRINE OF COMPLETENESS.

In other words, the SC says that the statement (dying declaration) need not be long or short, but it
must be sensible and complete.

Again, any statement made by a dying person is a dying statement but is not necessarily a dying
declaration. For the statement to be a dying declaration, the requisites must be complied with.

What the law guarantees is merely the admissibility of a dying declaration as an exception to the
hearsay. The law does not guarantee that the court will believe it because, once again, admissibility is
different from credibility.

In one case, the SC discussed the topic of weight in determining whether or not a dying declaration
should be believed.

Q: What are the factors to be considered in determining the credibility of a dying declaration?

A: (1) Trustworthiness of the reporter or witness, or person whom the declarant was talking; (For all
you know, what the reporter said in court may be different from what the declarant really said.)

(2) The capacity of the declarant at that time to actually remember the past;
(3) His deposition to tell what he remembers;
(4) Such attendant circumstances as that the declaration was a result of questions
propounded to him in the presence of the police or his friends; (Who were present when
the declaration was made by the victim? What were the questions asked of him? It is
even possible that the victim did not even understand the questions.)
 (5) The lack of belief of the declarant in a future life, rewards, or punishment. (Meaning, a
dying declaration is admissible on the presumption that no man will die because he
believes in life after death.)

Q: Suppose the defense can prove the declarant was an atheist, does not believe in a second life,
God, the soul, future reward or punishment, etc.?

A: The credibility of the declarant might be affected. The presumption that he will not lie will be
weakened because above circumstances show his background. The fact of the dying declaration is
contrary to the facts satisfactorily proven by other evidence.

EXAMPLE: A dying declaration points to a certain person as his assailant, but a hundred
witnesses would testify that another person is the assailant. Then the credibility of the dying person is
weakened. The dying person might have lied, and thus his credibility would be challenged. Or, the
dying declaration might have been influence by the passion of anger, vengeance or jealousy.
Therefore, the presumption that the dying person is telling the truth is rebutted.

Another example: Dean I.’s story which actually happens in Magsaysay Park here in Davao City.
A man was stabbed. People gathered around the victim. The victim then pointed to one of the people
gathered around him as his assailant. The person pinpointed by the victim was arrested by the police
and was questioned as to whether or not he is the one who stabbed the victim. He said no, and many
people testified that he really is not the assailant. Actually, the victim pointed to him merely because
he mistook him for the assailant who was wearing the same color of shirt.

Therefore, we cannot really conclude that everything a dying person says is true. Although he may
not have intended, he might have misapprehended the facts.

A dying declaration takes the place of the declarant as if such person made the declaration himself on
the witness stand, as if he were alive. If it can be proven that the testimony of the declarant is
untrue, then it can be inferred that the dying declaration made by the declarant (now dead) is also
untrue.

Q: As a general rule, a dying declaration is used against the accused. Suppose the dying declaration
is favorable to the accused, as in the case where when a person was stabbed, he stated that the
accused is not the person who stabbed him. Can this declaration be used as evidence to prove the
accused’s innocence?

A: Yes, the accused can use the declaration as evidence. The accused is being prosecuted in a case
where the victim’s death is the subject of inquiry. The statement had something to do with the
circumstances of the victim’s impeding death. Therefore, if a dying declaration can be used against
the accused, it can be used to prove the innocence of the accused. So, there is no reason why a
dying declaration cannot be used by the accused in his favor. Such declaration is admissible for this
purpose.
Q: Can the credibility of a dying declaration be impeached?

A: Yes, because what is guaranteed by the law is only the admissibility of the declaration as evidence.

Q: Is there a particular form prescribed by law for a dying declaration?

A: None. There are many forms of a dying declaration. One type is written, as when the policeman
writes down what the dying person has just declared and thereafter asks the dying person to affix his
signature over the same. This may happen when there is enough time for the declaration to be
written down and signed by the dying person himself. However, this will not apply to a case where
there is no sufficient time for the declaration to be written down and signed by the declarant.

The above question was actually asked in the Bar Examination before. The questioned asked
for the preparation of a dying sufficient in form and substance under the law, sort of a question in
Legal Forms. Most of the examinees prepared a dying declaration in the form of an oral, written,
signed or unsigned. As a matter of fact, the pressing of one’s hand or twice signifying a yes or no is
admissible in evidence if such testimony is offered by the policeman who asked the declarant the
questions.

In a American case, the dying man gave his statement to the policeman, who then prepared a report
based on the story. He was able to return to the dying man to confirm the report based on the dying
man’s statements. When he was brought to the hospital, the dying man was also able to talk to the
surgeon about the circumstances of his impending death. So, there are 2 declarations made by the
dying man – the declaration given to the policeman and the other given to the surgeon. During the
trial, while the policeman was testifying, the other party objected citing the Best Evidence Rule.

The United States SC ruled that the Best Evidence Rule does not apply to a dying declaration. One
cannot say by the contents of a writing which is the subject or the predicate because there is no
particular form for a dying declaration. The Best Evidence Rule covers those which the law prescribes
to be in the written form. The dying declaration is not even required to be in or follow any particular
form. Thus, the Best Evidence Rule does not apply to a statement, which, in the first place is not
covered by any particular form.

The best evidence rule is applicable in the sense that the narration reduced into writing and signed by
the declarant is the best evidence that could be presented in court.

Dean I. believes, though, that the one in written form is more reliable. But there is no rule prohibiting
the presentation the presentation of testimony in lieu of the written declaration.

CASE: People Vs. Nabor, 185 SCRA 615

J. Gutierrez, Third Division:

FACTS: Harry Nicanor and Jean Tandoc, among others, were ambushed supposedly
by the group of Nabor. Nicanor and Tandoc died of gunshot wounds. The prosecution for is the
evidence presented the dying declaration of Nicanor and Tandoc, couple with the testimony of an
eyewitness. On the other hand, the defense presented an alibi along with dying declarations of the
deceased wherein they stated that they failed to recognize their assailants. Nicanor’s dying
declaration, as presented by the prosecution, was made before a certain Patrolman Paragos who
admitted that he had translated if from Ilocano into English before 2 witnesses. The victim affixed his
right thumbnail on the said ante – mortem statement.

The one presented by the defense before, however, was taken by T/Sgt. Acerit compose of 3
pages and was signed by Nicanor.

The trial court gave more weight upon the dying declaration presented by the prosecution
stating, among others that:

(a) If found, unbelievable Nicanor’s statements in the defense’s dying declaration, Nicanor being
in a very serious condition; and,
(b) If found it odd that Nicanor was able to sign despite such condition.

ISSUE: Whether or not the lower court committed reversible error in giving more weight to
the dying declaration of Nicanor, coupled with the testimony of an eyewitness presented by the
prosecution, rather than the dying declaration and alibi presented by the defense.

HOLDING: The SC accord due respect to the trial court’s finding as between the 2 conflicting
ante mortem statement – that that which the prosecution had presented is more credible, in
consonance with the oft – repeated rule that credibility of witnesses is an issue better addressed to
the trial court for the conclusion reached by the trial court on the basis of its own assessment, are
generally not disturbed on appeal in the absence of grave abuse of discretion on the part of the trial
judge who has the advantage of actually examining both documentary and testimonial evidence,
including the demeanor of the witnesses as they presented the same.

Under Rule 130, Section 37, a dying declaration to be admissible must have the following
requisites:

a) The declarant’s statement must be made under the consciousness of an impending death;
b) The declaration must refer to the cause and surrounding circumstances of the declarant’s
death;
c) The declarant’s death is the subject of inquiry in the case wherein the declarant’s statement
is sought to be admitted;
d) The declarant was a competent witness.

For an ante-mortem statement to be admissible as an exception to the hearsay rule, it is enough that
the deceased uttered the said statement while suffering from the serious wounds which would justify
the conclusion that the declarant was conscious of his impending death.

“Section 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 own position would not have made the declaration unless
he believed it to be true, may be received in evidence against himself or his successor in
interest and against third persons.”
A declaration against interest is admissible against the declarant; Provided, that the person who made
the declaration is already DECEASED, or unable to testify.

Unable to testify” means the declarant cannot be found; he may be just around, but nobody knows
where he is – perhaps, he already left for abroad, or is sick (in coma) and can no longer talk. He
cannot be brought to court to testify.

PRINCIPLE: A person may be believed if he says something against his own interest, not if he
says something that is in his favor.

EXAMPLE: When the declarant is already dead, another person testifies. Whatever he says
would be hearsay. Even if what the person relates in court is exactly what the declarant said, his
testimony would still be hearsay. But the declarant said something which is against his own interest.
This is similar to the rule on admission.

RECALL: Section 26. The act, declaration or omission of a party as to a relevant may be given in
evidence against him.

ILLUSTRATIVE: The following is an example of the application of Declaration Against Interest any
interest, such as moral, financial, personal, etc.

A --- Owner of the building burned X ---- Declarant

B --- Accused of arson W ---- Witness in court

This is based on an actual United States case, cited by Wigmore and Moran.

A accuses B of burning his building. So, arson. According to A, B burned his bodega, X had a
conversation with W in which X told W: “I pity B”. W asks, “Why would you pity B?” X: “Because he is
being accused by A of burning his (A’s) house. Actually, B does not have anything to do with the
burning of A’s house. I was the one who did it.”

Then afterwards, X died. Practically, X here stated something against his own interest. Subsequently,
W had a conversation with B. W told B, “No, you did not burn the building of A. X did it.” B asked,
“Why do you know that?” W answered, “That is what X told me. He said he was responsible for
burning the building of A.” When B asked W if he could be a witness for the defense , W agreed.

So during the trial, the defense of B is denial. B claims that it was not he who burned the building of
A, but somebody else. Then W testified:

Defense Counsel to W : Do you know anything about the burning of the building owned by
A?

W : Yes.

Defense Counsel : What did X say?

W : According to X, he (X) was the one who burned the building of A.

Defense Counsel : Where is X now?

