2019 Amendments to the Revised Rules on Evidence1

(An Online Lecture of Prof. Tranquil Salvador III)

1. Rule 128, Sec. 3 is the heart of evidence because it speaks of admissibility. Evidence is
admissible if it is relevant and not excluded by the law or by the Rules. That was the
original provision. The amendment was the insertion of the word Constitution. But for
those who have been teaching evidence for the longest time know that exclusions are
discussed in relation to the Constitution because when we talk of admissibility we talk of
relevancy and competency meaning it is not excluded by the rules or law or Constitution.

2. Judicial Notice. Rule 129. Mandatory judicial notice is mandatory because it is readily
verifiable, it is established, and it is easily accessible. So, courts are expected to take
mandatory judicial notice. But there is an insertion of ‘national government’, what is the
reason for the insertion? The background of this is that there has always been an issue as
to the court taking judicial notice of an ordinance. If you recall the case of SJS vs City of
Manila, the Supreme Court was confronted with the question on whether or not it could
take judicial notice of an ordinance of the city of manila. The Supreme Court said it cannot
take judicial notice of an ordinance of Manila although there had been repeated
jurisprudence that says courts can take judicial notice of an ordinance. So, where do we
stand? With the insertion, our courts are not expected to take judicial notice of an
ordinance. However, local or trial courts can take judicial notice of an ordinance within
their respective territorial jurisdiction. Sec. 3 of Rule 129 tells us that any matter could be
subject to judicial notice. So, what do we mean any matter? For example, Bagyong Ondoy,
you can expect the court to take judicial notice of that fact. Based on the provision of the
Rules, you can call the attention of the court during pre-trial and trial. The next amendment
is the word ‘request’ was replaced with a motion. Because now, the court could take
judicial notice of any matter upon its own initiative or upon motion of the party. Is there a
need to present evidence? No, the purpose of the hearing is solely to ascertain, and this was
another insertion, or to determine the propriety of the matter subject to judicial notice. You
have to justify or explain to the court why the courts need to take judicial notice of a certain
matter. Now, there is a second paragraph. It has not been changed except for insertion of
the word ‘motion’. Just like the first paragraph, the courts on its own initiative or upon
motion of the party. Now, the court upon its own initiative remains to be the same. After
trial or on appeal, judicial notice is limited to which are decisive to the outcome of the case,
or decisive to the material issue(s) in the case.

3. Judicial admission. Sec. 4, Rule 129. The concept remains to be the same. Judicial
admission could be at any stage of the proceedings. The only provision that was change
there was “or imputed admission was not in fact made”, this was a replacement of the
phrase “no such admission was made”. Is it a better worded provision? I believe so.

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Transcribed by Don Maloy
 Because lawyers have the tendency to make imputations. In a pleading such as in an
answer they would say, you did not specifically deny the material allegations and therefore
you have admitted them. That is an example of an imputation. So, this, I think, is a better
wording. That gives us certain leeway to be able to contest imputations of admissions.

