EVIDENCE

Professor: Dean Willard B. Riano

Source: Riano, Willard B. (2009). EVIDENCE (The Bar Lectures Series). Quezon City: Rex Printing Company, Inc.

Contents
PRELIMINARY CONSIDERATIONS ............................................................ 2
A. Miscellaneous Basic Principles ...................................................... 2
B. Admissibility of Evidence .............................................................. 5
JUDICIAL NOTICE AND ADMISSIONS....................................................... 9
A. Judicial Notice ............................................................................... 9
B. Judicial Admissions ..................................................................... 11
C. Admissions, Confession and the Res Inter Alios Acta Rule .......... 13
OBJECT AND DOCUMENTARY EVIDENCE .............................................. 17
I – Object Evidence ......................................................................... 17
II – Documentary Evidence ............................................................. 19
A – Best Evidence Rule .............................................................. 20
B – Parol Evidence Rule ............................................................. 22
Testimonial Evidence............................................................................ 27
A – Qualification of Witnesses ........................................................ 27
B – Disqualifications of Witnesses................................................... 28
C – Examination of Witnesses ......................................................... 33
D – Impeachment of a Witness ....................................................... 35
E – Character Evidence ................................................................... 37
F – Opinion Evidence ...................................................................... 38
Hearsay Evidence ................................................................................. 40
Burden of Proof, Quantum of Evidence and Presumptions .................. 46
A – Burden of Proof and Burden of Evidence .................................. 46
B – Quantum of Evidence................................................................ 47
C – Presumptions ............................................................................ 49
Offer of Evidence and Trial Objections ................................................. 54
Appendix A ........................................................................................... 58
RULES ON ELECTRONIC EVIDENCE .................................................. 58
Appendix B ........................................................................................... 61
RULE ON EXAMINATION OF A CHILD WITNESS ............................... 61
Appendix C ........................................................................................... 67
RULE ON DNA EVIDENCE................................................................. 67
 Chapter I
Application of the Rules on Electronic Evidence
PRELIMINARY CONSIDERATIONS
The application of the rules of evidence in the Rules of Court
A. Miscellaneous Basic Principles contrasts with the application of the Rules on Electronic
Evidence. While the definition of "evidence" under the Rules of
Concept of "Evidence" Court makes reference only to judicial proceedings, the
1. The term "evidence" is defined by Sec. 1 of Rule 128 provisions of the Rules of Electronic Evidence apply to all civil
of the Rules of Court as follows: actions and proceedings, as well as quasi-judicial and
administrative cases.
Section 1. Evidence defined. — Evidence is the means,
sanctioned by these rules, of ascertaining in a judicial SEC. 2. Cases covered. - These Rules shall apply to all civil actions and
proceeding the truth respecting a matter of fact. proceedings, as well as quasi-judicial and administrative cases. (Rule 1,
Rules on Electronic Evidence)
2. To be considered evidence, the same must be
"sanctioned" or allowed by the Rules of Court. It is Scope of Rules of Evidence
not evidence if it is excluded by law or by the Rules
even if it proves the existence or non-existence of a The rules of evidence in the Rules of Court are guided by the
fact in issue. principle of uniformity. As a general policy, the rules of evidence
3. Equally significant is the observation that "evidence" shall be the same in all courts and in all trials and hearings.
as defined in the Rules of Court is a means of
ascertainment of the truth not in all types of Section 2. Scope. — The rules of evidence shall be the same in all
proceedings but specifically in a "judicial proceeding." courts and in all trials and hearings, except as otherwise provided by
law or these rules. (2a)
Purpose of Evidence
Evidence in Civil Cases Distinguished from Evidence in Criminal
Evidence is required because of the presumption that the court Cases
is not aware of the veracity of the facts involved in a case. It is
therefore incumbent upon the parties to prove a fact in issue CIVIL CASES CRIMINAL CASES
thru the presentation of admissible evidence. The party having the burden The guilt of the accused has to
of proof must prove his claim be proven beyond reasonable
Truth as the Purpose of Evidence by a preponderance of doubt
evidence
While the purpose of evidence is to know the truth, the truth An offer of compromise is not Except those involving quasi-
referred to in the definition is not necessarily the actual truth admission of any liability, and offenses or those allowed by
but one aptly referred to as the judicial or the legal truth. is not admissible in evidence law to be compromised, an
against the offeror offer of compromise by the
When Evidence is Required; When Not Required accused may be received in
1. Where no factual issue exists in a case, there is no evidence as an implied
need to present evidence because where the case admission of guilt
presents a question of law, such question is resolved The concept of presumption The accused enjoys the
by the mere application of the relevant statutes or of innocence does not apply constitutional presumption of
rules of this jurisdiction to which no evidence is and generally there is no innocence
required. In the Philippine judicial system, there is a presumption for or against a
mandatory judicial notice of the official acts of the party except in certain cases
legislature and these acts cover statutes. provided for by law
2. When the pleadings in a civil case do not tender an
issue of fact, a trial need not be conducted since Distinction Between Proof and Evidence
there is not more reason to present evidence. (See
Rule 34) PROOF EVIDENCE
3. Evidence may likewise be dispensed with by Not the evidence itself; there The medium or means by
agreement of the parties. (See Sec. 6, Rule 30) is proof only because of which a fact is proved or
4. Evidence is not also required on matters of judicial evidence. It is merely the disproved. Proof is the effect
notice (Sec. 1, Rule 129) and on matters judicially probative effect of evidence of evidence because without
admitted (Sec. 4, Rule 129). and is the conviction or evidence there is no proof.
persuasion of the mind Bare allegations unsubstan-
Applicability of the Rules of Evidence resulting from a consideration tiated by evidence, are not
1. The rules of evidence, being parts of the Rules of of the evidence equivalent to proof
Court, apply only to judicial proceedings. (See also
Sec. 4, Rule 1) Falsus in Uno, Falsus in Omnibus
2. It has been held that administrative bodies are not 1. Literally means "false in one thing, false in
bound by the technical niceties of the rules obtaining everything". The doctrine means that if the testimony
in a court of law. (See discussion on Pages 3-8) of a witness on a material issue is wilfully false and
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 given with an intention to deceive, the jury may
disregard all the witness' testimony.
2. It is not an absolute rule of law and is in fact rarely
applied in modern jurisprudence. It deals only with
the weight of the evidence and is not a positive rule
of law.
3. Before this maxim can be applied, the witness must
be shown to have wilfully falsified the truth on one or
more material points. The principle presupposes the
existence of a positive testimony on a material point
contrary to subsequent declarations in the testimony.
Alibi; Frame-up; Self-defense
1. As a defense, alibi is inherently weak and crumbles in
the light of positive identification by truthful
witnesses. It is evidence negative in nature and self-
serving and cannot attain more credibility than the
testimonies of prosecution witnesses who testify on
clear and positive evidence.
2. Alibi cannot prevail over the positive identification of
the accused as perpetrator of the crime. Positive
identification destroys the defense of alibi and
renders it impotent, especially where such
identification is credible and categorical.
3. For the defense of alibi to prosper, the following must
be established:
a. The presence of the accused in another
place at the time of the commission of the
offense; and
b. The physical impossibility for him to be at
the scene of the crime at the time of its
commission
4. Like alibi, the defense of frame up is viewed with
disfavor as it can easily be concocted and is
commonly used as a defense in most prosecutions
arising from the violations of the Dangerous Drugs
Act. The legal presumption that official duty has been
regularly performed exists.
For this claim to prosper, the defense must adduce
clear and convincing evidence to overcome the
presumption that government officials have
performed their duties in a regular and proper
manner.
"The rule requiring a claim of frame-up to be
supported by clear and convincing evidence was
never intended to shift to the accused the burden of
proof in a criminal case."
5. Self-defense, like alibi is inherently weak because it
can be easily fabricated.
Delay and Initial Reluctance in Reporting a Crime
1. In People v. Navarro, 297 SCRA 331, the Court said:
Witnesses' delayed reporting of what they know about a
crime does not render their testimonies false or incredible,
for the delay may be explained by the natural reticence of
most people and their abhorrence to get involved in a
criminal case. But more than this, there is always the
inherent fear of reprisal, which is quite understandable,
especially if the accused is a man of power and influence in
the community. In People v. Viñas, it was held that "[t]he
natural reluctance of a witness to get involved in a criminal
case, as well as to give information to the authorities is a
matter of judicial notice."
2. See illustrations on Pages 16-22.
Positive and Negative Defenses
1. In Philippine jurisprudence, a positive testimony
normally enjoys more weight than a negative
testimony. In short, a testimony that a fact exists
enjoys more weight than a testimony that asserts
that the same fact does not exist. A denial evidence is
merely a negative evidence.
2. The reason for this rule is that the witness who
testifies to a negative may have forgotten what
actually occurred, while it is impossible to remember
what never existed.
3. Evidence that is negative is self-serving in nature and
cannot attain more credibility than the testimonies of
witnesses who testify on clear and positive evidence.
Factum Probans and Factum Probandum
1. Evidence signifies a relationship between two facts,
namely:
a. The fact or proposition to be established
(factum probandum); and
b. The facts or material evidencing the fact or
proposition to be established (factum
probans)
2. Stated in another way, the factum probandum is the
fact to be proved; the fact which is in issue and to
which the evidence is directed. On the other hand,
factum probans is the probative or evidentiary fact
tending to prove the fact in issue. See illustration on
Page 23.
3. The factum probandum in a certain case may be
affected by the judicial admissions of a party.
4. In practical terms, the factum probandum in a civil
case refers to the elements of a cause of action from
the point of view of the plaintiff and the elements of
the defense from the standpoint of the defendant.
5. In a criminal case, the factum probandum includes all
matters that the prosecution must prove beyond
reasonable doubt in order to justify a conviction. See
illustrations on Pages 24-26.
Multiple Admissibility
1. There are times when a proffered evidence is
admissible for two or more purposes.
2. Sometimes it is inadmissible for one purpose but
admissible for another or vice versa. See illustrations
on Pages 26-29.
Conditional Admissibility
It happens frequently enough that the relevance of a piece of
evidence is not apparent at the time it is offered, but the
relevance of which will readily be seen when connected to
other pieces of evidence not yet proffered. The proponent of
the evidence may ask that the evidence be conditionally
admitted in the meantime subject to the condition that he is
going to establish its relevancy and competency at a later time.
If the connection is not shown as promised, the court may,
upon motion of the adverse party, strike out from the record
the evidence that was previously conditionally admitted. See
illustration on Page 30.
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 accused escaped from detention during the pendency
Curative Admissibility of the case, flight was considered as an indication of
1. The doctrine of curative admissibility allows a party to guilt or of his guilty mind: "xxx the wicked flee even
introduce otherwise inadmissible evidence to answer when no man pursues, but the righteous stand fast as
the opposing party's previous introduction of bold as a lion"
inadmissible evidence if it would remove any unfair
prejudice caused by the admission of the earlier Cumulative Evidence and Corroborative Evidence
inadmissible evidence. Thus, a party who first
introduces either irrelevant or incompetent evidence CUMULATIVE CORROBORATIVE
into the trial cannot complain of the subsequent Evidence of the same kind and One that is supplementary to
admission of similar evidence from the adverse party character as that already that already given tending to
relating to the same subject matter. given and that tends to prove strengthen or confirm it. It is
2. It is submitted that in our jurisdiction, the principle of the same proposition additional evidence of a
curative admissibility should not be made to apply different character to the
where the evidence was admitted without objection same point
because the failure to object constitutes a waiver of
inadmissibility of the evidence. In our jurisdiction, Corroboration of the Testimony of a Child Witness
inadmissible evidence not objected to becomes
admissible. Section 22. Corroboration. - Corroboration shall not be required of a
testimony of a child. His testimony, if credible by itself, shall be
Direct and Circumstantial Evidence sufficient to support a finding of fact, conclusion, or judgment subject
to the standard of proof required in criminal and non-criminal cases.
(Rule on Examination of a Child Witness)
DIRECT CIRCUMSTANTIAL
Evidence which if believed, Evidence that indirectly
Positive and Negative Evidence
proves the existence of a fact proves a fact in issue through
1. Evidence is said to be positive when a witness affirms
in issue without inference or an inference which the fact
in the stand that a certain state of facts does exist or
presumption; it proves a fact finder draws from the
that a certain event happened. It is negative when
without the need to make an evidence established; in this
the witness states that an event did not occur or that
inference from another fact type of evidence, the court
the state of facts alleged to exist does not actually
uses a fact from which
exist.
assumption is drawn
2. Greater probative value is given to evidence that is
positive in nature than that which is accorded to
Conviction by Circumstantial Evidence
evidence that is negative in character.
1. In a criminal case, circumstantial evidence may be
sufficient for conviction provided the following
Liberal Construction of the Rules of Evidence
requisites concur:
1. Rules of Procedure are mere tools intended to
a. There is more than one circumstance;
facilitate rather than to frustrate the attainment of
b. The facts from which the inference are
justice. A strict and rigid application of the rules must
derived are proven; and
always be eschewed if it would subvert their primary
c. The combination of all the circumstances is
objective of enhancing substantial justice.
such as to produce a conviction beyond
2. The Rules on Electronic Evidence shall likewise be
reasonable doubt.
construed liberally. (Sec. 2, Rule 2, Rules of Electronic
2. All the circumstances proved must be consistent with
Evidence)
each other, and they are to be taken together as
proved. Being consistent with each other, and, taken
Absence of a Vested Right in the Rules of Evidence
together, they must point unerringly to the direction
of guilt and mere suspicions, probabilities, or
There is no vested right in the rules of evidence because the
suppositions do not warrant a conviction.
rules of evidence are subject to change by the Supreme Court
3. Circumstantial evidence is not a weaker defense vis-
pursuant to its powers to promulgate rules concerning
à-vis direct evidence.
pleading, practice and procedure. The change in the rules of
4. See illustrations on Pages 34-41.
evidence is however, subject to the constitutional limitation on
the enactment of ex post facto laws. An ex post facto law
Flight or Non-flight of the Accused
includes that which alters the rules of evidence and receives
1. There is no law or principle holding that non-flight per
less or different testimony than that required at the time of the
se is proof, let alone conclusive proof, of innocence.
commission of the offense in order to convict the accused.
Much like the defense of alibi, the defense of non-
flight cannot prevail against the weight of positive
Waiver of the Rules of Evidence
identification of the appellants. On the other hand,
1. The rules of evidence may be waived. When an
flight per se is not synonymous with guilt and must
otherwise objectionable evidence is not objected to,
not always be attributed to one's consciousness of
the evidence becomes admissible because of waiver.
guilt. Flight alone is not a reliable indicator of guilt
2. May the parties stipulate waiving the rules of
without other circumstances because flight alone is
evidence?
inherently ambiguous. However, in a case where the
4|P L A T O N
 The Civil Code of the Philippines (Art. 6) provides that
"rights may be waived, unless the waiver is contrary
to law, public order, public policy, morals, or good
customs or prejudicial to a third person with a right
recognized by law."
However, it is submitted that a failure to object with
respect to a privileged communication involving state
secrets communicated to a public officer in official
confidence should not be construed as a waiver of
the privileged character of the communication
because of public policy considerations as when the
state secret is one involving national defense and
security.
B. Admissibility of Evidence
Requisites for the Admissibility of Evidence
1. Section 3 of Rule 128 provides:
Section 3. Admissibility of evidence. — Evidence is
admissible when it is relevant to the issue and is not
excluded by the law of these rules.
Thus, for evidence to be admissible, two elements
must concur, namely:
a. The evidence is relevant, and
b. The evidence is not excluded by the rules
(competent)
These two elements correspond to Wigmore's two
axioms of admissibility, namely: (a) That none but
facts having rational probative value are admissible
(axiom of relevance); and (b) That all facts having
rational probative value are admissible unless some
specific rule forbids them (axiom of competence).
Illustrations of the Requisites for Admissibility (See Pages 49-
50).
Inadmissible Evidence Under the Anti-Wiretapping Law (R.A.
No. 4200)
1. Sec. 4 of R.A. 4200 provides:
Section 4. Any communication or spoken word, or the
existence, contents, substance, purport, effect, or meaning
of the same or any part thereof, or any information therein
contained obtained or secured by any person in violation of
the preceding sections of this Act shall not be admissible in
evidence in any judicial, quasi-judicial, legislative or
administrative hearing or investigation.
Note: Impeachment proceedings are classified as sui
generis. See discussion on Pages 50-51.
Note that even the "existence" of the communication
is inadmissible.
2. Sec. 1 of R.A. 4200 provides:
Section 1. It shall be unlawful for any person, not being
authorized by all the parties to any private communication
or spoken word, to tap any wire or cable, or by using any
other device or arrangement, to secretly overhear,
intercept, or record such communication or spoken word by
using a device commonly known as a dictaphone or
dictagraph or dictaphone or walkie-talkie or tape recorder,
or however otherwise described:
It shall also be unlawful for any person, be he a participant
or not in the act or acts penalized in the next preceding
sentence, to knowingly possess any tape record, wire
record, disc record, or any other such record, or copies
thereof, of any communication or spoken word secured
either before or after the effective date of this Act in the
manner prohibited by this law; or to replay the same for any
other person or persons; or to communicate the contents
thereof, either verbally or in writing, or to furnish
transcriptions thereof, whether complete or partial, to any
other person: Provided, That the use of such record or any
copies thereof as evidence in any civil, criminal investigation
or trial of offenses mentioned in section 3 hereof, shall not
be covered by this prohibition.
Note: If only one party authorizes the recording and
the other does not, there is a violation of the law.
According to the Court: "Absent a clear showing that
both parties to the telephone conversations allowed
the recording of the same, the inadmissibility of the
subject tapes is mandatory under Republic Act 4200".
It was held that an extension telephone line cannot
be placed under the category of the enumerated
devices.
3. Sec. 2 and 3 of R.A. 4200 provide:
Section 2. Any person who willfully or knowingly does or
who shall aid, permit, or cause to be done any of the acts
declared to be unlawful in the preceding section or who
violates the provisions of the following section or of any
order issued thereunder, or aids, permits, or causes such
violation shall, upon conviction thereof, be punished by
imprisonment for not less than six months or more than six
years and with the accessory penalty of perpetual absolute
disqualification from public office if the offender be a public
official at the time of the commission of the offense, and, if
the offender is an alien he shall be subject to deportation
proceedings.
Section 3. Nothing contained in this Act, however, shall
render it unlawful or punishable for any peace officer, who
is authorized by a written order of the Court, to execute any
of the acts declared to be unlawful in the two preceding
sections in cases involving the crimes of treason, espionage,
provoking war and disloyalty in case of war, piracy, mutiny in
the high seas, rebellion, conspiracy and proposal to commit
rebellion, inciting to rebellion, sedition, conspiracy to
commit sedition, inciting to sedition, kidnapping as defined
by the Revised Penal Code, and violations of Commonwealth
Act No. 616, punishing espionage and other offenses against
national security: Provided, That such written order shall
only be issued or granted upon written application and the
examination under oath or affirmation of the applicant and
the witnesses he may produce and a showing: (1) that there
are reasonable grounds to believe that any of the crimes
enumerated hereinabove has been committed or is being
committed or is about to be committed: Provided, however,
That in cases involving the offenses of rebellion, conspiracy
and proposal to commit rebellion, inciting to rebellion,
sedition, conspiracy to commit sedition, and inciting to
sedition, such authority shall be granted only upon prior
proof that a rebellion or acts of sedition, as the case may be,
5|P L A T O N
 have actually been or are being committed; (2) that there
are reasonable grounds to believe that evidence will be
obtained essential to the conviction of any person for, or to
the solution of, or to the prevention of, any of such crimes;
and (3) that there are no other means readily available for
obtaining such evidence.
The order granted or issued shall specify: (1) the identity of
the person or persons whose communications,
conversations, discussions, or spoken words are to be
overheard, intercepted, or recorded and, in the case of
telegraphic or telephonic communications, the telegraph
line or the telephone number involved and its location; (2)
the identity of the peace officer authorized to overhear,
intercept, or record the communications, conversations,
discussions, or spoken words; (3) the offense or offenses
committed or sought to be prevented; and (4) the period of
the authorization. The authorization shall be effective for
the period specified in the order which shall not exceed sixty
(60) days from the date of issuance of the order, unless
extended or renewed by the court upon being satisfied that
such extension or renewal is in the public interest.
All recordings made under court authorization shall, within
forty-eight hours after the expiration of the period fixed in
the order, be deposited with the court in a sealed envelope
or sealed package, and shall be accompanied by an affidavit
of the peace officer granted such authority stating the
number of recordings made, the dates and times covered by
each recording, the number of tapes, discs, or records
included in the deposit, and certifying that no duplicates or
copies of the whole or any part thereof have been made, or
if made, that all such duplicates or copies are included in the
envelope or package deposited with the court. The envelope
or package so deposited shall not be opened, or the
recordings replayed, or used in evidence, or their contents
revealed, except upon order of the court, which shall not be
granted except upon motion, with due notice and
opportunity to be heard to the person or persons whose
conversation or communications have been recorded.
The court referred to in this section shall be understood to
mean the Court of First Instance within whose territorial
jurisdiction the acts for which authority is applied for are to
be executed.
Surveillance of Suspects and Interception and Recording of
Communications Under the Human Security Act of 2007 (R.A.
No. 9372)
1. Sections 7, 8, 9 and 10 of R.A. 9372 provide:
SEC. 7. Surveillance of Suspects and Interception and
Recording of Communications. -The provisions of Republic
Act No. 4200 (Anti-Wire Tapping Law) to the contrary
notwithstanding, a police or law enforcement official and
the members of his team may, upon a written order of the
Court of Appeals, listen to, intercept and record, with the
use of any mode, form, kind or type of electronic or other
surveillance equipment or intercepting and tracking devices,
or with the use of any other suitable ways and means for
that purpose, any communication, message, conversation,
discussion, or spoken or written words between members of
a judicially declared and outlawed terrorist organization,
association, or group of persons or of any person charged
with or suspected of the crime of terrorism or conspiracy to
commit terrorism.
Provided, That surveillance, interception and recording of
communications between lawyers and clients, doctors and
patients, journalists and their sources and confidential
business correspondence shall not be authorized.
SEC. 8. Formal Application for Judicial Authorization. - The
written order of the authorizing division of the Court of
Appeals to track down, tap, listen to, intercept, and record
communications, messages, conversations, discussions, or
spoken or written words of any person suspected of the
crime of terrorism or the crime of conspiracy to commit
terrorism shall only be granted by the authorizing division of
the Court of Appeals upon an ex parte written application of
a police or of a law enforcement official who has been duly
authorized in writing by the Anti-Terrorism Council created
in Section 53 of this Act to file such ex parte application, and
upon examination under oath or affirmation of the applicant
and the witnesses he may produce to establish: (a) that
there is probable cause to believe based on personal
knowledge of facts or circumstances that the said crime of
terrorism or conspiracy to commit terrorism has been
committed, or is being committed, or is about to be
committed; (b) that there is probable cause to believe based
on personal knowledge of facts or circumstances that
evidence, which is essential to the conviction of any charged
or suspected person for, or to the solution or prevention of,
any such crimes, will be obtained; and, (c) that there is no
other effective means readily available for acquiring such
evidence.
SEC. 9. Classification and Contents of the Order of the
Court. - The written order granted by the authorizing
division of the Court of Appeals as well as its order, if any, to
extend or renew the same, the original application of the
applicant, including his application to extend or renew, if
any, and the written authorizations of the Anti-Terrorism
Council shall be deemed and are hereby declared as
classified information: Provided, That the person being
surveilled or whose communications, letters, papers,
messages, conversations, discussions, spoken or written
words and effects have been monitored, listened to, bugged
or recorded by law enforcement authorities has the right to
be informed of the acts done by the law enforcement
authorities in the premises or to challenge, if he or she
intends to do so, the legality of the interference before the
Court of Appeals which issued the written order. The written
order of the authorizing division of the Court of Appeals
shall specify the following: (a) the identity, such as name and
address, if known, of the charged or suspected person
whose communications, messages, conversations,
discussions, or spoken or written words are to be tracked
down, tapped, listened to, intercepted, and recorded and, in
the case of radio, electronic, or telephonic (whether wireless
or otherwise) communications, messages, conversations,
discussions, or spoken or written words, the electronic
transmission systems or the telephone numbers to be
tracked down, tapped, listened to, intercepted, and
recorded and their locations or if the person suspected of
the crime of terrorism or conspiracy to commit terrorism is
not fully known, such person shall be subject to continuous
surveillance provided there is a reasonable ground to do so;
(b) the identity (name, address, and the police or law
enforcement organization) of the police or of the law
enforcement official, including the individual identity
(names, addresses, and the police or law enforcement
organization) of the members of his team, judicially
authorized to track down, tap, listen to, intercept, and
record the communications, messages, conversations,
discussions, or spoken or written words; (c) the offense or
offenses committed, or being committed, or sought to be
prevented; and, (d) the length of time within which the
authorization shall be used or carried out.
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 SEC. 10. Effective Period of Judicial Authorization. - Any
authorization granted by the authorizing division of the
Court of Appeals, pursuant to Section 9(d) of this Act, shall
only be effective for the length of time specified in the
written order of the authorizing division of the Court of
Appeals, which shall not exceed a period of thirty (30) days
from the date of receipt of the written order of the
authorizing division of the Court of Appeals by the applicant
police or law enforcement official.
The authorizing division of the Court of Appeals may extend
or renew the said authorization for another non-extendible
period, which shall not exceed thirty (30) days from the
expiration of the original period: Provided, That the
authorizing division of the Court of Appeals is satisfied that
such extension or renewal is in the public interest:
and Provided, further, That the ex parte application for
extension or renewal, which must be filed by the original
applicant, has been duly authorized in writing by the Anti-
Terrorism Council.
In case of death of the original applicant or in case he is
physically disabled to file the application for extension or
renewal, the one next in rank to the original applicant
among the members of the team named in the original
written order of the authorizing division of the Court of
Appeals shall file the application for extension or renewal:
Provided, That, without prejudice to the liability of the
police or law enforcement personnel under Section 20
hereof, the applicant police or law enforcement official shall
have thirty (30) days after the termination of the period
granted by the Court of Appeals as provided in the
preceding paragraphs within which to file the appropriate
case before the Public Prosecutor's Office for any violation
of this Act.
If no case is filed within the thirty (30)-day period, the
applicant police or law enforcement official shall
immediately notify the person subject of the surveillance,
interception and recording of the termination of the said
surveillance, interception and recording. The penalty of ten
(10) years and one day to twelve (12) years of imprisonment
shall be imposed upon the applicant police or law
enforcement official who fails to notify the person subject of
the surveillance, monitoring, interception and recording as
specified above.
Inadmissible Evidence in Connection with Arrests, Searches
and Seizures (See Pages 55-62).
Relevant Evidence
1. Sec. 4 of Rule 128 provides:
Section 4. Relevancy; collateral matters. — Evidence must
have such a relation to the fact in issue as to induce belief
in its existence or non-existence. Evidence on collateral
matters shall not be allowed, except when it tends in any
reasonable degree to establish the probability or
improbability of the fact in issue.
The evidence adduced should be directed to the
matters in dispute and any evidence which has
neither direct nor indirect relationship to such
matters must be set aside as irrelevant.
2. The matter of relevance under the Rules of Court
requires the existence of a fact in issue. Necessarily,
this fact in issue must be a disputed fact. See example
on Page 63.
Test for Determining the Relevancy of Evidence
1. In People v. Galleno, 291 SCRA 761, the Court said:
"There is no precise and universal test of relevancy provided
by law. However, the determination of whether particular
evidence is relevant rests largely at the discretion of the
court, which must be exercised according to the teachings of
logic and everyday experience."
Relevance of Evidence on the Credibility of a Witness
1. Evidence on the credibility or lack of it of a witness is
always relevant.
2. The importance of the credibility of a witness in a
judicial proceeding is highlighted by rules which allow
the adverse party to test such credibility through a
process called 'cross-examination.'
3. There are however, instances provided for in the
rules when the questions of the cross-examiner are
circumscribed by the matters taken up in the direct
examination and thus questions outside the subject
matter of the direct examination are not allowed.
a. An accused may testify as a witness on his
own behalf "but subject to cross-
examination on matters covered by the
direct examination." (Sec. 1[d], Rule 115)
b. A hostile witness may be impeached and
cross-examined by the adverse party, but
such cross-examination "must only be on
the subject of his examination-in-chief."
(Sec. 12, Rule 132)
Competent Evidence
1. Competent evidence is one that is not excluded by
law in a particular case.
2. If the test of relevance is logic and common sense,
the test of competence is the law or the rules.
3. Competence, in relation to evidence in general, refers
to the eligibility of an evidence to be received as such.
However, when applied to a witness, the term
competent refers to the qualifications of the witness.
In other words, competence refers to his eligibility to
take the stand and to testify.
If evidence offered is objectionable on the ground
that it is incompetent, an objection that it is
incompetent is not an accepted form of objection
because it is a general objection. The objection
should specify the ground for its incompetence such
as leading, hearsay or parol.
Competence of Electronic Evidence
SEC. 2. Admissibility. – An electronic document is admissible in evidence
if it complies with the rules on admissibility prescribed by the Rules of
Court and related laws and is authenticated in the manner prescribed
by these Rules. (Rule 3, Rules on Electronic Evidence)
Collateral Matters
1. A matter is collateral when it is on a "parallel or
diverging line," merely "additional" or "auxiliary". This
term connotes an absence of a direct connection
between the evidence and the matter in dispute.
7|P L A T O N
When Collateral Matters are Allowed
1. GR: As a rule, evidence on a collateral matter is not
allowed. It is not allowed because it does not have
direct relevance to the issue of the case. XPN: Under
the Rules of Court, a collateral matter may be
admitted if it tends in any reasonable degree to
establish the probability or improbability of the fact in
issue. (Sec. 4, Rule 128) (See examples on Page 69)

Admissible Evidence Distinguished from Credible Evidence

ADMISSIBLE
The evidence is of such a
character that the court,
pursuant to the rules of
evidence, is bound to receive
it or to allow it to be
introduced at the trial.
CREDIBLE
Worthiness of belief, that
quality which renders a
witness worthy of belief.
"Believability"

Also, the competency of a witness differs from his credibility. A

witness may be competent, and yet give incredible testimony;
he may be incompetent, and yet his evidence, if received, is
perfectly credible.