W : He is already dead.

Q: Is the testimony presented by W to prove that X is the one who burned the building of A, as
stated by X himself, admissible in the case filed by A against B?

A: Yes. It is a declaration made by X against his own interest. The declaration made by a person
deceased (declarant), against his own interest, if the fact asserted in the declaration was, at the time
it was made, so far contrary to declarant’s own interest xxx is an exception to the hearsay rule.

Q: What are the requisites in order for a statement to be considered a declaration against interest?

A: The following are the requisites:

(1) The declaration is against the declarant’s own interest;

(2) The interest declared against is actual – real and obvious and the declaration has
competent knowledge of the matters asserted in his declaration; and,
(3) The declarant is already dead or unable to testify.

Q: What is the philosophy behind the testimony’s admissibility?

A: The same philosophy given in Dying Declaration: On the grounds of Necessity and
Trustworthiness. Necessity, because the declarant is already dead. He cannot anymore be called to
the witness stand. Trustworthiness, because it is against the declarant’s own interest. Therefore, he
guarantees it. A man is believable when he says something against himself. But his self-serving
statements are not believable.

Q: Distinguish Declaration Against the Declarant’s Interest (Sec. 38) and the Law on Admission (Sec.
26)?

A: The distinctions are the following:

1) An admission is not necessarily against the interest of the admitter, whereas, declaration
against interest must be against the interest of the declarant;
(Because an admission could either be in admitter’s favor or against him. If it is in his favor,
that is a self-serving admission.)

2) An admission is receivable even if the admitter is alive, whereas, in declaration against

interest, the declarant must be dead, or at least unable to testify, for his declaration to be
receivable.

3) An admission is receivable only against the admitter and those identified with him in legal
interest; whereas declaration against interest is receivable even against third persons.
ILLUSTRATION: The admission is receivable only against the admitter and those identified
with him in legal interest: it is admissible only against the admitter because of the Res Inter Alios
Acta Rule – the rights of a party cannot be prejudiced by an act, declaration or omission by another.

“ xxx All those identified with him in legal interest.” Like what? Agency, partnership,
conspiracy, joint interest and privity. So if you are not part of any of those, you apply the general
rule: An admission of A is not evidence against B.

Look at the last portion of Section 38: “xxx a declaration against interest xxx may be received
in evidence against himself or his successors in interest and against third persons.” So, evidence may
be used not only against the declarant himself, but even against third persons – which is not so in
admissions.

EXAMPLE: A declaration is made by X, who is now deceased, wherein he says B is innocent; that
he did not burn the building; that it was he (X) who burned the building. In effect, the declaration is
being used against the claim of A, to defeat the claim of A against B. A insists that for him, it was B
who burned his building. According to A: “Res Inter Alios Acta. What you said does not bind me. I am
not bound. The agent is not bound. That is an admission; that is a declaration against interest.” But
the law says it is admissible against third persons.

Q: Is the Dead Man’s Statute applicable in this case?

A: No. The Dead Man’s Statute pertains to a claim being made by a party against the estate of the
deceased through administrator. Here (Section 38), the declarant is being used to prove that he is the
person who committed the crime, but it is used by another to defend himself. In effect, the narration
is being used to defend one party against another party’s claim.

Q: Can the admission of a party be considered as an exception to the hearsay rule?

A: No. In an admission, the party is alive; in hearsay, usually the party would be dead. In admission,
what a party said is now being used against him in order to bind him. But in hearsay, the declarant is
already dead. Another: An admission could be in favor of or against you. In declaration against
interest, the admission must always be against you. Plus the fact that an admission cannot be used
against third persons, unless the case falls under any of the exceptions.

“Section 39. Act or declaration about pedigree. – The act or declaration of 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 person 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.”

Q: What is “pedigree”?
A: It pertains to one’s background – ang lahi mo – who your father is, your grandfather, relationship,
family genealogy, when your father was born, events in your family, marriage, death, etc.

In the language of an American author, “pedigree” is the history of family descent which is
transmitted from one generation to another by both oral and written declarations and by tradition.

To illustrate:

B1 is the brother of B2

: ……… X (illegitimate child of B2)

W – Witness

B1 had a conversation with W. B1 said to W: “You know my brother, B2? Pilyo iyan! X is his
illegitimate child.”

Later on, B2 dies, and there is an issue about inheritance. According to the family of B2, X is a
stranger. X claims to be the son of B2. To prove this, X presents W. W says, “X is the son of b2.” How
did he know that? W: “B1 said so to me.” Who is B1? W: “B1 is the brother of B2.”

QUESTION: Is the testimony of W admissible?

ANSWER: Yes, because it is an act or declaration about pedigree made by someone who is
already deceased. The statement was made long before the controversy, not before it. And the
relationship between the two persons (B1 and B2) is shown by evidence other than by such act or
declaration. There must really proof that B1 and B2 are brothers.

Q: What are the requisites in the above case?

A: 1) The declarant (B1) is related to the person whose pedigree is in question (B2);

2) Such relationship (between B1 and B2) is shown by evidence other than by such act or
declaration;

3) The act or declaration was made prior to the controversy (ANTE LITEM MOTAM); and,

4) The declarant is dead or unable to testify.

Q: What is the justification for this rule?

A: NECESSITY. Because the facts about pedigree are usually those which occurred long before the
trial and known to only a few person. Meaning, the family history is limited to only some persons.
One does not usually bother to research on the family or other persons. Plus, what are being talked
about here are things happened long before. Also, the sources of such information are very few.
TRUSTWORTHINESS. Because those facts are matters which members of a family are presumed to
be interested in, in ascertaining the truth. There is a presumption that members of a family will make
a research on their own pedigree.

Q: Up to what civil degree in relationship is covered in this rule?

A: There is no limit, but credibility will be affected the more distant the relation of the witness is to
the deceased.

“Section 40. Family reputation or tradition regarding pedigree. – The regulation 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 members 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.”

There is a similarity between 39 and 40: The testimony is limited only to the pedigree of an
individual. What is the difference? In Section 39, the declarant is already dead. That is the
requirement. But in Section 40, the declarant is not deceased. As a matter of fact, it is the declarant
himself who is talking about his pedigree or the pedigree of another person in the witness stand.

Q: Why would this be considered hearsay, when the witness himself is on the witness stand? The
witness is merely quoting the declarant, B. If B himself is on the witness stand, how can this be
hearsay?

A: Many things that one knows himself are actually hearsay. They are usually merely passed on to
him by his parents.

For example, when you parents were married. It is not possible that you were actually there. (Unless
they have been living together for 50 years without the benefit of marriage, and they decide to finally
get married now …)

Even one’s age – how can one justify his own age when the same can be attacked as hearsay? It is
hearsay because one actually has no personal knowledge of the actual circumstances of his birth.
One cannot actually himself being born.

But many things that we know are based on reputation and family tradition.

Q: What are the requisites in this Section?

A: (1) The reputation or tradition is one existing in the family of the person who pedigree is in
question.

(2) The reputation or tradition was formed before the controversy; (ANTE LITEM MOTAM again)

(3) The witness testifying to the reputation of a person is a member of the family.
Evidence on pedigree is not limited to oral testimony in court. It applies also to documentary
evidence. EXAMPLES: entries in family bibles or other family books or charts, engravings on rings,
family portraits, and the like – may be received in evidence as to pedigree.

A family bible is handed down from generation to generation. There may be some entries or charts
there – that so and so is the wife of so and so, and that these are their children … These may be
written there. So, these may be admitted in evidence to prove genealogy; this is considered as
another exception.

Sometimes, when you wish to prove that a person is a family member, you look at the family portrait.
A person will not be there unless he is member of that family. Definitely, they would not allow
anybody not related to them (i.e houseboy) to pose with them.

So, all the above examples are evidence of pedigree although they are hearsay.

In the phrase “ xxx family portraits and the like xxx”, a good example, based on American
jurisprudence, would be monuments, o iyong mga lapida sa cemeteries. Or even the obituaries – “
xxx that so and so died on this date; the following are the bereaved …” That is allowed. That is still
evidence of pedigree. A person’s name will not appear on the obituary notice unless he is really a
relative of the deceased person.

STORY: There was a case before, here in Davao, where the relationship between the defendant and
the plaintiff was established through the lapida (epitaph).

There were a brother and a sister who were Chinese. Both were born in China but were brought to
the Philippines by their parents when they were still very young. Now, based on Chinese tradition,
only the male inherits. The female child does not inherit, but all her needs must be cared for and
supplied by her brother. So when their father died, the brother inherited everything.

One day, the child of sister fell very ill and so she asked her brother to help her out with the medical
expenses. The brother refused to help the sister. When the sister finally became angry, she decided
to claim her share of the inheritance. Under Philippine laws, the sister is supposed to get an equal
share as her brother’s. Thus, they were each supposed to receive half of the inheritance.

The brother’s defense was that the woman actually not his sister. So there was a denial of the
relationship between them. The trouble here, according to the lawyer, was that they could not secure
any birth certificate, because both were born in China. And they did not have any known relatives in
Davao. So, the counsel of the sister had to prove that she is really the daughter of the deceased –
but how in the absence of any document?

Until somebody tipped the sister’s lawyer. Na-mention ang lapida ng parents. When they went to see
the lapida, everything was written in Chinese characters – and there they found it: “ xxx survived by
the following xxx” The sister was mentioned there as one of the children. Therefore, in this case, the
lapida was used in order to prove pedigree.

“Section 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 may be received as evidence of common reputation.”
EXAMPLE: Reputation in the community. You go to a certain barrio, or town, and you ask the
people there: Where is the next town? They answer that you would know you are already in the next
town by a balete tree. How did they know that? Because that is what everybody in there town is
saying. Since they were still children … But if you ask them where they got this information – they did
not know except that this was what their grandparents told them.

Q: Is the above admissible to prove the truth?

A: Yes – and most of all as evidence of common reputation. It is hearsay because everybody just
believes in the story without being able to explain the source of the information.