4. Documentary evidence. Rule 130. There are three basic classifications. We have object,
documentary, and testimonial. In the past this is the wording of the Rules as to the
documentary evidence, it consists of writings, or any material containing letters, words,
numbers, figures, and symbols or their equivalent. However, times have changed. That is
why the amendment considered ‘recording’, ‘photographs’, what is the basis? There is
jurisprudential basis in considering it as documentary evidence, this is the case of People
vs Zeta, it’s a May 27, 2008 case. And what is the third? ‘Sounds’. So, now, you have
additional types of documentary evidence. These are recording, photographs, and sounds,
but you have to take note that these should be offered as proof of their contents. What does
photographs include? It includes pictures, drawings, stored images, x-ray films, motion
pictures, or videos. Let me highlight the drawings, this is discussed in Saler vs Lucas Films
(unintelligible) But take note that based on U.S authorities the enumeration I mentioned is
not exclusive. The provision of the Rules on Documentary Evidence is not exclusive. As
we can observe, x-ray, photograph, video, or recording, these are object evidence. But
now, it has been covered by documentary evidence. But be very careful, for as long as the
photograph, the recording, the sound, or the drawing are offered as proof of its contents.
Kindly take note that wherever it may be found, letters may be on a shirt, numbers on the
wall, for as long as the contents thereof are subject of the proof of their contents. Let’s
now proceed to Original Document Rule, originally the best evidence rule, the rule remains
the same. When the content of the document is the subject of the inquiry, you will have to
present the original document. That’s the rule. That’s the best evidence rule. Under the
old Rules, it was best evidence rule. Under the present Rules, it is the original document
rule. Is there a change in the manner of appreciation of the rule? The answer is no. When
the subject of the inquiry is the contents of the document, you will have to present the
original document except that originally it was limited to documents. But now it extends
to writings, recordings, photographs, or other records. According to the drafters that was
really a misnomer. Why? As a young lawyer, I have seen practitioners making objections
in this manner, when there is a question pertaining to the document, anything about the
document the other party will object. “Objection, You Honor. The document is the best
evidence” now, he is just testing the ability of the witness to remember what it was. It was
not even a violation of parol evidence that he tries to introduce something else. The
question was could you please tell us what the compensation is. This is wrong. Let’s go
to exceptions. There are only two new changes in the exceptions, these are “or the original
cannot be obtained by local judicial processes or procedure.” So, the court may have issued
a subpoena duces tecum but despite of the issuance of the processes, the original cannot be
obtained. Can you present secondary evidence? Of course. Following the provision, you
could present a copy, recital of the contents in some authentic documents, or testimony.
But if you’ll look at the provisions on secondary evidence, there is nothing that expressly
applies to this. I would say, because it falls under “b” how to prove document in the
custody of the adverse party will be the same manner as you will prove it or to lay the basis
for the presentation of the secondary evidence. You will have to establish execution,
existence, and the fact that there was application for judicial processes but the original was
not obtained. Now, you can present a copy, recital in some authentic documents, and
testimony. This is based on the case of PNB vs Olila, a 1956 case. 98 Phil 202. When
documents are voluminous and you only have to establish the general result, you may
present a chart or a calculation. That would suffice. The added exception is “when the
original is not closely related the controlling issue.” A little background, in Rule 128 Sec.
4, a collateral matter which has no relation to the fact in issue may be admitted if it tends
to establish facts in reasonable degree the existence or non-existence of the fact in issue.
This is an exception and the party can present secondary evidence. Now, let’s proceed to
what is an original. This was changed. Under the old Rules, this is (1) when the contents
of the document are the subject of the inquiry; (2) when document is executed at or about
the same time; and (3) those entries entered at or near the time of the transaction. You have
to disregard this. What is the rule now? This is the one, original of the document is the
document itself. So, the original is the original document itself or its counterpart. And
there is a specific definition of a counterpart. It is intended to have the same effect by the
person executing it. So, it is necessary whether it is original or counterpart, the effect is
the same. That is the intention of the one who issued it. Considering that the drafters have
expanded the definition of a document. Now, what is the original of a photograph? It
includes the negative or any print thereof. A printout is an original of a photograph. How
about if it is a computer data or that which is an output of a similar device as a computer,
what is considered as the original? Any printout or output readable by sight. This is in
consonance of the rule on electronic evidence. Let us now define what is a duplicate. A
duplicate is a counterpart. And a duplicate to be considered as counterpart, it should be
any of the following: (1) it has the same impression as the original; (2) it is from the same
matrix; (3) if it is by photography it could have been an enlargement, it could be a
miniature, it could be a chemical reproduction, or electronic re-recording. Can a duplicate
be contested? Yes, a duplicate can be contested. If its genuineness and authenticity are
raised (Sec. 4 par. c of Rule 130) and the second way to do it is if based on the
circumstances it is unjust or inequitable to admit the duplicate. Earlier, I mentioned
secondary evidence. About summaries. But that is now complete. We merely say that
numerous documents and to present them would entail great loss of time and all you need
to establish is the general result, what did we say? To present the calculation, chart or
summary. However, it’s not just that. Because the other party can copy or examine the
same and this is the procedure, this is the second part, this is sec. 7 of Rule 130. While the
party who is not obligated to present the original can only present a chart or summary the
other party or even the court can require an examination or copying or both within a
reasonable time and place. So, the court may issue an order that they be produced in court.
Possible, that upon request the court may see the reason for a copying or examination and
the court may designate a time and place or the court may require that the original be
 presented or produce in court. Remember this, no matter how voluminous the document
is if every document or the contents of every document are the subject of the inquiry you
will have to go through the process of presenting every single document. The only instance
that you can do away with presenting the original is when the document is numerous and
presenting them would entail great loss of time and you only have to establish the general
result.

5. Parole Evidence Rule. What is in the four corners of the document, the terms in the four
corners of the document, is the repository of what the parties have agreed upon. Therefore,
we cannot go outside of the terms thereof. What was inserted is the word ‘verified’. As a
student of evidence, the exceptions to the parol evidence rule should be put in issue in the
pleading. Once you put it in issue in the pleading, you can modify, explain or add to it –
the rule is, it should be verified, it should be under oath in an affidavit to support your
contention.