Admissibility and Weight of Evidence

ADMISSIBILITY PROBATIVE VALUE

Refers to the question of
whether certain pieces of
evidence are to be considered
at all
Depends on the relevance and
competence of the evidence
Refers to the question of
whether the admitted
evidence proves an issue
Pertains to its tendency to
convince and persuade

Some Jurisprudential Tenets on Probative Value and

Credibility (See Pages 70-77).

8|P L A T O N
 Chapter II
JUDICIAL NOTICE AND ADMISSIONS
A. Judicial Notice
1. The relevant provisions on judicial notice provide:
Section 1. Judicial notice, when mandatory. — A court shall
take judicial notice, without the introduction of evidence,
of the existence and territorial extent of states, their
political history, forms of government and symbols of
nationality, the law of nations, the admiralty and maritime
courts of the world and their seals, the political
constitution and history of the Philippines, the official acts
of legislative, executive and judicial departments of the
Philippines, the laws of nature, the measure of time, and
the geographical divisions.
Section 2. Judicial notice, when discretionary. — A court
may take judicial notice of matters which are of public
knowledge, or are capable to unquestionable
demonstration, or ought to be known to judges because of
their judicial functions.
Section 3. Judicial notice, when hearing necessary. —
During the trial, the court, on its own initiative, or on
request of a party, may announce its intention to take
judicial notice of any matter and allow the parties to be
heard thereon.
After the trial, and before judgment or on appeal, the
proper court, on its own initiative or on request of a party,
may take judicial notice of any matter and allow the parties
to be heard thereon if such matter is decisive of a material
issue in the case.
2. Judicial notice is based on the maxim, "what is known
need not be proved," hence, when the rule is
invoked, the court may dispensed with the
presentation of evidence on judicially cognizable
facts.
Function of Judicial Notice
1. The function of judicial notice is to abbreviate
litigation by the admission of matters that need no
evidence because judicial notice is a substitute for
formal proof of a matter by evidence. Judicial notice
takes the place of proof and is of equal force.
When Judicial Notice is Mandatory
1. A matter of judicial notice may either be mandatory
or discretionary. When the matter is subject to a
mandatory judicial notice, no motion or hearing is
necessary for the court to take judicial notice of a fact
because this is a matter which a court ought to take
judicial notice of.
2. The following are matters subject to mandatory
judicial notice.
a. the existence and territorial extent of
states;
b. the political history, forms of government
and symbols of nationality of states;
c. the law of nations;
d. the admiralty and maritime courts of the
world and their seals;
e. the political constitution and history of the
Philippines;
f. the official acts of legislative, executive and
judicial departments of the Philippines;
g. the laws of nature;
h. the measure of time; and
i. the geographical divisions.
3. See illustrations on Pages 81-83.
When Judicial Notice is Discretionary
1. The principles of discretionary judicial notice will
apply where the following requisites are met:
a. The matter must be one of common
knowledge;
b. The matter must be settled beyond
reasonable doubt (if there is any
uncertainty about the matter, then
evidence must be adduced); and
c. The knowledge must exist within the
jurisdiction of the court.
2. In Expertravel and Tours, Inc. v. CA, 459 SCRA 147, the
Court said:
The principal guide in determining what facts may be
assumed to be judicially known is that of notoriety. Hence, it
can be said that judicial notice is limited to facts evidenced
by public records and facts of general notoriety. Moreover, a
judicially noticed fact must be one not subject to a
reasonable dispute in that it is either: (1) generally known
within the territorial jurisdiction of the trial court; or (2)
capable of accurate and ready determination by resorting to
sources whose accuracy cannot reasonably be questionable.
Things of "common knowledge," of which courts take
judicial matters coming to the knowledge of men generally
in the course of the ordinary experiences of life, or they may
be matters which are generally accepted by mankind as true
and are capable of ready and unquestioned demonstration.
Thus, facts which are universally known, and which may be
found in encyclopedias, dictionaries or other publications,
are judicially noticed, provided, they are of such universal
notoriety and so generally understood that they may be
regarded as forming part of the common knowledge of
every person. As the common knowledge of man ranges far
and wide, a wide variety of particular facts have been
judicially noticed as being matters of common
knowledge. But a court cannot take judicial notice of any
fact which, in part, is dependent on the existence or non-
existence of a fact of which the court has no constructive
knowledge.
3. In People v. Tundag, 341 SCRA 704, the Court said:
On the other hand, matters which are capable of
unquestionable demonstration pertain to fields of
professional and scientific knowledge. xxx
As to matters which ought to be known to judges because of
their judicial functions, an example would be facts which are
ascertainable from the record of court proceedings, e.g. as
to when court notices were received by a party.
Judicial Notice and Knowledge of the Judge
1. Judicial notice may be taken of a fact which judges
ought to know because of their judicial functions.
In State Prosecutors v. Muro, 236 SCRA 505, the Court
said:
9|P L A T O N
 technically in the nature of local laws and hence, are subject to
But judicial notice is not judicial knowledge. The mere a mandatory judicial notice under Sec. 1 of Rule 129.
personal knowledge of the judge is not the judicial
knowledge of the court, and he is not authorized to make his Judicial Notice of Municipal Ordinances
individual knowledge of a fact, not generally or
1. Municipal trial courts must take judicial notice of
professionally known, the basis of his action.
municipal ordinances in force in the municipality in
which they sit.
2. Judicial notice is not limited by the actual knowledge
2. A Court of First Instance (now RTC), should also take
of the individual judge or court.
judicial notice of municipal ordinances in force in the
municipalities within their jurisdiction but only when
Stage When Judicial Notice May be Taken
so required by law.
The court can take judicial notice of a fact during or after trial
Judicial Notice of a Court's Own Acts and Records
pursuant to the procedure in Section 3 of Rule 129 of the Rules
of Court, as follows:
A court may take judicial notice of its own acts and records in
1. Judicial notice may be taken during the trial of the
the same case.
case. (See first paragraph of Sec. 3, Rule 129). This
hearing is only for the purpose of determining the
No Judicial Notice of Records of Other Cases; Exceptions
propriety of taking judicial notice of a certain matter
1. While courts may take judicial notice of its own acts
and not for the purpose of proving the issues in the
and records in the same case, as a rule, courts are not
case.
authorized to take judicial notice of the contents of
2. Judicial notice may also be taken by the proper court
the records of other cases, even when such cases
after the trial, and before judgment. Judicial notice
have been tried or are pending in the same court,
may also be taken on appeal. (See second paragraph
notwithstanding the fact that both cases may have
of Sec. 3, Rule 129)
been heard or are actually pending before the same
judge.
Judicial Notice of Foreign Laws; Doctrine of Processual
2. The following are the exceptions to the above rule in
Presumption
the immediately preceding paragraph:
1. It is well-settled in our jurisdiction that our courts
a. when in the absence of any objection, with
cannot take judicial notice of foreign laws. Like any
the knowledge of the opposing party, the
other facts, they must be alleged and proved.
contents of said other case are clearly
In the absence of proof, the foreign law will be
referred to by title and number in a pending
presumed to be the same as the laws of the
action and adopted or read into the record
jurisdiction hearing the case under the doctrine of
of the latter; or
processual presumption.
b. when the original record of the other case
2. In PCIB v. Escolin, 56 SCRA 266, the Court said:
or any part of it is actually withdrawn from
Elementary is the rule that foreign laws may not be taken the archives at the court's discretion upon
judicial notice of and have to be proven like any other fact in the request, or with the consent, of the
dispute between the parties in any proceeding, with the rare parties, and admitted as part of the record
exception in instances when the said laws are already within of the pending case.
the actual knowledge of the court, such as when they are
well and generally known or they have been actually ruled Rule on Judicial Notice of Post Office Practices
upon in other cases before it and none of the parties
concerned do not claim otherwise.
In Republic v. CA, 107 SCRA 504, the Court said:
3. Sec. 46, Rule 130 of the Rules of Court provides: That a registered letter when posted is immediately stamped with the
date of its receipt, indicating therein the number of the registry, both
Section 46. Learned treatises. — A published treatise, on the covering envelope itself and on the receipt delivered to the
periodical or pamphlet on a subject of history, law, science, person who delivered the letter to the office is not a proper subject of
or art is admissible as tending to prove the truth of a matter judicial notice. This post office practice is not covered by any of the
stated therein if the court takes judicial notice, or a witness instances under the Rules and is not of unquestionable demonstration.
expert in the subject testifies, that the writer of the
statement in the treatise, periodical or pamphlet is
Judicial Notice of Banking Practices
recognized in his profession or calling as expert in the
subject.
May judicial notice be taken of the practice of banks in
Judicial Notice of the Law of Nations conducting background checks on borrowers and sureties? In
Solidbank Corporation v. Mindanao Ferroalloy Corporation, 464
When the foreign law refers to the law of nations, said law is SCRA 409, the Court said:
subject to a mandatory judicial notice under Sec. 1 of Rule 129.
While a court is not mandated to take judicial notice of this practice
Under the Philippine Constitution, the Philippines adopts the
under Section 1 of Rule 129 of the Rules of Court, it nevertheless may
generally accepted principles of international law as part of the do so under Section 2 of the same Rule. The latter Rule provides that a
law of the land (Sec. 2, Art. II, Constitution of the Philippines). court,  in  its  discretion,  may  take  judicial  notice  of  “matters  which  are  of  
Being parts of the law of the land, they are therefore, public knowledge, or ought to be known to judges because of their

10 | P L A T O N
judicial   functions.” Thus, the Court has taken judicial notice of the
practices of banks and other financial institutions. Precisely, it has
noted that it is their uniform practice, before approving a loan, to
investigate, examine and assess would-be  borrowers’  credit  standing  or  
real estate offered as security for the loan applied for.
Judicial Notice of Financial Condition of the Government
In La Bugal-B'laan Tribal Association v. Ramos, 445 SCRA 1, the
Court said:
However, it is of common knowledge, and of judicial notice as well, that
the government is and has for many many years been financially
strapped, to the point that even the most essential services have
suffered serious curtailments -- education and health care, for instance,
not to mention judicial services -- have had to make do with inadequate
budgetary allocations.
Judicial Notice of Presidential Powers Under the Law
In DENR v. DENR Region 12 Employees, G.R. No. 149724, August
19, 2003, the Court said:
The trial court should have taken judicial notice of R.A. No. 6734, as
implemented  by  E.O.  No.  429,  as  legal  basis  of  the  President’s  power  to  
reorganize the executive department, specifically those administrative
regions which did not vote for their inclusion in the ARMM. It is
axiomatic that a court has the mandate to apply relevant statutes and
jurisprudence in determining whether the allegations in a complaint
establish a cause of action. While it focuses on the complaint, a court
clearly cannot disregard decisions material to the proper appreciation
of the questions before it. In resolving the motion to dismiss, the trial
court should have taken cognizance of the official acts of the legislative,
executive, and judicial departments because they are proper subjects
of mandatory judicial notice as provided by Section 1 of Rule 129 of the
Rules of Court.
Judicial Notice of Other Matters (See Pages 94-99).
B. Judicial Admissions
1. Under Sec. 4 of Rule 129, judicial admissions are
described and defined as follows:
Section 4. Judicial admissions. — An admission, verbal or
written, made by the party in the course of the
proceedings in the same case, does not require proof. The
admission may be contradicted only by showing that it was
made through palpable mistake or that no such admission
was made.
To be a judicial admission under Sec. 4 of Rule 129,
certain elements must be considered:
First, the same must be made by a party to the case.
Second, the admission to be judicial, must be made in
the course of the proceedings in the same case. (An
admission made in another judicial proceeding will be
considered an extrajudicial admission for purposes of
the other proceeding where such admission is
offered)
Third, Sec. 4 of Rule 129 does not require a particular
form for an admission. Such form is immaterial
because the provision recognizes either a verbal or a
written admission.
2. A party may make judicial admissions in (a) the
pleadings, (b) during trial, either by verbal or written
manifestations or stipulations, or (c) in other stages of
the judicial proceeding.
3. The stipulation of facts at the pre-trial of a case
constitutes judicial admissions.
Admission in Drafted Documents
An admission made in a document drafted for purposes of filing
as a pleading but never filed, is not a judicial admission. If
signed by the party, it is deemed an extrajudicial admission. If
signed by the attorney, it is not even an admission by the party.
The authority of the attorney to make statements for the client
extend only to statements made in open court or in pleadings
filed with the court.
Admission Made in Pleadings and Motions
1. Admissions made in the pleadings of a party are
deemed judicial admissions.
2. The admissions made by the respondent in its
complaint are judicial admissions which cannot be
contradicted unless there is a showing that it was
made through palpable mistake or that no such
admission was made.
3. The admissions made in a motion are judicial
admissions which are binding on the party who made
them.
4. In Heirs of Pedro Clemeña v. Heirs of Irene B. Bien,
G.R. No. 155508, September 11, 2006, the Court said:
A judicial admission conclusively binds the party making it.
He cannot thereafter contradict it. The exception is found
only in those rare instances when the trial court, in the
exercise of its discretion and because of strong reasons to
support its stand, may relieve a party from the
consequences of his admission.
In the early case of Irlanda v. Pitargue, this Court laid down
the doctrine that acts or facts admitted do not require proof
and cannot be contradicted unless it can be shown that the
admission was made through palpable mistake.
And in Cunanan v. Amparo, the Court declared that:
the allegations, statements, or admissions contained in a
pleading are conclusive as against the pleader. A party
cannot subsequently take a position contrary to, or
inconsistent with, his pleadings.
In Spouses Santos v. Spouses Lumbao, G.R. No.
169129, March 28, 2007, the Court said:
As   a   general   rule,   facts   alleged   in   a   party’s   pleading   are  
deemed admissions of that party and are binding upon him,
but this is not an absolute and inflexible rule. An answer is a
mere statement of fact which the party filing it expects to
prove, but it is not evidence. And in spite of the presence of
judicial admissions in a party’s  pleading,  the  trial  court  is  still  
given leeway to consider other evidence presented.
5. An admission made in a pleading may be an actual
admission as when a party categorically admits a
11 | P L A T O N
 material allegation made by the adverse party. An
admission may likewise be inferred from the failure to
specifically deny the material allegations in the other
party's pleadings. (See Sec. 11, Rule 8)
Averments in Pleadings which are Not Deemed Admissions
There are averments in the pleadings which are not deemed
admitted even if the adverse party fails to make a specific
denial of the same like immaterial allegations, conclusions, non-
ultimate facts in the pleading as well as the amount of
unliquidated damages.
Implied Admissions of Allegations of Usury (See Sec. 11, Rule
8)
Implied Admissions of Actionable Documents (See Sec. 8, Rule
8)
Admissions in the Pre-trial of Civil Cases
The admissions of the parties during the pre-trial order as
embodied in the pre-trial order of the court are binding and
conclusive on them unless there is a clear showing that the
admission was entered through palpable mistake. (See also
Sec.2[d], Rule 18)
Admissions in the Pre-trial of Criminal Cases
1. To be admissible, the conditions set forth by Sec. 2 of
Rule 118 must be complied with.
2. Does the above rule, equally apply to stipulation of
facts made during the trial? In resolving the question
in the negative, the Supreme Court ruled:
A stipulation of facts entered into by the prosecution and
defense counsel during trial in open court is automatically
reduced into writing and contained in the official transcript
of the proceedings had in court. The conformity of the
accused in the form of his signature affixed thereto is
unnecessary in view of the fact that: ". . . an attorney who is
employed to manage a party's conduct of a lawsuit . . .
has prima facie authority to make relevant admissions by
pleadings, by oral or written stipulation, . . . which unless
allowed to be withdrawn are conclusive." In fact, "judicial
admission are frequently those of counsel or of the attorney
of record, who is, for the purpose of the trial, the agent of
his client. When such admissions are made . . . for the
purpose of dispensing with proof of some fact, . . . they bind
the client, whether made during, or even after, the trial."
Implied Admissions in the Modes of Discovery (See Secs. 1, 2
and 3, Rule 26)
Admissions in Amended Pleadings (See Sec. 8, Rule 10)
Nature of Admissions in Superseded Pleadings
In Ching v. CA, 331 SCRA 16, the Supreme Court held that
pleadings that have been amended disappear from the record,
lose their status as pleadings and cease to be judicial
admissions, and to be utilized as extrajudicial admissions, they
must, in order to have such effect, be formally offered in
evidence.
Admissions in Dismissed Pleadings
Admissions made in pleadings that have been dismissed are
merely extrajudicial admissions.
Hypothetical Admissions in a Motion to Dismiss
A motion to dismiss hypothetically admits the truth of the
allegations of the complaint. It partakes of a demurrer which
hypothetically admits the truth of the factual allegations made
in the complaint. However, the admission extends only to such
matters of fact that have been sufficiently pleaded and not to
mere epithets charging fraud, allegations of legal conclusions or
erroneous statements of law, inferences from facts not stated,
matters of evidence or irrelevant matters. Only material
allegations, not conclusions in a complaint, are deemed
admitted.
Admissions by Counsel
1. Admissions by a counsel are generally conclusive
upon a client. Even negligence of counsel binds the
client. This rule is not however, without exception. In
cases where reckless or gross negligence of counsel
deprives the client of due process of law, or when its
application will result in outright deprivation of the
client's liberty or property, or when the interests of
justice so require, relief is accorded the client who
suffered by reason of the lawyer's gross or palpable
mistake or negligence.
2. Admissions made for the purpose of dispensing with
proof of some facts are in the nature of judicial
admissions.
Consequences of Judicial Admissions
1. A party who judicially admits a fact cannot later
challenge that fact, as judicial admissions are a waiver
of proof; production of evidence is dispensed with.
2. No evidence is needed to prove a judicial admission
and it cannot be contradicted unless it is shown to
have been made through palpable mistake or that no
such admission was made.
3. Specifically, under Sec. 4, Rules 129, the following are
the effects of judicial admissions:
a. They do not require proof; and
b. They cannot be contradicted because they
are conclusive upon the party making it.
The above rule however, admits of two exceptions,
namely:
a. upon showing that the admission was made
through palpable mistake, or
b. when it is shown that no such admission
was made.
4. The mistake that would relieve a part from the effects
of his admission must be one that is "palpable," a
mistake that is "clear to the mind or plain to see". It is
a mistake that is "readily perceived by the senses or
the mind".
5. A party may also argue that he made no "such
admission." This argument may be invoked when the
statement of a party is taken out of context or that
his statement was made not in the sense it is made to
appear by the other party. Here, the party upon
whom the admission is imputed does not deny
12 | P L A T O N
 making a statement. What he denies is the meaning acknowledgment made by a party of the existence of
attached to his statement, a meaning made to appear the truth of certain facts which are inconsistent with
by the adverse party as an admission. his claims in an action.
In a confession, there is an acknowledgment of guilt;
C. Admissions, Confession and the Res Inter Alios Acta Rule in an admission, there is merely a statement of fact
not directly involving an acknowledgment of guilt or
Section 26. Admission of a party. — The act, declaration or omission of the criminal intent to commit the offense with
of a party as to a relevant fact may be given in evidence against him. which one is charged.
2. A confession is the declaration of an accused
Section 27. Offer of compromise not admissible. — In civil cases, an
acknowledging his guilt of the offense charged, or of
offer of compromise is not an admission of any liability, and is not
admissible in evidence against the offeror. any offense necessarily included therein.
In criminal cases, except those involving quasi-offenses (criminal 3. An admission may be implied like an admission by
negligence) or those allowed by law to be compromised, an offer of silence. A confession cannot be implied. It should be a
compromised by the accused may be received in evidence as an direct and positive acknowledgment of guilt. (See
implied admission of guilt. Secs. 26 and 33, Rule 130)
A plea of guilty later withdrawn, or an unaccepted offer of a plea of 4. Applied to a criminal case, a confession is an
guilty to lesser offense, is not admissible in evidence against the acknowledgment in express terms, by a party in a
accused who made the plea or offer.
criminal case, of his guilt of the crime charged, while
An offer to pay or the payment of medical, hospital or other expenses
occasioned by an injury is not admissible in evidence as proof of civil an admission is a statement by the accused, direct or
or criminal liability for the injury. implied, of facts pertinent to the issue, and tending,
in connection with proof of other facts, to prove his
Section 28. Admission by third party. — The rights of a party cannot guilt.
be prejudiced by an act, declaration, or omission of another, except as
hereinafter provided. Admissions Distinguished from Declarations Against Interest
Section 29. Admission by co-partner or agent. — The act or
DECLARATION AGAINST ADMISSION
declaration of a partner or agent of the party within the scope of his
authority and during the existence of the partnership or agency, may INTEREST
be given in evidence against such party after the partnership or To be admitted as such, the Admissible even if the person
agency is shown by evidence other than such act or declaration. The declarant must be dead or making the admission is alive
same rule applies to the act or declaration of a joint owner, joint unable to testify and is in court
debtor, or other person jointly interested with the party. Made before the controversy Made at any time, even
arises during the trial
Section 30. Admission by conspirator. — The act or declaration of a
conspirator relating to the conspiracy and during its existence, may be
Made against one's pecuniary Admissible as long as it is
given in evidence against the co-conspirator after the conspiracy is or moral interest inconsistent with his present
shown by evidence other than such act of declaration. claim or defense and need not
be against one's pecuniary or
Section 31. Admission by privies. — Where one derives title to moral interest
property from another, the act, declaration, or omission of the latter, Admissible even against third Admissible only against the
while holding the title, in relation to the property, is evidence against persons party making the admission
the former.
An exception to the hearsay Not an exception, and is
Section 32. Admission by silence. — An act or declaration made in the rule admissible not as an
presence and within the hearing or observation of a party who does exception to any rule
or says nothing when the act or declaration is such as naturally to call
for action or comment if not true, and when proper and possible for Effects of Admissions
him to do so, may be given in evidence against him. 1. An admission by a party may be given in evidence
against him. His admission is not admissible in his
Section 33. Confession. — The declaration of an accused
favor, because it would be self-serving evidence.
acknowledging his guilt of the offense charged, or of any offense
necessarily included therein, may be given in evidence against him.
Declarations of a party favorable to himself are not
admissible as proof of the facts asserted.
Section 34. Similar acts as evidence. — Evidence that one did or did 2. Under Rule 130, Section 26, the act, declaration or
not do a certain thing at one time is not admissible to prove that he omission of a party as to a relevant fact may be given
did or did not do the same or similar thing at another time; but it may in evidence against him. This rule is based on the
be received to prove a specific intent or knowledge; identity, plan, notion that no man would make any declaration
system, scheme, habit, custom or usage, and the like. against himself, unless it is true. (Republic v. Bautista,
G.R. No. 169801, September 11, 2007)
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 rejected without valid cause, equivalent to the actual Classification of Admissions and Confessions
production and tender of the money, instrument, or property. 1. An admission may be express or implied.

Concept of Admissions and Confessions EXPRESS IMPLIED

1. An admission is an act, declaration or omission of a A positive statement or One which may be
party as to a relevant fact. It is a voluntary act inferred from the