Take note that evidence of common reputation is not confined to oral testimony by a resident of the
community. The law says that monuments or inscription in public place may be received as evidence
of common reputation.

EXAMPLE: We accept the fact that the Rizal Monument at the Luneta Park is the spot where Dr.
Jose Rizal was executed. It is stated there in the monument that: “On this spot and on this date Jose
Rizal was executed.” Is that allowed? No, because that us hearsay, there must be a person presented
who actually was present when Rizal was being executed. But the problem is, we could never find
such a person anymore. That ever happened such a long time ago already.

In the United States, a small street is the place where Thomas Jefferson read the American
Declaration of Independence. This street is now known as the Wall Street, which is now being
referred to as the financial center of the world. But here is located a marker which reads that that is
the place where the Declaration of Independence was read. That was over 200 years ago. Obviously,
there is no more eyewitness alive to corroborate the story of that even.

Therefore, the markers and the monuments should be sufficient to prove events of common
knowledge.

Q: What are the justifications for this?

A: We go back to NECESSITY and TRUSTWORTHINESS.

(1) NECESSITY, because the fact to be proved is of too ancient a date eyewitnesses are no
longer available. We are trying to prove something which started over 30years ago, and it is
very difficult to look for eyewitnesses who know the real story.

(2) TRUSTWORTHINESS, because if the reputation has existed for a long a time, there must be
some truth to it. It must be true, because if it were otherwise, it would not have lasted.
People will somehow disprove it if were not really true.

Q: What does “common” in this Section mean?

A: By “common”, the SC said it is of a general or undivided reputation in the community. Unanimity is

not required. For as long as there is a majority consensus in the community, that is enough. There
might be one in one million who refuses to believe, but this does not mean to say that there is no
common reputation.

Q: What is meant by “interest”?

A: “Interest” means a pecuniary interest, or some interest by which legal rights or liabilities of a
community are affected. And when one speaks of “public interest”, it means that all the inhabitants of
a country have an interest. “General interest” means the interest of an entire particular community.

That is why proving the boundaries of a private property by common reputation is NOT a matter of
interest of the community, but of only a particular landowner, EXCEPT if that private property is also
affecting the whole community.

Q: What are the requisites in this Section?

A: (1) The reputation refers to a matter of public or general interest. It is more than 30 years old
another way of saying that it must be an ANCIENT reputation.

(2) The reputation was formed ANTE LITEM MOTAM; and,

(3) The reputation is one formed in the community.

Q: What else may be proved by common reputation?

A: Aside from the facts of public or general interest more than 30 years old, the following may be
proved by common reputation.

(1) Matters respecting facts of public or general interest;

(2) Matters respecting marriage;
(3) Matters respecting moral character.

BAR PROBLEM: You go to a small town and you meet there a long-time president. He tells you that
when he was in his fourth year, his grandparents were already there in the town. That is why the
family knows practically all of the families in that town. Then you ask him about the family of Mr. X.

He answers that he knows the family of X – his parents, grandparents, etc. He knows practically
everything about everybody in that town because of its small size.

So, what the resident is trying to prove here is family genealogy through common reputation.

QUESTION: Is the testimony of the resident admissible as an exception to the hearsay rule?

ANSWER: No, because matters of pedigree cannot be proved by common reputation. They can only
be proven by family reputation. THE PERSON TESTIFYING MUST BE A MEMBER OF THE FAMILY.

A stranger, although he may know your family very well is still taking of something that is considered
hearsay.
So again, facts of family history are not provable by common law reputation (Section 41), but should
be proved under the provisions of the previous Section.

So, for pedigree to be proven, the person testifying must be a member of the family, and not just a
member of the community.

EXCEPTION:

The only matter of pedigree which may be proved by common reputation is MARRIAGE.

EXAMPLE: You ask a member of the community:

“Are the parents of this guy legally married?”

“Yes.”

“Why do you know so? Were you present when they were married?”

“No, but everybody here says they are legally married.”

Actually the community member is talking about hearsay. But that is allowed. The marriage of
somebody may be proved through common reputation. But all the rest of the matters concerning
pedigree CANNOT be proven by common reputation.

The last item which is provable by common reputation is MORAL CHARACTER.

EXAMPLE: You go to a certain town. You ask about Y:

“Do you know Y?”

“Yes, he is from this town. His family grew up there.”

“What can you say about Y?”

“Y is a good person.”

“Why do you say that?”

“Well, because that is what everybody here says.”

But, for example, You go to a certain town, you asked about 2:

“Do you know 2?”

“Yes, he is from this town. He is a bad person.”

“What did he do to you? Why make you say that he is a bad person?”
 “He did not do anything to me. But everybody here says that he is bad.

Therefore, he is not a good person.”

In other words, his bad character may be proved. How? Through reputation that he formed in the
community. That is hearsay, but under the that is allowed.

So moral character of a person can be proved by evidence of common reputation.

Q: What are the requisites?

A: (1) It was formed in the place where the person in question is best known;

(2) It was formed ANTE LITEM MOTAM.

Q: Why is the above admissible in evidence?

A: According to American jurisprudence: Experience has shown that the good or bad character of a
person is accurately determined by the reputation he has established in his community. The rest
judge of your character is your community, where everybody knows you.

Suppose you go to a town and ask about A:

“Do you know A?”

“Well, he is from this town. He grew up her; his family is from this town.”

“What can you say about A? Is he a good or a bad man?”

“Nothing. There is nothing that I can say about him.”

Q: What kind of a statement is that? Is that evidence of his good or bad reputation?

A: If you have nothing to say about somebody, that is evidence of his good reputation. According to
an American ruling, that is evidence of good character because a person’s character is not talked
about if there is no fault to be found in him.

“Section 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 begin 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.”

This is the sixth exception of the Hearsay Rule.

TIP: Among the 11 exceptions, the most important rules are:

 (1) Dying Declaration; (In the Bar Examination, most of the questions in Evidence that are
asked are on Dying Declaration.)
(2) Res Gestae Rule.

Res Gestae is Latin; translated literally, it means “a thing done”, “an occurrence”, “a transaction” –
something that happen, an event. According to the Ballatine’s Law Dictionary, “res gestae” refers to a
matter incidental to the main fact and explanatory of it, including acts and words which are so closely
connected therewith as to constitute a part of the transaction, and without knowledge of which, the
main fact might not be properly understood.

Q: When is a statement part of the res gestae?

A: The are 2 types of res gestae statement:

1) Statements made by a person while a startling occurrence is taking place, or immediately

prior or subsequently thereto with respect to circumstances thereof, may be given in
evidence as part of the res gestae. This is known as SPONTANEOUS EXCALMATIONS. These
are statements made instinctively.
2) Statements accompanying an equivocal act material to the issue, and giving it legal
significance, may be received as part of the res gestae. This is popularly known as VERBAL
ACTS.

The first type. There is SPONTANEOUS EXCLAMATION when a statement is made instinctively – as in
surprised. You are taken by surprise because there is a starting occurrence that happened. With that
startling occurrence, you uttered words by instinct. You uttered those words JUST IMMEDIATELY
BEFORE the startling experience or immediately AFTER it.

EXAMPLE: In the case of People vs. Anemias, the victim was stabbed. He started shouting for help. A
person came to him and the victim told him that it was the accused who stabbed him. The
Prosectution now presents as its witness the person who came to the victim when the latter was
shouting for help. The witness testifies as to what the victim said.

Q: Is the testimony of the above witness admissible because actually that is hearsay?

A: Yes. The statement was made by the victim instinctively. It was a SPONTANEOUS EXCLAMATION
which was made after the stabbing, which is the startling occurrence.

In the case of People vs. Avila, the statement was made by a shooting victim to persons who
answered his cries for help. The statement that the accused shot him was considered admissible as
part of the res gestae.

In the case of People vs. Gozon, the witness who discovered the crime pursued the accused
immediately thereafter, and pointed to the accused as the perpetrator of the crime.
In the case of People vs. Alfaro, the declaration made by a person immediately after being shot:
“That is the man who shot me”, was considered as a res gestae statement. So, people who overheard
it can testify.

Q: What is the difference between a statement which forms part of the res gestae and a dying
declaration?

A: There is a very close similarity between them. However, in a dying declaration, there are some
requisites which are not present in res gestae statements. Like, for example, that the statement was
made under the consciousness of an impending death. That is required in a dying declaration. In res
gestae statements, that is not required.

Another example: In dying declaration, the victim or declarant must die. He believed the he
would be dying soon, and he did die. But if he believed that he would survive when he made the
statement, then that is not a dying declaration.

EXAMPLE:

Witness : Who shot you?

Victim : X shot me.

Witness : We will bring to the hospital.

Victim : No … I am alright.

But the victim died.

Q: Would the statement of the above witness be admissible in evidence as a dying declaration?

A: No, it is a dying declaration. The declarant himself thought that he would stills survive. But id such
statement that X shot the victim was made by him (victim), and he claimed that he was dying, but 1
or 5 second after he was shot, he was promptly brought to the hospital and was thus saved, the
statement may be admitted as a res gestae statement. So here, the case would be frustrated; not
consummated. Also, the statement cannot be considered a dying declaration because the declarants
death is not the subject of inquiry.

As to the people who came to aid of the victim and who heard him make the utterance, they can
testify not as to the dying declaration but as to the utterance being a statement made by the victim
immediately after the shooting.

Q: Distinguish a dying declaration from a res gestae statement.

A: A statement could be either one of the two, one or the other, or both. A statement may be
inadmissible as a dying declaration for the reason that it does not mean the requisites under Section
37; however, it may still qualify as a statement which forms part of the res gestae.
Q: Suppose a person dies after he makes a statement. This may be offered as a dying declaration or
as a res gestae statement. But this is dangerous. If you offer this as a dying declaration, that may be
possible. But what if you are not certain as to one of the requisites, what should you do?