6. Testimonial Evidence. Notice that there is a deleted provision. The original Section 21
of Rule 130. That referred to mental incapacity or mental immaturity. It does not mean
though that it is no longer a disqualification. Because of a person is insane, definitely he
is disqualified to testify, that is consistent with the present Sec. 21 of the qualification of
the witness. Let’s proceed to testimony confined to personal knowledge. This is Section
22 but originally this is Sec. 36. The present section 22 is consistent with section 21. In a
sense they are complementary. Disqualification by reason of marriage. This is the major
change, in the past it says “for or against”, therefore the prohibition to testify is for or
against a spouse. So, if you will support the declaration of your spouse, let us say accused
or a party in a case – under the old rule, that is prohibited. Because “for or against”. But
now, that proposition “for” was dropped. So, what was retained was a testimony against a
spouse. So, a spouse can now testify in favor of the other spouse. Is that not self-serving?
The drafters were aware of that but we have judges or justices who are expected to
scrutinize every testimony, to judiciously understand the evidence presented. So, it is now
limited to adverse spousal testimony. The reason for the change is to promote the harmony
of the marriage. Let’s proceed to privilege communication. In discussing this, we are
talking about confidential information. Let’s begin with Attorney-Client. These are the
changes. First, not only is this attorney-client privilege limited to an attorney but now
extends to someone who is reasonably believed by the client to be licensed to engage in
the practice of law. In other words, it extends to those who pretend to be lawyers and
because of this representation the client believing that he is a lawyer shared vital or
confidential information. Is a person pretending to be a lawyer covered by the privilege or
should he keep the information confidential and should he be prevented from testifying
should he want to testify, the answer is in the affirmative. Second, the coverage of the
agency is now expanded. Before the amendment, this attorney-client privilege is the only
privilege that extends its privilege to a secretary, stenographer, or clerk. Let me give you
some insight to this, the relationship of the secretary to a certain client, especially the client
of the lawyer. Most of the time if the lawyer is absent, he always talks to his/her secretary.
And most of the time, the secretary hears confidential information from a client. In the
present amendment, it now extends to those assisting the attorney, and who are those
assisting the attorney? Paralegal, apprentice, associate of the lawyer, how about private
investigator? In the U.S it extends to him/her but I don’t want to venture into this, I will
just wait for the Supreme Court because not all lawyers use private investigator. The next
amendment to the attorney-client privilege is this, a rundown of the exceptions. There are
number of exceptions. There are five exceptions. The first one is if the information
received by the lawyer and shared by the client is in furtherance of a crime, meaning to
enable or to aid in the commission of the offense. So, a lawyer cannot use this as a shield
not to testify. Second, claims through the same deceased client. This is a very good
amendment. This is taken from the federal rules of evidence. Claims through the same
client as to the communication relevant to an issue between the parties. Example of this is
will contest, because to the mind of the authorities in the U.S, the lawyer will be in a better
position if there are disputing heirs. If this will be the way to share to the court what is in
the mind of the decedent during his lifetime. If you will complete the provision of the law,
“whose claims are by the estate or intestate or by inter vivos transactions. Now let me back
track a little, I was referring to furtherance of crime or fraud. We have a jurisprudence on
that. It is the case of People vs. Sandiganbayan, 341 Phils, 1997. Now, let us continue
with the exception, the breach of duty by lawyer. As we all know, the relationship between
a lawyer and a client is a fiduciary relationship. Therefore, if this is breached by the lawyer,
this is negligence. The lawyer can be sued. The lawyer cannot invoke attorney-client
privilege in the same manner if the client breached that relationship. The fourth is
document attested by the lawyer. Please be reminded here the lawyer is not a lawyer in a
strict sense in the course of or in view to a professional employment, his/her participation
here is only to attest to the document. Therefore, he/she is just an attesting witness. The
privilege cannot be applied. The last exception is the joint client as to the communications
relevant to a matter of common interest between two or more client. For example, if a
lawyer has five or seven clients and there is a common interest between them and definitely,
they also have their individual interest but in that particular instance there is a free-flow of
information and information that they shared is to their knowledge not intended to be
confidential among themselves. However, if they have suits among themselves involving
the same matter, that they have consulted the lawyer. That is an exception. But you can
safeguard that information if it was stipulated or agreed otherwise. Let’s now proceed to
the next privilege communication. Doctor-patient privilege. In the past, it only refers to
doctor of medicine. Now, it’s been extended not only to doctor of medicine but also to a
psycho-therapist or persons reasonably believed to be licensed to practice medicine or
psycho-therapy. Kindly take note, that the application of the privilege is limited only to
civil cases. The privilege cannot be invoked in criminal cases. Kindly take note also that
to some extent, the communication of the information received by the doctor or psycho-
therapist was a bit expanded because in the past it only covers advice or treatment, the
communication was received by the doctor in confidence to give advice or treatment. But
now, it covers diagnosis or treatment. So, now, it is no longer limited to physical illness,
mental and emotional but now includes drug addiction or alcohol addiction. So, coverage
is now comprehensive. Take note of its application, now it applies to members of the
family or other individuals assisting the doctor or physician or psycho-therapist. I want to
highlight “under the direction of the doctor, the physician, or the psycho-therapist”.
Example, nurses, medical residents, clinical assistants who are there when the process was
undertaken. The last important amendment in doctor-patient privilege is the definition of
a psycho-therapist. A psycho-therapist is a person who is licensed to practice medicine
and engaged in the diagnosis or treatment of mental or emotional condition. Upon reading
of the provision of the Rules, it does not limit to psychiatrist because a person licensed to
practice medicine and engaged in diagnosis or treatment of mental or emotional condition.
Is it limited to psychiatrist? How about other doctors who to some extent diagnoses mental
or emotional condition. The second is the psychologist who is licensed by the government.
The phrase “that which would blacken the reputation” has been dropped. Let’s now
proceed to penitent and priest. Let me give you an idea what is this penitent-priest privilege
rule, it is of a penitential character. If you will look at the old provision, what was written
was a person making confession. So, it was very limited to making penance; to making a
confession. And that is why, according to U.S authorities, this favors the Roman Catholic
Church and true enough because they have a sacrament. The rule on the matter, the
religious nature is clear. But now, based on the amendment it is expanded in terms of its
application. Now, it includes non-penitential communication. What does this mean? As a
spiritual advisory. But take note that in all of this, it should be in confidential nature. So,
spiritual adviser is now covered. Be reminded that should you handle a case of this nature,
always remember which was then and the rule now the phrase “in the course of the
discipline to which enjoined by the church to which he belongs.” Let us now proceed to
the next topic, public-officer and the state. This is the only privilege among the privilege
that I’ve discussed where the partner is not an individual. It is a public officer in relation
to the state. The change here is not really material. The only amendment is the phrase
“during or after his/her tenure”. Before I leave this Section 24, I want to call your attention
on the last paragraph. It does not only apply to one provision but to all privilege
communications under Section 24. It appears to the drafters to protect the confidentiality
even if there is a spill-over, it is passes to the hands of a third party. And the only
requirement of the standard laid down by the rule is that the original parties to the
communication took reasonable precaution to maintain or protect its confidentiality. Let’s
back to the spouses, the wife just gave birth and they were talking, and usually in the
Philippines the one who is taking care of the baby is the older brother/sister, and in the
course of the conversation one of the spouses confesses a crime and it was heard by the
brother or sister, if we follow the provision of the Rule, if they took reasonable precaution
to protect the confidentiality then it may be invoked. Take note of that last paragraph. And
that is a new provision. Let’s now proceed to the next topic, filial privilege. It is a different
category. What is the amendment? The amendment is on the exception. But the rule is
still the same. Let’s say, I can not be compelled to testify against my father, I can not be
compelled to testify against my son unless that testimony is indispensable in a crime
committed by my father against me or a crime committed by my father against my mother.
But there’s one thing I want you to remember. The use of the word “cannot be compelled”.
 Therefore, in a case decided by the Supreme Court, if my younger sister was raped by our
ascendant, and the latter invoke the privilege, in that case, I am allowed to testify for my
sister who was the victim. Why? Because it was voluntary. Please, also take note, the
exceptions were taken from Article 215 of the Family Code. Let’s now proceed to the
next privilege, the next is the privilege relating to trade secrets. This is not absolute
privilege. The root of this rule is a US jurisprudence. Although, you can not be compelled
to disclose trade secrets except if it is used to conceal fraud; if to hide it or not to disclose
it. The court may order the disclosure for as long as the court will have to take protective
measures to protect the interest of the owner and the parties, and the furtherance of justice.
The publisher, the editor, the columnist cannot be compelled to disclose the source of
information unless the court orders otherwise.