13 | P L A T O N
 declarations or acts of a
person
2. An admission may be judicial or extrajudicial.
JUDICIAL EXTRAJUDICIAL
When made in the When made out of court
course of a judicial or even in a proceeding
proceeding other than the one under
consideration
3. An admission may also be adoptive. This admission
occurs when a person manifests his assent to the
statements of another person.
In Republic v. Kenrick Development Corporation, G.R.
No. 149576, August 8, 2006, the Court said:
A party may, by his words or conduct, voluntarily adopt or
ratify   another’s   statement. Where it appears that a party
clearly and unambiguously assented to or adopted the
statements of another, evidence of those statements is
admissible against him. This is the essence of the principle of
adoptive admission.
An  adoptive  admission  is  a  party’s  reaction  to  a  statement  or   injure those who are not parties to them".
action by another person when it is reasonable to treat the
party’s   reaction   as   an   admission   of   something   stated   or  
implied by the other person. By adoptive admission, a third
person’s   statement   becomes   the   admission   of   the   party   a. The rule that the rights of a party cannot be
embracing or espousing it. Adoptive admission may occur
when a party:
(a) expressly agrees to or concurs in an oral statement
made by another;
(b) hears a statement and later on essentially repeats it;
(c) utters an acceptance or builds upon the assertion of
another;
(d) replies by way of rebuttal to some specific points
raised by another but ignores further points which he or
she has heard the other make or
(e) reads and signs a written statement made by
another.
Effect of Extrajudicial Confession of Guilt; Corpus Delicti
1. While a judicial confession may sustain a conviction,
an extrajudicial confession is not sufficient for
conviction. The rule requires that the confession be
corroborated by evidence of corpus delicti.
2. Corpus delicti is the 'body of the crime' or the offense.
Strictly speaking, it means the actual commission of
the crime and someone criminally responsible
therefor.
Corpus delicti has two elements:
a. proof of the occurrence of a certain event;
and
b. some person's criminal responsibility for
the act.
3. See illustrative cases on Pages 119-125.
Admission by Silence
1. Admission by silence has been traditionally received
even in common law as admissible evidence. The
usual pattern for its admissibility involves a statement
by a person in the presence of a party to the action,
criminal or civil. The statement contains assertions
against the party, which, if untrue would be sufficient
cause for the party to deny. His failure to speak
against the statement is admissible as an admission.
2. Not every silence is an implied admission. (See Rights
of Persons Arrested, Detained or Under Custodial
Investigation under Sec. 2[b], R.A. 7438)
3. In People v. Paragsa, 84 SCRA 105, the Court said:
The rule allowing silence of a person to be taken as an
implied admission of the truth of the statements uttered in
his presence is applicable in criminal cases. But before the
silence of a party can be taken as an admission of what is
said, it must appear: (1) that he heard and understood the
statement; (2) that he was at liberty to interpose a denial;
(3) that the statement was in respect to some matter
affecting his rights or in which he was then interested, and
calling, naturally, for an answer; (4) that the facts were
within his knowledge; and (5) that the fact admitted or the
inference to be drawn from his silence would be material to
the issue (IV Francisco, The Revised Rules of Court in the
Philippines, 1973 ed., p. 316).
Res Inter Alios Acta; Branches
1. The expression if fully expressed reads: res inter alios
acta alteri nocere non debet which leterally means
that "things done between strangers ought not to
2. The res inter alios acta rule has two branches,
namely:
prejudiced by an act, declaration, or
omission of another (Sec. 28, Rule 130).
b. The rule that evidence of previous conduct
or similar acts at one time is not admissible
to prove that one did not do the same act at
another time (Sec. 34, Rule 130).
3. The first branch is a very simple and logical rule which
holds that whatever one says or does or omits to do
should only affect him but should not affect or
prejudice others. In other words, both common
reason and fairness demand that a man's actions and
declarations should affect him alone and should not
affect others.
4. The above rule has reference only to extrajudicial
declarations. Hence, statements made in open court
by a witness implicating persons aside from his own
judicial admissions, are admissible as declarations
from one who has personal knowledge of the facts
testified to.
Exceptions to the Res Inter Alios Acta Rule (first branch)
1. The first branch of the rule admits of certain
exceptions, to wit:
a. admission by a co-partner or agent (Sec. 29,
Rule 130);
b. admission by a co-conspirator (Sec. 30, Rule
130); and
c. admission by privies (Sec. 31, Rule 130).
2. The basis for admitting the above admissions is that
the person making the statement is under the same
circumstances as the person against whom it is
offered. Such circumstance give him substantially the
same interest and the same motive to make a
statement about certain matters.
14 | P L A T O N
Admissions by a Co-partner or Agent
1. An agent performs some service in representation or
on behalf of his principal (Art. 1868, Civil Code of the
Philippines). The agent therefore, is in legal
contemplation, a mere extension of the personality of
the principal and unless the agent acts in his own
name, the principal must comply with all the
obligations which the agent may have contracted
within the scope of his authority (Art. 1883; Art. 1910,
Civil Code of the Philippines).
2. The relationship among partners is on the same
footing with the relationship of an agent to his
principal. Both the contracts of agency and
partnership involve fiduciary relationships. (See Art.
1818, Civil Code of the Philippines)
3. However, not every declaration or act made or done
by a partner or agent is admissible against the other
partners or the principal. For the admission of a co-
partner or agent to be admissible, the following
requisites must concur:
a. The declaration or act of the partner and
agent must have been made or done within
the scope of his authority;
b. The declaration or act of the partner and
agent must have been made or done during
the existence of the partnership or agency
(while the person making the declaration
was still a partner or an agent); and
c. The existence of the partnership or agency
is proven by evidence other than the
declaration or act of the partner and agent.
4. Any declaration made before the partnership or
agency existed, or those made after, are not
admissible against the other partners or the principal
but remains admissible against the partner or agent
making the declaration. It is also necessary for the
application of the exception that the proof of the
agency or partnership be from a source independent
of the declaration made by the partner or agent.
Admissions by a Co-conspirator
1. A conspiracy exists when two or more persons come
to an agreement concerning the commission of a
felony and decide to commit it (Art. 8, Revised Penal
Code). Once the conspiracy is proven, the act of one
is the act of all. The statement therefore of one, may
be admitted against the other co-conspirators as an
exception to the rule of res inter alios acta.
2. To be admissible, the following must concur:
a. The declaration or act be made or done
during the existence of the conspiracy;
b. The declaration or act must relate to the
conspiracy; and
c. The conspiracy must be shown by evidence
other than the declaration or act.
Incriminating declarations of co-conspirators made in
the absence of or without the knowledge of the
others after the conspiracy has come to an end is
inadmissible.
The arrest of the declarant is often found to
terminate the declarant's participation in the
conspiracy so that the declarant's post arrest
statements do not qualify as admissible co-
conspirator statements. An extrajudicial confession
made by an accused is admissible against him but not
admissible against his co-accused who took no part in
the confession. As against the latter, the confession is
hearsay.
3. The declarations referred to under Sec. 30 of Rule 130
are merely extrajudicial statements or declarations.
When he testifies as a witness, his statements
become judicial and are admissible not only against
him but also against his co-accused. This is because
the statements by witnesses in open court are
admissible as testimonies of a person based on his
personal perceptions and knowledge pursuant to Sec.
36 of Rule 130, Rules of Court.
In People v. Buntag, 427 SCRA 180, the Court said:
The general rule is that the extrajudicial confession or
admission of one accused is admissible only against the said
accused but is inadmissible against the other accused. The
same rule applies if the extrajudicial confession is made by
one accused after the conspiracy has ceased. However, if
the declarant/admitter repeats in court his extrajudicial
confession during trial and the other accused is accorded the
opportunity to cross-examine the admitter, such confession
or admission is admissible against both accused. The
erstwhile extrajudicial confession or admission when
repeated during the trial is transposed into judicial
admissions.
4. In People v. Palijon, 343 SCRA 486, the Court said:
An extrajudicial confession may be given in evidence against
the confessant but not against his co-accused as they are
deprived of the opportunity to cross-examine him. A judicial
confession   is   admissible   against   the   declarant’s   co-accused
since the latter are afforded opportunity to cross-examine
the former. Section 30, Rule 130 of the Rules of
Court applies only to extrajudicial acts or admissions and not
to testimony at trial where the party adversely affected has
the opportunity to cross-examine the declarant.
5. See other illustrative cases on Pages 130-135.
Admission by Privies
1. "Privies" are persons who are partakers or have an
interest in any action or thing , or any relation to
another. (E.g. a lessor and his lessee)
Offer of Compromise in Civil Cases
In civil cases, an offer of compromise is not an admission of any
liability, and is not an admission against the offeror.
Offer of Compromise in Criminal Cases
1. An offer to compromise by the accused may be
received in evidence as an implied admission of guilt.
2. There is no implied admission of guilt if the offer of
compromise is in relation to: (a) quasi-offenses
(criminal negligence); or (b) in those cases allowed by
law to be compromised.
Plea of Guilty Later Withdrawn (See Sec. 27, Rule 130; See also
Sec. 2 of Rule 116)
An Unaccepted Plea of Guilty to a Lesser Offense
15 | P L A T O N
 g. habit;
If the plea of guilty to a lesser offense is not accepted, the rule h. custom;
does not provide for an adverse consequence of the i. usage;
unaccepted plea. On the contrary, the rule provides that an j. and the like.
unaccepted plea of guilty to a lesser offense, is not admissible 2. Evidence of similar acts may frequently become
in evidence against the accused who made the plea or offer. relevant, especially in actions based on fraud and
(Sec. 27, Rule 130, Rules of Court) deceit, because it sheds light on the state of mind or
knowledge of a person, his motive or intent, or they
An Offer to Pay or the Payment of Medical, Hospital or Other may uncover a scheme, design or plan.
Expenses (See Sec. 27, Rule 130) 3. The admissibility of similar acts or previous conduct
would depend on the purposes for which such acts or
In other jurisdictions, this act of rendering aid is sometimes conduct are offered.
called the "good samaritan rule." The phrase is used to refer to
the rendering of voluntary aid to a suffering person.

Subsequent Remedial Measures

Rule 407 of the U.S. Federal Rules on Evidence provides:

When, after an injury or harm allegedly caused by an event, measures

are taken that, if taken previously, would have made the injury or harm
less likely to occur, evidence of the subsequent measures is not
admissible to prove negligence, culpable conduct, a defect in a product,
a defect in a product's design, or a need for a warning or instruction.
This rule does not require the exclusion of evidence of subsequent
measures when offered for another purpose, such as proving
ownership, control, or feasibility of precautionary measures, if
controverted, or impeachment.

See illustration on Pages 139-140.

Evidence of Similar Conduct (second branch)

1. The general rule is that the law will not consider
evidence that a person has done a certain act at a
particular time as probative of a contention that he
has done a similar act at another time (See Sec. 34,
Rule 130). A similar conduct which does not even
sufficiently establish a plan or scheme is not
admissible.
2. The rule prohibits the admission of the so-called
"propensity evidence" which is evidence that tends to
show that what a person has done at one time is
probative of the contention that he has done a similar
act at another time.
In Cruz v. CA, 293 SCRA 239, the Court said:

Evidence of similar acts or occurrences compels the

defendant to meet allegations that are not mentioned in the
complaint, confuses him in his defense, raises a variety of
irrelevant issues, and diverts the attention of the court from
the issues immediately before it. Hence, this evidentiary
rule guards against the practical inconvenience of trying
collateral issues and protracting the trial and prevents
surprise or other mischief prejudicial to litigants.

When Evidence of Similar Acts or Previous Conduct is

Admissible
1. Evidence of similar acts is admissible for any of the
following purposes:
a. specific intent;
b. knowledge;
c. identity;
d. plan;
e. system;
f. scheme;
16 | P L A T O N
 OBJECT AND DOCUMENTARY EVIDENCE This right, as put by Mr. Justice Holmes in Holt vs. United States, ". . . is
a prohibition of the use of physical or moral compulsion, to extort
I – Object Evidence communications from him . . ." It is simply a prohibition against legal
process to extract from the [accused]'s own lips, against his will,
(Rule 130)
admission of his guilt. It does not apply to the instant case where the
evidence sought to be excluded is not an incriminating statement but
Meaning of Object Evidence an object evidence. Wigmore, discussing the question now before us in
1. Object or real evidence as defined by the Rules of his treatise on evidence, thus, said: ". . . it is not merely compulsion that
Court refers to evidence that is addressed to the is the kernel of the privilege, . . . but testimonial compulsion"
senses of the court.
Categories of Object Evidence
Section 1. Object as evidence. — Objects as evidence are 1. For purposes of authentication of an object or for
those addressed to the senses of the court. When an object laying the foundation for the exhibit, object evidence
is relevant to the fact in issue, it may be exhibited to, may be classified into the following:
examined or viewed by the court.
a. Objects that have readily identifiable marks
(unique objects);
2. Object evidence is not visual alone. It covers the
b. Objects that are made readily identifiable
entire range of human senses: hearing, taste, smell
(objects made unique); and
and touch. See illustrative cases on Pages 143-145.
c. Objects with no identifying marks and
cannot be marked (non-unique objects).
Requisites for Admissibility of Object Evidence
2. If the object has a unique characteristic, like the serial
1. The admissibility of object or real evidence like any
number of a caliber 45 pistol, it becomes readily
other evidence requires that the object be both
identifiable. See examples on Page 149.
relevant and competent.
2. For the object not to be excluded by the Rules, the
Chain of Custody
same must pass the test of authentication. The
1. The third category refers to those objects which are
threshold foundation for real evidence is its being
not readily identifiable, were not made identifiable or
authenticated. Is it the real thing?
cannot be made identifiable like drops of blood or oil,
3. To authenticate the object, there must be someone
drugs in powder from, fiber, grains of sand and
who should identify the object to be the actual thing
similar objects. Under this situation, the proponent of
involved in the litigation. This someone is the witness.
the evidence must establish a chain of custody.
4. An object evidence is not taken in isolation. It is
2. The purpose of establishing a chain of custody is to
weighed in relation to the testimony of a witness.
guaranty the integrity of the physical evidence and to
5. The following are the basic requisites for the
prevent the introduction of evidence which is not
admissibility of an object or real evidence:
authentic; but, where the exhibit is positively
a. The evidence must be relevant;
identified the chain of custody of physical evidence is
b. The evidence must be authenticated;
irrelevant.
c. The authentication must be made by a
3. Since it is called a chain, there must be links to the
competent witness; and
chain. The links are the people who actually handled
d. The object must be formally offered in
or had custody of the object. Each of the link in the
evidence (See also Sec. 34, Rule 132).
chain must show how he received the object, how he
The requirement of relevance and the testimony by a
handled it to prevent substitution and how it was
competent witness rarely pose a problem. Relevance
transferred to another. Each of the handlers of the
is a matter of reasoning and the court will draw
evidence is a link in the chain and must testify to
inference of the relevancy of the evidence from the
make the foundation complete. This is the ideal way
issues of the case. Also, almost no party would offer a
to show the chain of custody although the ideal way
witness who has no personal knowledge of the object
is not absolutely required.
to be authenticated. The problem commonly lies in
There is authority supporting the view that the
showing that the object sought to be admitted is in
prosecution is not required to elicit testimony from
fact the real thing and not a mere substitute or
every custodian or from every person who had an
representation of the real thing. This problem of
opportunity to come in contact with the evidence
authentication is commonly called "laying the
sought to be admitted. As long as one of the "chains"
foundation" for the evidence.
testifies and his testimony negates the possibility of
tampering and that the integrity of the evidence is
Object Evidence and the Right Against Self-incrimination
preserved, his testimony alone is adequate to prove
the chain of custody.
The right against self-incrimination cannot be invoked against
4. In Lopez v. People, G.R. No. 172953, April 30, 2008,
object evidence.
the Court had the occasion to expound on the chain
of custody rule, thus:
In People v. Malimit, 264 SCRA 167, the Court held that the
right against self-incrimination guaranteed under our As a method of authenticating evidence, the chain of
fundamental law finds no application in this case because no custody rule requires that the admission of an exhibit be
testimonial compulsion was involved. Said the Court: preceded by evidence sufficient to support a finding that the
matter in question is what the proponent claims it to be. It

17 | P L A T O N
 would include testimony about every link in the chain, from
the moment the item was picked up to the time it is offered
into evidence, in such a way that every person who touched
the exhibit would describe how and from whom it was
received, where it was and what happened to it while in the
witness’   possession,   the   condition   in   which   it   was   received  
and the condition in which it was delivered to the next link
in the chain. These witnesses would then describe the
precautions taken to ensure that there had been no change
in the condition of the item and no opportunity for someone
not in the chain to have possession of the same.
While testimony about a perfect chain is not always the
standard because it is almost always impossible to obtain,
an unbroken chain of custody becomes indispensable and
essential when the item of real evidence is not distinctive
and is not readily identifiable, or when its condition at the
time of testing or trial is critical, or when a witness has failed
to observe its uniqueness. The same standard likewise
obtains in case the evidence is susceptible to alteration,
tampering, contamination and even substitution and
exchange. In other words, the  exhibit’s level of susceptibility
to fungibility, alteration or tampering—without regard to
whether the same is advertent or otherwise not—dictates
the level of strictness in the application of the chain of
custody rule.
xxx
A unique characteristic of narcotic substances is that they
are not readily iidentifiable as in fact they are subject to
scientific analysis to determine their composition and
nature. The Court cannot reluctantly close its eyes to the
likelihood, or at least the possibility, that at any of the links
in the chain of custody over the same there could have been
tampering, alteration or substitution of substances from
other cases—by accident or otherwise—in which similar
evidence was seized or in which similar evidence was
submitted for laboratory testing. Hence, in authenticating
the same, a standard more stringent than that applied to
cases involving objects which are readily identifiable must
be applied, a more exacting standard that entails a chain of
custody of the item with sufficient completeness if only to
render it improbable that the original item has either been
exchanged with another or been contaminated or tampered
with.
Thus, the corpus delicti should be identified with unwavering
exactitude" (Zarraga v. People, G.R. No. 162064, March 14,
2006)
5. See illustrations on Pages 152-155.
Chain of Custody in Drug Cases (See Pages 156-160).
Demonstrative Evidence
1. Demonstrative evidence is not the actual thing but it
is referred to as "demonstrative" because it
represents or demonstrates the real thing. It is not
strictly "real" evidence because it is not the very thing
involved in the case.
2. The admissibility of this type of evidence largely
depends on laying the proper foundation for the
evidence.
3. See Pages 160-163.
Ephemeral Electronic Communications
1. The pertinent provisions under the Rules on
Electronic Evidence provide:
Rule 2
DEFINITION OF TERMS AND CONSTRUCTION
Section 1. Definition of terms. – For purposes of these Rules,
the following terms are defined, as follows:
(k) "Ephemeral electronic communication" refers to
telephone conversations, text messages, chatroom sessions,
streaming audio, streaming video, and other electronic
forms of communication the evidence of which is not
recorded or retained.
Rule 11
AUDIO, PHOTOGRAPHIC, VIDEO, AND EPHEMERAL
EVIDENCE
Section 1. Audio, video and similar evidence. – Audio,
photographic and video evidence of events, acts or
transactions shall be admissible provided it shall be shown,
presented or displayed to the court and shall be identified,
explained or authenticated by the person who made the
recording or by some other person competent to testify on
the accuracy thereof.
Section 2. Ephemeral electronic communications. –
Ephemeral electronic communications shall be proven by
the testimony of a person who was a party to the same or
has personal knowledge thereof. In the absence or
unavailability of such witnesses, other competent evidence
may be admitted.
A recording of the telephone conversation or ephemeral
electronic communication shall be covered by the
immediately preceding section.
If the foregoing communications are recorded or embodied
in an electronic document, then the provisions of Rule 5
shall apply.
2. See also Pages 164-165.
View of an Object or Scene
1. Under Sec. 1 of Rule 130, when an object is relevant
to the fact in issue, it may be exhibited to, examined
or viewed by the court.
2. Courts have recognized that there are times when a
party cannot bring an object to the court for viewing
in the courtroom. In such a situation the court may
take a view of an object. Going out of the courtroom
to observe places and objects is commonly termed a
"view".
The "view" is expressly authorized by Sec. 1 of Rule
130 and even without this express provision, it is well-
recognized that the court has an inherent power to
order a view when there is a need to do so. (Sec. 5,
Rule 135)
3. A view disrupts the usual trial process and is time-
consuming. Hence, in almost all jurisdictions, the trial
judge is granted discretion to grant or refuse a
request for a view.
4. The inspection may be made inside or outside the
courtroom. An inspection or view outside the
courtroom should be made in the presence of the
parties or at least with previous notice to them. Such
18 | P L A T O N
 inspection or view is part of the trial since evidence is
thereby being received.
DNA Evidence
1. In Agustin v CA, 460 SCRA 315, the Court described
DNA in the following words:
Deoxyribonucleic Acid, or DNA, is a molecule that encodes
the   genetic   information   in   all   living   organisms.   A   person’s   documents as evidence, namely:
DNA is the same in each cell and it does not change
throughout  a  person’s  lifetime;  the  DNA  in  a  person’s  blood  
is the same as the DNA found in his saliva, sweat, bone, the
root and shaft of hair, earwax, mucus, urine, skin tissue, and
vaginal and rectal cells. Most importantly, because of
polymorphisms in human genetic structure, no two
individuals have the same DNA, with the notable exception
of identical twins.
2. See jurisprudential developments on Pages 166-169.
Rule of DNA Evidence (See Appendix C).
See also Pages 169-174.
Paraffin Tests
1. Paraffin tests, in general, have been considered as
inconclusive by the Court because scientific experts
concur in the view that paraffin tests have proved
Documents under the Rules on Electronic Evidence
extremely unreliable in use.
2. In People v. Buduhan, G.R. No. 178196, August 6,
2008, the Court affirmed the rule that:
Paraffin test results are merely corroborative of the major
evidence offered by any party, and they are not conclusive
with respect to the issue of whether or not the subjects did
indeed fire a gun. As previously mentioned, the positive and
negative results of the paraffin test can also be influenced
by certain factors affecting the conditions surrounding the
use of the firearm, namely: the wearing of gloves by the
subject, perspiration of the hands, wind direction, wind
velocity, humidity, climate conditions, the length of the
barrel of the firearm or the open or closed trigger guard of
the firearm.
3. See also Pages 174-176.
Polygraph Tests (Lie Detector Tests)
1. A polygraph test operates on the principle that stress
causes physiological changes in the body which can
be measured to indicate whether the subject of the
examination is telling the truth. During an
examination in which a polygraph is used, sensors are
attached to the subject so that the polygraph can
mechanically record the subject's physiological
responses to a series of questions.
2. Courts accordingly uniformly reject the results of
polygraph tests when offered in evidence for the
purpose of establishing the guilt or innocence of one
accused of a crime because it has not yet attained
scientific acceptance as a reliable and accurate means
of ascertaining truth or deception.
II – Documentary Evidence
(Rule 130)
Meaning of a Document as Evidence (Documentary Evidence)
1. Another category of evidence is documentary
evidence. Documents as evidence do not exclusively
refer to writings. They may refer to any other
material like objects as long as the material contains
letters, words, numbers, figures, symbols or other
modes of written expression and offered as proof of
their contents. There are therefore, two categories of
a. writings, or
b. any other material containing modes of
written expressions.
The relevant provision provides:
Section 2. Documentary evidence. — Documents as
evidence consist of writing or any material containing
letters, words, numbers, figures, symbols or other modes
of written expression offered as proof of their contents.
2. For such writings or materials to be deemed
documentary evidence, the same must be offered as
proof of their contents. If offered for some other
purpose, the writings or materials would not be
deemed documentary evidence but merely object
evidence.
1. The pertinent provisions under the Rules of Electronic
Evidence provide:
Rule 2
DEFINITION OF TERMS AND CONSTRUCTION
Section 1. Definition of terms. – For purposes of these Rules,
the following terms are defined, as follows:
(h) "Electronic document" refers to information or the
representation of information, data, figures, symbols or
other modes of written expression, described or however
represented, by which a right is established or an obligation
extinguished, or by which a fact may be proved and
affirmed, which is received, recorded, transmitted, stored,
processed, retrieved or produced electronically. It includes
digitally signed documents and any print-out or output,
readable by sight or other means, which accurately reflects
the electronic data message or electronic document. For
purposes of these Rules, the term "electronic document"
may be used interchangeably with "electronic data
message".
Rule 3
ELECTRONIC DOCUMENTS
Section 1. Electronic documents as functional equivalent of
paper-based documents. – Whenever a rule of evidence
refers to the term writing, document, record, instrument,
memorandum or any other form of writing, such term shall
be deemed to include an electronic document as defined in
these Rules.
Rule 5
AUTHENTICATION OF ELECTRONIC DOCUMENTS
Section 1. Burden of proving authenticity. – The person
seeking to introduce an electronic document in any legal
proceeding has the burden of proving its authenticity in the
manner provided in this Rule.
19 | P L A T O N