A: You should offer it as a dying declaration. OR, in alternative, as a statement which forms part of
the res gestae. MULTIPLE ADMISSIBILITY. You offer it under both conditions so that if it is declared
inadmissible as a dying declaration, it can still be admitted as a statement which forms part of the res
gestae.

PRINCIPLE: According to the SC: A statement which is admissible as part of the res gestae is a
statement made by a person while a startling occurrence is taking place. Therefore, the person who
heard it may testify about the statement as an exception to the hearsay rule. These statements are
admissible because they were made instinctively – immediately before, during, or after. When a
statement is made by instinct, the theory is that it is reflects what happened when the human mind
has no time yet to contrive or invert things.

Q: What does “starting occurrence” mean?

A: It is anything under the sun. In American jurisprudence, cited by Wigmore, are some examples of
res gestae statements made by somebody before, during, or after a startling occurrence.

In a Philippine case, there was an accident which happened, for example, ‘today”. On the
following day, the victim executed an affidavit, testifying as to what happened “last night”. Then, the
victim died.

Q: Is the statement made by the deceased on the following day in his affidavit admissible?

A: Not anymore, because it was not made “immediately thereafter”.

Q: What are the justification for this Rule?

A: Again, NECESSITY and TRUSTWORTHINESS.

NECESSITY, because such natural and spontaneous utterance are more convincing than the
testimony of some person on the (witness) stand.

TRUSTWORTHINESS, because the statements are made instinctively – by instinct. The mind has no
more time to contrive. If by instinct, it must be true. Kung patatagalin pa, mag-iimbento na iyan.

To borrow the language of the SC in the case of People vs. Baguio: “Res gestae statements are the
reflex product of immediate, sensual impressions, unaided by the retrospective mental action xxx
pure emanations of the occurrence itself.” It is the event speaking through the witness, not the
witness speaking through the event.
BAR PROBLEM: The accused,X, invited a married woman to a fiesta. While in the fiesta, the accused
forced to drag the woman to an isolated portion of the field where she was abused. There she spend
the whole night crying. The following day, she went home. When she reached her home, her
daughter asked her, “Mother, what happened to you?” The woman answered, “I was raped last night
by X.” During the trial, the daughter testified about what her mother told her.

QUESTION: Is the testimony of the daughter hearsay? (1994 Bar Examination)

ANSWER: Yes, because it was merely narrated to the daughter by the mother.

QUESTION: Is the testimony of the daughter admissible? – Meaning does it fall under any of the
exceptions to the hearsay rule?

ANSWER: The examiner is pointing to res gestae, obviously. But the answer is NO. it was not made
immediately thereafter. The law says that it must be made immediately thereafter. So, the testimony
us hearsay it is not admissible because it does not fall under any of the exceptions.

Q: What are the requisites for the admissibility of spontaneous exclamations?

A: (1) The principal fact or res gestae is a startling occurrence;

(2) The statements were made before the declarant had time to contrive or devise; and,

(3) The statement refer to the occurrence in question or to its immediately attending circumstances.

So, spontaneous exclamation is evidence of what the incident is all about.

The second type: Statement accompanying an equivocal act material to the issue and giving it
a legal significances, may be received as part of the res gestae. Statements accompanying an
equivocal act.

Q: What is meant by an “equivocal act”?

A: “Equivocal” not clear, there is an ambiguity. An act is equivocal when it is susceptible of two or
more meanings.

ILLUSTRATION: A is seen landing over money to B. That act may be interpreted as: (a) A is handing
over money to B as payment for a debt (creditor-debtor relationship); (b) A is handling over money to
B, as B’s salary (employer-employee relationship); (c) A is handling over money to B because A is
asking B to buy something for him (principal-agent relationship), etc …

In other words, one cannot really identify the correct legal transaction by the act alone. However, if
the one act of giving money is accompanied by some statement on the part of A, that statement
might clarify what the transaction is all about.
 The statement which accompanies the act, which clarifies what the transaction is all about
gives legal significances to the correct nature of the transaction is covered by VERBAL ACTS.

Q: What are the requisites for verbal acts?

A: (1) The res gestae is an equivocal act;

(2) The equivocal act must be material to the same;

(3) The statement in question must be necessary for the understanding of the equivocal act; and,

(4) The statement must accompany the equivocal act.

EXAMPLE: A person is occupying a piece of land. What kind of possession is that? Is that
possession as an owner, lessee, tenant, or squatter? Therefore, the mere act that A is in possession
of the land is susceptible of two or more interpretations. Therefore, any statement made by a person
stating the circumstances of his possession may be considered as a statement which forms part of
the res gestae. It is considered a statement accompanying an equivocal act which could shed some
light on the nature of his possession over the property.

Q: Distinguish spontaneous exclamations from verbal acts.

A: There are 3 distinctions, to wit:

SPONTANEOUS EXCLAMATIONS VERBAL ACTS

(1) The principal fact is a startling occurrence. The principal fact is an equivocal
act.

(2) The statement may precede, accompanying, Statements must accompany the

or succeed the startling occurrence. equivocal act.

(3) The statement need not explain the Statement must explain the
equivocal
Principal fact, which is the startling act and give it a legal significance.

“Section 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 prime 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.”

This is the seventh exception to the Hearsay Rule.

 There are some people who, because of the nature of their work, make entries in ledgers,
etc. These are part of the regular course of their business. For example, in banks – ledgers, deposits,
withdrawals - everything is being kept and recorded by the accountants or bookkeepers.

Q: Suppose an entry is made in such a kind of book (journals, ledgers, etc.) and there is now a case
being proved that there was such a transaction, can such book be presented in order to prove that
there really was or there was no such a transaction.

A: As a general rule, the document or book is hearsay. The person who made the entry must be
presented in court so that he may be cross-examined. However, according to the law, when the
person who made the entry is unable to testify, then the entries made are admissible in evidence to
prove the truth if such entry, without anymore presenting the entrant. This is admissible on the
ground that this is an exception to the hearsay rule.

Q: What are the requisites in this exception?

A: (1) The entrant made the entry in his professional capacity or in the performance of his duty.

(2) The entry was made in the ordinary course of business or duty.

Q: What is meant by “ordinary course”?

A: That what was done is part of a regular system of entries being kept in the establishment.
Meaning, it is an entry done everyday, not simply dated. It is part of a pattern of usual activities.

(3) The entry s made at or near the time of transaction to which it relates;
(4) The entry was in the position to know the facts stated in the entry; and,
(5) The entrant is dead already or unable to testify.

Q: What are the justifications?

A: NECESSITY and TRUSTWORTHINESS.

NECESSITY, because the entrant is already dead or unable to testify, and no equally satisfactory
proof of the entry can be had.

TRUSTWORTHINESS, because according to American jurisprudence, a man who makes regular

entries for purposed of business or duty usually makes them with accuracy. If businessman can rely
upon the accuracy of the entries, there is no reason why the courts cannot also rely on the accuracy
of these entries.

In the United States, the following were considered as falling under this:

records of transfer,
invoices and vouchers,

index cards,

time cards,

cheque stubs,

books of accounts, …

On the other hand, the following were not considered as falling under this:

balance sheets

profit-and-loss statements

The above are also accounting records but they are not made at or near the time of the transaction.
Also, matters primarily connected with prosecuting and defending a claim such as Employee’s
Accident Report, or Police Report.

CASE: Philippine Airlines, Inc. vs. Ramos, 207 SCRA 461

First Division; J. Medialdea:

FACTS: Private respondents Ramos et al. are officers of the Negros Telephone Company who
held confirmed tickets for PAL Flight No. 261 from Naga City to Manila on 24 September 1985,
scheduled to depart for Manila at 4:25 PM. Among the conditions included in the private respondents’
ticket is the following:

“1. CHECK-IN TIME. – Please check in at the Airport Passenger check-in counter at least one
hour before PUBLISHED departure time of your flight. We will consider your accommodation forfeited
in favor of waitlisted passenger if you will to check-in at least 30 minutes before PUBLISHED
departure.”

Private respondents claim that they went to the check-in counter at least one hour before their
published departure time, but no one was at the counter until 30 minutes before departure.

Private respondent tickets were cancelled and their seats were given to chance passengers because
they were late for their flight. Plaintiffs had to go to Manila by bus. Thus, they seek actual, moral and
exemplary damages and attorney’s fees for breach of contract of carriage.

The check-in clerk wrote on the plaintiffs’ tickets the notations “late” and the time (1:02) which he
appeared on the upper right hand of the tickets. These notations were presented by PAL to approve
that the private respondents were indeed late for their flight.

The trial court found PAL guilty of breach of contract of carriage in bumping-off the plaintiffs from
their confirmed flight. PAL appealed to the CA, which affirmed the trial court’s decision. Hence, this
present petition to the SC.
ISSUES: (1) Whether or not the notations on the tickets are admissible as evidence
even without presenting the PAL employee who made them.

(2) Whether or not hearsay rule may be invoked to deem such evidence as
inadmissible in court.

HOLDING: The above evidence is admissible and is not excluded by the Hearsay Rule, as the said
notations are entries made in the regular course of business, which the private respondents
failed to overcome with substantial and convincing evidence other than their testimonies.

Private respondents’ objection that the above document is self-serving, cannot be sustained.
The hearing rule will not apply in this case as statements, acts or conduct accompanying or so nearly
connected with the main transaction as to form a part of it, which illustrate, elucidate, qualify or
characterize the act, are admissible as part of the res gestae.

Petition is granted. The questioned decision of the CA is annulled and set aside. Thus, the SC
held that the notations are admissible either under res gestae, or entries in the course of business.

However, so many commentators are attacking the ruling of the SC in this case:

To qualify as an entry made in the course of business, is it not that it must be a REGULAR entry in
the course of business?

Every time a passengers checks in at the airport, is it a regular duty of the clerk in the check-in
counter to place on the ticket the time of the check-in? No, it is not. But this was done for the private
respondents in the above case.

Since that was so, is that part of the course of business? That element is missing. Thus, it could not
be said that the notations are part of the business to evince regularity.