7. Offer of Compromise. An offer of compromise in a civil case cannot be considered as

admission of liability or the offer itself is not admissible in evidence, and neither is the
conduct or even the statements towards the compromise will be considered by the court
except the following (1) the evidence is otherwise discoverable or offered for another
purpose, meaning if you find a way you could still get that evidence, another one is for
another purpose such proving bias or prejudice; (2) the conduct or statement made in the
course of exchange will negate claims of delay; (3) proving an effort to obstruct a criminal
investigation or prosecution. Is not that because of this provision some of the parties may
become hesitant in talking of a compromise in a civil case, especially in a commercial
transaction, if there appears to have been some effort to obstruct a criminal investigation
assuming that the talks for a compromise fails? The answer is yes. Be very careful also
that you do not give so much information that it would reflect or prove to obstruct criminal
investigation. The lawyer should know the information that she/he should disclose. In
criminal case. It remains to be the same. The only change is that an offer of compromise
when there is a plea of guilt withdrawn or unaccepted offer. There is an amendment on
that point. Statements made in the course of a plea bargaining. If the plea bargaining is
unsuccessful or did not result to a plea of guilt, it cannot be used against the accused. It
will not be considered as an admission, or even if there is already a plea of guilt and the
accused later withdraw it, it cannot be used against him.