Section 2. Manner of authentication. – Before any private
electronic document offered as authentic is received in
evidence, its authenticity must be proved by any of the
following means:
(a) by evidence that it had been digitally signed by the
person purported to have signed the same;
(b) by evidence that other appropriate security procedures
or devices as may be authorized by the Supreme Court or by
law for authentication of electronic documents were applied
to the document; or
(c) by other evidence showing its integrity and reliability to
the satisfaction of the judge.
Section 3. Proof of electronically notarized document. – A
document electronically notarized in accordance with the
rules promulgated by the Supreme Court shall be considered
as a public document and proved as a notarial document
under the Rules of Court.
2. See also Pages 179-182.
Evidentiary Concepts Involved in the Presentation of
Documentary Evidence
To be admissible, documentary evidence, like any other
evidence must be relevant and competent. It is also subject to
general exclusionary rules such as the rule against hearsay, best
evidence rule and parol evidence rule. xxx On the other hand,
where the evidence is offered as an object evidence, the best
evidence rule, the parol evidence rule, and the hearsay rule find
no application. (See Pages 182-183)
Requisites for Admissibility of Documentary Evidence
The following are the requisites for the admissibility of
documentary evidence:
a) The document must be relevant;
b) The evidence must be authenticated;
c) The document must be authenticated by a competent
witness;
d) The document must be formally offered in evidence.
A – Best Evidence Rule
Concept of "Best Evidence"
1. In Solidbank v. Del Monte Motor Works, Inc., G.R. No.
143338, July 29, 2005, the Court said:
According to McCormick, an authority on the rules of
evidence,   “the   only   actual   rule   that   the   ‘best   evidence’   is not to establish its terms but to show facts that
phrase denotes today is the rule requiring the production of
the  original  writing” the rationale being: x x x, (2) that there
is a substantial hazard of inaccuracy in the human process of
making a copy by handwriting or typewriting, and (3) as
respects oral testimony purporting to give from memory the
terms of a writing, there is a special risk of error, greater
than in the case of attempts at describing other situations
generally. In the light of these dangers of mistransmission,
accompanying the use of written copies or of recollection,
largely avoided through proving the terms by presenting the
writing itself, the preference for the original writing is
justified.
The theory therefore, is that the copy of the original
is not as reliable as the latter because of possible
inaccuracy in the process of copying and the danger
of erroneous transmission of the original.
2. The 'best evidence' rule as embodied in Sec. 3 of Rule
130 of the Rules of Court provides:
Section 3. Original document must be
produced; exceptions. — When the subject of inquiry is the
contents of a document, no evidence shall be admissible
other than the original document itself, except in the
following cases:
(a) When the original has been lost or destroyed, or cannot
be produced in court, without bad faith on the part of the
offeror;
(b) When the original is in the custody or under the control
of the party against whom the evidence is offered, and the
latter fails to produce it after reasonable notice;
(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.
3. The key to the understanding of the "best evidence"
rule is simply to remember that the rule cannot be
invoked unless the contents of a writing is the subject
of judicial inquiry, in which case, the best evidence is
the original writing itself.
4. In Arceo v. People, G.R. No. 142641, July 17, 2006, the
Court said:
Where the issue is the execution or existence of the
document or the circumstances surrounding its execution,
the best evidence rule does not apply and testimonial
evidence is admissible.
The gravamen of the offense is the act of drawing and
issuing a worthless check. Hence, the subject of the inquiry
is the fact of issuance or execution of the check, not its
content.
Illustrative Applications of the Best Evidence Rule (See Pages
188 – 191).
When Document is merely Collaterally in Issue
1. When a document is involved in the inquiry but the
document is only collateral in issue, the best evidence
rule does not apply. A document is collaterally in
issue when the purpose of introducing the document
have no reference to its contents like its existence,
condition, execution or delivery.
2. See illustrations on Pages 191-192.
Reason for the Best Evidence Rule
1. What is the purpose for presenting the original of a
document? The basic premise justifying the rule is the
need to present to the court the exact words of a
writing where a slight variation of words may mean a
great difference in rights. An ancillary justification for
the rule is the prevention and detection of fraud. The
rule is also justified by the need to avoid
unintentional or intentional mistaken transmissions
of the contents of a document through the
20 | P L A T O N
 introduction of selected portions of a writing to which
the adverse party has not full access
2. See also Pages 192-193.
Waiver of the Rule
The best evidence rule may be waived if not raised in the trial.
What To Do To Apply the Best Evidence Rule
1. The first step to apply the best evidence rule is to
determine the matter inquired into.
2. Now what is to be done if for one reason or another,
the original cannot be presented in evidence? If this
happens, the second step now comes into play. This
step involves two stages: (1) Finding an adequate
excuse for the failure to present the original; and (2)
Presenting a secondary evidence sanctioned by the
Rules of Court.
If the Rule were to be restated into a simple formula, the rule
would be: "Present the original, except when you can justify its
unavailability in the manner provided for by the Rules of Court."
Excuses for Not Presenting the Original Document (See Sec. 3,
Rule 130)
Loss, Destruction or Unavailability of the Original
1. This exception does not only cover loss or destruction
but also other reasons for the failure to produce the
original in court even if the original is not lost or
destroyed, as when the original is beyond the
jurisdiction of the court. Also falling within this
exception are cases where the original consists of
inscriptions on immovable objects and monuments
such as tombstones because they cannot be
produced in court.
2. Sec. 5 of Rule 130 provides:
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.
Under Sec. 5 of Rule 130, secondary evidence may be
admitted only by laying the basis for its production.
Specifically, laying such basis requires compliance
with the following:
a. The offeror must prove the execution and
existence of the original document;
b. The offeror must show the cause of its
unavailability; and
c. The offeror must show that the
unavailability was not due to his bad faith
3. Accordingly, the correct order of proof is as follows:
existence, execution, loss and contents, although at
the sound discretion of the court, this order may be
changed if necessary.
The due execution and authenticity of the document
must be proved either: (a) by anyone who saw the
document executed or written, or (b) by evidence of
genuineness of the signature or handwriting of the
maker.
4. The burden of proof in establishing loss or destruction
of the original is on the proponent of the secondary
evidence.
5. After complying with the requirements for laying the
basis for the introduction of secondary evidence, the
offeror may now be allowed to prove the contents of
the documents by secondary evidence.
The presentation of secondary evidence must be in
the following order:
a. a copy of the original;
b. a recital of the contents of the document in
some authentic document; or
c. by the testimony of witnesses
6. The hierarchy of preferred secondary evidence must
be strictly followed.
7. The presentation or the offer of the original may be
waived. If the party against whom the secondary
evidence is offered does not object thereto when the
same is offered in evidence, the secondary evidence
becomes primary evidence.
Original is in the Custody or Control of the Adverse Party
1. A showing that the original document is in the
custody of under the control of the adverse party
does not ipso facto authorize the introduction of
secondary evidence to prove its contents. The party
who seeks to present secondary evidence must lay
the basis for its introduction. Laying the basis requires
proof of the following:
a. that the original exists;
b. that said document is under the custody or
control of the adverse party;
c. that the proponent of secondary evidence
has given the adverse party reasonable
notice to produce the original document;
and
d. that the adverse party failed to produce the
original document despite the reasonable
notice.
2. Sec. 6 of Rule 130 provides:
Section 6. When original document is in adverse party's
custody or control. — If the document is in the custody or
under the control of adverse party, he must have
reasonable notice to produce it. If after such notice and
after satisfactory proof of its existence, he fails to produce
the document, secondary evidence may be presented as in
the case of its loss.
When the Original Consists of Numerous Accounts
1. Under this exception, secondary evidence is
admissible:
a. if the original consists of numerous
accounts or other documents;
b. they cannot be examined in court without
great loss of time; and
c. the fact sought to be established from them
is only the general result of the whole.
Original Document is a Public Record
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Public records are generally not to be removed from the places
where they are recorded and kept (Sec. 26, Rule 132, Rules of
Court). For this reason, the proof of the contents of a document
which forms part of a public record may be done by secondary
evidence.
Sec. 7 of Rule 130 provides:
Section 7. Evidence admissible when original document is a public
record. — When the original of document is in the custody of public
officer or is recorded in a public office, its contents may be proved by
a certified copy issued by the public officer in custody thereof.
Effect of Not Offering a Document in Evidence After Calling for
its Production and Inspection
If the party who calls for the production of a document does
not offer the same in evidence, no unfavorable inference may
be drawn from such failure.
Sec. 8 of Rule 130 provides:
Section 8. Party who calls for document not bound to offer it. — A
party who calls for the production of a document and inspects the
same is not obliged to offer it as evidence.
Meaning of Original
1. Section 4 of Rule 130 elucidates on the concept of the
term "original," thus:
Section 4. Original of document. —
(a) The original of the document is one the contents of
which are the subject of inquiry.
(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.
(c) When an entry is repeated in the regular course of
business, one being copied from another at or near the
time of the transaction, all the entries are likewise equally
regarded as originals.
2. See also 201-204.
Originals Under the Rules on Electronic Evidence
Rule 4
BEST EVIDENCE RULE
Section 1. Original of an electronic document. – An electronic document
shall be regarded as the equivalent of an original document under the
Best Evidence Rule if it is a printout or output readable by sight or other
means, shown to reflect the data accurately.
Section 2. Copies as equivalent of the originals. – When a document is
in two or more copies executed at or about the same time with
identical contents, or is a counterpart produced by the same
impression as the original, or from the same matrix, or by mechanical
or electronic re-recording, or by chemical reproduction, or by other
equivalent techniques which accurately reproduces the original, such
copies or duplicates shall be regarded as the equivalent of the original.
Notwithstanding the foregoing, copies or duplicates shall not be
admissible to the same extent as the original if:
(a) a genuine question is raised as to the authenticity of the original; or
(b) in the circumstances it would be unjust or inequitable to admit the
copy in lieu of the original.
See also Pages 204-206
Original Printout of Facsimile Transmissions
1. In MCC Industrial Sales Corporation v. Ssanyong
Corporation, G.R No. 170633, October 17, 2007, the
Court said:
We, therefore, conclude that the terms "electronic data
message" and "electronic document," as defined under the
Electronic Commerce Act of 2000, do not include a facsimile
transmission. Accordingly, a facsimile transmission cannot
be considered as electronic evidence. It is not the functional
equivalent of an original under the Best Evidence Rule and is
not admissible as electronic evidence.
2. In Garvida v. Sales, Jr., 338 Phil. 484, the Court said:
A facsimile is not a genuine and authentic pleading. It is, at
best, an exact copy preserving all the marks of an original.
Without the original, there is no way of determining on its
face whether the facsimile pleading is genuine and authentic
and was originally signed by the party and his counsel. It
may, in fact, be a sham pleading.
B – Parol Evidence Rule
Contracts and the Parol Evidence Rule
1. Among the various evidentiary rules, it is the parol
evidence rule that has direct application to the law on
contracts. The rule, however, applies only to
contracts which the parties have decided to set forth
in writing i.e., as Sec. 9 of Rule 130 provides: "when
the terms of an agreement have been reduced to
writing". When the agreement is merely oral, the
parol evidence rule should not be applied.
2. A contract is a "meeting of the minds" between two
persons (See Art. 1305 of the Civil Code). The
document, the deed and the instrument are merely
the tangible evidences of a contract. It is the meeting
of the minds between the parties that constitutes the
contract.
3. The decision of the parties to reduce the agreement
in written form is critical to the application of the
parol evidence rule. When they execute a written
contract, the parol evidence rule ipso facto comes
into play.
Application of the Parol Evidence Rule
1. The "parol evidence rule" is embodied in Sec. 9, Rule
130 of the Rules of Court which provides:
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 be, between the parties and their successors in
interest, no evidence of such terms other than the contents
of the written agreement.
However, a party may present evidence to modify, explain
or add to the terms of written agreement if he puts in issue
in his pleading:
(a) An intrinsic ambiguity, mistake or imperfection in the
written agreement;
(b) The failure of the written agreement to express the true
intent and agreement of the parties thereto;
(c) The validity of the written agreement; or
22 | P L A T O N
 (d) The existence of other terms agreed to by the parties or
their successors in interest after the execution of the
written agreement.
The term "agreement" includes wills.
2. The term "parol" evidence means something 'oral' or
verbal but with reference to contracts, "parol
evidence" means extraneous evidence or evidence
aliunde.
As used in the Rules of Court, the term refers not only
to oral but also to written evidence which are outside
of or extraneous to the written contract between the
parties.
3. The parol evidence rule becomes operative when the
issues in the litigation are the terms of a written
agreement.
4. The provisions of Sec. 9 of Rule 130 consider the
written agreement as the embodiment of all the
terms of said agreement, i.e., a total integration of
said agreement.
Being a final agreement, any extraneous evidence or
"parol" evidence is inadmissible for any of the
following purposes: (a) to modify, (b) to explain, or (c)
to add to the terms of the written agreement.
5. In general, the parol evidence rule is designed to give
certainty to written transactions, to preserve the
reliability and to protect the sanctity of written
agreements.
The rationale behind the foregoing rule was explained
in Ortañez v. Court of Appeals, 266 SCRA 561 where
the Court explained, thus:
Spoken words could be notoriously unreliable unlike a
written contract which speaks of a uniform language. Thus,
under the general rule in Section 9 of Rule 130 of the Rules
of Court, when the terms of an agreement were reduced to
writing, as in this case, it is deemed to contain all the terms
agreed upon and no evidence of such terms can be admitted
other than the contents thereof.
6. Should the "writing" that embodies the agreement of
the parties be in a particular form? Note that Sec. 9 of
Rule 130 only makes reference to a "writing," not a
public writing or a private writing.
In Inchiong, Jr. v. Court of Appeals, G.R. No. 96405,
June 26, 1996, the Court said:
What is required is that the agreement be in writing as the
rule is in fact founded on "long experience that written
evidence is so much more certain and accurate than that
which rests in fleeting memory only, that it would be unsafe,
when parties have expressed the terms of their contract in
writing, to admit weaker evidence to control and vary the
stronger and to show that the parties intended a different
contract from that expressed in the writing signed by
them." Thus, for the parol evidence rule to apply, a written
contract need not be in any particular form, or be signed by
both parties. As a general rule, bills, notes and other
instruments of a similar nature are not subject to be varied
or contradicted by parol or extrinsic evidence.
Application of the Rule Only to Parties and Their Successors in
Interest
Only the parties are bound by the parol evidence rule. The rule
that the terms of an agreement are to be proven only by the
contents of the writing itself refers to suits between "parties to
the contract and their successors in interest"
Application of the Rule to Wills
1. The parol evidence rule applies to contractual
obligations. However, by the explicit provision of Sec.
9 of Rule 130, the term "agreement" includes wills.
2. While the parol evidence rule applies to wills, an
express trust concerning an immovable or any
interest therein may not be proved by parol evidence
(Art. 1443, Civil Code of the Philippines)
3. See illustrations on Pages 214-217.
How to Introduce Parol Evidence
1. The rule prohibiting parol evidence is not absolute. A
party may present evidence to modify, explain or add
to the terms of the written agreement by showing
any of the following: (See Sec. 9, Rule 130)
2. Introducing parol evidence means offering extrinsic or
extraneous evidence that would modify, explain or
add to the terms of the written agreement but parol
evidence may only be allowed, if any of the matters
mentioned above (from "a" to "d") is put in issue in
the pleadings.
3. See also Pages 218-220.
Prior, Contemporaneous and Subsequent Agreements (See
Pages 220-222).
Intrinsic Ambiguity in the Writing
1. Intrinsic or latent ambiguity is one which is not
apparent on the face of the document but which lies
in the person or thing that is the subject of the
document of deed. In other words, the ambiguity is
intrinsic or latent when the language of the writing is
clear and intelligible and suggests but a single
meaning but some matter extraneous to the writing
creates the ambiguity. (See illustration on Page 223).
2. The rule allowing parol evidence particularly refers
only to an intrinsic ambiguity in the writing. The
obvious implication is that where the ambiguity is
patent or extrinsic, parol evidence will not be
admitted even if the same is put in issue in the
pleading.
A patent or extrinsic ambiguity is that which appears
on the very face of the instrument, and arises from
the defective, obscure, or insensible language used.
Parol evidence is not admissible to explain the
ambiguity otherwise the court would be creating
instead of construing a contract. (See example on
Page 224).
Mistake or Imperfection in the Writing and Failure to Express
the True Agreement of the Parties
1. This does not mean that the mistake or imperfection
prevented the meeting of the minds between the
parties. This only means that despite the meeting of
the minds, the true agreement of the parties is not
reflected in the instrument.
Aside from mistake, there are some other reasons
enumerated in substantive law for the failure of the
23 | P L A T O N
 instrument to express the true intention of the 2. An evidence is not presumed authentic. It is
parties like fraud, inequitable conduct or accident therefore, incumbent upon the proponent of the
(Art. 1359, Civil Code of the Philippines), ignorance, evidence to prove its authenticity.
lack of skill, negligence or bad faith on the part of the 3. Sec. 32 of Rule 132 provides:
person drafting the instrument (Art., 1364, ibid.).
2. When there is a meeting of the minds between the Section 32. Seal. — There shall be no difference between
parties but their true intention is not expressed in the sealed and unsealed private documents insofar as their
instrument by any of the aforementioned causes, one admissibility as evidence is concerned.
of the parties may ask for the reformation of the
instrument (Art. 1359, Civil Code of the Philippines). Authentication under the Rules on Electronic Evidence
3. In an action for reformation of the instrument under
Rule 5
Art. 1359 of the Civil Code, the plaintiff may introduce
AUTHENTICATION OF ELECTRONIC DOCUMENTS
parol evidence to show the real intention of the
parties. Section 1. Burden of proving authenticity. – The person seeking to
4. See examples on Pages 226-228. introduce an electronic document in any legal proceeding has the
burden of proving its authenticity in the manner provided in this Rule.
Distinctions Between the Best Evidence Rule and the Parol
Evidence Rule Section 2. Manner of authentication. – Before any private electronic
document offered as authentic is received in evidence, its authenticity
must be proved by any of the following means:
BEST EVIDENCE RULE PAROL EVIDENCE RULE
(a) by evidence that it had been digitally signed by the person
Establishes a preference for Not concerned with the purported to have signed the same;
the original document over a primacy of evidence but (b) by evidence that other appropriate security procedures or devices
secondary evidence thereof presupposes that the original as may be authorized by the Supreme Court or by law for
is available authentication of electronic documents were applied to the document;
Precludes the admission of Precludes the admission of or
secondary evidence if the other evidence to prove the (c) by other evidence showing its integrity and reliability to the
satisfaction of the judge.
original document is available terms of a document other
than the contents of the Section 3. Proof of electronically notarized document. – A document
document itself for the electronically notarized in accordance with the rules promulgated by
purpose of varying the terms the Supreme Court shall be considered as a public document and
of the writing proved as a notarial document under the Rules of Court.
Can be invoked by any litigant Can be invoked only by the
to an action whether or not parties to the document and See also Page 231.
said litigant is a party to the their successors in interest
document involved Concept of a Document
Applies to all forms of writing Applies to written agreements
(contracts), and "wills" The Philippine Supreme Court has defined a document as a
"deed, instrument or other duly authorized paper by which
Waiver of the Parol Evidence Rule something is proved, evidenced or set forth". However, for
documents to be considered as documentary evidence, it must
The parol evidence rule can be waived by failure to invoke the be "offered as proof of their contents". If the document is not
benefits of the rule. This waiver may be made by failure to offered for that purpose, the document is a mere object
object to the introduction of evidence aliunde. Inadmissible evidence as when the purpose is merely to prove its existence.
evidence may be rendered admissible by failure to object. Hence, not every document is to be received as a documentary
evidence.
Probative Value
1. Even if parol evidence is admitted, such admission Public and Private Documents
would not mean that the court would give probative 1. Documents may either be public or private. This
value to the parol evidence. Admissibility is not classification is for the purpose of their presentation
equivalent to probative value or credibility. in evidence.
2. Section 19 of Rule 132 enumerates the public
C – Authentication and Proof of Documents documents, thus:

Concept of Authentication Section 19. Classes of Documents. — For the purpose of

1. The concept of "authentication" occupies a vital place
in the presentation of evidence. Not only documents
but also objects intoduced in evidence need to be
authenticated. It is the preliminary step in showing
the admissibility of an evidence. (See example on
Page 230).
their presentation evidence, documents are either public
or private.
Public documents are:
(a) The written official acts, or records of the official acts of
the sovereign authority, official bodies and tribunals, and
public officers, whether of the Philippines, or of a foreign
country;
(b) Documents acknowledge before a notary public except
last wills and testaments; and