There should be a duly-lined or provided space on the passenger tickets, which should be ordinarily
filled out upon check-in by the passenger.

Therefore, in order to be a regular entry, every ticket must have a regular line. In the case therefore,
the notation is an ISOLATED entry; not a regular entry in the course of business.

As to being part of the res gestae, the notation must either be as spontaneous exclamation, or a
verbal act.

A late arrival at the airport is not startling occurrence. This happens everyday.

If it should be a verbal act, it should have been an oral statement or utterance which accompanied a
certain act or conduct. A verbal act suggests an oral utterance and does not include writings or
written notations. Thus, it would not qualify under res gestae also.

That is why the SC ruling in this case is shaky.

“Section 44. Entries in official records. – Entries in official records made in the
performance of his duty by a public officer of the Philippines, or by a person in the
performance of a duty specially enjoined by law, are prima facie evidence of the facts
therein stated.”

This is the eight exception of the Hearsay Rule:

Section 43 refers to business entries done by private persons, Section 44 refers to entries in official
records by public officers.

EXAMPLES: The Register of Deeds is a public officer tasked with the duty, or is enjoined by law to
make entries in official books. He records the transactions regarding real property everyday. The
Clerk of Court makes entries, in the Book of Entry of Judgments rendered by the court. The Sheriff
makes entries in logbooks kept in the Sheriff’s Office. The Civil Registrar makes entries of records of
deaths, births, marriages, etc. The Assessors make entries about its findings as to the assessed value
of land.

Take note that these transactions concern public officers. They make entries of documents, notarize
in Notarial Books.

EXAMPLE: You wish to prove in court on that you were born on this particular date. So you go
to the Civil Registrar and get a copy of your birth certificate. The Civil Registrar will give you a
CERTIFIED OFFICIAL TRUE COPY.

So you offer certified official true copy in court to prove your background, the circumstances of your
birth. Then comes the other party objecting to the admissibility of such documentary evidence on
grounds.

Ground #1: That it violates the Best Evidence Rule, because the original is not offered in court.

Ground#2: That it violates the Hearsay Rule, because the Civil Registrar should be in court to identify
this document in his custody.

Q: Are the above objections tenable?

A: Both objections are untenable.

As to Ground#1: One of the exceptions to the Best Evidence Rule is when the original is
recorded in a public office. A certified true copy is admissible. Therefore, invoking the Best Evidence
Rule is wrong.

As to Ground#2: The objection is wrong, because when the document is an entry in an

official record, the official record or certified true copy is admissible. There is no need for the Civil
Registrar to testify in court.

Q: Why are official records admissible?

A: On the ground of NECESSITY and TRUSTWORTHINESS.

NECESSITY, because litigations are numberless, in which the testimony of a public official is required.
Without this exception, every time a public officer issues a certified true copy, he has to go to court
and testify that the original is among his files, that the document is an accurate copy, and that the
same bears his signature. If that is necessary, the time will come when public officers cannot
anymore report to work because most of their time will be spent in court identifying all the document
that they have issued.

TRUSTWORTHINESS. Official records are trustworthy because the law reposes a particular
confidence in public officials, such as that it presumes that they will discharge their duties with fidelity
and accuracy. The presumption is, that they will really issue a correct copy. They will not issue a
document for which they do not have an original. They are aware that they can be otherwise held
liable for falsification.

Take note that the law says that the entry is made by a person in the performance of his duty – so
public officers, or BY A PERSON IN THE PERFORMANCE OF A DUTY ESPECIALLY ENJOINED BY LAW.

An EXAMPLE where a person is not a public officer, but he makes an entry in the performance of a
duty especially enjoined by law: a PRIEST or MINISTER. They solemnize marriages. They are the one
who report to the Civil Registrar the marriages and supply such office with a record of the marriages
they have performed.

So in effect the entry that appears in the Civil Registry is actually an entry made by a priest or
minister, which they reported to the Civil Registrar. The priest or minister is considered as made a
person especially enjoined by law to make the entry.

For example, a birth certificate. You will find a copy of your birth certificate in the City Hall. But when
does a birth certificate actually come from? From the hospital. And the person who made the entry is
a private physician. So, in effect, private physician are enjoined by law to make accurate entries and
report the same to the Civil Registrar. That is covered by this Section on entries in official records.

Q: What are the requisites in this Section?

A: (1) The entry was made by a public officer, or a person especially enjoined by law to do so;

(2) The entry was made in the performance of a duty, or a especially enjoined by law;

(3) The public officer or the person who made the entry had sufficient knowledge of the facts by him
entered, acquired by him personally or through official information.

Q: Suppose one wishes to prove his age, date of birth and identity of his parents, can be present his
baptismal certificate in lied of his birth certificate?

A: No. Legally, the public document to evidence one’s citizenship parentage, civil status, date of birth
and place of birth is the birth certificate. According to the SC, a baptismal certificate is evidence that
one has been baptized. But there are some isolated cases where the baptismal certificate is admitted
even if the birth certificate is the one that is being required.
The law says that these documents are prima facie evidence of their contents. Meaning, they will
suffice to prove the truth of entries. But one may prove that they are wrong, because the truth may
be rebutted.

Q: Supposed a person is mauled. He is a victim of physical injuries. He is examined by a physician

who issues a medical certificate. Later on, a case of physical injuries is filed against the accused.
During the trial, to prove the injury and nature of the injuries, the victim presents as evidence the
medical certificate. Is the medical certificate admissible in evidence by itself?

A: The long-standing doctrine has been, NO. That is hearsay. To prove the injuries, the doctor who
examined the patient must testify. The doctor must be subjected to cross-examination. So one of the
species of hearsay evidence is that A MEDICAL CERTIFICATE IS NOT ADMISSIBLE.

However, the following case provides an exception:

CASE: People vs. Leones, 117 SCRA 382

FACTS: This is an appeal by the accused, Joseph Leones from the decision of the RTC of La Union,
convincing the accused of the crime of rape.

Complainant, Irene Dulay, was a salesgirl employed in the store of Mr. & Mrs. Pepito Leones in San
Fernando, La Union, where she resided.

On 22 April 1973, the complainant, who was having a headache, stayed in her room. Earlier that day,
the members of the Leones family, including the accused-appellant, and his sister, Elizabeth, had
gone to a nearby beach resort for a picnic.

At around past noon, accused-appellant and Elizabeth returned to their house. While they were at
home, accused-appellant and Elizabeth entered the room were complainant was lying down and
forced her to take 3 tablets, but was forced into doing so when the accused-appellant held her mount
while Elizabeth pushed down the medicine. Then, accused-appellant and Elizabeth left the room.
After a while, complainant felt dizzy.

Later, the accused-appellant returned to complainant’s room and took off her underwear. Then the
accused-apellant went on top of her. The complainant tried to push him away, but she was too weak
and dizzy. Thus, accused-apellant succeeded in abusing her.

At around 4:30 PM of the date, Natividad Leones, step-mother of accused-appellant, found the
complainant unconscious near her room without any underwear on. She was then taken to the La
Union Provincial Hospital by the driver of the Leones family.

When admitted to the hospital at around 6:00 PM, the complainant was semi-conscious incoherent
and hysterical. She refused to talk and be examined by the doctors. She was irritated when
approached by a male figure. Complainant was attended to by a government physician who issued a
medical certificate with the following findings among others:
 (1) Healing lacerations of the hymen …
(2) Smear exam for sperm cell – NEGATIVE …

Accused-appellant denied the charge imputed to him. The defense who also objected to the
admissibility of the medical certificate as the examining physician who prepared it was not presented
in the stand. Therefore, the medical certificate is hearsay; thus inadmissible.

ISSUE: Whether or not the medical certificate is admissible in court without presenting the examining
physician who issued the same.

HOLDING: The victim entries in the clinical case record showing: the date of complaint’s
admission to the hospital, her complaint of vaginal bleeding and the diagnosis by the physician, are
prima facie evidence of the facts stated therein, said entries having been made in official records by a
public officer of the Philippines in the performance of his duty especially enjoined by law, which is
that of a physician in a government hospital.

VERY IMPORTANT: The SC declared that a medical certificate issued by a physician of a

government hospital is considered a PUBLIC DOCUMENT. There entries therein are considered entries
in an official record. They are prima facie evidence of the facts therein stated. Thus, there is NO
NEED TO PRESENT THE ISSUING PHYSICIAN – this case being an exception. The general rule is, the
physician must testify.

The SC also held that it is permissible for another physician to testify on a medical certificate issued
by another physician. The physician who issued the medical certificate is under to testify because he
has left the hospital, or is somewhere else and cannot be found. The other physician will be merely
asked to interpret the said medical certificate. Such procedure was allowed by the Supreme Court.

According to Dean I.: The general rule is that a medical certificate is hearsay. But the same applies
only to provide physicians (as against a physician of a government hospital). Thus, the case of People
vs. Leones is an exception to the general rule.

“Section 45. Commercial list and the like. – Evidence of statements of matters of interest
to persons engaged in an occupational 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.”

EXAMPLE: X is a businessman who subscribes to a business journal. He reads the journal for
business use – data, currency fluctuation, etc. In a certain case, he wishes to prove that the price of
copra 3 years ago was higher than last year’s. As a matter of pack, he wishes to show that the price
of copra is going down by such percent every year. So, he presents these facts which he gets from
the business journal. So his evidence is the particular issue or issue of such journal.

QUESTION: Is such evidence admissible?

ANSWER: No. The journal (or journal) is (are) hearsay, because the person who prepared the data
herein, the editor or publisher, is not presented in court.

But under Section 45, the above evidence is admissible because it is a statement of a matter of
interest to person engaged in an occupation obtained in a list of commercial or other published
information.

Dean I. says that is not even necessary that the journal or periodical be devoted purely to business or
the particular topic being proven in court.