8. Hearsay and Not Hearsay. The old provision on personal knowledge is transferred now
to Sec. 22. And hearsay has its own definition. Based on the provision of the Rules,
hearsay is a statement other than that made by the declarant while testifying at the trial. It
is an out-of-court statement made by a witness. In foreign jurisdiction, they used an out-
of-court statement by a trial witness. So, to simplify it – an out-of-court statement made
by a witness who is now in court if it is offered to prove the truth of the facts asserted
therein. For a better understanding, the prevailing practice before the amendment is all
out-of-court statements, meaning the established practice treats all prior statements of a
witness on the stand exempted from hearsay. For as long as the witness is subject to cross
examination, it was fine. So, the prevailing rule before the amendment is everything that
the witness may testify in court even if it is an out-of-court statement is exempted from
hearsay. The present definition makes an out-of-court statement by a witness hearsay, not
admissible as to the substantive evidence for the truth of the matter asserted. So, an out-
of-court statement is no longer accepted. This definition now likewise defines what is now
hearsay. It is oral or written assertion and even if it is a conduct is also treated as a hearsay
if it is intended to be an assertion. In the effort to make it understandable, let us look at an
example. Joey was in a NAIA III on October 10, 2019 at 4pm. If Joey tells me that he was
in NAIA III on October 10, 2019 at 4pm, and the purpose the testimony is that he
communicated that to me, can I sit on the witness stand? If my purpose is to show that Joey
communicated that to me? Yes. Did I perceive? Yes. I actually perceived. I have first-
hand knowledge that he communicated to me, that he told me he was on such place and on
such time and date. But as to the truthfulness on whether or not he was there is another
matter. I don’t know, he only said it to me. Let’s look at another variation. I am in court
and I testify, Joey was on NAIA III on October 10, 2019. That is an assertion. Naturally,
that is objectionable because I don’t have first-hand knowledge of that. So, you have to
look at it on the side of first-hand knowledge and hearsay. There is also a definition of not
hearsay or that would fall outside of the same exceptions. Statement is not hearsay if the
declarant testifies in court and subject to cross-examination. But they limit it because of
the definition. And you are only limited to the items which are enumerated here.
Inconsistent to the declarant’s testimony which is under oath could be subject to perjury;
or it is a prior inconsistent statement, the purpose of which is to impeach prior inconsistent
statement. So, the declarant now is making an assertion in court and then on cross-
examination he is confronted on a prior inconsistent statement. Is that allowed? Yes, that
is allowed. But considering that it is a prior inconsistent statement, you have to laid the
basis of time, place and person. Another exception is that which is consistent with the
declarant’s testimony and is offered to rebut a charge against a person. Here, I am a witness
but the testimony is not against me. It is allowed based on the following narrow
requirements. The purpose of putting this as an exception is to prevent or cut the practice
of some in using affidavits. The last one is identification of a person made after perceiving.
What you have here is not an in-court identification, what is contemplated here is an out-
of-court identification. But is it stated here as an exception? Because they say that out-of-
court identification is closer to the incident. And the identifying party should be as possible
available for cross-examination. Why is it reliable? Because it is closer to even in time and
place in question. Exceptions to hearsay rule. Section 39 this is altogether new. Statement
of decedent of person of unsound mind. Why is it hearsay? Because what is presented to
the court is the statement of the person of unsound mind or the deceased. And there might
be someone who might have received that declaration. By its nature it is hearsay. Why is
it trustworthy or reliable? It is reliable because the statement was made at the time when
he has personal knowledge of the deceased or of the person of unsound mind and when the
matter was reasonably perceived while his recollection is still clear. Originally, it was
Section 23 which was transferred here to Section 39. It was originally a disqualification, a
Dead Man Statute. Now, this is an exception to the hearsay rule. Why? Because the
claimants, the parties or the assignors of parties to an estate of a deceased person or a person
of unsound mind can now testify. Before, they were disqualified. Under the present Rules,
they are now allowed to testify. Is this fair considering that the testimony is favorable to
the claimants? But then the provision of the Rules gives a certain level of reliability if the
statement was made by the decedent or of person of unsound mind at the time he had
personal knowledge when it has been reasonably perceived and while his recollection is
clear. Now, this is where the wisdom of our judges will have to come in. The judiciousness
in determining, assessing the kind of evidence because there is a provision in the Rules that
says “such statements however are admissible if made under circumstances indicating lack
of trustworthiness”. So that is our judge’s determination will have to come in. The
direction now is giving a witness a chance to testify. The witness will not always lie. The
next, declaration against interest. The declaration is trustworthy or reliable because the
mindset of the Rule is if it is not true, the party would not have made that statement.
Always remember that the exceptions to hearsay rule hinge on their trustworthiness or
reliability. Next, is Act of Declaration as about pedigree. There are two amendments here,
one is adoption and the second is that he intimately related or associated as to be likely to
have accurate information as to his pedigree. The person who made the declaration that he
is related for example to Mr. X by birth or marriage, this is the original provision, is already
dead. And he says Mr. X is my son or related to him by marriage. That declaration is not
given to that person but given to another one who at some later time because lack of
available evidence will attest to my declaration during the time that I am alive and during
the time that I am available but wasn’t available to testify if you would recall. So here, he
will testify. Evidence as to family reputation, the witness that will testify must be a member
of that family. It is reliable because the information has been going on within the family
ever since. Let us now proceed to common reputation. Reputation is how people perceived
you to be as distinguished from character of who you really are. The source of information