24 | P L A T O N
 (c) Public records, kept in the Philippines, of private
documents required by law to the entered therein.
All other writings are private.
Church Registries
In Llemos v. Llemos, G.R No. 150162, January 26, 2007, the
Court said:
It is well-settled that Church registries of births, marriages, and deaths
made subsequent to the promulgation of General Orders No. 68 and
the passage of Act No. 190 are no longer public writings, nor are they
kept by duly authorized public officials. They are private writings and
their authenticity must therefore be proved as are all other private
writings in accordance with the rules of evidence.
Importance of Knowing Whether a Document is Public or
Private
1. Before the admission of a private document in
evidence that is offered as authentic, its due
execution and authenticity must be proved. Sec. 20 of
Rule 132 provides:
Section 20. Proof of private document. — Before any
private document offered as authentic is received in
evidence, its due execution and authenticity must be
proved either:
(a) By anyone who saw the document executed or written;
or
(b) By evidence of the genuineness of the signature or
handwriting of the maker.
Any other private document need only be identified as that
which it is claimed to be.
This requirement does not apply to a public
document which is admissible without further proof
of its due execution and genuineness.
2. For example, under Sec. 30 of Rule 132, to wit:
Section 30. Proof of notarial documents. — Every
instrument duly acknowledged or proved and certified as
provided by law, may be presented in evidence without
further proof, the certificate of acknowledgment
being prima facie evidence of the execution of the
instrument or document involved.
3. Sec. 23 of Rule 132 also confirms the significance of a
public document, to wit:
Section 23. Public documents as evidence. — Documents
consisting of entries in public records made in the
performance of a duty by a public officer are prima
facie evidence of the facts therein stated. All other public
documents are evidence, even against a third person, of
the fact which gave rise to their execution and of the date
of the latter.
Evidence of Official Records of Official Acts; Attestation
1. While a public document does not require the
authentication imposed upon a private document,
there is a necessity for showing to the court that
indeed a record of the official acts of official bodies,
tribunals or of public officers exists. How is this
effected? Sec. 24 of Rule 132 provides:
Section 24. Proof of official record. — The record of public
documents referred to in paragraph (a) of Section 19, when
admissible for any purpose, may be evidenced by an
official publication thereof or by a copy attested by the
officer having the legal custody of the record, or by his
deputy, and accompanied, if the record is not kept in the
Philippines, with a certificate that such officer has the
custody. If the office in which the record is kept is in
foreign country, the certificate may be made by a secretary
of the embassy or legation, consul general, consul, vice
consul, or consular agent or by any officer in the foreign
service of the Philippines stationed in the foreign country
in which the record is kept, and authenticated by the seal
of his office.
Further, Sec. 25 of Rule 132 provides:
Section 25. What attestation of copy must state. —
Whenever a copy of a document or record is attested for
the purpose of evidence, the attestation must state, in
substance, that the copy is a correct copy of the original, or
a specific part thereof, as the case may be. The attestation
must be under the official seal of the attesting officer, if
there be any, or if he be the clerk of a court having a seal,
under the seal of such court.
2. The certificate and attestation are required because
of the general rule on the "irremovability of public
records" embodied in Sec. 26 of Rule 132, thus:
Section 26. Irremovability of public record. — Any public
record, an official copy of which is admissible in evidence,
must not be removed from the office in which it is kept,
except upon order of a court where the inspection of the
record is essential to the just determination of a pending
case.
Special Power of Attorney Executed Abroad
The Court held that a notary public in a foreign country in not
of those who can issue the certificate mentioned in Section 24
of Rule 132 of the Rules of Court. The Court ruled that non-
compliance with Section 24 of Rule 130, will render the special
power of attorney inadmissible in evidence. (See Pages 236-
237).
Evidence of Public Record of a Private Document
Sec. 27 of Rule 132 provides:
Section 27. Public record of a private document. — An authorized
public record of a private document may be proved by the original
record, or by a copy thereof, attested by the legal custodian of the
record, with an appropriate certificate that such officer has the
custody.
How to Prove the Lack of Record
Sec. 28 of Rule 132 provides:
Section 28. Proof of lack of record. — A written statement signed by
an officer having the custody of an official record or by his deputy that
after diligent search no record or entry of a specified tenor is found to
exist in the records of his office, accompanied by a certificate as above
provided, is admissible as evidence that the records of his office
contain no such record or entry.
Last Wills and Testaments
25 | P L A T O N
Substantive law provides that no will shall pass either real or
personal property unless proved and allowed in the proper
court (Art. 838, Civil Code of the Philippines). The same
substantive rule is echoed in Sec. 1 of Rule 75 which provides:
Section 1. Allowance necessary. Conclusive as to execution. — No will
shall pass either real or personal estate unless it is proved and allowed
in the proper court. Subject to the right of appeal, such allowance of
the will shall be conclusive as to its due execution.
Proof of a Private Document
1. Section 20 recognizes two ways of proving the due
execution and genuineness of a private instrument.
One is to rely on the personal knowledge of a witness.
Here, the witness attests to its genuineness because
the document was executed or signed in his
presence, i.e., he personally witnessed the execution
or writing of the document. The second mode does
not require that the document be executed in the
presence of the witness. Here the witness testifies or
shows evidence that the signature or handwriting of
the maker is genuine.
2. The manner of authenticating a document required
by Sec. 20 of Rule 132, applies only when a private
document is offered as authentic as when it is offered
to prove that the document was truly executed by the
person purported to have made the same. Where the
document is offered in evidence not as authentic, its
genuineness and due execution need not be proven
as when the only purpose is for the offeror to show
that a certain piece of document exists.
How to Prove Genuineness of a Handwriting
1. Sec. 22 of Rule 132 enumerates how the genuineness
of a handwriting may be proved:
Section 22. How genuineness of handwriting proved. — The
handwriting of a person may be proved by any witness
who believes it to be the handwriting of such person
because he has seen the person write, or has seen writing
purporting to be his upon which the witness has acted or
been charged, and has thus acquired knowledge of the
handwriting of such person. Evidence respecting the
handwriting may also be given by a comparison, made by
the witness or the court, with writings admitted or treated
as genuine by the party against whom the evidence is
offered, or proved to be genuine to the satisfaction of the
judge.
2. Sec. 22 of Rule 132 does not require expert testimony
to prove the handwriting of a person.
Ancient Documents
Sec. 21 of Rule 132 provides:
Section 21. When evidence of authenticity of private document not
necessary. — Where a private document is more than thirty years old,
is produced from the custody in which it would naturally be found if
genuine, and is unblemished by any alterations or circumstances of
suspicion, no other evidence of its authenticity need be given.
How to Explain Alterations in a Document
Sec. 31 of Rule 132 provides:
Section 31. Alteration in document, how to explain. — The party
producing a document as genuine which has been altered and
appears to have been altered after its execution, in a part material to
the question in dispute, must account for the alteration. He may show
that the alteration was made by another, without his concurrence, or
was made with the consent of the parties affected by it, or was
otherwise properly or innocently made, or that the alteration did not
change the meaning or language of the instrument. If he fails to do
that, the document shall not be admissible in evidence.
How to Prove Documents in an Unofficial Language
Sec. 33 of Rule 132 provides:
Section 33. Documentary evidence in an unofficial language. —
Documents written in an unofficial language shall not be admitted as
evidence, unless accompanied with a translation into English or
Filipino. To avoid interruption of proceedings, parties or their
attorneys are directed to have such translation prepared before trial.
Impeachment of Judicial Record
1. A judicial record refers to the record of judicial
proceedings. It does not only include official entries
or files or the official acts of a judicial officer, but also
the judgment of the court.
2. Sec. 29 of Rule 132 authorizes the impeachment of
any judicial record if there be evidence of the
existence of any of the grounds mentioned therein.
To quote:
Section 29. How judicial record impeached. — Any judicial
record may be impeached by evidence of: (a) want of
jurisdiction in the court or judicial officer, (b) collusion
between the parties, or (c) fraud in the party offering the
record, in respect to the proceedings.
Registration of Contracts
1. Where a contract is required by law to be registered,
the same must be, as a rule, in a public instrument
(See Art. 1358, Civil Code of the Philippines).
2. Public documents are evidence, even against a third
person, of the fact which gave rise to their execution
and of the date of its execution. In the case of public
documents consisting of public records, they are also
prima facie evidence of the facts stated in the
document (Sec. 23 of Rule 132).
3. Certain contracts must be embodied in a public
instrument in order to be valid. (See Arts. 748, 749
and 1771, Civil Code of the Philippines).
26 | P L A T O N
 Chapter IV
Testimonial Evidence
A – Qualification of Witnesses
Nature of Testimonial or Oral Evidence
1. Testimonial or oral evidence is evidence elicited from
the mouth of a witness as distinguished from real and
documentary evidence.
2. Recall that competent evidence means evidence that
is not excluded by the law or by the rules. It therefore
means eligibility of an evidence to be admitted by the
court. When applied to a witness, competence means
that the witness is qualified to take the stand and
testify.
3. The admission of any evidence requires its
identification by a witness. It is a legal truth that
identification precedes authentication. Without a
witness, no evidence can ever be authenticated.
Presumption in Favor of Competence of a Witness
As a general rule, a person who takes the stand as a witness, is
presumed to be qualified. A party who desires to question the
competence of a witness must do so by making an objection as
soon as the facts tending to show incompetency are apparent.
Qualifications of a Witness
1. As to the qualifications of a witness, the relevant
provision provides:
Section 20. Witnesses; their qualifications. — Except as
provided in the next succeeding section, all persons who
can perceive, and in 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 ground for disqualification.
2. The above provision supplies the basic qualifications
of a witness, namely:
a. he can perceive; and in perceiving
b. he can make known his perception to
others
To these, we may add the following:
a. he must take either an oath or an
affirmation (Sec. 1, Rule 132); and
b. he must not possess the disqualifications
imposed by law or the rules
Oath or Affirmation
1. Sec. 1 of Rule 132 provides:
Section 1. Examination to be done in open court. — The
examination of witnesses presented in a trial or hearing
shall be done in open court, and under oath or affirmation.
Unless the witness is incapacitated to speak, or the
questions calls for a different mode of answer, the answers
of the witness shall be given orally.
2. An oath or affirmation is necessary for the witness to
recognize the duty to tell the truth. The oath of a
witness signifies that he is swearing to the Creator "to
tell the truth and nothing but the truth" and that if he
does not, he will later on answer for all the lies he is
guilty of.
3. The issue which a judge must resolve before a witness
is allowed to take the stand is whether the witness
understands the nature of an oath, realizes the moral
duty to tell the truth, and understands the prospects
of being punished for a falsehood.
4. Any objection to the competency of a witness raises
an issue of fact: whether or not the witness is capable
of understanding the duty to tell the truth. The issue
is addressed to judicial determination and in the
absence of a clear abuse of discretion, the trial court's
findings will not be reversed.
Ability to Perceive
Section 36 of Rule 130 explicitly requires that a witness can
testify only to those facts which he knows of his personal
knowledge, i.e., those which are derived from his own
perception. When the witness takes an oath or an affirmation
to tell the truth, he cannot live up to that oath or affirmation
without his ability to show that his testimony is based on his
personal knowledge. Without this personal knowledge, the
witness lacks the competence to testify.
Ability to Make Known the Perception to Others
1. The ability to make known the perception of the
witness to the court involves two factors: (a) the
ability to remember what has been perceived; and (b)
the ability to communicate the remembered
perception.
2. Deaf-mutes are not necessarily incompetent as
witnesses. They are competent where they: (a) can
understand and appreciate the sanctity of an oath; (b)
can comprehend facts they are going to testify to;
and (c) can communicate their ideas through a
qualified interpreter.
Competency and Credibility
1. Competence is a matter of law or in this jurisdiction,
also a matter of rule. Credibility of the witness has
nothing to do with the law or the rules. It refers to
the weight and the trustworthiness or reliability of
the testimony. In deciding the competence of a
witness, the court will not inquire into the
trustworthiness of the witness.
Bar 2004: Distinguish clearly but briefly between
competency of the witness and credibility of the witness.
Suggested Answer: Competency of a witness has reference
to the basic qualifications of a witness as his capacity to
perceive and his capacity to communicate his perception to
others. It also includes the absence of any of the
disqualifications imposed upon a witness. Credibility of the
witness refers to the believability of the witness and has
nothing to do with the law or the rules. It refers to the
weight and the trustworthiness or reliability of the
testimony.
2. Questions concerning the credibility of a witness are
best addressed to the sound discretion of the trial
27 | P L A T O N
 court as it is in the best position to observe his
demeanor and bodily movements.
Other Factors that Do Not Affect the Competency
1. Under Section 20 of Rule 130, except as provided by
the law and the rules, the following factors do not, as
a general rule, constitute a disqualification of a
witness:
a. religious belief;
b. political belief;
c. interest in the outcome of the case; or
d. conviction of a crime, unless otherwise
provided by law.
2. The relationship of a witness with a party does not
ipso facto render him a biased witness in criminal
cases where the quantum of evidence is proof
beyond reasonable doubt. There is no reason why the
same principle should not apply to a civil case where
the quantum of proof is only preponderance of
evidence.
B – Disqualifications of Witnesses
Disqualification by Reason of Mental Incapacity
1. In relation to a disqualification by reason of mental
incapacity, Section 21 of Rule 130 declares:
Section 21. Disqualification by reason of mental incapacity
xxx. — 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) xxx
2. To be disqualified as a witness by reason of mental
incapacity, the following must concur:
a. the person must be incapable of
intelligently making known his perception
to others; and
b. his incapability must exist at the time of his
production for examination.
Section 21(a) of Rule 130 establishes the rule that the
mental incapacity of the witness at the time of his
perception of the events subject of the testimony
does not affect his competency as long as he is
competent at the time he is produced for
examination to make known his perception to others.
His incapacity at the time of perception although
without legal effect on his competency to testify,
would however, concededly have an adverse effect
on his credibility.
Disqualification by Reason of Immaturity
1. Section 21 of Rule 130 provides:
Section 21. Disqualification by reason of xxx immaturity. —
The following persons cannot be witnesses:
(a) xxx
(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.
2. To be disqualified as a witness by reason of
immaturity the following must concur:
a. the mental maturity of the witness must
render him incapable of perceiving the facts
respecting which he is examined;
b. he is incapable of relating his perception
truthfully.
3. Note that in a disqualification by reason of mental
incapacity under Section 21(a) of Rule 130, the
incompetence of the witness must exist not at the
time of his perception of the facts but at the time he
is produced for examination, and consists in his
inability to intelligently make known what he has
perceived. In disqualification by reason of immaturity,
the incompetence of the witness must concur at the
time the witness perceives the event including his
incapability to relate his perceptions truthfully
The rule on disqualification by reason of immaturity
must however, be construed in relation to the Rule
on Examination of A Child Witness (A.M. No. 004-07-
SC, December 15, 2000)
Child Witness; Meaning
Sec. 4 of the Rule on Examination of A Child Witness provides:
Section 4. Definitions. - (a) A "child witness" is any person who at the
time of giving testimony is below the age of eighteen (18) years. In child
abuse cases, a child includes one over eighteen (18) years but is found
by the court as unable to fully take care of himself or protect himself
from abuse, neglect, cruelty, exploitation, or discrimination because of
a physical or mental disability or condition.
Competency of a Child Witness
Sec. 6 of the same Rule provides:
Section 6. Competency. - Every child is presumed qualified to be a
witness. However, the court shall conduct a competency examination
of a child, motu proprio or on motion of a party, when it finds that
substantial doubt exists regarding the ability of the child to perceive,
remember, communicate, distinguish truth from falsehood, or
appreciate the duty to tell the truth in court.
(a) Proof of necessity. - A party seeking a competency examination must
present proof of necessity of competency examination. The age of the
child by itself is not a sufficient basis for a competency examination.
(b) Burden of proof. - To rebut the presumption of competence enjoyed
by a child, the burden of proof lies on the party challenging his
competence.
(c) Persons allowed at competency examination. Only the following are
allowed to attend a competency examination:
(1) The judge and necessary court personnel;
(2) The counsel for the parties;
(3) The guardian ad litem;
(4) One or more support persons for the child; and
(5) The defendant, unless the court determines that competence
can be fully evaluated in his absence.
(d) Conduct of examination. - Examination of a child as to his
competence shall be conducted only by the judge. Counsel for the
parties, however, can submit questions to the judge that he may, in his
discretion, ask the child.
(e) Developmentally appropriate questions. - The questions asked at the
competency examination shall be appropriate to the age and
developmental level of the child; shall not be related to the issues at
28 | P L A T O N
trial; and shall focus on the ability of the child to remember,
communicate, distinguish between truth and falsehood, and appreciate
the duty to testify truthfully.
(f) Continuing duty to assess competence. - The court has the duty of
continuously assessing the competence of the child throughout his
testimony.
Survivorship Disqualification Rule or the Dead Man's Statute
1. The survivorship disqualification rule (dead man's
statute) is detailed in Section 23 of Rule 130 and
provides:
Section 23. Disqualification by reason of death or insanity
of adverse party. — Parties or assignor 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.
2. This rule "applies only to a civil case or a special
proceeding".
The following are the elements for the application of
this rule:
a. The defendant in the case is the executor or
administrator or a representative of the
deceased of the person of unsound mind;
b. The suit is upon a claim by the plaintiff
against the estate of said deceased or
person of unsound mind;
c. The witness is the plaintiff, or an assignor of
that party, or a person in whose behalf the
case is prosecuted;
d. The subject of the testimony is as to any
matter of fact occurring before the death of
such deceased person or before such
person became of unsound mind.
3. The Supreme Court had repeatedly held in not a few
cases that the object of the rule is to guard against
the temptation to give false testimony in regard to
the transaction on the part of the surviving party and
thereby put the parties upon equal terms. Its purpose
is to close the lips of the plaintiff when death has
closed the lips of the defendant, in order to remove
from the defendant the temptation to do falsehood
and the possibility of fictitious claims against the
deceased.
How to Apply the Rule
1. The initial point of inquiry for a clearer understanding
of the rule would be in regard to the parties involved.
In order to determine whether or not the survivorship
disqualification rule will apply to a particular
situation, we should know who the plaintiff is. We
should also know who the defendant is.
The plaintiff is the person who has a claim against the
estate of the decedent or person of unsound mind.
He is the survivor. The defendant is the
representative (executor or administrator) of the
decease or the person of unsound mind.
2. As held by the Court, the rule contemplates a suit
against the estate, its administrator or executor and
not a suit filed by the administrator or executor of the
estate.
Also when a counterclaim is set up by the
administrator of the estate, the case is removed from
the operation of the "dead man's statute," the
plaintiff may testify to occurrences before the death
of the deceased to defeat the counterclaim which is
not brought against the representative of the estate
but by the representative.
3. The next essential point to consider is the nature of
the case. What is the case about? Section 23 of Rule
130 clearly specifies that the case be "upon a claim or
demand against the estate of the deceased person or
a person of unsound mind." The rule does not apply
when the action brought is not "against" the estate,
or not upon a claim or demand "against" the estate.
This claim, from the tenor of the rule, is by its nature
civil, not criminal because the estate itself cannot be
criminally liable.
4. The parties and the subject of the action having been
determined, the inquiry should now shift to the
persons prohibited to testify and the subject matter
of their testimony. The provisions of Section 23 of
Rule 130 describes them as the "parties or assignors
of parties to a case, or persons in whose behalf a case
is prosecuted." (Note: The rule is obviously intended
to be exclusive).
5. The incompetency imposed upon the witness is to
testify "on any matter of fact occurring before the
death of such deceased person or before such person
became of unsound mind."
6. The survivorship disqualification rule is intended to
benefit the estate of the deceased or insane person,
hence, this protection may be waived by (a) failing to
object to the testimony, or (b) cross-examining the
witness on the prohibited testimony, or by (c)
offering evidence to rebut the testimony.
Marital Disqualification Rule (Spousal Immunity)
1. The marital disqualification rule is provided for in
Section 22 of Rule 130 and quoted hereunder:
Section 22. Disqualification by reason of marriage. —
During their marriage, neither the husband nor the wife
may testify for or against the other without the consent of
the affected spouse, except in a civil case by one against
the other, or in a criminal case for a crime committed by
one against the other or the latter's direct descendants or
ascendants.
2. The rule prohibiting testimony by one spouse against
the other is based on society's intent to preserve the
marriage relations and promote domestic peace.
The rule prohibiting a testimony in favor of the
spouse is intended to discourage the commission of
perjury.
3. In Alvarez v. Ramirez, 473 SCRA 72, the Court said:
The reasons given for the rule are:
(a) There is identity of interests between husband and
wife;
29 | P L A T O N
 (b) If one were to testify for or against the other, there
is consequent danger of perjury;
(c) The policy of the law is to guard the security and
confidences of private life, even at the risk of an
occasional failure of justice, and to prevent domestic
disunion and unhappiness; and
(d) Where there is want of domestic tranquility there is
danger of punishing one spouse through the hostile
testimony of the other.
4. In order that the husband or wife may claim the
privilege, it is essential that they be validly married. If
they are not, there is no privilege. The rule therefore,
does not cover illicit cohabitation.
Section 22 of Rule 130 requires not only a valid
marriage but the existence of that valid marriage at
the moment the witness-spouse gives the testimony.
5. The rule applies whether the witness-spouse is a
party to the case or not but the other spouse must be
a party.
6. The prohibited testimony is one that is given or
offered during the existence of the marriage. Hence,
the rule does not prohibit a testimony for or against
the other after the marriage is dissolved.
7. If the testimony for or against the other spouse is
offered during the existence of the marriage, it does
not matter if the facts subject of the testimony
occurred or came to the knowledge of the witness-
spouse before the marriage. The affected spouse may
still invoke the rule by objecting to the testimony as
long as the testimony is offered during the marriage.
8. Be it noted that the testimony is prohibited only over
the objection of the affected spouse or the spouse
against whom the testimony is offered.
9. The testimony covered by the marital disqualification
rule not only consists of utterances but also
production of documents.
Exceptions to the Marital Disqualification Rule
1. In the following instances, a spouse may testify for or
against the other even without the consent of the
latter:
a. in a civil case by one against the other; or
b. in a criminal case for a crime committed by
one against the other, or the latter's direct
descendants or ascendants.
2. See illustrations on Pages 268-270.
Testimony Where Spouse is Accused with Others
May a spouse testify in a trial where the spouse is a co-
accused? In People v. Quidato, Jr., 297 SCRA 1, the Court ruled
in the affirmative but likewise held that the testimony of the
wife in reference to her husband must be disregarded since the
husband timely objected thereto under the marital
disqualification rule. The Court explained that the
disqualification is between husband and wife, but the rule does
not preclude the wife from testifying when it involves other
parties or accused. Hence, the wife could testify in the murder
case against the brothers who were jointly tried with the
husband of the witness. The Court stressed however, that the
testimony cannot, be used against accused appellant directly or
through the guise of taking judicial notice of the proceedings in
the murder case without violating the marital disqualification
rule. "What cannot be done directly cannot be done indirectly."
Testimony by the Estranged Spouse
In Alvarez v. Ramirez, 473 SCRA 72, the Court said:
But like all other general rules, the marital disqualification rule has its
own exceptions, both in civil actions between the spouses and in
criminal cases for offenses committed by one against the other. Like
the rule itself, the exceptions are backed by sound reasons which, in
the excepted cases, outweigh those in support of the general rule. For
instance, where the marital and domestic relations are so strained that
there is no more harmony to be preserved nor peace and tranquility
which may be disturbed, the reason based upon such harmony and
tranquility fails. In such a case, identity of interests disappears and the
consequent danger of perjury based on that identity is non-existent.
Likewise, in such a situation, the security and confidences of private
life, which the law aims at protecting, will be nothing but ideals, which
through their absence, merely leave a void in the unhappy home.
Obviously, the offense of arson attributed to petitioner, directly impairs
the conjugal relation between him and his wife Esperanza. His act, as
embodied in the Information for arson filed against him, eradicates all
the major aspects of marital life such as trust, confidence, respect and
love by which virtues the conjugal relationship survives and flourishes.
As correctly observed by the Court of Appeals:
“The  act  of  private  respondent  in  setting  fire  to  the  house  of  his  sister-
in-law Susan Ramirez, knowing fully well that his wife was there, and in
fact with the alleged intent of injuring the latter, is an act totally alien
to the harmony and confidences of marital relation which the
disqualification primarily seeks to protect. The criminal act complained
of had the effect of directly and vitally impairing the conjugal relation.
It underscored the fact that the marital and domestic relations between
her and the accused-husband have become so strained that there is no
more harmony, peace or tranquility to be preserved. The Supreme
Court has held that in such a case, identity is non-existent. In such a
situation, the security and confidences of private life which the law
aims to protect are nothing but ideals which through their absence,
merely leave a void in the unhappy home. (People v. Castañeda, 271
SCRA 504). Thus, there is no longer any reason to apply the Marital
Disqualification  Rule.”
It should be stressed that as shown by the records, prior to the
commission of the offense, the relationship between petitioner and his
wife was already strained. In fact, they were separated de facto almost
six months before the incident. Indeed, the evidence and facts
presented reveal that the preservation of the marriage between
petitioner and Esperanza is no longer an interest the State aims to
protect.
Marital Privileged Communications
1. There are two independent codal provisions which
cover marital disqualifications. The first is Section 22
of Rule 130 (Disqualification by reason of marriage)
and the second is Section 24(a) of Rule 130
(Disqualification by reason of privileged
communication).
2. Under Section 24 of Rule 130 of the Rules of Court,
there are certain persons who cannot testify as to
matters learned in confidence. Among those subject
to the rule are legitimate spouses. The provision
states as follows:
30 | P L A T O N
 Section 24. Disqualification by reason of privileged
communication. — The following persons cannot testify as
to matters learned in confidence 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 for a crime
committed by one against the other or the latter's direct
descendants or ascendants; xxx
3. Under the provisions of Section 24(a) of Rule 130, the
husband or the wife cannot be examined without the
consent of the other as to any communication
received in confidence by one from the other during
the marriage.
The application of the rule requires the presence of
the following elements:
a. there must be a valid marriage between the
husband and wife;
b. there is a communication received in
confidence by one from the other; and
c. the confidential communication was
received during the marriage.
4. In Zulueta v. Court of Appeals, 253 SCRA 699, the
Court said:
The law insures absolute freedom of communication
between the spouses by making it privileged. Neither
husband nor wife may testify for or against the other
without the consent of the affected spouse while the
marriage subsists. Neither may be examined without the
consent of the other as to any communication received in
confidence by one from the other during the marriage, save
for specified exceptions. But one thing is freedom of
communication; quite another is a compulsion for each one
to share what one knows with the other. And this has
nothing to do with the duty of fidelity that each owes to the
other.
5. Since the application of the rule requires confidential
information received by one spouse from the other
during the marriage, information acquired by a
spouse before the marriage even if received
confidentially will not fall squarely with the provisions
of Section 24(a) of Rule 130 but divulging the same
may be objected to under Section 22 of Rule 130
upon proper objection as long as the information is
sought to be revealed during the marriage through a
testimony for or against the affected spouse. The
tenor of Section 22 of Rule 130 does not distinguish
as to when the information subject of the testimony
was acquired and thus, may cover matters which
occurred or adverse information acquired prior to the
marriage.
Note that Section 24(a) of Rule 130 requires that the
information received in confidence during the
marriage be "by one from the other." The implication
is clear: confidential information received from a
third person is not covered by the privilege.
6. For the information to be confidential, it must be
made during and by reason of the marital relations
and is intended not to be shared with others.
Communications in private between the husband and
wife are presumed to be confidential.
7. The marital privilege rule, being a rule of evidence
may be waived by failure of the claimant to object
timely to its presentation or by any conduct that may
be construed as implied consent.
Explanation of Distinctions Between Marital Disqualification
Rule and the Marital Privileged Communication Rule
1. Section 24(a) of Rule 130 has reference to
confidential communications received by one spouse
from the other during the marriage. The marital
disqualification rule under Section 22 of Rule 130
does not refer to confidential communications
between the spouses. It will not come into play when
the fact pattern in a problem makes reference to
confidential communications between husband and
wife during the marriage.
The marital privileged communication rule in Section
24(a) applies only to testimonies of a confidential
nature received by one spouse from the other during
the marriage and obviously does not include acts
merely observed by the spouse unless such acts are
intended as a means of conveying confidential
communications by one to the other.
Section 22 of Rule 130 includes facts, occurrences or
information even prior to the marriage unlike Section
24(a) which applies only to confidential information
received during the marriage.
2. When the marital privileged communication rule
under Section 24(a) applies, the spouse affected by
the disclosure of the information or testimony may
object even after the dissolution of the marriage. The
privilege does not cease just because the marriage
has ended. The marital disqualification rule under
Section 22 on the other hand, can no longer be
invoked once the marriage is dissolved. It may be
asserted only during the marriage.
3. The marital disqualification rule in Section 22 requires
that the spouse for or against whom the testimony is
offered is a party to the action. This is not required in
the marital privileged communication rule in Section
24(a) and applies regardless of whether the spouses
are parties or not.
Note: In the marital disqualification rule in Section 22,
the prohibition is a testimony for or against the other.
In Section 24(a), what is prohibited is the examination
of a spouse as to matters received in confidence by
one from the other during the marriage.
See also Pages 279-281.
Attorney-Client Privilege
1. The following is the applicable provision involving
privileged communications between an attorney and
his client:
Section 24. Disqualification by reason of privileged
communication. — The following persons cannot testify as
to matters learned in confidence in the following cases:
(a) xxx
(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
31 | P L A T O N
 consent of the client and his employer, concerning any fact
the knowledge of which has been acquired in such
capacity; xxx
2. The following requisites must be present for the
privilege to arise:
a. There must be a communication made by
the client to the attorney or an advice given
by the attorney to his client;
b. The communication or advice must have
been given in confidence; and
c. The communication or advice must have
been given either in the course of the
professional employment or with a view of
profession employment.
3. There is authority to support the theory that it is
enough if he reasonably believes that the person
consulted is a lawyer, although in fact he is not as in
the case of a detective pretending to be a lawyer.
4. Accordingly, the privilege is not confined to
communications regarding actual pending cases. The
communication may refer to anticipated litigations or
may not refer to any litigation at all.
5. It is commonly acknowledged that the privilege does
not extend to communications where the client's
purpose is the furtherance of a future intended crime
or fraud, or for the purpose of committing a crime or
a tort, or those made in furtherance of illicit activity.
6. An inquiry into the fact of consultation or
employment is not privileged. Even the identity of the
client is not privileged as well as that of the lawyer is
not privileged. However, under the so-called "last link
doctrine," non-privileged information, such as the
identity of the client, is protected if the revelation of
such information would necessarily reveal privileged
information.
7. The statements of the client need not have been
made to the attorney in person.
8. In relation to the attorney, the privilege is owned by
the client. The privilege is personal and belongs to the
client. If the client waives the privilege, no one else
including the attorney can invoke it.
9. The protection of the privilege will generally survive
the death of the client. There has been cases where
the privilege was not made to apply in cases involving
the validity or interpretation of the client's will.
See also Pages 281-289.
Physician-Patient Privilege
1. The privileged communication between a physician
and his patient is stated as follows in Section 24 of
Rule 130:
Section 24. Disqualification by reason of privileged
communication. — The following persons cannot testify as
to matters learned in confidence in the following cases:
(a) xxx
(b) xxx
(c) A person authorized to practice medicine, surgery or
obstetrics cannot in a civil case, without the consent of the
patient, be examined as to any advice or treatment given
by him or any information which he may have acquired in
attending such patient in a professional capacity, which
information was necessary to enable him to act in capacity,
and which would blacken the reputation of the patient; xxx
2. This privilege, embodied in Section 24(c) of Rule 130
applies to a civil case, whether the patient is a party
or not.
3. The rationale traditionally mentioned to justify the
privilege is to encourage the patient to freely disclose
all the matters which may aid in the diagnosis in the
treatment of a disease or an injury. For this purpose it
is necessary to shield the patient from embarrassing
details concerning his condition.
4. The person against whom the privilege is claimed is a
person duly authorized to practice medicine, surgery
or obstetrics.
The information which cannot be disclosed refers to:
a. any advice given to the client;
b. any treatment given to the client; and
c. any information acquired in attending such
patient provided that the advice, treatment
or information was made or acquired in a
professional capacity and was necessary to
enable him to act in that capacity; and
d. that the information sought to be disclosed
would tend to blacken the reputation of the
patient.
5. The privilege does not apply to shield the commission
of a crime or when the purpose is an unlawful one as
to obtain narcotics or prohibited drugs in violation of
law because there is no treatment involved.
6. The privilege survives the death of the patient.
7. The privilege may be waived by the patient. The
waiver may be made expressly or impliedly.
See also Pages 289-293.
Priest/Minister-Penitent Privilege
1. Another privileged communication under the Rules is
as follows:
Section 24. Disqualification by reason of privileged
communication. — The following persons cannot testify as
to matters learned in confidence in the following cases:
xxx
(d) A minister or priest cannot, without the consent of the
person making the confession, be examined as to any
confession made to or any advice given by him in his
professional character in the course of discipline enjoined
by the church to which the minister or priest belongs; xxx
2. The person making the confession holds the privilege
and the priest or minister hearing the confession in
his professional capacity is prohibited from making a
disclosure of the confession without the consent of
the person confessing.
The privilege also extends not only to a confession
made by the penitent but also to any advice given by
the minister or priest. The confession and the advice
must have been made or given pursuant to the
course of discipline of the denomination or sect to
which the minister or priest belongs. Thus, the
minister or priest must be duly ordained or
consecrated by his sect.
32 | P L A T O N
 3. Not every communication made to a minister or
priest is privileged. The communication must be
made pursuant to confessions of sins.
Privileged Communications to Public Officers
1. As to privileged communications to public officers,
the relevant rule declares:
Section 24. Disqualification by reason of privileged
communication. — The following persons cannot testify as
to matters learned in confidence in the following cases:
xxx
(e) A public officer cannot be examined during his term of
office or afterwards, as to communications made to him in
official confidence, when the court finds that the public
interest would suffer by the disclosure.
2. Under the above rule, communications made to a
public officer in official confidence are privileged
when the court finds that the disclosure would
adversely affect the public interest. It is the interest
of the public that is sought to be protected by the
rule. Hence, the disclosure or non-disclosure is not
dependent on the will of the officer but on the
determination by a competent court. The privilege
may be invoked not only during the term of office of
the public officer but also after.
3. National security matters and State secrets are of
course, confidential and a court will most likely
uphold the privilege. A society may not always be
able to conduct its business with total openness and
matters affecting national interest must not be
divulged.
4. There is also authority supporting the theory that
protection must be given to protect the identity of
individuals who provide information to the
government. Effective law enforcement often results
from information provided by citizens who do not
wish to publicly involve themselves.
Executive Privilege; Presidential Communications Privilege
1. As defined in relation to its American origins, the
privilege has been described as "the power of the
government to withhold information from the public,
the courts, and the Congress."
2. Chavez v. PCGG, 299 SCRA 744, ruled that there is a
privilege against disclosure on certain matters
involving state secrets regarding the following:
a. military;
b. diplomatic; and,
c. other national security matters.
See discussion on Pages 296-306.
Privileged Communications under the Rule on Electronic
Evidence
Privileged communications apply even to electronic evidence.
Section 3 of Rule 3 of the Rules on Electronic Evidence provides:
Section 3. Privileged communication. – The confidential character of a
privileged communication is not lost solely on the ground that it is in
the form of an electronic document.
Parental and Filial Privilege
1. Two privileges are embodied in Section 25 of Rule
130, namely: (a) the parental privilege rule; and (b)
the filial privilege rule.
Under the parental privilege rule, a parent cannot be
compelled to testify against his child or direct
descendants. Under the filial privilege rule, a child
may not be compelled to testify against his parents or
direct ascendants.
2. A person however, may testify against his parents or
children voluntarily but if he refuses to do so, the rule
protects him from any compulsion. Said rule applies
to both criminal and civil case since the rule makes no
distinction. The rule states:
Section 25. Parental and filial privilege. — No person may
be compelled to testify against his parents, other direct
ascendants, children or other direct descendants.
3. In criminal cases, the Family Code of the Philippines
lays down as a general rule, a policy substantially the
same as Section 25, Rule 130 of the Rules of Court.
The relevant article provides:
Art. 215. No descendant shall be compelled, in a criminal
case, to testify against his parents and grandparents, except
when such testimony is indispensable in a crime against the
descendant or by one parent against the other.
Other Privileged Communications Not Found in the Rules of
Court
Among them are the following: (a) editors may not be
compelled to disclose the source of published news; (b) voters
may not be compelled to disclose for whom they voted; (c)
trade secrets; (d) information contained in tax census returns;
and (e) bank deposits.
Under Art. 223 of the Labor Code of the Philippines,
information and statements made at conciliation proceedings
shall be treated as confidential. Under Section 6 of R.A. No.
9194 amending Section 9 of R.A. No. 9160 (Anti-Money
Laundering Act of 2001), institutions covered by the law and its
officers and employees who communicate a suspicious
transaction to the Anti-Money Laundering Council, are barred
from disclosing the fact of such report to other persons.
C – Examination of Witnesses
Open Court Examination
1. Section 1 of Rule 132 provides:
Section 1. Examination to be done in open court. — The
examination of witnesses presented in a trial or hearing
shall be done in open court, and under oath or affirmation.
Unless the witness is incapacitated to speak, or the
questions calls for a different mode of answer, the answers
of the witness shall be given orally.
This method allows the court the opportunity to
observe the demeanor of the witness and also allows
the adverse party to cross-examine the witness.
2. There are however, testimonies which need not be
given in open court. Under the Rules of Summary
33 | P L A T O N
 Procedure, the affidavits of the parties shall
constitute the direct testimonies of the witnesses
who executed the same (Section 15, Rule on Summary
Procedure). In civil cases, the parties are merely
required to submit the affidavits of their witnesses
and other pieces of evidence on the factual issues,
together with their position papers, setting forth the
law and the facts relied upon (Section 9, Rule on
Summary Procedure). Likewise, depositions need not
be taken in open court. The may be taken before a
notary public (Section 10, Rule 23) or before any
person authorized to administer oaths (Section 14,
Rule 23). Also, Section 1(f), Rule 115 provides:
Section 1. Rights of accused at the trial. — In all criminal
prosecutions, the accused shall be entitled to the following
rights: xxx (f) To confront and cross-examine the witnesses
against him at the trial. Either party may utilize as part of its
evidence the testimony of a witness who is deceased, out of
or can not 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
the opportunity to cross-examine him.
Oath or Affirmation
1. The witness must take either an oath or affirmation
but the option to take an oath or an affirmation is
given to the witness and not to the court.
2. An oath is an outward pledge made under an
immediate sense of responsibility to God or a solemn
appeal to the Supreme Being in attestation of the
truth of some statement. An affirmation is a
substitute for an oath and is a solemn and formal
declaration that the witness will tell the truth.
3. Where the witness refuses to take an oath or give any
affirmation, the testimony may be barred.
4. No special wording is necessary for an affirmation,
provided that the language used is designed to
impress upon the individual the duty to tell the truth.
Examination of Witnesses and Record of Proceedings
Section 3. Rights and obligations of a witness. — A witness must
answer questions, although his answer may tend to establish a claim
against him. However, it is the right of a witness:
(1) To be protected from irrelevant, improper, or insulting questions,
and from harsh or insulting demeanor;
(2) Not to be detained longer than the interests of justice require;
(3) Not to be examined except only as to matters pertinent to the
issue;
(4) Not to give an answer which will tend to subject him to a penalty
for an offense unless otherwise provided by law; or
(5) Not to give an answer which will tend to degrade his reputation,
unless it to be the very fact at issue or to a fact from which the fact in
issue would be presumed. But a witness must answer to the fact of his
previous final conviction for an offense.
Note however, that Section 14 of Republic Act No. 6981
(Witness Protection, Security and Benefit Act) provides:
Section 14. Compelled Testimony. - Any Witness admitted into the
Program pursuant to Sections 3 and 10 of this Act cannot refuse to
testify or give evidence or produce books, documents, records or
writings necessary for the prosecution of the offense or offenses for
which he has been admitted into the Program on the ground of the
constitutional right against self-incrimination but he shall enjoy
immunity from criminal prosecution and cannot be subjected to any
penalty or forfeiture for any transaction, matter or thing concerning his
compelled testimony or books, documents, records and writings
produced. xxx
See also Pages 312-314.
Examination of a Child Witness (See Appendix B)
See Rule on Examination of A Child Witness, A.M. NO. 004-07-
SC, November 21, 2000.
See also Pages 314-318.
Kinds of Examinations
1. Direct examination
Section 5. Direct examination. — Direct examination is the
examination-in-chief of a witness by the party presenting
him on the facts relevant to the issue.