Other examples under this Section are:

(1) The business section of newspapers. Everyday, the rate of exchange is published there. If
you need to prove the dollar rate on a particular date, you can present the newspaper. Again,
this supposed to be hearsay because the editor cannot testify.
However, a daily newspaper can be considered as a LIST, REGISTER, or OTHER PUBLISHED
COMPILATION of business news, rate of exchange, or declaration of stocks.

(2) Tables of logarithm, weights & measures, stock market quotations, standard price lists,
encyclopedia, dictionaries, almanacs, accounting journals, medical journals. These are
covered by this Section.

Q: What are the justifications?

A: NECESSITY and TRUSTWORTHINESS.

According to American jurisprudence. Commercial lists are admissible on the ground of

NECESSITY. It would be inconvenient to call the persons who prepared the list, to testify. They will be
inconvenienced.

TRUSTWORTHINESS, because these persons who prepared the list have no motives to falsify. By the
long usage of lists in the practical affairs of life, they have come to be accepted as standard and
undying authority.

Authors of dictionaries, encyclopedia, business journals, etc. have the tendency to be accurate. They
have no reason to falsify. Otherwise, if their work is found to be inaccurate, they will be
disadvantage. People will not read and patronize their journals.

“Section 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 professional or calling as expert in the subject.”

Do not confuse this with Section 45. Section 45 for data. Section 46 refers to books, articles,
pamphlets, writings on specialized topics – for example, those involving history, law, science, and the
arts.
EXAMPLES: A book on neuro surgery (brain damage) written by an expert neuro-surgeon. A book
on fingerprint written by famous expert. A book on ballistic written by an expert in that field. There
are many things that one may find in these books.

During a trial, X wishes to prove a certain fact on brain damage, or a certain fact in gunshot wounds.
To prove his point, he offers in evidence a statement found in the book of a particular author.
QUESTION: Is the statement in the book admissible in evidence considering the fact that the author
is not in court?

ANSWER: Yes, under Section 46 it will qualify as a LEARNED TREATISE. The publication, treaties,
periodical, or pamphlet is the subject of history, law, science, or art is admissible as tending to prove
the truth of a matter as stated therein.

Q: What are the justification?

A: NECESSITY and TRUSTWORTHINESS.

According to Wigmore, there is a NECESSITY because the author is probably not available as a
witness. Perhaps the author is already dead. Besides, his work may be based on the studies of others
who long existed. This may be considered as the product of an advancing civilization. If the scientist,
writer, or expert will be required to testify personally, he will practically be asked to rely also on the
works of others who have long existed before him. How could you one subpoena his predecessor who
may be already dead?

TRUSTWORTHINESS, because the author has no motives to misrepresent. An author of a book in

science has no reason to misrepresent. He will only be condemned by his peers.

Q: How do we know that the writer of the treatise is qualified?

A: There are 2 ways, according to Section 46. It is admissible as tending to prove a matter stated
therein:

(1) If the court takes judicial notice – meaning, if the court takes judicial notice of the
controversial matter; or,
(2) If a witness expert on the subject testifies that the writer of the statement in the treatise,
periodical, or pamphlet is recognized in his professional or calling as expert on the subject.

Either the court takes judicial notice of the qualification of the author, OR, if the court does not
take judicial notice, another expert – a local guy, will testify that this is the author and that much
author is really an expert in that field.

EXAMPLE: There is a book on brain damage written by an American surgeon. The court says
that it does not know the author it is not convinced that the author is an expert in that field. So the
party presenting the book as evidence asks a doctor in Davao, who is also a neuro-surgeon, to
testify.

Court : What can you say about the author?

Doctor : He is an expert in neuro-surgeon. As a matter of fact, his book is the

standard textbook being used in the medical school.
So, the court has identified the author as qualified.

Or, if the court does away with the above procedure, the court may take judicial notice of the
expertise of the author. So the court may or may not take judicial notice. CONCLUSION: This is an
example of permissive or discretionary judicial notice as stated in Section 2 of Rule 129.

“Section 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, involving the same parties and subject matter,
may be given in evidence against the adverse party who had the opportunity to cross-
examine him.”

EXAMPLE: In a criminal case against the accused, the offended party reserved his right to file a
separate civil action. So there are 2 cases arising from the same incident. Practically, the witnesses
will be the same.

So, the criminal was tried. The witness for the prosecution testified, was cross-examined, etc. Later
on, after several months, the civil case is tried. The same witnesses are subpoenaed to testify for the
plaintiff. The problem is that, between the time of the trial for the civil and criminal cases, a witness
for the plaintiff died. So the plaintiff loses his witness in the civil case. He turns to the transcript of
the witness’ testimony in the criminal case. He wishes to use this transcript in the civil case.
QUESTION: Will the transcript be admissible in the civil case, even without presenting the witness
himself?

ANSWER: Yes. This is classified as a testimony in a former trial. Take note that it is not necessary
that what will be offered in evidence is his testimony in court. Given a deposition would suffice.

This jibes with the law on depositions – the deposition of a witness is not admissible in court as a
substitute for his oral testimony. It can be used only for impeachment purposes. EXCEPT, when the
witness is dead, or outside of the Philippines, etc. where the deposition is admissible to take the place
of the witness in the stand. There was cross examination in deposition taking. One’s presence in court
may be waived for as long as a person is given the opportunity.

But if the witness is still alive, he must testify again. The transcript or stenographic notes in this case
cannot take the place of his testimony. The provision provide s that he must be deceased or unable
to testify. “Unable” does not mean that he is merely busy.

Q: What if it was the civil case which came first. The witness after testifying in such trial, died. Can
the transcript of his testimony in the civil case be admissible to take the place of his testimony in the
criminal case?

A: Yes. The accused may object because under the Law, in a criminal case, the accused had the right
to confront and cross-examine the witnesses against him. The transcript may be admissible in a civil
case. How can a transcript be admissible when it cannot be subjected to cross-examination by the
accused?
Section 1(f) of Rule 114 provides the reply: “In all criminal prosecutions, the accused shall be
entitled: x x x

(f) To confront and cross-examine the witness against him at the trial. EITHER PARTY MAY UTILIZE
AS PART OF ITS EVIDENCE THE TESTIMONY OF A WITNESS who is deceased, and of or cannot with
due diligence be found in the Philippines, unavailable or otherwise unable to testify, given in another
case or proceeding, judicial or administrative, involving the same parties and subject matter, the
adverse party having had the opportunity to cross-examine him; xxx”

This is the exception to the right of the accused to personal confrontation.

Q: What are the requisites in this Section?

A: (1) The testimony was given in a former case or proceeding, judicial or administrative;

(2) The former case or proceeding was between the same parties.

(3) The former testimony relates ti the same subject matter or issues;

(4) The adverse party has had opportunity to cross-examine the witness; and,

(5) The witness is dead or is unable to testify in the subsequent trial.

CONCLUSION: The testimony given in another is admissible as a witness testimony in the present
case without violating the hearsay rule.

7. OPINION RULE

“Section 48.General rule. – The opinion of a witness is not admissible except as indicated
in the following sections.”

The opinion of a witness is not admissible. When a witness testifies, what matters should come out
from him? Facts, as he saw them. He should testify on facts which he knows, which he perceived,
and which are of his personal knowledge. The OPINION of a witness has no relevance to the case.
Opinion is purely conjecture, speculation. The opinion of a person is just the same as the opinion of
another person. That is why it has no value. It is the judge who has the right to render opinion, in his
decision – his opinion on what truth is.

The succeeding 2 sections may be considered as exceptions to the hearsay rule. In some cases, the
opinion of a witness is admissible in evidence to prove the truth, which is supported by his opinion.
These exceptions are found in Sections 49 and 50. The difference between the two is that Section 49
talks of the opinion of an expert witness; Section 50 is about the opinion of an ordinary witness.
“Section 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.”

ILLUSTRATION: The issue in a case is: Whose blood is this particular blood sample? In the preliminary
hearing, the “blood expert” testifies and is asked about the probability of the occurrence that the
particular blood sample be the blood of a specific person.

Or, in a case of physical injuries, the expert witness is asked what instrument could have caused such
an injury. Or, in his opinion as an expert, from what angle the gun could have been fired, considering
the wounds of the victim. This is because nobody saw the victim being shot. So, such matters require
expert testimony.

Q: What is meant by “expert” here?

A: A person or witness is an expert on any matter which requires special knowledge, skill, experience,
or training, which he is shown to possess.

Q: How does a person become an “expert”?

A: A person’s field of expertise can be very broad. It could be any matter – science, art, etc. Being an
“expert” is not limited to one who has been able to undergo further studies. This is not limited only to
special knowledge. It can be acquired through skill, training or experience. Expertise is not acquired
only by study of books.

EXAMPLE: A mechanic can be considered an expert even if acquired his knowledge only through
training or experience.

Q: When is expert evidence considered admissible? (REQUISITES)

A: Expert evidence is admissible:

(1) When the fact to be proven is one requiring expert knowledge;

(2) When the witness is really an expert, that ordinary mortals are not aware of the complexities
of a particular matter.

On the first element: Things which are of the general knowledge of mankind need not be proven.
Some matters do not require expert knowledge for their proof.

Q: It is necessary to present an expert witness to testify on the law of gravity? Is it necessary to

prove that such a law exists?

A: No. The court can take judicial notice of that.

When a matter does not require an expert opinion, expert evidence is admissible but is not
given much weight. But when the matter is very complicated such that, really, no one knows about it,
then expert evidence is given due weight.
However, there are instances when even the experts themselves have conflicting views regarding a
particular matter. Their expert testimonies may be admitted in evidence, but the court may not
consider them. But if the knowledge on a particular matter is really limited, the court has no choice
but to consider the expert testimonies. Such testimonies must be taken as true.

As to the second element: The witness must really be an expert. For all we know, the witness
may only be claiming to be an expert but is actually not. The process of showing to the court that the
witness is really an expert is called “QUALIFYING THE WITNESS”, Otherwise, his opinion will not
matter.