has been moving around in the community. And based on the old Rules, of public or
general interest for more than 30 years. This has been deleted. It has been replaced by “as
to boundaries of customs affecting land in the community and the reputation as to events
general history important to the community”. Now, why was it replaced? Because
according the authorities, the common reputation as to land, as to boundaries is subject to
scrutiny in the community. And it is reliable because it is subject to scrutiny. The purpose
of this is there is really no likelihood that you will obtain some other evidence. So, one
has to rely on common reputation. As a final statement, because it is subject to scrutiny, it
is subject to the consensus of the community. Example, that land was the land where the
station of the PNR was erected or this community was the guerillas’ front before they
fought the Japanese. General history important to the community that has been passed on
to generations. And besides, it is something that is settled, verifiable, and it has been
written. It is subject to judicial notice. Again, as to marriage, as to moral character,
common reputation has not been changed. The next item is, Res Gestae. This is also an
exception to the hearsay rule. There are two kinds. First, those which are arising from
startling occurrence. Someone was startled or excited and because of that there was no
room to reflect, there was no room to contemplate, and for that reason there is no room to
fabricate. A party cannot make a story because he/she was startled. The second kind,
equivocal act. But the equivocal act is given significance by a statement. We will discuss
the first kind because the amendment is on that point. Based on the original provision, the
rule was “statements made while startling occurrence was taking place immediately prior
and subsequent”, now, there is an added phrase “under the stress of excitement caused by
the occurrence” because if a party is under such condition, he/she cannot fabricate or make-
up a story. For example, I went out of my classroom after I finished my 7pm class, I see a
student hitting another student with a pipe and I saw that the student was in blood. Then
police came, authorities of the school, and as I walked down through the road I thought
“that student could have died” and this is my statement arising from a startling occurrence.
Does it mean that it should be immediately? No. There are numerous jurisprudences in the
past that allow res gestae even after two, three, or four hours for as long a person is under
state of excitement or under stress, and for as long as there is no room to fabricate or make-
up a story. Let’s proceed to Records of Regularly Conducted Business Activity. Take note
that this is entries of record in the regular course of business under the old rule. But why
is it reliable or trustworthy? Because a person is dead or unavailable to testify; that the
entry was made in the regular course of business at or near the time of the transaction; and
in the performance of his regular responsibilities or official functions. But that provision
is a little bit vague. If not properly explain, the students will not understand that it is an
exception to the hearsay rule not because of the witness who will later testify but because
of the document or the circumstances of the entry. But now, and this is why I am glad of
the amendment, with the amendment it practically covers memorandum, report, record,
data, compilation made by writing, typing, electronic, or optical other similar means.
Kindly take note it has been retained and was expanded a little of “at or near the time of
the transmission or supply of information which the person has knowledge” before “at or
about”, now, “at or near the time of transmission or supply of information by which the
person has knowledge.” That the date, information, document, or memorandum, etc., made
in the regular course or conduct of business. Meaning, such was the regular practice. What
was deleted? The “dead or unavailable” and also “in the performance of his functions”.
So, is it still reliable? The memorandum, document, compilation, or information whether
electronic or optical or other similar means is shown by testimony by the custodian or by
a qualified witness. This is a lot better because now custodian is now allowed or someone
who is qualified may be a substitute or assistant or a controller can testify. Next topic,
Testimony or Deposition at a Former Proceeding. The same rule and the same application.
What is expanded is a person is dead or unable to testify – this is the old rule. But now,
the unavailable has been expanded because (if say I am in a business meeting am I
unavailable or have a conflict of schedule – am I already unavailable? No.) now, it is very
clear when we talk of unavailable – a party must be outside of the Philippines or cannot
with due diligence brought to court or be found in the Philippines. So, it must be shown
with precise due diligence that indeed a party is unavailable. The same rule. Testimony
or deposition given in another proceeding if it involves the same subject matter, issue, and
there is an opportunity to cross-examine. The last exception of the hearsay rule is Residual
Exception (advance notice to the Party). This is a more liberal approach. This is taken
from the federal rules of evidence. The congressional intent there was really to make it a
catch-all exception. Although it is a catch-all exception, the intent was so that it would
 only be rarely used and only in exceptional circumstances with conditions designed to
make it only less accessible to practice. To give us an idea of the root of this rule in the
U.S let me give you the case of Dallas County vs Union, it was started with a newspaper
account or article that made mention of a fire that occurred in a certain place and that was
given a certain level of trustworthiness and because it would not fall under any of the
exceptions. They said that it would fall under residual exception. Because the court said
the exceptions should not hampered the search for the truth. But there is one thing that I
would want you to take note or to share with you. So, does it mean that it could only be
used if there is no other way? There are now two views evolving now in the US. That is
the strict view that I mentioned and there a more open view wherein some states have now
been adhering to. Now, this is what we can expect from our judges, what is required is a
careful, sensitive, and judicial examination of the offered evidence, and the justifications
for admitting the same. So, if there is residual exception they would really have to use
their judicial examination but take note that there is a procedure to be followed. So, if a
party intends to use residual exception, he/she must give notice to the adverse party during
pre-trial or in advance of a hearing to provide the adverse party a fair opportunity to meet
it. And it is the duty of the proponent to state my intention the particulars of the same, the
name and address of the declarant.