Section 1 and 2 of Rule 132 provides:
Section 1. Examination to be done in open court. — The examination
of witnesses presented in a trial or hearing shall be done in open
2.
court, and under oath or affirmation. Unless the witness is
incapacitated to speak, or the questions calls for a different mode of
answer, the answers of the witness shall be given orally.
Section 2. Proceedings to be recorded. — The entire proceedings of a
trial or hearing, including the questions propounded to a witness and
his answers thereto, the statements made by the judge or any of the
parties, counsel, or witnesses with reference to the case, shall be
recorded by means of shorthand or stenotype or by other means of
recording found suitable by the court.
A transcript of the record of the proceedings made by the official
stenographer, stenotypist or recorder and certified as correct by him
shall be deemed prima facie a correct statement of such proceedings.
Rights and Obligations of a Witness
Section 3 of Rule 132 provides:
Purpose: To elicit facts about the client's cause of
action or defense.
Cross-examination
Section 6. Cross-examination; its purpose and extent. —
Upon the termination of the direct examination, the
witness may be cross-examined by the adverse party as to
any matters stated in the direct examination, or connected
therewith, with sufficient fullness and freedom to test his
accuracy and truthfulness and freedom from interest or
bias, or the reverse, and to elicit all important facts bearing
upon the issue.
Note: As a rule, the scope of the cross-examination is
not confined to the matters stated by the witness in
the direct examination.
However, where the witness is an unwilling or a
hostile witness as so declared by the court, he may be
cross-examined only as to the subject matter of his
examination-in-chief (Section 12, Rule 132). The same
34 | P L A T O N
 limited scope of a cross-examination is imposed upon
the cross examiner where the witness examined is an
accused because he is subject to cross-examination
on matters covered by the direct examination
(Section 1[d], Rule 115).
Purpose: (a) To bring out facts favorable to counsel's
client not established by the direct testimony; and (b)
To enable counsel to impeach or to impair the
credibility of the witness.
3. Re-direct examination
Section 7. Re-direct examination; its purpose and extent. —
After the cross-examination of the witness has been
concluded, he may be re-examined by the party calling
him, to explain or supplement his answers given during the
cross-examination. On re-direct-examination, questions on
matters not dealt with during the cross-examination, may
be allowed by the court in its discretion.
Purpose: In redirect examination the counsel may
elicit testimony to correct or repel any wrong
impression or inferences that may have been created
in the cross-examination. It may also be an
opportunity to rehabilitate a witness whose
credibility has been damaged.
4. Re-cross examination
Section 8. Re-cross-examination. — Upon the conclusion of
the re-direct examination, the adverse party may re-cross-
examine the witness on matters stated in his re-direct
examination, and also on such other matters as may be
allowed by the court in its discretion.
Death or Absence of a Witness
1. If the witness dies before his cross-examination is
over, his testimony on the direct may be stricken out
only with respect to the testimony not covered by the
cross-examination. The absence of the witness is not
enough to warrant striking out his testimony for
failure to appear for further cross-examination where
the witness has already been sufficiently cross-
examined, and the matter on which cross-
examination is sought is not in controversy.
2. If the witness was not cross-examined because of
cause attributable to the cross-examining party and
the witness had always made himself available for
cross-examination, the direct testimony of the
witness shall remain in the record and cannot be
ordered stricken off because the cross-examiner is
deemed to have waived the right to cross-examine
the witness.
Recalling a Witness
Sec. 9 of Rule 132 provides:
Section 9. Recalling witness. — After the examination of a witness by
both sides has been concluded, the witness cannot be recalled
without leave of the court. The court will grant or withhold leave in its
discretion, as the interests of justice may require.
Leading Questions
1. A leading question is one that is framed in such a way
that the question indicates to the witness the answer
desired by the party asking the question.
2. Leading questions are not appropriate in direct and
re-direct examinations particularly when the witness
is asked to testify about a major element of the cause
of action or defense. Leading questions are allowed in
cross and re-cross examinations.
3. Leading questions are however, allowed in a direct
examination in the instances provided under Sec. 10
of Rule 132, to wit:
Section 10. Leading and misleading questions. — A
question which suggests to the witness the answer which
the examining party desires is a leading question. It is not
allowed, except:
(a) On cross examination;
(b) On preliminary matters;
(c) When there is a difficulty is getting direct and
intelligible answers from a witness who is ignorant, or a
child of tender years, or is of feeble mind, or a deaf-mute;
(d) Of an unwilling or hostile witness; or
(e) Of a witness who is an adverse party or an officer,
director, or managing agent of a public or private
corporation or of a partnership or association which is an
adverse party.
xxx
Leading Questions to a Child Witness
As to a child witness, Section 10 of Rule 132 of the Rules of
Court should be deemed modified by Section 20 of the Rule on
Examination of a Child Witness. The latter rule provides:
Section 20. Leading questions. - The court may allow leading questions
in all stages of examination of a child if the same will further the
interests of justice.
See illustrations on Pages 321-322.
Misleading Questions
1. Section 10 of Rule 132 provides:
Section 10. Leading and misleading questions. —
xxx
A misleading question is one which assumes as true a fact
not yet testified to by the witness, or contrary to that
which he has previously stated. It is not allowed.
See illustration on Page 322.
D – Impeachment of a Witness
1. Impeachment is basically a technique employed
usually as part of the cross-examination to discredit a
witness by attacking his credibility. Destroying
credibility is vital because it is linked with a witness'
ability and willingness to tell the truth.
2. The rules enumerate certain guideposts in
impeaching a witness:
a. The impeachment of a witness is to be done
by the party against whom the witness is
called (Section 11, Rule 132).
35 | P L A T O N
 b. Subject to certain exceptions, the party
producing the witness is barred from
impeaching his own witness (Section 12,
ibid.).
c. By way of exception to the immediately
preceding rule, if the witness is unwilling or
hostile, the party calling him may be
allowed by the court to impeach the
witness. But it is not for the party calling the
witness to make a determination that the
witness is unwilling or hostile (See Section
12, ibid.). A party may also be allowed to
impeach his own witness when said witness
is an adverse party or is an officer, director,
or managing agent of a corporation,
partnership or association which is an
adverse party.
d. It is improper for the party calling the
witness to present evidence of the good
character of his own witness. The same is
allowed only if the character of the witness
has been impeached (Section 14, ibid.).
Section 12 of Rule 132 provides:
Section 12. Party may not impeach his own witness. — Except with
respect to witnesses referred to in paragraphs (d) and (e) of Section
10, the party producing a witness is not allowed to impeach his
credibility.
A witness may be considered as unwilling or hostile only if so declared
by the court upon adequate showing of his adverse interest,
unjustified reluctance to testify, or his having misled the party into
calling him to the witness stand.
The unwilling or hostile witness so declared, or the witness who is an
adverse party, may be impeached by the party presenting him in all
respects as if he had been called by the adverse party, except by
evidence of his bad character. He may also be impeached and cross-
examined by the adverse party, but such cross-examination must only
be on the subject matter of his examination-in-chief.
How to Impeach a Witness
1. Section 11 of Rule 132 specifies the manner of
impeaching the witness of the adverse party. It
declares:
Section 11. Impeachment of adverse party's witness. — A
witness may be impeached by the party against whom he
was called, by contradictory evidence, by evidence that his
general reputation for truth, honestly, or integrity is bad,
or by evidence that he has made at other times statements
inconsistent with his present, testimony, but not by
evidence of particular wrongful acts, except that it may be
shown by the examination of the witness, or the record of
the judgment, that he has been convicted of an offense.
2. Under the above rule, a witness may be impeached
through the following modes:
a. By contradictory evidence;
b. By evidence that his general reputation for
truth, honesty and integrity is bad; or
c. By evidence that he has made at other
times statements inconsistent with his
present testimony.
3. A witness cannot be impeached by evidence of
particular wrongful acts except evidence of his final
conviction of an offense as disclosed by his
examination or by the record of the judgment.
4. An unwilling or hostile witness so declared by the
court or the witness who is an adverse party cannot
be impeached by evidence of his bad character.
Impeachment by Contradictory Evidence
Normally the basis of this mode of impeachment is a
declaration made by the witness in his direct testimony. The
cross-examiner's intention is to show to the court that there
were allegations made by the witness that do not correspond
to the real facts of the case.
This mode of impeachment may also be used to contradict
conclusions made by expert witnesses during their testimonies.
Usually the adverse party may also call another expert to testify
to a contrary conclusion.
See illustration on Pages 325—326.
Impeachment by Prior Inconsistent Statements
1. Prior inconsistent statements are statements made
by a witness on an earlier occasion which contradict
the statements he makes during the trial.
The relevant rule provides:
Section 13. How witness impeached by evidence of
inconsistent statements. — Before a witness can be
impeached by evidence that he has made at other times
statements inconsistent with his present testimony, the
statements must be related to him, with the circumstances
of the times and places and the persons present, and he
must be asked whether he made such statements, and if
so, allowed to explain them. If the statements be in writing
they must be shown to the witness before any question is
put to him concerning them.
2. Effectively impeaching a witness by prior inconsistent
statements requires laying the proper foundation for
the impeachment. Laying the foundation, commonly
referred to as "laying the predicate" is a preliminary
requirement before the impeachment process
prospers. The elements of this foundation are clearly
spelled out in Section 13 of Rule 132. These are:
a. The alleged statements must be related to
the witness including the circumstances of
the times and places and the persons
present. If the statements are in writing
they must be shown to him;
b. He must be asked whether he made such
statements also to explain them if he
admits making those statements.
3. The underlying purpose for laying the predicate is to
allow the witness to admit or deny the prior
statement and afford him an opportunity to explain
the same.
See illustration on Pages 327-330.
Impeachment by Showing Bad Reputation
1. When a witness testifies, he puts his credibility at
issue because the weight of his testimony depends
upon his credibility.
36 | P L A T O N
 2. Not every aspect of a person's reputation may be the
subject of impeachment. Evidence of bad reputation
for the purpose of impeachment should refer only to
the following specific aspects: (a) for the truth; (b) for
honesty; or (c) for integrity.
See example on Page 331.
No Impeachment by Evidence of Bad Character but by Bad
Reputation
1. It should be noted that Section 11 does not allow
impeachment by evidence of bad character but by
bad reputation.
2. "Character" is made up of the things an individual
actually is and does, whereas "reputation" is what
people think an individual is and what they say about
him.
Evidence of Good Character of the Witness
1. Be it noted too that the party calling a witness,
cannot initiate proof of his good character. Section 14
of Rule 132 provides:
Section 14. Evidence of good character of witness. —
Evidence of the good character of a witness is not
admissible until such character has been impeached.
2. The rule that bars evidence of the good character of
the witness who has not yet been impeached has
reference only to a mere witness. It does not refer to
an accused in a criminal case. In a criminal case, the
accused may prove his good moral character relevant
to the offense charged even before his character is
attacked (Section 51[1], Rule 130). However, the
prosecution cannot initiate proof of the bad character
of the accused. It can only do so by way of rebuttal
(Section 51[2]. ibid.). This means that the prosecution
can prove the bad character of the accused only if the
latter had first presented evidence of his good
character.
No Impeachment by Evidence of Particular Wrongful Acts (See
Pages 332-334).
Impeachment of the Adverse Party as a Witness
In Gaw v. Chua, G.R. No. 160855, April 16, 2008, the Court said:
That the witness is the adverse party does not necessarily mean that
the calling party will not be bound  by  the  former’s  testimony.  The  fact   try the case, and not the man; and a very bad man may have
remains that it was at his instance that his adversary was put on the
witness stand. Unlike an ordinary witness, the calling party may
impeach an adverse witness in all respects as if he had been called by
the adverse party, except by evidence of his bad character. Under a rule
permitting the impeachment of an adverse witness, although the calling
party  does  not  vouch  for  the  witness’  veracity,  he  is  nonetheless  bound   chief. It can only do so in rebuttal. This means that
by his testimony if it is not contradicted or remains unrebutted.
Exclusion and Separation of Witnesses
Section 15 of Rule 132 provides:
Section 15. Exclusion and separation of witnesses. — On any trial or
hearing, the judge may exclude from the court any witness not at the
time under examination, so that he may not hear the testimony of
other witnesses. The judge may also cause witnesses to be kept
separate and to be prevented from conversing with one another until
all shall have been examined.
When the Witness May Refer to a Memorandum
Section 16 of Rule 132 provides:
Section 16. When witness may refer to memorandum. — A witness
may be allowed to refresh his memory respecting a fact, by anything
written or recorded by himself or under his direction at the time when
the fact occurred, or immediately thereafter, or at any other time
when the fact was fresh in his memory and knew that the same was
correctly written or recorded; but in such case the writing or record
must be produced and may be inspected by the adverse party, who
may, if he chooses, cross examine the witness upon it, and may read it
in evidence. So, also, a witness may testify from such writing or
record, though he retain no recollection of the particular facts, if he is
able to swear that the writing or record correctly stated the
transaction when made; but such evidence must be received with
caution.
E – Character Evidence
Inadmissibility of Character Evidence
1. Character is the aggregate of the moral qualities
which belong to and distinguish an individual person;
the general results of one's distinguishing attributes.
It refers to what a man is and depends on the
attributes he possesses. It is not the same as a man's
reputation because the latter depends on attributes
which others believe one to possess. Character
signifies reality while reputation signifies what is
accepted to be reality at present. In other words,
while character is what the person really is,
reputation is what he is supposed to be in accordance
with what people say he is, and is dependent on how
people perceive a person to be.
2. Character evidence is, as a rule, not admissible. In
People v. Lee, G.R. No 139070, May 29, 2002, the
Court said:
The rule is that the character or reputation of a party is
regarded as legally irrelevant in determining a controversy,
so that evidence relating thereto is not admissible.
Ordinarily, if the issues in the case were allowed to be
influenced by evidence of the character or reputation of the
parties, the trial would be apt to have the aspects of a
popularity contest rather than a factual inquiry into the
merits of the case. After all, the business of the court is to
a righteous cause.
Evidence of Bad Moral Character of the Accused
1. In a criminal case, the prosecution cannot prove the
bad moral character of the accused in its evidence-in-
the prosecution may not offer evidence of the
character of the accused unless the accused himself
has offered evidence of his good character.
The relevant provision provides:
Section 51. Character evidence not generally
admissible; exceptions: —
(a) In Criminal Cases:
37 | P L A T O N
 (1) xxx
(2) Unless in rebuttal, the prosecution may not prove his
bad moral character which is pertinent to the moral trait
involved in the offense charged.
2. In the same case of People v. Lee, the Court said:
The offering of character evidence on his behalf is a privilege
of the defendant, and the prosecution cannot comment on
the failure of the defendant to produce such evidence. Once
the defendant raises the issue of his good character, the
prosecution may, in rebuttal, offer evidence of the
defendant’s  bad  character.
Evidence of Good Moral Character of the Accused
1. The accused may prove his good moral character
when pertinent to the moral trait involved in the
offense charged. The applicable provision states:
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. In People v. Lee, the Court said:
In criminal cases, sub-paragraph 1 of Section 51 of Rule 130
provides that the accused may prove his good moral
character which is pertinent to the moral trait involved in
the offense charged. When the accused presents proof of his
good moral character, this strengthens the presumption of
innocence, and where good character and reputation are
established, an inference arises that the accused did not
commit the crime charged. This view proceeds from the
theory that a person of good character and high reputation
is not likely to have committed the act charged against
him. Sub-paragraph 2 provides that the prosecution may not
prove the bad moral character of the accused except only in
rebuttal and when such evidence is pertinent to the moral
trait involved in the offense charged. This is intended to
avoid unfair prejudice to the accused who might otherwise
be convicted not because he is guilty but because he is a
person of bad character. The offering of character evidence
on his behalf is a privilege of the defendant, and the
prosecution cannot comment on the failure of the
defendant to produce such evidence. Once the defendant
raises the issue of his good character, the prosecution may,
in  rebuttal,  offer  evidence  of  the  defendant’s  bad  character.   except as indicated in the following sections.
Otherwise, a defendant, secure from refutation, would have
a license to unscrupulously impose a false character upon
the tribunal.
Evidence of Character of the Offended Party
1. The good or bad moral character of the offended
party may be proved by the accused if it tends to
establish in any reasonable degree the probability or
improbability of the offense charged. Section 51 of
Rule 130 provides:
Section 51. Character evidence not generally
admissible; exceptions: —
(a) In Criminal Cases:
(1) xxx
(2) xxx
(3) The good or bad moral character of the offended party
may be proved if it tends to establish in any reasonable
degree the probability or improbability of the offense
charged.
2. It will be readily observed that the above provision
pertains only to criminal cases, not to administrative
offenses (See Civil Service Commission v. Belagan, 440
SCRA 578).
Character Evidence in Child Abuse Cases (Sexual Abuse Shield
Rule)
Section 30 of the Rule on Examination of A Child Witness
provides:
Section 30. Sexual abuse shield rule. -
(a) Inadmissible evidence. - The following evidence is not admissible in
any criminal proceeding involving alleged child sexual abuse:
(1) Evidence offered to prove that the alleged victim engaged in other
sexual behavior; and
(2) Evidence offered to prove the sexual predisposition of the alleged
victim.
(b) Exception. - Evidence of specific instances of sexual behavior by the
alleged victim to prove that a person other than the accused was the
source of semen, injury, or other physical evidence shall be admissible.
Character Evidence in Civil Cases
Section 51(b) of Rule 130 provides:
Section 51. Character evidence not generally admissible; exceptions:
—
(a) xxx
(b) In Civil Cases:
Evidence of the moral character of a party in civil case is admissible
only when pertinent to the issue of character involved in the case.
Evidence of Good Moral Character of a Witness
Evidence of the good moral character of a witness is not
admissible until such character has been impeached (Section
14, Rule 132 and Section 51[c], Rule 130).
F – Opinion Evidence
The rules on opinion evidence provide:
Section 48. General rule. — The opinion of witness is not admissible,
Section 49. Opinion of expert witness. — The opinion of a witness on a
matter requiring special knowledge, skill, experience or training which
he shown to posses, may be received in evidence.
Section 50. Opinion of ordinary witnesses. — 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) A 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.
Admissibility of Opinion Evidence
38 | P L A T O N
As a rule, the opinion of a witness is inadmissible. This is
because when a witness testifies, a witness does so with
respect to facts personally observed by him and it is for the
court to draw conclusions from the facts testified to.

When Opinion Evidence is Admissible; Expert Testimony

1. When the opinion is that of an expert, i.e., the
opinion of a witness requiring special knowledge,
skill, experience or training which he is shown to
possess, it may be received in evidence.
2. The court is not however, bound by the opinion of an
expert such as a handwriting expert.
3. Expert opinions are not ordinarily conclusive. When
faced with conflicting expert opinions, courts give
weight and credence to that which is more complete,
thorough and scientific.

Opinion of An Ordinary Witness; When Admissible (See

Section 50, Rule 130).

See also Pages 342-343.

39 | P L A T O N
 Chapter V 1. As long as an out-of-court statement is offered for a
non-hearsay purpose (a purpose other than to prove
Hearsay Evidence the truth of the matter asserted), the statement is
admissible if it has relevance to the matter in issue. A
Hearsay Evidence popular example of an out-of-court statement
1. The Philippine version of the hearsay rule is offered for a non-hearsay purpose is one which
embodied in Sec. 36 of Rule 130. It provides: demonstrates by inference from the tenor of the
statement the state of mind of the speaker or the
Section 36. Testimony generally confined to personal declarant. Here, the significance of the statement is
knowledge; hearsay excluded. — A witness can testify only not whether its assertion is true or false. Its
to those facts which he knows of his personal knowledge; significance rests on the mere fact that it was uttered
that is, which are derived from his own perception, except
and by extension, on the conclusion which may
as otherwise provided in these rules.
reasonably be drawn from the statement.
2. See illustration on Pages 353-354.
2. The reliability of a testimony is based on the personal
knowledge of the witness. If a witness testifies on the
Out-of-Court Statements Offered to Prove Its Effect on the
basis of what others have told him, and not on facts
Listener/Hearer
which he knows of his own personal knowledge, the
1. An out-of-court statement may be offered not only to
testimony would be excluded as hearsay evidence.
prove the state of mind of the declarant. It may also
3. Evidence is called hearsay when its probative force
be used to show the state of mind of the hearer or
depends, in whole or in part, on the competency and
listener. This state of mind of the listener is
credibility of some persons other than the witness by
oftentimes described in terms of the effect of the
whom it is sought to produce it.
declarant's statement on the hearer and why the
listener acted in a particular manner.
Basis for Excluding Hearsay Evidence
2. See illustration on Pages 354-356.
1. The rule excluding hearsay testimony rests mainly on
the ground that there is no opportunity to cross-
Out-of-Court Statements Offered to Prove that the Statement
examine the outside declarant.
was Made
2. Hearsay evidence if not objected to is admissible.
1. Where the statement is not offered for the truth of
However, even if admitted, it has no probative value.
the matter asserted, but to merely show what was
said, the statement is not hearsay.
When Evidence is Hearsay
2. See example on Pages 356-357.
1. Although hearsay evidence presupposes lack of
personal knowledge of the truth of the fact asserted
Independently Relevant Statements
by a witness, the purpose for which the evidence is
1. It is doctrinal that a declarant's statement may have
offered is a vital element of hearsay evidence. It is the
relevance to an issue in a case from the mere fact
purpose for which the evidence is offered which
that the words were spoken or written, irrespective
would determine whether the same is hearsay or not.
of the truth or falsity of the assertion. This category of
2. See discussion on Pages 346-348.
a non-hearsay out-of-court statement together with
the previously discussed categories are commonly
Specific Elements of Hearsay Evidence
known in this jurisdiction under the general term,
1. First, there must be an out-of-court statement. It
"independently relevant statements." They are called
doesn't really matter what the form of the statement
as such because the statements are admissible for
is. What matters is that the statement was not made
some relevant reason independent of their truth or
by the declarant in the hearing or trial.
falsity. They are relevant because the statement itself
2. Second, that statement made out of court, is
is either the very fact in issue or a circumstantial
repeated and offered by the witness in court to prove
evidence of a fact in issue.
the truth of the matters asserted by the statement.
2. An independently relevant statement is not hearsay
and is therefore not banned under the hearsay
See illustration on Pages 348-351.
evidence rule.
Bar 2004: Distinguish clearly but briefly between hearsay evidence and 3. Their relevance to the matter in issue is not
opinion evidence. dependent on their truth or falsity. Its relevance lies
in its tenor or the fact that it was said.
Suggested answer: Hearsay evidence is one that is not based on one's 4. See illustration on Pages 358-360.
personal perception but based on the knowledge of others to prove the 5. In Estrada v. Desierto, 356 SCRA 108, the Court said:
truth of the matter asserted in an out-of-court declaration. An opinion
evidence is based on the personal knowledge or personal conclusion of The ban on hearsay evidence does not cover independently
the witness based on his skill, training or experience. relevant statements. These are statements which
are relevant independently of whether they are true or
Examples of Non-hearsay Evidence (See Page 352). not. They belong to two (2) classes:
(1) those statements which are the very facts in issue, and
Out-of-Court Statements Offered to Prove Mental State of the (2) those statements which are circumstantial evidence of
Declarant the facts in issue.
The second class includes the following:
40 | P L A T O N
 a. Statement of a person showing his state of mind, that is,
his mental condition, knowledge, belief, intention, ill will and
other emotions;
b. Statements of a person which show his physical
condition, as illness and the like;
c. Statements of a person from which an inference may be
made as to the state of mind of another, that is, the
knowledge, belief, motive, good or bad faith, etc. of the
latter;
d. Statements which may identify the date, place and
person in question; and
e. Statements showing the lack of credibility of a witness.
Exceptions to the Hearsay Rule
1. The Rules of Court enumerates the following
exceptions to the hearsay rule:
a. Dying declarations
b. Declaration against interest
c. Act or declaration against pedigree
d. Family reputation or tradition regarding
pedigree
e. Common reputation
f. Part of the res gestae
g. Entries in the course of business
h. Entries in official records
i. Commercial list and the like
j. Learned treatises
k. Testimony or deposition at a former trial
2. It is not correct to assert that the exceptions to the
hearsay rule are not hearsay. They are hearsay
evidence but they are deemed admissible hearsay for
certain reasons.
Dying Declarations
1. Sec. 37 of Rule 130 provides:
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.
2. In People v. Cerilla, 539 SCRA 251, the Court said:
As an exception to the rule against hearsay evidence, a dying
declaration or ante mortem statement is evidence of the
highest order and is entitled to utmost credence since no
person aware of his impending death would make a
careless and false accusation. It is thus admissible to
provide the identity of the accused and the deceased,
to show the cause of death of the deceased, and the
circumstances under which the assault was made upon
him. The reasons for its admissibility is necessity and
trustworthiness. Necessity,   because   the   declarant’s   death
renders it impossible his taking the witness stand, and it
often happens that there is no other equally satisfactory
proof of the crime; allowing it, therefore, prevents a failure
of justice. And trustworthiness, because the declaration is
made in extremity, when the party is at the point of death
and when every motive to falsehood is silenced and the
mind is induced by the most powerful considerations to
speak the truth. The law considers the point of death as a
situation so solemn and awful as creating an obligation
equal to that which is imposed by an oath administered in
court.
Of the doctrines that authorize the admission of special
classes of hearsay, the doctrine relating to dying
declarations is the most mystical in its theory and,
traditionally, among the most arbitrary in its limitations. In
the United States, the notion of the special likelihood of
truthfulness of deathbed statements was widespread long
before the recognition of a general rule against hearsay in
the early 1700s. Not surprisingly, nearly as soon as we find a
hearsay rule, we also find an exception for dying
declarations.
3. See also Pages 363-370.
Elements of a Dying Declaration
To summarize, a dying declaration is admissible where the
proponent of the evidence shows compliance with the
following basic evidentiary foundations required by Sec. 37 of
Rule 130 of the Rules of Court.
1) That the declaration is one made by a dying person;
2) That the declaration was made by said dying person
under a consciousness of his imminent death;
3) That the declaration refers to the cause and
circumstances surrounding the death of the declarant
and not of anyone else;
4) That the declaration is offered in a case where the
declarant's death is the subject of inquiry;
5) The declarant is competent as a witness had he
survived
6) The declarant should have died.
Comments:
a) A dying declaration is admissible as evidence of the
cause and surrounding circumstances of the death of
the declarant, not merely the cause of his injuries.
Also, a dying declaration is offered in evidence in any
case wherein his death is the subject of inquiry.
Impliedly therefore, the death of the declarant,
although always neglected to be mentioned, should
be an element of a dying declaration. If the declarant
survives, his declaration may be admissible as part of
the res gestae.
b) The former rule embodied in Supreme Court
decisions like in People v. Cerilla, which declared that
a dying declaration is offered in a criminal case for
homicide, murder, or parricide wherein the declarant
is the victim, no longer holds true. As amended the
declaration may now be offered in any case provided
the subject of inquiry is the death of the declarant
(Section 37, Rule 130).
Rationale for the Admissibility of a Dying Declaration
1. It has been ruled that as a general rule, when a
person is at the point of death, every motive to
falsehood is silenced, and the mind is induced by the
most powerful consideration to speak the truth, and
therefore, the statements under such circumstances
deserve weight.
2. In People v. Valdez, 347 SCRA 594, the Court said:
A dying declaration need not be particularly directed only to
the person inquiring from the declarant. Anyone who has
knowledge of the fact of what the declarant said, whether it
41 | P L A T O N
 was directed to him or not, or whether he had made
inquiries from the declarant or not, can testify thereto.
Assailing a Dying Declaration
1. Although jurisprudentially considered as evidence of
the highest order, it is submitted that the
admissibility of a dying declaration, like any
admissible evidence, does not create a conclusive
presumption of credibility of the admitted
declaration. No evidentiary rule grants a dying
declaration a favored status in the hierarchy of
evidence. Like any other evidence, the declaration
may be attacked in the same manner as one would do
to a testimony in open court. The declarant himself
may be impeached through the normal methods
provided for under the rules.
2. See also Pages 373-375.
Parts of the Res Gestae
1. The term res gestae is an old word which literally
means, things done, and was originally used by the
courts in the other side of the world in the early
1800's to create hearsay exceptions whenever it was
difficult to justify the admission of a piece of hearsay
evidence at a time when the hearsay theory was far
from being a developed concept in the law of
evidence.
2. See also Pages 375-377.
Res Gestae Under the Rules of Court
1. The res gestae doctrine in our jurisdiction is primarily
embodied in Sec. 42, Rule 130 of the Rules of Court:
Section 42. Part of res gestae. — Statements made by a
person while a startling occurrence is taking place or
immediately prior or subsequent thereto with respect to
the circumstances thereof, may be given in evidence as
part of 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.
2. We will observe that the use of res gestae in the
Philippines is limited to two matters: (1) spontaneous
statements, and (2) verbal acts.
It has been held that in spontaneous exclamations or
statements, the res gestae is the startling occurrence,
whereas in verbal acts, the res gestae are the
statements accompanying the equivocal act.
A. Spontaneous Statements
1. Spontaneous statements (spontaneous
exclamations or excited utterances) to be
admitted in evidence must have the following
characteristics:
a. that there us a startling occurrence
taking place;
b. that while the event is taking place or
immediately prior to or subsequent
thereto, a statement has been made;
c. the statements were made before the
declarant had the time to contrive or
devise a falsehood;
d. that the statement relates to the
circumstances of the startling event or
occurrence, or that the statements
must concern the occurrence in
question and its immediate attending
circumstances.
2. The admissibility of a spontaneous statement is
anchored on the theory that the statement was
uttered under circumstances where the
opportunity to fabricate is absent. The
statement is a reflex action rather than a
deliberate act, instinctive rather than deliberate.
3. In the "spontaneous statement" part of the res
gestae, common reason suggests that the
statement and the event cannot be taken
separately.
4. See also Pages 378-383.
B. Verbal Acts
1. The last sentence of Sec. 42 of Rule 130 defines a
verbal act as a "statement accompanying an
equivocal act material to the issue, and giving it
a legal significance." A verbal act presupposes a
conduct that is equivocal or ambiguous, one
which in itself does not signify anything when
taken separately. It only acquires a meaning,
specifically what the rules call a legal
significance, only because of the statements that
accompany the act. It is a statement
contemporaneous with the act that identifies or
indicates the character, purpose or motive of the
act.
To be admissible under this category, the
following requisites must be present:
a. the principal act to be characterized
must be equivocal;
b. the equivocal act must be material to
the issue;
c. the statement must accompany the
equivocal act; and
d. the statement gives a legal significance
to the equivocal act.
2. See also Pages 384-386.
Entries in the Course of Business (Business Records Rule)
1. This hearsay exception states:
Section 43. Entries in the course of business. — Entries
made at, or near the time of transactions to which they
refer, by a person deceased, or unable to testify, who was
in a position to know the facts therein stated, may be
received as prima facie evidence, if such person made the
entries in his professional capacity or in the performance of
duty and in the ordinary or regular course of business or
duty.
2. The exception is commonly encountered in breach of
contract suits and suits for collection of a sum of
money. (See example on Page 387).
3. In our version of the exception, the necessity for the
admissibility of such evidence arises from the absence
of the person who has personal knowledge of the
facts. He is absent because he is dead, outside of the
jurisdiction of the court, or otherwise unable to
testify. Under Sec. 43 of Rule 130, the following are
the elements of this exception:
42 | P L A T O N
 a. entries were made at, or near the time of
transactions referred to;
b. such entries were made in the regular
course of business;
c. the person making the entries was in a
position to know the facts stated in the
entries;
d. the person making the entries did so in his
professional capacity, or in the performance
of duty and in the regular course of
business; and
e. the person making the entry is now dead or
unable to testify.
4. The Rules on Electronic Evidence also expressly
exempt business records from the hearsay rule.
Declarations Against Interest
1. The rule on declaration against interest provides:
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 is asserted in the
declaration was at the time it was made so far contrary to
declarant's own interest, that a reasonable man in his
position would not have made the declaration unless he
believed it to be true, may be received in evidence against
himself or his successors in interest and against third
persons.
2. This is a well-establsihed exception and is one that
finds confirmation in human nature and experience.
People normally speak freely and even with untruth
when the statement is in their interest, but are
usually unwilling to speak falsely against their
interest.
Wigmore considers a declaration against interest as
also founded on necessity on account of the
impossibility of obtaining other evidence from the
same source, the declarant being unavailable in
person to testify on the stand on account of death,
absence from the jurisdiction or serious illness.
3. This declaration must be one which when made, was
known to the declarant himself to be against his
interest, pecuniary or moral, and which would not
have been made unless he believed it to be true.
4. This exception will not apply where the declarant is
available as a witness. The declarant must be dead or
is unable to testify. Death is easy to explain. But what
kind of unavailability aside from death is sufficient
reason to justify the application of the exception?
Being outside the territorial jurisdiction of the
country may be a good reason for unavailability if his
exact whereabouts abroad are unknown. If known,
his deposition may be taken and the exception will
not apply. Serious physical or mental impairments
may be grounds for considering a person
"unavailable."
5. The declaration contemplated by Rule 130 is a
declaration against interest. If the declaration is
favorable to the interest of the declarant, it is a mere
self-serving statement and does not fall as an
exception to the hearsay rule.
6. As a rule, the interest against which the declaration
may have been made should be either a pecuniary or
moral interest, but in our jurisdiction, the declaration
could be against one's penal interest because if one
admits to a crime, he is also civilly liable, a liability
that is pecuniary.
7. Note that the delcaration against interest made by
the deceased, or by one unable to testify, is
admissible even against the declarant's successors in
interest or even against third persons.
Declaration About Pedigree
1. The exception as provided in Sec. 39 of Rule 130
states:
Section 39. Act or declaration about pedigree. — The act or
declaration of a person deceased, or unable to testify, in
respect to the pedigree of another person related to him
by birth or marriage, may be received in evidence where it
occurred before the controversy, and the relationship
between the two persons is shown by evidence other than
such act or declaration. The word "pedigree" includes
relationship, family genealogy, birth, marriage, death, the
dates when and the places where these fast occurred, and
the names of the relatives. It embraces also facts of family
history intimately connected with pedigree.
2. To be admissible as an exception to the hearsay rule,
it must be shown that:
a. the declarant is dead, or unable to testify;
b. that the declarant is related by birth or
marriage to the person whose pedigree is in
issue;
c. the declaration was made before the
controversy; and
d. the relationship between the two persons is
shown by evidence other than such act or
declaration.
3. The word "pedigree" includes relationship, family
genealogy, birth, marriage, death, the dates when
and the place where these facts occurred, and the
names of the relatives. It also embraces facts of
family history intimately connected with pedigree.
Family Reputation or Tradition Regarding Pedigree
1. The exception provides:
Section 40. Family reputation or tradition regarding
pedigree. — The reputation or tradition existing in a family
previous to the controversy, in respect to the pedigree of
any one of its members, may be received in evidence if the
witness testifying thereon be also a member of the family,
either by consanguinity or affinity. Entries in family bibles
or other family books or charts, engravings on rings, family
portraits and the like, may be received as evidence of
pedigree.
2. This exception involves: (a) a statement by a member
of the family either by consanguinity or affinity; (b)
the statement is about the reputation or tradition of
the family in respect to the pedigree of any member
of the family; and (c) the reputation or tradition is
one existing previous to the controversy.
3. Entries in family bibles or other family books or
charts, engravings on rings, family portraits and the
like, may be received as evidence of pedigree aside
from family tradition or reputation.
43 | P L A T O N