QUALIFYING THE WITNESS means proving that the witness presented is an expert and this is done
by asking him preliminary questions as to his education, training, experience, and the like.

Q: How is “qualifying the witness” done?

A: You cannot just say that the witness is an expert. How could we know that if that has not been
shown? For example, Dr. X is a biologist, or is a surgeon, or is presented as an expert witness in
neuro-surgery. If the other party admits that he is an expert, then there is no problem. But if the
other party does not admit that he is an expert, then you must go through the process of qualifying
the witness.

Ask such questions as, what profession the witness is engaged in, where he took up Medicine, when
he graduated, took the board exam, when he passed, how many cases of such-and-such type he has
encountered so far, how many times he has testified on such-and-such matter, etc. In other words,
you dig into his bio-data. Has he written books or articles on the particular matter he is testifying on?
An admission that one is a doctor is not an admission that he is a witness. You must show that he is
an expert.

Q: How does one lay the foundation for expert testimony?

A: Laying the foundation for expert testimony is divided into several parts:

(1) Has acquired degrees from educational institutions;

(2) Has had other specialized training in his field of expertise;
(3) Is licensed to practice in the field;
(4) Has practiced on the field for a substantial period of time;
(5) Has taught in that field;
(6) Has published in that field;
(7) Belongs to a professional organization in that field;
(8) Has previously testified as an expert in that field.

More or less, these are the guidelines, In qualifying a witness, these are the things that you must try
to solicit.
Part II: After describing his credentials, the expert explains the general theory or principle the expert
relies on. To lay this element of the foundation, the proponent should establish the following:

(1) The expert used a particular theory to evaluate the facts in the case;
(2) The theory in question has been experimentally verified;
(3) The theory is generally accepted by the majority of experts in the pertinent scientific
specialty.

Part III:If the expert witness testifies on his personal knowledge the foundation for his testimony
shall include the following:

(1) WHERE the witness observed the fact;

(2) WHEN the witness observed the fact;
(3) WHO was/were present;
(4) HOW the witness observed the fact;
(5) A description of the facts observed.

Part IV: If the expert testifies on the reports of third parties, the foundation for his testimony should
include the following;

(1) The source of the third party report;

(2) The contents/terms of the report;
(3) That it is customary to consider that type of report.

Part V: The expert witness may now testify on the basis of assumed facts or give his opinion on
hypothetical questions.

When one has done all of the above, the witness is now ready to testify.

CASE: Lim vs. CA, 214 SCRA 273

FACTS: On November 1987, private-respondent filed a petition for annulment of marriage on the
ground that petitioner has been allegedly suffering from a mental illness called schizophrenia, before,
during, after the marriage, and until the present.

Private respondent’s counsel presented 3 witnesses, one of whom was the Chief of the Female
Service of the National Mental Hospital. Petitioner’s counsel filed an opposition alleging that the
testimony sought to be elicited from the witness is privileged since the latter had examined the
petitioner in a professional capacity, and had diagnosed her to be suffering from schizophrenia.

Counsel for private respondent, however, that the witness would be presented as an expert witness
and would not testify on any information acquired while attending to the petitioner in a professional
capacity.

The lower court and CA denied the motion and allowed the witness to testify as an expert witness.

ISSUE: Whether or not an attending physician is qualified to be an expert witness without violating
the physician-patient privileged communication rule.
HOLDING: The statutory physician-patient privilege, through duty claimed is not violated by
permitting a physician to give expert opinion testimony in response to a strictly hypothetical question
in a lawsuit involving the physical or mental condition of a patient whom he has attended
professionally, where his opinion is based strictly upon the hypothetical facts stated, excluding and
disregarding any personal professional solely upon the facts hypothesized in the question, excluding
from consideration his personal knowledge of the patient acquired through the physician-and-patient
relationship.

If he cannot or does not exclude from considering hi personal professional knowledge of the patient’s
condition, he should not be permitted to testify as to his expert opinion.

How about the opinions of people who are not experts? Will their opinion qualify as admissible in
evidence? YES, that is an exception to the Opinion Rule.

“Section 50. Opinion of ordinary witness. – The opinion of a witness for which proper
basis is given, may be received in evidence regarding –

(a) The identity of a person about whom he has adequate knowledge;

(b) The handwriting with which he has sufficient familiarity; and,
(c) 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.”

(A) The identity of a person about whom he has adequate knowledge.

For example:
Counsel : Last week, while you were at home, the telephone rang. Your
companion said that it was for you, or that someone on the
telephone would like to talk to you.
So, you took the call …
X : Yes, I did. It was Mr. Y.

Meaning, X identifies Y as the person who he was talking to over the telephone. QUESTION: Is it
opinion when X says that it was Mr. Y who was then at the other end of the line? Because, in fact, X
never saw Y while they were talking on the telephone.

Q: Is a witness qualified to identify the caller on a telephone? (He does not see the person on the
other end of the line; thus, he actually does not have personal knowledge of the identity of such
caller.)

A: YES, if there is a showing that the witness knows very well the caller and he (witness) can easily
recognize his (caller) voice. This is a good example of Sec. 50(a).

Principle: When one knows a person very well such that he can readily recognize him, as well as hi
voice, even if he tries to camouflage it, the former may identify him.

Suppose the person testifies that it was very dark due to the brownout. But he could see the
other’s person silhouette. Then the former asked whether or not he could then recognize the person
in front of him in the dark. The witness says yes. He could recognize the person referred to because it
was his classmate, Z, with whom he was very familiar.
 However, one must show the proper basis which is the acquaintance. He must show that he
has adequate knowledge about other person.

So, there really are persons who can recognize easily the persons they know. In effect, when one
identifies a person as Mr. So-and-so, he is expressing an opinion. But he must establish, first that he
adequate knowledge of such person. That he knows him very well.

So, one cannot make the testimony here admissible without a proper showing that there is sufficient
familiarity between the witness and the person he is identifying.

(B) A handwriting with which he has sufficient familiarity.

Q: In resolving the dispute as to whom a certain signature belongs (whether it belongs to D or to E),
the usual next step for a lawyer is to call a handwriting expert from the NBI. So the handwriting
experts compare the signature of D and E. So, in effect, the handwriting expert is merely giving an
opinion on D’s and E’s signature. Is this admissible?

A: YES, under Sec. 4. But calling a handwriting expert is actually NOT NECESSARY. Under the law, an
ordinary witness is qualified to render his opinion on the handwriting of somebody, for as long as he
can establish that he has sufficient familiarity with the handwriting of the person concerned. So,
again, there is no need to go to the NBI.

For example, F produces as his witness his secretary.

Counsel : (Shows the signature to the secretary.) Do you recognize this signature?

Secretary : Yes, that is the signature of my boss, Mr. F.

Counsel : Why do you know that? Why are you familiar with his signature?

Secretary : Well, because I am his secretary. I have been coming across his signature
everyday for 30 years now.

Q: Is the above testimony admissible in evidence?

A: YES, under Sec. 50, because counsel has established the witness familiarity with the signature of
somebody.

So, contrary to the common impression, in order to determine whether or not a signature is forged or
genuine, the NBI need not be called to examine it. This latter process is expensive and takes time.
So, why not look for somebody who is familiar with the disputed signature, such as the husband,
wife, children, secretary, officemates, etc? Present such person in court; they will say the same thing
as the expert will. It will have the same effect as the opinion of an NBI expert.
Remember: The law allows that an ordinary witness identify the signature of somebody. One
does not have to be an expert in order to identify. But one has to establish familiarity with the
signature.

(C) The mental sanity of a person with whom he is sufficiently acquinted.

For example, somebody testifies that he knows X.

Counsel : What is your opinion with respect to X’s mental condition at about this period
last year?

Witness : I think he was out of his mind then.

Counsel : Are you a graduate of Psychiatry?

Witness : No.

Q: So how can the witness give his opinion on whether or not X is mentally sound?

A: Under the law, it is not necessary that a witness be an expert in Psychiatry in order to give his
opinion on the mental sanity of a person. Any witness who is sufficiently acquainted with the person
who is the subject matter of the case is qualified.

Q: Why is it that when there is a showing that one sufficiently acquainted with someone, his opinion
as to the mental condition or sanity of such person is admissible?

A: Because, chances are, if one knows the person very well, he will be the first one to detect some
changes in him. If one knows another person very well, he already knows his pattern of life or
behavior. If there be any change in such person’s behavior, it would be easily noticed by people who
are close to him.

The last paragraph: The witness may also testify on his impression of the emotion, behavior,
condition or appearance of a person.

This portion is an addition in the 1989 Rules. However, in the 1964, authorities already then
considered this as covered. In other words, such testimony of a witness under this paragraph is
considered admissible. Note that this is close to the subject matter of Sec. 50.

ILLUSTRATION:

Counsel : How did A react when he heard the news?

Witness: My friend, A, felt very bad.

The witness here is practically merely starting an opinion. How did he come to know of his
friend’s actual feeling? So, when one testifies that somebody was happy, sad, nervous, or angry, he is
practically giving his opinion of the emotions of somebody.
 However, a person can sometimes detect whether another person is happy, sad, nervous, or
happy. There is something in his appearance which could lead one to reach that conclusion or
opinion. But one cannot fully explain why. That, in American jurisprudence, is what is called a
“testimony of collective facts”. It is “a combination of so many factors that you see.” Based on
experience, one arrives at a condition as to the emotion or behavior of somebody.

1994 BAR QUESTION: At N’s trial for illegal possession and use of a prohibited drug, known as
“shabu”, his girlfriend, L, testifies that a certain day she would see N very alert and sharp, but 3 days
later he would appear haggard, tired, and nervous at the slightest sound he would hear. N objects to
the admissibility of the testimony of L, on the ground that L merely stated her opinion without having
been qualified as an expert witness. Should you as Judge exclude the testimony of L?

ANSWER: I will not. I will allow the testimony. If falls under Section 50. An ordinary witness can
testify on his impressions of the emotion, behavior, condition or appearance of a person.