9. Opinion Rule. They change Section 52, Rule 130, on the definition of who will give an
opinion. Opinions of a witness in matter involving special knowledge, skill, expertise,
training, “education”. There is an added word “education.” But the same. Every expert
will have to be qualified because no expert can be presented in court unless passes the
qualification. Now let me discuss a little bit on education. The drafters were well aware
that there is expertise that would require education before they attained that expertise. For
example, doctors they will have to finish their degree of medicine before they be presented
as an expert but education alone would not suffice. Their years of experience and training
will help them be qualified as an expert witness. In fact, in one case decided by the Court,
there was a child who died because of wrong diagnosis of doctors. The public hospital and
doctors were sued, they question the qualification of doctors that they are not qualified
because they are not pathologists, but pediatrician. But the SC disagreed saying their
experience and knowledge on the matter qualified them to render opinion.

10. Character Evidence. If you will look at the old Rule, you will not find a prefatory
paragraph. You will see character evidence just that. Criminal, Civil, and Witness. But
now there is a prefatory paragraph. A person’s character is not admissible to establish or
prove an action or even a particular occasion. Character cannot be used as evidence to
establish an offense, a crime, a cause of action, or a defense because it will be confused
issues. Unfair practice or prejudice. In criminal cases the rule on character evidence
remains the same. Let us now proceed to proof of character evidence in civil and criminal
cases. This is new. In all cases in which evidence of character of trait of character is
admissible, testimony as to reputation as how people perceive the person, by testimony in
the form of opinion (not opinion because only an expert can give opinion), now according
 to authorities reputation is more than an opinion in disguise and that is true because all
interactions become a reputation. But an ordinary witness can give an opinion on mental
sanity, identity, and hand writing. So, on cross-examinations specific instances of conduct
will be allowed. However, according to US authorities, it is not just a free for all. The
cross examination should only be limited to conduct pertinent to the truth or character.
When character is an essential element of the charge or claim, or defense. So, in that case
proof is by specific instances. Like in a civil case for example, he said he defrauded me of
substandard materials, and the character trait there is honesty. You can present specific
instances of his fraud.

11. Rule 131. Burden of Proof. It never shifts. What is inserted there is long-established
rule that burden of proof in a prosecution of a crime, the prosecution must prove the
elements. It cannot shift. Bautista vs. Sarmiento. How about burden of evidence? This is
an altogether new provision. Is it a good amendment? It is very good amendment. Because
now, with a burden of evidence you will have to reach the prima facie case whether to
establish or to rebut it. What is prima facie? That which sufficiently establishes a party’s
evidence to justify a favorable judgment. And unlike burden of proof, a burden of evidence
shifts from one side to another. Another term for burden of evidence is burden of going
forward with evidence. We are now on presumptions. We have presumptions in civil
actions, in civil actions kindly take note that we apply here the bursting bubble. It is more
or less the same with the burden of evidence. In presumptions, once the presumption arises
like presumption of regularity in public officers, once it is established, it can be rebutted
with evidence. That is the bursting bubble. Meaning, one has to smoke out with
counterproof. Another interesting matter on presumption is inconsistent presumptions, and
to be brief this is new, when there are two inconsistent presumptions that which is a policy
consideration will stand. When the two inconsistent presumptions clash, the other falls.
For example, presumption of innocence and the Filipina (People vs... (unintelligible)) will
not institute an action for rape if it weren’t true, which would prevail? Presumption of
innocence will prevail because in this jurisdiction there is a strong public policy and
enshrined in the Constitution, that in all criminal prosecution an accused is presumed
innocent. Presumption in criminal cases, in criminal cases, the basis of guilt cannot be a
presumption. “If a presumed fact that establishes the guilt is an element of the offense
charged or negates the defense, the existence of the basic fact must be proved beyond
reasonable doubt and the presumed fact follows basic fact beyond reasonable doubt.” This
is purely a presumption in criminal cases. Therefore, there is a presumed fact that is the
result of the basic fact that leads to the presumption. For example, in criminal case, libel
- presumption of malice, while you will have to establish that the act is malicious and it
was indeed libelous you will have to establish beyond reasonable doubt the basic premises
that there was publication about the statements therein; and that it was a malicious
imputation. You will have to establish that beyond reasonable doubt, naturally the result
of it is a presumed fact that will likewise be established beyond reasonable doubt. Because
according to authorities McCormick on evidence, presumption to establish guilt or the
element of the crime should be established clearly.
12. Impeachment of Evidence of Conviction, Rule 132, Sec. 12. This is interesting because
this is an impeachment of a prior conviction. A witness being impeach of his/her prior
conviction. Is it allowed under the present rule? Yes, this is allowed under Section 12. But
Section 11 tells you how to impeach, by contrary evidence, prior inconsistent statement,
general reputation for truth, honesty and integrity is bad, and prior conviction. You can
also find that in Section 3 of Rule 132. This provision gives the parameters, the standards
by which you are to impeach on a prior conviction. If the crime, or prior conviction, was
punishable by a penalty in excess of 1 year or if it is a crime involving moral turpitude, the
penalty is not important.