Common Reputation
1. The exception as quoted declares:
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 places may
be received as evidence of common reputation.
2. Common reputation is hearsay like any other
exception to the hearsay rule, but is admissible
because of trustworthiness.
3. While common reputation in the community may
establish a matter of public or general interest,
marriage or moral character, it cannot establish
pedigree. This is established by reputation in the
family and not in the community.
Entries in Official Records
1. The exception, as stated, follows:
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.
2. See Pages 393-394.
Commercial Lists and the Like
The exception declares:
Section 45. Commercial lists and the like. — Evidence of statements of
matters of interest to persons engaged in an occupation contained in
a list, register, periodical, or other published compilation is admissible
as tending to prove the truth of any relevant matter so stated if that
compilation is published for use by persons engaged in that
occupation and is generally used and relied upon by them therein.
Learned Treatises
1. This self explanatory and common exception states:
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 profession or calling as expert in the
subject.
2. History books, published findings of scientists fall
within this exception if an expert on the subject
testifies to the expertise of the writer or if the court
takes judicial notice of such fact.
Testimony or Deposition at a Former Proceeding
1. The exception provides:
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.
2. For Section 47 of Rule 130 to apply, the following
requisites must be satisfied: (a) the witness is dead or
unable to testify; (b) his testimony or deposition was
given in a former case or proceeding, judicial or
administrative, between the same parties or those
representing the same interests; (c) the former case
involved the same subject as that in the present case,
although on different causes of action; (d) the issue
testified to by the witness in the former trial is the
same issue involved in the present case; and (e) the
adverse party had an opportunity to cross-examine
the witness in the former case.
Exception to the Hearsay Rule Under the Rule on Examination
of a Child Witness
The Rule on Examination of A Child Witness provides:
Section 28. Hearsay exception in child abuse cases. - A statement made
by a child describing any act or attempted act of child abuse, not
otherwise admissible under the hearsay rule, may be admitted in
evidence in any criminal or non-criminal proceeding subject to the
following rules:
(a) Before such hearsay statement may be admitted, its proponent shall
make known to the adverse party the intention to offer such statement
and its particulars to provide him a fair opportunity to object. If the
child is available, the court shall, upon motion of the adverse party,
require the child to be present at the presentation of the hearsay
statement for cross-examination by the adverse party. When the child
is unavailable, the fact of such circumstance must be proved by the
proponent.
(b) In ruling on the admissibility of such hearsay statement, the court
shall consider the time, content and circumstances thereof which
provide sufficient indicia of reliability. It shall consider the following
factors:
(1) Whether there is a motive to lie;
(2) The general character of the declarant child;
(3) Whether more than one person heard the statement;
(4) Whether the statement was spontaneous;
(5) The timing of the statement and the relationship between the
declarant child and witness;
(6) Cross-examination could not show the lack of knowledge of the
declarant child;
(7) The possibility of faulty recollection of the declarant child is remote;
and
(8) The circumstances surrounding the statement are such that there is
no reason to suppose the declarant child misrepresented the
involvement of the accused.
(c) The child witness shall be considered unavailable under the
following situations:
(1) Is deceased, suffers from physical infirmity, lack of memory, mental
illness, or will be exposed to severe psychological injury; or
(2) Is absent from the hearing and the proponent of his statement has
been unable to procure his attendance by process or other reasonable
means.
(d) When the child witness is unavailable, his hearsay testimony shall be
admitted only if corroborated by other admissible evidence.
Section 29. Admissibility of videotaped and audiotaped in-depth
investigative or disclosure interviews in child abuse cases. - The court
may admit videotape and audiotape in-depth investigative or disclosure
interviews as evidence, under the following conditions:
(a) The child witness is unable to testify in court on grounds and under
conditions established under section 28 (c).
44 | P L A T O N
(b) The interview of the child was conducted by duly trained members
of a multidisciplinary team or representatives of law enforcement or
child protective services in situations where child abuse is suspected so
as to determine whether child abuse occurred.
(c) The party offering the videotape or audiotape must prove that:
(1) the videotape or audiotape discloses the identity of all individuals
present and at all times includes their images and voices;
(2) the statement was not made in response to questioning calculated
to lead the child to make a particular statement or is clearly shown to
be the statement of the child and not the product of improper
suggestion;
(3) the videotape and audiotape machine or device was capable of
recording testimony;
(4) the person operating the device was competent to operate it;
(5) the videotape or audiotape is authentic and correct; and
(6) it has been duly preserved.
The individual conducting the interview of the child shall be available at
trial for examination by any party. Before the videotape or audiotape is
offered in evidence, all parties shall be afforded an opportunity to view
or listen to it and shall be furnished a copy of a written transcript of the
proceedings.
The fact that an investigative interview is not videotaped or audiotaped
as required by this section shall not by itself constitute a basis to
exclude from evidence out-of-court statements or testimony of the
child. It may, however, be considered in determining the reliability of
the statements of the child describing abuse.

45 | P L A T O N
 Chapter VI
Burden of Proof, Quantum of Evidence and Presumptions
A – Burden of Proof and Burden of Evidence
Burden of Proof
1. The burden of proof, or "onus probandi," traditionally
refers to the obligation of a party to the litigation to
persuade the court that he is entitled to relief.
The term is defined in Sec. 1, Rule 131 of the Rules of
Court, thus:
Section 1. Burden of proof. — Burden of proof is the duty of
a party to present evidence on the facts in issue necessary
to establish his claim or defense by the amount of evidence
required by law.
2. Burden of proof is the duty of a party to present
evidence to establish his claim or defense by the
amount of evidence required by law, which is
preponderance of evidence in civil cases. The party,
whether plaintiff or defendant, who asserts the
affirmative of the issue has the burden of proof to
obtain a favorable judgment. For the defendant, an
affirmative defense is one which is not a denial of an
essential ingredient in the plaintiff's cause of action,
but one which, if established will be a good defense –
i.e., an "avoidance" of the claim.
3. See illustrations on Pages 398-406.
Test for Determining where Burden of Proof Lies
1. The test for determining where the burden of proof
lies is to ask which party to an action or suit will fail if
he offers no evidence competent to show the facts
averred as the basis for the relief he seeks to obtain.
If the defendant has affirmative defenses, he bears
the burden of proof as to those defenses which he
sets up in answer to the plaintiff's cause of action.
2. The burden of proof rests with the party who wants
to establish a legal right in his favor. See example on
Page 407.
Where Burden of Proof is Fixed
The burden of proof is fixed by the pleadings. The claim of the
plaintiff which he must prove, is spelled out in his complaint.
The defendant's defenses which he must likewise prove are to
be found in his answer to the complaint. The burdens of proof
of both parties do not shift during the course of the trial.
See example on Page 407.
Burden of Evidence
1. The burden of evidence is the duty of a party to go
forward with the evidence to overthrow the prima
facie evidence against him. The burden of going
forward with the evidence may shift from one side to
the other as the exigencies of the trial require, and
shifts with alternating frequency.
As the trial progresses, one party may have presented
evidence that weigh heavily in his favor and sufficient
to convince the court of the justness of his claim. If
this occurs, the other party has the burden to come
forward with his own evidence to counteract
whatever positive impression which the evidence of
the other party may have been created in the mind of
the court. This duty, also called the burden of coming
forward with the evidence, is what is referred to as
burden of evidence.
2. See illustration on Pages 408-409.
3. In Manongsong v. Estimo, 404 SCRA 683, the Court
stressed:
Simply put, he who alleges the affirmative of the issue has
the burden of proof, and upon the plaintiff in a civil case, the
burden of proof never parts. However, in the course of trial
in a civil case, once plaintiff makes out a prima facie case in
his favor, the duty or the burden of evidence shifts to
defendant to controvert plaintiff's prima facie case,
otherwise, a verdict must be returned in favor of plaintiff.
Moreover, in civil cases, the party having the burden of
proof must produce a preponderance of evidence thereon,
with plaintiff having to rely on the strength of his own
evidence   and   not   upon   the   weakness   of   the   defendant’s.  
The concept of “preponderance   of   evidence”   refers   to  
evidence which is of greater weight, or more convincing,
that which is offered in opposition to it; at bottom, it means
probability of truth.
Equipoise Rule or Equiponderance Doctrine
1. The equipoise doctrine is based on the principle that
no one shall be deprived of life, liberty or property
without due process of law (Sec. 1, Art III, Constitution
of the Philippines).
2. The doctrine refers to a situation where the evidence
of the parties are evenly balanced or there is doubt
on which side the evidence preponderates. In this
case the decision should be against the party with the
burden of proof. Hence, where the burden is on the
plaintiff and the evidence does not suggest that the
scale of justice should weigh in his favor the court
should render a verdict for the defendant.
In a criminal case, the equipoise rule provides that
where the evidence is evenly balanced, the
constitutional presumption of innocence tilts the
scales in favor of the accused. Thus, where the
inculpatory facts and circumstances are capable of
two or more explanations one of which is consistent
with his guilt, then the evidence does not fulfill the
test of moral certainty and is not sufficient to support
a conviction.
In Malillin v. People, G.R. No. 172953, April 30, 2008,
the Court said:
In our constitutional system, basic and elementary is the
presupposition that the burden of proving the guilt of an
accused lies on the prosecution which must rely on the
strength of its own evidence and not on the weakness of the
defense. The rule is invariable whatever may be the
reputation of the accused, for the law presumes his
innocence unless and until the contrary is shown. In dubio
pro reo. When moral certainty as to culpability hangs in the
balance, acquittal on reasonable doubt inevitably becomes a
matter of right.
3. The equipoise rule however, is not applicable where
the evidence presented is not equally weighty, such
46 | P L A T O N
 as where the evidence of the prosecution is
overwhelming.
4. The Court has consistently held that it is better to
acquit ten guilty individuals than to convict one
innocent person.
5. In labor cases, if doubt exists between the evidence
presented by the employer and the employee, the
scales of justice must be titled in favor of the latter.
B – Quantum of Evidence
Preponderance of Evidence
1. Sec. 1 of Rule 133 provides:
Section 1. Preponderance of evidence, how
determined. — In civil cases, the party having burden of
proof must establish his case by a preponderance of
evidence. In determining where the preponderance or
superior weight of evidence on the issues involved lies, the
court may consider all the facts and circumstances of the
case, the witnesses' manner of testifying, their intelligence,
their means and opportunity of knowing the facts to which
there are testifying, the nature of the facts to which they
testify, the probability or improbability of their testimony,
their interest or want of interest, and also their personal
credibility so far as the same may legitimately appear upon
the trial. The court may also consider the number of
witnesses, though the preponderance is not necessarily
with the greater number.
2. The term "preponderance of evidence" is a question
of evidence applicable to civil cases. It means the
"greater of superior weight of evidence."It is the
evidence that is more convincing and more credible
than the one offered by the adverse party.
3. In determining whether or not there is
preponderance of evidence, the court may consider
the following:
a. all the facts and circumstances of the case;
b. the witnesses' manner of testifying, their
intelligence, their means and opportunity of
knowing the facts to which there are
testifying, the nature of the facts to which
they testify, the probability or improbability
of their testimony;
c. the witnesses' interest or want of interest,
and also their personal credibility so far as
the same may legitimately appear upon the
trial;
d. the number of witnesses, although it does
not mean that preponderance is necessarily
with the greater number.
4. To persuade by the preponderance of evidence is not
to take the evidence quantitatively but qualitatively
Proof Beyond Reasonable Doubt
1. In criminal cases, the burden of proof as to the guilt
of the accused lies with the prosecution because of
the presumption that the accused is presumed
innocent until the contrary is proven. Sec. 2 of Rule
133 provides for the quantum of evidence required in
criminal cases as follows:
Section 2. Proof beyond reasonable doubt. — In a criminal
case, the accused is entitled to an acquittal, unless his guilt
is shown beyond reasonable doubt. Proof beyond
reasonable doubt does not mean such a degree of proof,
excluding possibility of error, produces absolute certainly.
Moral certainly only is required, or that degree of proof
which produces conviction in an unprejudiced mind.
2. It is fundamental that the prosecution must prove its
case beyond reasonable doubt and must not rely on
the weakness of the evidence of the defense.
The obligation to convince the trier of facts to show
the guilt of the accused beyond reasonable doubt is
upon the prosecution, as a rule, throughout the trial.
However, when the accused invokes a justifying
circumstance like for instance, self-defense, the
burden of proof rests upon the defense to prove that
the killing was justified.
3. Proof beyond reasonable doubt does not mean such a
degree of proof that excludes all possibility of error.
Only moral certainty is required.
Reasonable doubt does not refer to any doubt or a
mere possible doubt because everything in human
experience is subject to possible doubt. Reasonable
doubt is that state of the case which, after a
comparison of all the evidence, does not lead the
judge to have in his mind, a moral certainty of the
truth of the charge. Where there is reasonable doubt
as to the guilt of the accused, there must be an
acquittal.
4. In Basilio v. People, G.R. No. 180597, November 7,
2008, the Court explained the burden of proof in
criminal cases in the following words:
An accused has in his favor the presumption of innocence
which the Bill of Rights guarantees. Unless his guilt is shown
beyond reasonable doubt, he must be acquitted. This
reasonable doubt standard is demanded by the due process
clause of the Constitution which protects the accused from
conviction except upon proof beyond reasonable doubt of
every fact necessary to constitute the crime with which he is
charged. The burden of proof is on the prosecution, and
unless it discharges that burden the accused need not even
offer evidence in his behalf, and he would be entitled to an
acquittal. Proof beyond reasonable doubt does not, of
course, mean such degree of proof as, excluding the
possibility of error, produce absolute certainty. Moral
certainty only is required, or that degree of proof which
produces conviction in an unprejudiced mind. The
conscience must be satisfied that the accused is responsible
for the offense charged.
Well-entrenched in jurisprudence is the rule that the
conviction of the accused must rest, not on the weakness of
the defense, but on the strength of the prosecution. The
burden is on the prosecution to prove guilt beyond
reasonable doubt, not on the accused to prove his
innocence.
5. In People v. Santiago, 420 SCRA 248, the Court said:
After the prosecution had adduced its evidence, appellant
filed a motion to dismiss by way of a demurrer to
evidence. The trial court denied the demurrer, holding that
the prosecution has sufficiently established a prima
facie case to warrant the conviction of appellant. In its
Decision, the trial court mentioned the issue of whether the
47 | P L A T O N
 defense by its evidence was able to overcome the prima
facie case established by the prosecution which tends to
establish the guilt of appellant. Appellant bewails the fact
that the trial court shifted the burden of proof from the
prosecution to the defense. Our ruling in Bautista vs.
Sarmiento, is squarely in point, thus:
“There  is  no  denying  that  in  a  criminal  case,  unless  the  guilt   to support the administrative charges or to establish the
of the accused is established beyond reasonable doubt, he is
entitled to acquittal. But when the trial court denies
petitioners' motion to dismiss by way of demurrer to
evidence on the ground that the prosecution had
established a prima facie case against them, they assume a
definite burden. It becomes incumbent upon petitioners to
adduce evidence to meet and nullify, if not overthrow,
the prima facie case against them. This is due to the shift in
the burden of evidence, and not of the burden of proof as
petitioners would seem to believe.
“When   a prima facie case is established by the prosecution
in a criminal case, as in the case at bar, the burden of proof
does not shift to the defense. It remains throughout the trial
with the party upon whom it is imposed-the prosecution. It
is the burden of evidence which shifts from party to party
depending upon the exigencies of the case in the course of
the trial. This burden of going forward with the evidence is
met by evidence which balances that introduced by the
prosecution. Then the burden shifts back.
“A prima facie case need not be countered by a
preponderance of evidence nor by evidence of greater
weight. Defendant's evidence which equalizes the weight of
plaintiff's evidence or puts the case in equipoise is sufficient.
As a result, plaintiff will have to go forward with the proof.
Should it happen that at the trial the weight of evidence is
equally balanced or at equilibrium and presumptions
operate against plaintiff who has burden of proof, he cannot
prevail.”
Substantial Evidence
1. The pertinent rule on substantial evidence is found in
Sec. 5 of Rule 133. The relevant provision declares:
Section 5. Substantial evidence. — In cases filed before
administrative or quasi-judicial bodies, a fact may be
deemed established if it is supported by substantial
evidence, or that amount of relevant evidence which a
reasonable mind might accept as adequate to justify a
conclusion.
2. The degree of evidence applies to administrative
cases, i.e., those filed before administrative and
quasi-judicial bodies and which requires that in order
to establish a fact, the evidence should constitute
that amount of relevant evidence to support a
conclusion.
3. In claims for workmen's compensation for example,
the degree of proof required is merely substantial
evidence.
4. The Labor Code provides that an employer may
terminate the services of an employee for just cause
and this must be supported by substantial evidence.
5. In agrarian cases, all that is required is mere
substantial evidence.
6. In Alcuizar v. Carpio, A.M.-RTJ-07-2068, August 7,
2007, where a judge was administratively charged
with sexual harassment by a court employee, the
Court ruled:
While substantial evidence would ordinarily suffice to
support a finding of guilt, the rule is a bit different where the
proceedings involve judges charged with grave offense.
Administrative proceedings against judges are, by nature,
highly penal in character and are to be governed by the rules
applicable to criminal cases. The quantum of proof required
ground/s for the removal of a judicial officer should thus be
more than substantial; they must be proven beyond
reasonable doubt.
A different quantum of evidence was however, used
by the Court in Gutierrez v. Belen, A.M. No. RTJ-08-
2118, June 26, 2008, where a judge was charged with
"unbecoming conduct and/or harassment" where the
Court used the "substantial evidence rule." Declared
the Court:
Administrative charges against members of the judiciary
must be supported at least by substantial evidence or such
relevant evidence as a reasonable mind might accept as
adequate to support a conclusion.
The Court arrived at the following conclusion in an
administrative case against an OIC-Clerk of Court for
unexplained wealth, thus:
With respect to the charge of unexplained wealth, it must be
stressed that in administrative proceedings, the quantum of
proof required to establish a respondent's malfeasance is
not proof beyond reasonable doubt but substantial
evidence, i.e., that amount of relevant evidence that a
reasonable mind might accept as adequate to support a
conclusion (Alejandro v. Martin, A.M. No. P-07-2349, August
10, 2007).
In another case against a process server for
dereliction of duty, conduct prejudicial to the best
interest of the service, incompetence and absence
without official leave, the Court in Necesario v.
Dinglasan, A.M. No. P-07-2294 followed the
'substantial-evidence-rule' and dismissed the
complaint because the complainant failed to prove
his allegations by substantial evidence.
Quantum of Evidence in a Petition for a Writ of Amparo
Sec. 17 of The Rules on the Writ of Amparo, effective October
24, 2007, provides:
SEC. 17. Burden of Proof and Standard of Diligence Required. – The
parties shall establish their claims by substantial evidence.
Effect of Failure to Prove Administrative Liability on the
Criminal Case
In Paredes v. Court of Appeals, G.R. No. 169534, July 30, 2007,
the Court declared:
It is indeed a fundamental principle of administrative law that
administrative cases are independent from criminal actions for the
same act or omission. Thus, an absolution from a criminal charge is not
a bar to an administrative prosecution, or vice versa. One thing is
administrative liability; quite another thing is the criminal liability for
the same act.
48 | P L A T O N