8. CHARACTER EVIDENCE

“Section 51. Character evidence not generally admissible; exceptions: --

(a) In Criminal Cases:

1) The accused may prove his good moral character which is pertinent to the
moral trait involved in the offense charged.
2) Unless is rebuttal, the prosecution may not prove his bad character which is
pertinent to the moral trait involved in the offense charged.
3) The good or bad moral character of the offender party may be proved if tends
to establish in any reasonable degree the probability or improbability of the
offense charge.
(b) In Civil Cases:
Evidence of moral character of a party in a civil case is admissible only when
pertinent to the issue of character involved in the case.
(c) In the case provided for in Rule 132, Section 14.”

ILLUSTRATION of Sec. 51:

Bad
Character
Sec. 51 (A)
(2)

Accused

Criminal Case Good

Character
- Sec. 51 (A)
(1)
Character Offended Party
Evidence Sec. 51 (A) (3)
Of Party

Civil Case – Sec. 51 (b)

Recall that in the order of trial in criminal cases, it is prosecution which presents its evidence first.
(RECEPTION OF EVIDENCE-IN-CHIEF or of the MAIN EVIDENCE) The reason for this is because the
accused is entitled to the presumption of innocence.

RULES IN THE PRESENTATION OF CHARACTED EVIDENCE:

1) Character Evidence in Criminal Cases

In criminal cases, the law on evidence is divided into 2 parts:
(a) The character of the accused – Rule 130, Sec. 51(a) (1) and (2);
(b) The character of the offended party – Rule 130, Sec. 51 (a) (3).
2) Character Evidence in Civil Case
The governing provision is Sec. 51 (b), Rule 130.

Q: Is character evidence admissible in criminal cases?

ILLUSTRATION: A is accused of estafa by means of deceit. The prosecution, as part of its evidence,
tries to prove that A had fooled so many people in the past. So, it is shown here that A is, by nature,
a man of a bad moral character because he is dishonest. Under the law, is such type of evidence
admissible? Is the prosecution, in presenting evidence to prove that the accused committed the
crime, allowed to present evidence of his BAD moral character?

A: NO. That is not allowed because paragraph 2 of Sec. 51 states, “xxx prosecution may not prove his
bad moral character which is pertinent to the moral trait involved in the offense charged.”

Thus, the prosecution cannot actually present evidence of the bad moral character of the accused, for
the following reasons:

(1) Because of the presumption of innocence

(2) There is no connection between the bad moral character of the accused and the commission
of the crime.
(3) To prevent unfair prejudice against the accused.

According to Dean I., he believes that the third reason is the most important, because if the fiscal or
prosecutor is allowed to character assassinate the accused, Justice Moran in Commentaries said that
“the mind of the judge or jury (as in the case of United States) would now be poisoned …” Therefore,
in deciding a case, the mind of the judge may already be prejudiced against the accused and that he
might convict him not because his guilt is strong but because of his bad moral character. The law
would like to avoid such a condition.

Q: So what should the prosecution do?

A: The prosecution should present evidence to prove that the crime was committed and prove that it
was the accused who committed the crime. But it cannot present evidence to prove that character of
the accused is bad. This is Rule # 1. With that, the prosecution would have to rely on OTHER
EVIDENCE other than bad moral character evidence.

After the prosecution, it is the turn of the accused to present his evidence.

Q: The accused presents evidence of his GOOD moral character. Can he do that?

A: YES, because of Sec. 51 (a) (1).

EXAMPLE: A is accused of estafa by means of deceit. He allegedly used fraud and deceit to
defraud B. A denies the allegation and claims that the he never practices deceit. So, the issue is: Did
A employ deceit in his transaction with B, or not? A says no, so he present evidence to show that all
throughout his life, he has never fooled anybody. He presents in court people who know him and who
testify that he never exercised fraud or deceit. A is trying to prove here that his nature is such that he
is an honest and upright person. So, A is presenting evidence of his good moral character.

Q: Is this allowed?

A: YES. Because according to the SC, such type of evidence strengthens the presumption of
innocence of the accused. That it is unlikely that a person with character could commit the crime. It is
naturally improbable for a person who is known to be very honest, upright, a man of integrity, to
employ deceit.

So, doubt will created in the mind of the court. Thus, the presumption of innocence is strengthened,
which may lead to the acquittal of the accused. Recall that this is also known as CIRCUMSTANTIAL
EVIDENCE. Moral character is a collateral matter which may tend to prove the probability or
improbability of the fact in issue.

However, take note that when one proves the character of the accused, what is being proved about
the accused must have something to do with the moral trait in the offense charged.

For example, the accused is accused of estafa by means of deceit. Then the defense tries to prove
that the accused is a very peaceful man. What does being a peaceful man have anything to do with
being deceitful? Even a peaceful man can employ deceit. So there is an incompatibility here. In this
case, therefore, what must be proved should be the honesty and integrity of the accused. So, this is
Rule # 2.

Now, Rule # 3.

Q: After the accused has presented evidence of his good moral character, the prosecution, on
rebuttal, presents evidence on the BAD moral character of the accused. Is this allowed?

A: YES. This time, it is possible, because the accused has already put his character in issue in the
case. The accused himself had brought out the fact that he is honest, has integrity, deals with people
in a fair manner, and never fools people, for example. “The prosecution may not prove his bad moral
character which is pertinent to the moral trait involved in the offense charged, UNLESS IN
REBUTTAL.”

Since the accused has already put his own character in issue, the other party can now prove his bad
moral character. If the accused never presented evidence of his good moral character, then there is
nothing to rebut or refute; the prosecution is thus barred.

So, the following are the THREE (3) points to remember of the character evidence of an accused in a
criminal case:

1) The prosecution cannot initially present evidence of the BAD moral character of the accused
pertaining to the moral trait involved in the offense charged;
2) On the other hand if is already the turn of the accused to present evidence, the accused is
allowed to present evidence of his GOOD moral character pertaining to the moral trait
involved in the offense charged; and,
3) If the accused presents evidence of his GOOD moral character, ON REBUTTAL NOW, the
prosecution has the right to present evidence of the BAD moral character of the accused.

On the other hand, as to the offended party, the victim.

Q: Can evidence of the good or bad moral character of the offended party be allowed in criminal
cases?

A: Paragraph 3. So, the character of the offended party may be established if it will prove the
probability or improbability of the fact in insane. Collateral matters.

EXAMPLE: The perfect example of this is in Crimes Against Chastity. Rape.

Q: What are the elements of rape?

A: That there is sexual intercourse where there is no consent. The complainant was practically forced.
The defense of the accused is that the complainant consented. The complainant denies this. So the
question now is, who is telling the truth? What the accused will now try to establish is that the
complainant consented, as against the complainant’s claim that the she did not consent. What the
accused then does is present evidence in court, that the complainant is a woman of loose moral
character. He will present evidence that she goes with any man even if they are complete strangers
to each and that the she agrees to have carnal knowledge with these people. He is presenting her
bad moral character.

Why? Does it mean to say that if a woman is a prostitute, she cannot be raped? Of course not! Even
a prostitute can be a victim of rape, for as long as she did not consent. But if the woman is of loose
morals, chances are, she agreed. So this creates doubt upon the mind of the court.

If the woman always consents, is it probable that this time she did not consent? Or, in all probability,
did she consent? The answer would depend on her character. In the latter case, the possibility that
she did not consent is remote. That is the purpose there.

There was an author who said that in a rape case, there are 2 people on trial – the victim and the
accused. Especially if the version of the accused is that the complainant consented. The defense will
prove that the victim herself consented. They will both attempt to prove each other’s bad character.
Another example: X is accused of homicide. X killed Y. X claims that Y is the aggressor, not him
the aggressor, Y, is really a bully. That Y attacks people without provocation wounds people without
any reason. So, violent character. The accused presents people who can vouch that Y is a person
with a violent character. Or the rule on common reputation – hearsay, may be applied. The moral
character of a person is provable by common reputation – the common reputation in the community
where one is best known. These people can really vouch for a person’s character. When this happens,
it is a party’s word against the community’s.

A party is portrayed as a rude person. He shouts in public. So, the defense, for example, he looks for
a credible witness to testify that his client is not a rude person, one who could vouch for his client’s
character from way back 10 or 20 years.

In Dean I.’s example, one of the witnesses that he found was a lawyer. He told him that he (Dean I.)
intended to present character evidence. The witness understood this. The witness testifies that Dean
I.’s client is a good person because at one instance when they were together, somebody shouted at
them and insulted him. The client could have stood up and hit the person who insulted him. But he
did not. He was pictured at fine as a rude or bad person; the witness had proved that such fact was
untrue, that the client is a good person after all. So, character evidence is used here to prove the
improbability of the offense charged.

Proceeding to civil case: --

Q: What is the rule?

A: Evidence of the good or bad moral character is admissible only when pertinent to the issue involve
in the case – the character is pertinent to the issue involved in the case. In general, it is not
admissible. As an exception, it is admissible only when pertinent to the issue – the character is
pertinent to the issue in the case. Thus, evidence may be presented as to a party’s character, which
is good or bad.

Rarely can one find a civil case wherein the issue is the character of a person. Best example: A case
for custody of a minor child. The father and mother fight over the child. The issue here is: With
whom should the child stay according to the best interest of the child? The court will have to
determine the character of the parents. The husband, for example, presents evidence that since the
time he his wife separated, she had been out on date every night; that she would even bring her
boyfriend to their house; that their child saw everything, … In effect, the husband is trying to prove
the bad moral character of the wife.

What is Paragraph (c) all about? The case provided for in Rule 132, Sec. 14. That refers to character
evidence of witnesses. There are 2 classes of character evidence provisions – (1) character evidence
of parties; (2) character evidence of witnesses. Meaning, a party will present evidence of good
character of the witness so that the court will believe him. Or, a party will present evidence of the
bad character of the witness, so that the court will not believe in him. That is governed by Rule 132.