13. Cross Examination. Sec. 6 of Rule 132. A material phrase was dropped from the original
provision which is “any matters stated in the direct examination and connected therewith”.
For practitioners, we know for a fact that when we’re conducting cross examination the
other party would object that it is not covered by direct examination. Then we would say
that we should be given fullness of freedom to test the truthfulness and accuracy of the
statement and freedom from bias and interest and vice versa. Now, the judge would allow
us to continue. But take note that there has been a wrong notion of what is rule on cross
examination. This is according to Justice Regalado; we follow the English Rule. This Rule
means the wide-open rule. We have the freedom to test the truthfulness and accuracy of
the statement and freedom from bias and interest. For before, a cross would not be covered
by direct examination. But now, clearly open-wide rule.

14. Exclusion of Witnesses. Of course, you don’t want the witnesses of the other party to
listen to their co-witnesses, especially from opposing counsel. Now, what does the
provision say? The court motu proprio or upon motion may exclude witnesses so that they
cannot hear the testimony of the witnesses. There are exceptions. The exceptions are,
party to the case whether civil or criminal, officers of corporations, when his/her presence
is essential to the precipitation of the party’s evidence like an agent who was the one who
implemented the instructions of the principal, his presence is allowed, and last, according
to authorities this is like an open window because there should be future statutes that would
allow it. Let’s now proceed to the 2nd paragraph of Section 15. Witnesses should be
separated so that they will not converse even directly or through intermediaries. Let us
now proceed to public documents, Sec. 19. The amendment now covers documents that
are considered public document under treaties or conventions which are enforced between
the Philippines and the country of source. This was brought about by Apostille Convention
which was effective in the Philippines on May 14, 2019. The article one of the Convention,
this what the documents covered under our Rules. What are those? Documents emanating
from courts or tribunals including public prosecutors, clerks, or process servers. Next,
administrative documents, notarial acts, and official certificates signed by persons in their
private capacity. So, these are what the provision covers. Let us look at this, how to prove.
When you are talking of acts of sovereign authority which is the first kind of public
 document, you will have to prove it by (1) by publication in newspaper of general
circulation or U.P Law Center publication; (2) or a certified true copy. The following is
the amendment, and this is how to prove the insertion relating to the convention or treaties.
If the document is kept in a foreign country to which it is a party to a treaty or convention
and the Philippines is also a party to the same. What will be presented? The certificate that
is required by that treaty or convention, in that form prescribed by the treaty or convention.
Next, what if the source of the document is in the custody of a foreign country which is not
a party to the treaty or convention, though the Philippines may be a party but the source is
not a party, we follow what we have been using before. What is this? Consularize
document, that which is certified and authenticated by the secretary of the embassy, consul,
vice-consul, or consular agent. Kindly take note that any document today that is presented
in court that comes with a certificate requires no proof because it is prima facie evidence
of its due execution and genuineness. But there are times that the treaty my have removed
the formality, then no formality will be required.

15. Objection to Offer or Lack of Offer of Testimonial Evidence. We know that if it is an

objection to offer evidence, today, it should be oral. Because in the past, before the
amendment, if the offer is made, objection can be made in writing. So, now it should
always be oral. How about objection to testimony? Because as you know the offer of
testimonial evidence is before the witness testifies. The very moment that it becomes
apparent there is no offer of testimonial evidence, you will have to object. Is there a
waiver? We have a jurisprudence on that. But this requirement of immediate objection
when it comes to offer of testimonial evidence is in Catuira (unintelligible) vs CA.

16. Objection to a Question. There is no change. The duty of a judge if there is an objection
to a question whether to overrule or to sustain. If there are multiple grounds for objections,
it is the duty of the judge to give the reason for objection.

17. Striking Out of an Answer. The witness was so quick and he answered the question
before it was objected to. I will move to strike out that answer. The question is not
objectionable but the answer is not responsive, the same I will move to strike it out. The
next is the witness makes a narration, I will also move to strike it out. When a witness
wants to volunteer an answer, I will also move to strike it out.

18. Weight of Expert Witness Opinion. What’s the weight of evidence given to it, esp. an
expert opinion? It is within the sound discretion of the court. It says now, that the court
has wide latitude of discretion in determining the weight given to such an opinion. In other
words, it is the court’s judicial determination.

19. Minor Provisions. Rule 133, Sec. 4. As know, circumstantial evidence, that there should
be more than one circumstance, and the circumstances taken together should be established
and proven beyond reasonable doubt. And there is a line that an inference cannot be based
on another inference. That is not reliable on evidence.