Criminal and administrative proceedings may involve similar operative
facts; but each requires a different quantum of evidence.
Thus, considering the difference in the quantum of evidence, as well as
the procedure followed and the sanctions imposed in criminal and
administrative proceedings, the findings and conclusions in one should
not necessarily be binding on the other. Notably, the evidence
presented in the administrative case may not necessarily be the same
evidence to be presented in the criminal cases. The prosecution is
certainly not precluded from adducing additional evidence to discharge
the burden of proof required in the criminal cases.
Clear and Convincing Evidence
1. Evidence is clear and convincing if it produces in the
mind of the trier of fact a firm belief or conviction as
to allegations sought to be established; It is
intermediate, being more than preponderance, but
not to the extent of such certainty as is required
beyond reasonable doubt in criminal cases.
2. The Court in Government of Hongkong Special
Administrative Region v. Olalia, Jr., G.R. No. 153675,
April 19, 2007, explained this quantum of evidence,
thus:
An extradition proceeding being sui generis, the standard of
proof required in granting or denying bail can neither be the
proof beyond reasonable doubt in criminal cases nor the
standard of proof of preponderance of evidence in civil
cases. While administrative in character, the standard of
substantial evidence used in administrative cases cannot
likewise apply given the object of extradition law which is to
prevent the prospective extraditee from fleeing our
jurisdiction. In his Separate Opinion in Purganan, then
Associate Justice, now Chief Justice Reynato S. Puno,
proposed that a new standard which he termed "clear and
convincing evidence" should be used in granting bail in
extradition cases. According to him, this standard should be
lower than proof beyond reasonable doubt but higher than
preponderance of evidence. The potential extraditee must
prove by "clear and convincing evidence" that he is not a
flight risk and will abide with all the orders and processes of
the extradition court.
3. Comment: The pronouncement in the case of
Government of Hongkong on the term "clear and
convincing evidence" is a breath of fresh air that
prevents confusion as to its legal import. One case for
instance would leave a reader wondering as to the
Court's intended meaning when it declared, thus:
"...Like any other circumstances that qualifies a killing
as murder, evidence premeditation must be
established by clear and positive evidence; that is, by
proof beyond reasonable doubt (People v.
Tubongbanua, G.R No. 171271, August 31, 2006).
Some Jurisprudential Pronouncements on Clear and
Convincing Evidence – See Pages 422-426.
Evidentiary Weight of Electronic Evidence
Sec. 1 of Rule 7 of the Rules on Electronic Evidence provides:
Section 1. Factors for assessing evidentiary weight. – In assessing the
evidentiary weight of an electronic document, the following factors
may be considered:
(a) The reliability of the manner or method in which it was generated,
stored or communicated, including but not limited to input and output
procedures, controls, tests and checks for accuracy and reliability of the
electronic data message or document, in the light of all the
circumstances as well as any relevant agreement;
(b) The reliability of the manner in which its originator was identified;
(c) The integrity of the information and communication system in which
it is recorded or stored, including but not limited to the hardware and
computer programs or software used as well as programming errors;
(d) The familiarity of the witness or the person who made the entry
with the communication and information system;
(e) The nature and quality of the information which went into the
communication and information system upon which the electronic data
message or electronic document was based; or
(f) Other factors which the court may consider as affecting the accuracy
or integrity of the electronic document or electronic data message.
Sections 1 and 2 of Rule 9 of the Rules on Electronic Evidence
also provide:
Section 1. Affidavit evidence. – All matters relating to the admissibility
and evidentiary weight of an electronic document may be established
by an affidavit stating facts of direct personal knowledge of the affiant
or based on authentic records. The affidavit must affirmatively show
the competence of the affiant to testify on the matters contained
therein.
Section 2. Cross-examination of deponent. – The affiant shall be made
to affirm the contents of the affidavit in open court and may be cross-
examined as a matter of right by the adverse party.
C – Presumptions
Concept of Presumptions
1. A presumption is an assumption of fact resulting from
a rule of law which requires such fact to be assumed
from another fact or group of facts found or
otherwise established in the action. A presumption is
an inference of the existence or non-existence of a
fact which courts are permitted to draw from proof of
other facts.
2. A presumption is not evidence. They merely affect
the burden of offering evidence.
In a sense, a presumption is an inference which is
mandatory unless rebutted. See example on Page
427.
Inference Distinguished from a Presumption
INFERENCE PRESUMPTION
A factual conclusion that can Mandated by law and
rationally be drawn from establishes a legal relation
other facts. It is in other between or among the facts.
words, one that is a result of It is a "conclusion which a rule
the reasoning process. It need directs shall be made from
not have a legal effect proof of certain facts"
because it is not mandated by
law
Thus, if X proposes marriage to Y, it may be inferred that X is in
love with Y. This is a mere inference and has in fact no legal
effect. There is no legal relations established by the mere fact
that one is in love. On the other hand, if X enters into a contract
of sale of a car with Y, there arises a presumption that the
contract was entered into with a sufficient cause or
49 | P L A T O N
consideration and although the cause is not stated in the
contract, it is presumed that it exists and is lawful, unless the
contrary is proven. The presumption involved has a definite
legal effect.
Kinds of Presumptions
1. Presumptions are classified into presumptions of law
and presumptions of fact. Presumptions of law are, in
turn, either conclusive or disputable.
2. Traditional treatises have classified presumptions
into:
a. Presumption of law or presumption juris; or
b. Presumption of fact or presumption
hominis.
A presumption of law is an assumption which the law
requires to be made from a set of facts.
A presumption is one of fact when the assumption is
made from the facts without any direction or positive
requirement of a law.
The presumption that an accused is innocent of the
crime charged until the contrary is proven is a
presumption of law embodied in the Constitution.
Article 1756 of the Civil Code of the Philippines also
illustrates another presumption mandated by law, to
wit:
Art. 1756. In case of death of or injuries to passengers,
common carriers are presumed to have been at fault or to
have acted negligently, unless they prove that they observed
extraordinary diligence as prescribed in Articles 1733 and
1755.
An assumption of fact does not arise from any
direction of the law. It arises because reason itself
allows a presumption from the facts. If A attacks B
without provocation, the logical presumption arises
that A does not have tender feelings towards B. A
presumption of fact is in effect, actually a mere
inference because it does not necessarily give rise to
a legal effect.
This must be the reason for the trend to discard the
distinction between a presumption of fact and a
presumption of law.
Effect of a Presumption
In Diesel Construction Co., Inc. v. UPSI Property Holdings, Inc.,
G.R. No. 154937, March 24, 2008, the Court said:
A party in whose favor the legal presumption exists may rely on and
invoke such legal presumption to establish a fact in issue. One need
not introduce evidence to prove that the fact for a presumption
is prima facie proof of the fact presumed.
Presumptions Under the Rules of Court
1. As classified in Rule 131 of the Rules of Court, a
presumption may either be:
a. conclusive (presumptions juris et de jure);
or
b. disputable (presumptions juris tantum).
2. A presumption is conclusive when the presumption
becomes irrebuttable upon the presumption of the
evidence and any evidence tending to rebut the
presumption is not admissible. This presumption is in
reality a rule of substantive law. Conclusive
presumptions have been defined as "inferences
which the law makes so peremptory that it will not
allw them to be overturned by any contrary proof
however strong."
3. A presumption is disputable or rebuttable if it may be
contradicted or overcome by other evidence. In the
language of Sec. 3 of Rule 131, to wit:
Section 3. Disputable presumptions. — The following
presumptions are satisfactory if uncontradicted, but may
be contradicted and overcome by other evidence: xxx
When evidence that rebuts the presumption is
introduced, the force of the presumption disappears.
See example on Page 430.
Conclusive Presumptions under the Rules of Court
1. The following are the conclusive presumptions under
Sec. 2, Rule 131 of the Rules of Court:
Section 2. Conclusive presumptions. — The following are
instances of conclusive presumptions:
(a) Whenever a party has, by his own declaration, act, or
omission, intentionally and deliberately led to another to
believe a particular thing true, and to act upon such belief,
he cannot, in any litigation arising out of such declaration,
act or omission, be permitted to falsify it:
(b) The tenant is not permitted to deny the title of his
landlord at the time of commencement of the relation of
landlord and tenant between them.
2. The conclusive presumptions under the Rules of
Court are based on the doctrine of estoppel. Under
this doctrine, the person making the representation
cannot claim benefit from the wrong he himself
committed.
3. The first conclusive presumption is often referred to
as estoppel in pais or estoppel by conduct.
Estoppel
1. In PNB v. Palma, G.R. No. 157279, August 9, 2005, the
Court said:
Estoppel, an equitable principle rooted upon natural justice,
prevents persons from going back on their own acts
and representations, to the prejudice of others who have
relied on them.
The essential elements of estoppel in pais may be
considered in relation to the party sought to be estopped,
and in relation to the party invoking the estoppel in his
favor.
As related to the party to be estopped, the essential
elements are:
(1) conduct amounting to false representation or
concealment of material facts; or at least calculated to
convey the impression that the facts are otherwise than, and
inconsistent with, those which the party subsequently
attempts to assert;
(2) intent, or at least expectation that this conduct shall be
acted upon by, or at least influence, the other party; and
(3) knowledge, actual or constructive, of the real facts.
As related to the party claiming the estoppel, the essential
elements are:
50 | P L A T O N
 (1) lack of knowledge and of the means of knowledge of the
truth as to the facts in question;
(2) reliance, in good faith, upon the conduct or statements
of the party to be estopped;
(3) action or inaction based thereon of such character as to
change the position or status of the party claiming the
estoppel, to his injury, detriment or prejudice.
2. An essential element of estoppel is that the person
invoking it has been influenced or relied on the
representations or conduct of the person sought to
be estopped. (See also Sec. 21, Corporation Code of
the Philippines)
3. In Harold v. Aliba, G.R. No. 130864, October 2, 2007,
the Court said:
Under Article 1431 of the Civil Code, through estoppel, an
admission or representation is rendered conclusive upon the
person making it, and cannot be denied or disproved as
against the person relying on it. Expounding on the principle
of estoppel, we held in Springsun Management Systems
Corporation v. Camerino that  “where  a  party,  by  his  deed  or   under the Rules of Court is the presumption that
conduct, has induced another to act in a particular
manner, estoppel effectively bars the former from adopting
an inconsistent position, attitude or course of conduct that
causes   loss   or   injury   to   the   latter.” The doctrine
of estoppel is based upon the grounds of public policy, fair
dealing, good faith and justice, and its purpose is to forbid
one to speak against his own act, representations, or
commitments to the injury of one to whom they were
directed and who reasonably relied thereon.
4. In Golden Horizon Realty Corporation v. Sy Chuan, 365
SCRA 593, the Court said:
The private respondents, as lessees who had undisturbed
possession for the entire term under the lease, are then
estopped  to  deny  their  landlord’s  title,  or  to  assert  a  better   In People v. Concepcion, G.R. No. 178876, June 27,
title not only in themselves, but also in some third person
while they remain in possession of the leased premises and
until they surrender possession to the landlord. This
estoppel applies even though the lessor had no title at the
time the relation of lessor and lessee was created, and may
be asserted not only by the original lessor, but also by those
who succeed to his title.
5. In Tamio v. Ticson, 443 SCRA 44, the Court held:
Indeed, the relation of lessor and lessee does not depend on
the  former’s  title  but  on  the  agreement  between  the  parties,   includes presumptions of regularity of service of
followed by the possession of the premises by the lessee
under such agreement. As long as the latter remains in
undisturbed possession, it is immaterial whether the lessor
has a valid title -- or any title at all -- at the time the
relationship was entered into. Between the present parties,
the lease -- which was actually a sublease -- was effective.
And respondent had a colorable right to lease the premises
by virtue of the assignment even if, as against the owner,
both the assignment and the sublease were ineffectual. But
for reasons of equity, the lessee cannot be required to pay
both owner and sub-lessee for the same period of the lease.
6. In Consumido v. Ros, G.R. No. 166875, July 31, 2007,
the Court said:
Respondents cannot claim estoppel against petitioner
because they knew fully well that they were accepting
rentals from petitioner in their capacity as mere
administrators of the leased premises or only on behalf of
the late Ramon Saura, Sr. and/or VGFC. Respondents cannot
assert that they did not know for a fact that they were never
parties to the lease agreement. The fact that petitioner
initially thought respondents were the owners of the leased
premises does not put her in estoppel because respondents
were expected to know in what capacity they accepted the
payments.
Neither is petitioner estopped in denying  respondents’  title.  
The conclusive presumption set forth in Rule 131, Section
2(b) of the Rules of Court applies only when the landlord
and tenant relationship has been sufficiently established. In
the case at bar, this is precisely the issue to be resolved as
petitioner has consistently alleged that there was no lease
agreement between the parties. Moreover, respondents
themselves have not asserted ownership over the leased
premises, the truth of the matter being that respondents
were never the registered owners of the leased premises.
Disputable Presumptions
1. A significant example of a disputable presumption
"official duty has been regularly preformed" (Sec.
3[m], Rule 131). This presumption has been
consistently recognized by jurisprudence in favor of
police officers. Thus, in People v. Bautista, G.R. No.
169875, December 18, 2007, the Court declared:
Settled is the rule that in cases involving violations of the
Dangerous Drugs Act, credence is given to prosecution
witnesses who are police officers for they are presumed to
have performed their duties in a regular manner, unless
there is evidence to the contrary suggesting ill motive on the
part of the police officers or deviation from the regular
performance of their duties.
2008, the Court said:
The presumption remains because the defense failed to
present clear and convincing evidence that the police
officers did not properly perform their duty or that they
were inspired by an improper motive.
2. In Masagana Concrete Products v. NLRC, 313 SCRA
576, the Court said:
This presumption of the regularity of the court proceedings
summons. It is therefore incumbent upon herein petitioners
to rebut these presumptions with competent and proper
evidence. For the return is prima facie proof of the facts
indicated therein.
3. The above presumption does not apply in a petition
for a writ of amparo. Sec. 17 of the Rule on the Writ
of Amparo provides:
SEC. 17. Burden of Proof and Standard of Diligence
Required. – xxx
The respondent public official or employee cannot invoke
the presumption that official duty has been regularly
performed to evade responsibility or liability.
4. In People v. Camat, 256 SCRA 52. the Court held:
51 | P L A T O N
 As we have heretofore held, it is now incumbent upon the
prosecution to prove during the trial that, prior to
questioning, the confessant was warned of his
constitutionally protected rights because the presumption of
regularity of official acts does not apply during in-custody
investigation. Trial courts should further keep in mind that
even if the confession of the accused is gospel truth, if it was
made without the assistance of counsel, it is inadmissible in
evidence regardless of the absence of coercion or even if it
had been voluntarily given.
5. In People v. Ong, 432 SCRA 470, the Court said:
To determine whether there was a valid entrapment or
whether proper procedures were undertaken in effecting
the buy-bust operation, it is incumbent upon the courts to
make sure that the details of the operation are clearly and
adequately laid out through relevant, material and
competent evidence. For, the courts could not merely rely
on but must apply with studied restraint the presumption of
regularity in the performance of official duty by law
enforcement agents. This presumption should not by itself
prevail over the presumption of innocence and the
constitutionally protected rights of the individual. It is the
duty of courts to preserve the purity of their own temple
from the prostitution of the criminal law through lawless
enforcement.
6. In People v. Obmiranis, G.R. No. 181492, December
16, 2008, the Court said:
It needs no elucidation that the presumption of regularity in
the performance of official duty must be seen in the context
of an existing rule of law or statute authorizing the
performance of an act or duty or prescribing a procedure in
the performance thereof. The presumption, in other words,
obtains only where nothing in the records is suggestive of
the fact that the law enforcers involved deviated from the
standard conduct of official duty as provided for in the law.
Otherwise, where the official act in question is irregular on
its face, an adverse presumption arises as a matter of
course. There is indeed merit in the contention that where
no ill motives to make false charges was successfully
attributed to the members of the buy-bust team, the
presumption prevails that said police operatives had
regularly performed their duty, but the theory is correct only
where there is no showing that the conduct of police duty
was irregular. People v. Dulay and People v. Ganenas in fact
both suggest that the presumption of regularity is disputed
where there is deviation from the regular performance of
duty. Suffice it to say at this point that the presumption of
regularity in the conduct of police duty is merely just that-a
mere presumption disputable by contrary proof and which
when challenged by the evidence cannot be regarded as
binding truth.
Examples of Disputable Presumptions
Sec. 3 of Rule 131 provides:
Section 3. Disputable presumptions. — The following presumptions
are satisfactory if uncontradicted, but may be contradicted and
overcome by other evidence:
(a) That a person is innocent of crime or wrong;
(b) That an unlawful act was done with an unlawful intent;
(c) That a person intends the ordinary consequences of his voluntary
act;
(d) That a person takes ordinary care of his concerns;
(e) That evidence willfully suppressed would be adverse if produced;
(f) That money paid by one to another was due to the latter;
(g) That a thing delivered by one to another belonged to the latter;
(h) That an obligation delivered up to the debtor has been paid;
(i) That prior rents or installments had been paid when a receipt for
the later one is produced;
(j) That a person found in possession of a thing taken in the doing of a
recent wrongful act is the taker and the doer of the whole act;
otherwise, that things which a person possess, or exercises acts of
ownership over, are owned by him;
(k) That a person in possession of an order on himself for the payment
of the money, or the delivery of anything, has paid the money or
delivered the thing accordingly;
(l) That a person acting in a public office was regularly appointed or
elected to it;
(m) That official duty has been regularly performed;
(n) That a court, or judge acting as such, whether in the Philippines or
elsewhere, was acting in the lawful exercise of jurisdiction;
(o) That all the matters within an issue raised in a case were laid
before the court and passed upon by it; and in like manner that all
matters within an issue raised in a dispute submitted for arbitration
were laid before the arbitrators and passed upon by them;
(p) That private transactions have been fair and regular;
(q) That the ordinary course of business has been followed;
(r) That there was a sufficient consideration for a contract;
(s) That a negotiable instrument was given or indorsed for a sufficient
consideration;
(t) That an endorsement of negotiable instrument was made before
the instrument was overdue and at the place where the instrument is
dated;
(u) That a writing is truly dated;
(v) That a letter duly directed and mailed was received in the regular
course of the mail;
(w) That after an absence of seven years, it being unknown whether
or not the absentee still lives, he is considered dead for all purposes,
except for those of succession.
The absentee shall not be considered dead for the purpose of opening
his succession till after an absence of ten years. If he disappeared
after the age of seventy-five years, an absence of five years shall be
sufficient in order that his succession may be opened.
The following shall be considered dead for all purposes including the
division of the estate among the heirs:
(1) A person on board a vessel lost during a sea voyage, or an aircraft
with is missing, who has not been heard of for four years since the
loss of the vessel or aircraft;
(2) A member of the armed forces who has taken part in armed
hostilities, and has been missing for four years;
(3) A person who has been in danger of death under other
circumstances and whose existence has not been known for four
years;
(4) If a married person has been absent for four consecutive years, the
spouse present may contract a subsequent marriage if he or she has
well-founded belief that the absent spouse is already death. In case of
disappearance, where there is a danger of death the circumstances
hereinabove provided, an absence of only two years shall be sufficient
for the purpose of contracting a subsequent marriage. However, in
any case, before marrying again, the spouse present must institute a
summary proceedings as provided in the Family Code and in the rules
for declaration of presumptive death of the absentee, without
prejudice to the effect of reappearance of the absent spouse.
(x) That acquiescence resulted from a belief that the thing acquiesced
in was conformable to the law or fact;
(y) That things have happened according to the ordinary course of
nature and ordinary nature habits of life;
(z) That persons acting as copartners have entered into a contract of
copartneship;
(aa) That a man and woman deporting themselves as husband and
wife have entered into a lawful contract of marriage;
(bb) That property acquired by a man and a woman who are
capacitated to marry each other and who live exclusively with each
other as husband and wife without the benefit of marriage or under
52 | P L A T O N
void marriage, has been obtained by their joint efforts, work or (1) A person on board a vessel lost during a sea voyage, or
industry. an aircraft with is missing, who has not been heard of for
(cc) That in cases of cohabitation by a man and a woman who are not four years since the loss of the vessel or aircraft;
capacitated to marry each other and who have acquire properly (2) A member of the armed forces who has taken part in
through their actual joint contribution of money, property or industry, armed hostilities, and has been missing for four years;
such contributions and their corresponding shares including joint (3) A person who has been in danger of death under other
deposits of money and evidences of credit are equal. circumstances and whose existence has not been known
(dd) That if the marriage is terminated and the mother contracted for four years;
another marriage within three hundred days after such termination of (4) If a married person has been absent for four
the former marriage, these rules shall govern in the absence of proof consecutive years, the spouse present may contract a
to the contrary: subsequent marriage if he or she has well-founded belief
(1) A child born before one hundred eighty days after the that the absent spouse is already dead. In case of
solemnization of the subsequent marriage is considered to have been disappearance, where there is a danger of death the
conceived during such marriage, even though it be born within the circumstances hereinabove provided, an absence of only
three hundred days after the termination of the former marriage. two years shall be sufficient for the purpose of contracting
(2) A child born after one hundred eighty days following the a subsequent marriage. However, in any case, before
celebration of the subsequent marriage is considered to have been marrying again, the spouse present must institute a
conceived during such marriage, even though it be born within the summary proceedings as provided in the Family Code and
three hundred days after the termination of the former marriage. in the rules for declaration of presumptive death of the
(ee) That a thing once proved to exist continues as long as is usual absentee, without prejudice to the effect of reappearance
with things of the nature; of the absent spouse.
(ff) That the law has been obeyed;
(gg) That a printed or published book, purporting to be printed or Absence of Presumption of Legitimacy or Illegitimacy
published by public authority, was so printed or published;
(hh) That a printed or published book, purporting contain reports of
Sec. 4, Rule 131 provides:
cases adjudged in tribunals of the country where the book is
published, contains correct reports of such cases;
(ii) That a trustee or other person whose duty it was to convey real Section 4. No presumption of legitimacy or illegitimacy. — There is no
property to a particular person has actually conveyed it to him when presumption of legitimacy of a child born after three hundred days
such presumption is necessary to perfect the title of such person or following the dissolution of the marriage or the separation of the
his successor in interest; spouses. Whoever alleges the legitimacy or illegitimacy of such child
(jj) That except for purposes of succession, when two persons perish must prove his allegation.
in the same calamity, such as wreck, battle, or conflagration, and it is
not shown who died first, and there are no particular circumstances
from which it can be inferred, the survivorship is determined from the
probabilities resulting from the strength and the age of the sexes,
according to the following rules:
1. If both were under the age of fifteen years, the older is deemed to
have survived;
2. If both were above the age sixty, the younger is deemed to have
survived;
3. If one is under fifteen and the other above sixty, the former is
deemed to have survived;
4. If both be over fifteen and under sixty, and the sex be different, the
male is deemed to have survived, if the sex be the same, the older;
5. If one be under fifteen or over sixty, and the other between those
ages, the latter is deemed to have survived.
(kk) That if there is a doubt, as between two or more persons who are
called to succeed each other, as to which of them died first, whoever
alleges the death of one prior to the other, shall prove the same; in
the absence of proof, they shall be considered to have died at the
same time.

See also Pages 436-450.

Presumptions of Death
1. Sec. 3(w), Rule 131 provides:

(w) That after an absence of seven years, it being unknown

whether or not the absentee still lives, he is considered
dead for all purposes, except for those of succession.
The absentee shall not be considered dead for the purpose
of opening his succession till after an absence of ten years.
If he disappeared after the age of seventy-five years, an
absence of five years shall be sufficient in order that his
succession may be opened.
The following shall be considered dead for all purposes
including the division of the estate among the heirs:

53 | P L A T O N
 Chapter VII
Offer of Evidence and Trial Objections
The provisions relevant to this chapter are reproduced as
follows:
Section 34. Offer of evidence. — The court shall consider no evidence
which has not been formally offered. The purpose for which the
evidence is offered must be specified.
Section 35. When to make offer. — As regards the testimony of a
witness, the offer must be made at the time the witness is called to
testify.
Documentary and object evidence shall be offered after the
presentation of a party's testimonial evidence. Such offer shall be
done orally unless allowed by the court to be done in writing.
Section 36. Objection. — Objection to evidence offered orally must be
made immediately after the offer is made.
Objection to a question propounded in the course of the oral
examination of a witness shall be made as soon as the grounds
therefor shall become reasonably apparent.
An offer of evidence in writing shall be objected to within three (3)
days after notice of the unless a different period is allowed by the
court.
In any case, the grounds for the objections must be specified.
Section 37. When repetition of objection unnecessary. — When it
becomes reasonably apparent in the course of the examination of a
witness that the question being propounded are of the same class as
those to which objection has been made, whether such objection was
sustained or overruled, it shall not be necessary to repeat the
objection, it being sufficient for the adverse party to record his
continuing objection to such class of questions.
Section 38. Ruling. — The ruling of the court must be given
immediately after the objection is made, unless the court desires to
take a reasonable time to inform itself on the question presented; but
the ruling shall always be made during the trial and at such time as
will give the party against whom it is made an opportunity to meet
the situation presented by the ruling.
The reason for sustaining or overruling an objection need not be
stated. However, if the objection is based on two or more grounds, a
ruling sustaining the objection on one or some of them must specify
the ground or grounds relied upon.
Section 39. Striking out answer. — Should a witness answer the
question before the adverse party had the opportunity to voice fully
its objection to the same, and such objection is found to be
meritorious, the court shall sustain the objection and order the
answer given to be stricken off the record.
On proper motion, the court may also order the striking out of
answers which are incompetent, irrelevant, or otherwise improper.
Section 40. Tender of excluded evidence. — If documents or things
offered in evidence are excluded by the court, the offeror may have
the same attached to or made part of the record. If the evidence
excluded is oral, the offeror may state for the record the name and
other personal circumstances of the witness and the substance of the
proposed testimony.
Importance of Offer of Evidence
1. An evidence must be formally offered. Under the
Rules of Court, the court shall consider no evidence
which has not been formally offered.
2. There is a need for a formal offer of evidence because
without such offer, the court cannot determine
whether the evidence is admissible of not.
Thus, in Dizon v. CTA, G.R. No. 140944, April 30, 2008,
the Court ruled:
Under Section 8 of RA 1125, the CTA is categorically
described as a court of record. As cases filed before it are
litigated de novo, party-litigants shall prove every minute
aspect of their cases. Indubitably, no evidentiary value can
be given the pieces of evidence submitted by the BIR, as the
rules on documentary evidence require that these
documents must be formally offered before the CTA.
Pertinent is Section 34, Rule 132 of the Revised Rules on
Evidence.
While the CTA is not governed strictly by technical rules of
evidence, as rules of procedure are not ends in themselves
and are primarily intended as tools in the administration of
justice, the presentation of the BIR's evidence is not a mere
procedural technicality which may be disregarded
considering that it is the only means by which the CTA may
ascertain and verify the truth of BIR's claims against the
Estate. The BIR's failure to formally offer these pieces of
evidence, despite CTA's directives, is fatal to its cause.
3. In Spouses Tan v. Republic, G.R. No. 177797,
December 4, 2008, the Court sustained the Court of
Appeals which refused to consider a document
submitted for the first time by the petitioners when
the same was attached to their motion for
reconsideration of the decision of the Court of
Appeals. In sustaining the appellate court, the
Supreme Court reiterated the rule in Sec. 34 of Rule
132. The document should have been offered during
the trial in the Regional Trial Court.
It is submitted however, that where the absence of
an offer of a testimonial evidence was not objected to
as when the witness was cross-examined by the
adverse party despite failure of counsel to make an
offer of the testimony of the witness, the court must
consider the testimony.
4. In Candido v. CA, 253 SCRA 78, the Court said:
A document, or any article for that matter, is not evidence
when it is simply marked for identification; it must be
formally offered, and the opposing counsel given an
opportunity to object to it or cross-examine the witness
called upon to prove or identify it. A formal offer is
necessary since judges are required to base their findings of
fact and judgment only -and strictly - upon the evidence
offered by the parties at the trial. To allow a party to attach
any document to his pleading and then expect the court to
consider it as evidence may draw unwarranted
consequences. The opposing party will be deprived of his
chance to examine the document and object to its
admissibility. The appellate court will have difficulty
reviewing documents not previously scrutinized by the court
below. The pertinent provisions of the Revised Rules of
Court on the inclusion on appeal of documentary evidence
or exhibits in the records cannot be stretched as to include
such pleadings or documents not offered at the hearing of
the case.
5. In Dizon v. CTA citing Vda. de Oñate v. CA, 250 SCRA
283, the Court said:
From the foregoing provision, it is clear that for evidence to
be considered, the same must be formally offered.
Corollarily, the mere fact that a particular document is
54 | P L A T O N
 identified and marked as an exhibit does not mean that it 2. The court shall consider the evidence solely for the
has already been offered as part of the evidence of a party. purpose for which it is offered, not for any other
In Interpacific Transit, Inc. v. Aviles, 186 SCRA 385, we had purpose.
the occasion to make a distinction between identification of
documentary evidence and its formal offer as an exhibit. We
said that the first is done in the course of the trial and is See Pages 461-462.
accompanied by the marking of the evidence as an exhibit
while the second is done only when the party rests its case Purpose of Objections
and not before. A party, therefore, may opt to formally offer
his evidence if he believes that it will advance his cause or Objections may be made for any of the following purposes:
not to do so at all. In the event he chooses to do the latter, a) First, objections are made to keep out inadmissible
the trial court is not authorized by the Rules to consider the evidence that would cause harm to a client's cause.
same.
The rules of evidence are not self-operating and
hence, must be invoked by way of an objection.
When Formal Offer of Evidence is Not Required
b) Objections interposed to protect the record, i.e., to
1. A formal offer of evidence is not required in certain
present the issue of inadmissibility of the offered
cases:
evidence in a way that if the trial court rules
a. In a summary proceeding because it is a
erroneously, the error can be relied upon as a ground
proceeding where there is no full-blown
for a future appeal;
trial;
c) Objections may be made to protect a witness from
b. Documents judicially admitted or taken
being embarrassed on the stand or from being
judicial notice of;
harassed by the adverse counsel;
c. Documents, affidavits and depositions used
d) Objections are interjected to expose the adversary's
in rendering a summary judgment;
unfair tactics like his consistently asking obviously
d. Documents or affidavits used in deciding
leading questions;
quasi-judicial or administrative cases;
e) Objections may be made to give the trial court an
e. Lost objects previously marked, identified,
opportunity to correct its own errors and at the same
described in the record, and testified to by
time warn the court that a ruling adverse to the
witnesses who had been subjects of cross-
objector may supply a reason to invoke a higher
examination in respect to said objects.
court's appellate jurisdiction; and
2. There were instances however, when the Court
f) Objections are made to avoid a waiver of the
allowed the admission of evidence not formally
inadmissibility of an otherwise inadmissible evidence.
offered as in People v. Napat-a, 179 SCRA 403, citing
People v. Matte, 103 SCRA 484, where evidence not
General and Specific Objections
formally offered was held to be allowable provided
1. An objection must point out the specific ground of
certain requirements are present:
the objection, and if it does not do so, no error is
a. The evidence must have been duly
committed in overruling it.
identified by testimony duly recorded; and
2. The last paragraph of Sec. 36, Rule 132 provides, "...
b. The same must have been incorporated in
the grounds for the objections must be specified."
the records of the case.
Hence, an objector must be explicit as to the legal
See also Pages 457-458.
ground he invokes. He cannot simply manifest that he
is interposing an objection. He has to precisely state
When Evidence is Offered
the exclusionary rule that would justify his opposition
1. As to when the offer of evidence is made depends
to the proffered evidence.
upon the nature of the evidence. See Sec. 35, Rule
3. The following examples are considered as general
132.
objections:
2. The provisions of the Rules of Court as stated above,
a. "Objection, The evidence is incompetent!"
give a simple rule as to when an evidence is to be
b. "Objection! Inadmissible!"
offered. Hence, the presentation of a documentary or
c. "Objection: Incompetent, Irrelevant, and
object evidence for marking and identification during
Immaterial!"
the course of the trial is not the offer contemplated in
d. "Objection, Improper!"
the rules. Failure to object to the evidence at this
They are called "general" for an obvious reason. They
time should not be construed as a waiver of the
do not clearly indicate to the judge the ground upon
objection to the evidence.
which the objections are predicated. They assign no
3. See Macasiray v. People, 291 SCRA 154; see also
grounds to the objection. A general objection, in
Pages 459-460.
including everything, actually specifies nothing.
4. Rule 132 does not tell us how specific an objection
How an Offer of Evidence is Made
must be. Practical reasons however tell us, that the
1. When a party makes a formal offer of his evidence, he
objection must be specific enough to adequately
must state the nature or substance of the evidence,
inform the court the rule of evidence or of
and the specific purpose for which the evidence is
substantive law that authorizes the exclusion of the
offered.
evidence. Objections like, "question calls for a
hearsay answer" – "witness cannot testify on a
privileged communication" – "The question calls for a
55 | P L A T O N
 conclusion" – "the question is beyond the scope of the 2. Sometimes, an apparently unobjectionable question
direct examination;" "impeachment is improper" – are brings out an objectionable and inadmissible
specific enough for anyone to know the basis of the response. But the infirmity of the response becomes
objection. apparent only after it is completed. If the answer is
5. The rule is that a specific objection is always damaging then relief may be obtained by a motion to
preferred over a general objection. See also Page 464. strike.
3. See example on Pages 467-468.
Formal and Substantive Objections 4. An objection to a witness' disqualification in general
must be made as soon as he is called to the stand and
FORMAL SUBSTANTIVE before his examination begins, provided his
One directed against the Objections made and directed disqualification is then known.
alleged defect in the against the very nature of the
formulation of the question. evidence, i.e., it is Waiver of Objections; Belated Objections
Examples of defectively inadmissible either because it 1. The term "waiver" implies the existence of a right, a
formulated questions: ambi- is irrelevant or incompetent claim, a privilege or something one is entitled to. It is
guous questions; leading and or both. Examples: parol; not by its nature a unilateral act. It need not however, be
misleading questions; repe- the best evidence; hearsay a positive act. A waiver may result from failure to
titious questions; multiple privileged communication not perform an act. When the claim, right, or privilege is
questions; argumentative authen-ticated; opinion; res abandoned, repudiated, renounced or not asserted,
questions. inter alios acta there is a waiver.
Applied to objections, there is a waiver when there is
Objections Must be Timely failure to point out some defect, irregularity or wrong
1. Aside from the requirement that an objection must in the admission or exclusion of evidence. Such failure
state the specific ground relied upon, it is necessary may take various forms and may either be expressed
that the objection be timely. or implied.
2. In order to be timely therefore, the objection must be 2. If no objection is made to an otherwise inadmissible
made at the earliest opportunity. What the earliest evidence, the objection is deemed to have been
opportunity is depends upon the manner the waived by the party upon whom making the objection
evidence is offered. is incumbent.
Sec. 36, Rule 132 provides: 3. It will not be considered on appeal because there is
deemed to be a waiver.
Section 36. Objection. — Objection to evidence offered 4. The right to object is merely a privilege which the
orally must be made immediately after the offer is made. party may waive.
Objection to a question propounded in the course of the 5. The rule is that evidence not objected may be
oral examination of a witness shall be made as soon as the deemed admitted and may be validly considered by
grounds therefor shall become reasonably apparent.
the court in arriving at its judgment.
An offer of evidence in writing shall be objected to within
three (3) days after notice of the unless a different period is
allowed by the court. See also Pages 469-471.

3. The rules therefore, make the offer of evidence the
frame of reference for a timely objection. Hence, it is
to be assumed that an objection to the evidence
before it is offered is premature and no adverse
inference may be had against a party who does not
object to the evidence before it is offered.
4. See Pages 466-467; see also first paragraph of Sec. 39,
Rule 132.
When to Use a Motion to Strike
1. A motion to strike may be availed in the following
instances:
a. when the answer is premature;
b. when the answer of the witness is
irrelevant, incompetent or otherwise
improper;
c. when the answer is unresponsive;
d. when the witness becomes unavailable for
cross-examination through no fault of the
cross-examining party;
e. when the testimony was allowed
conditionally and the condition for its
admissibility was not fulfilled.
Extent of Waiver for Failure to Object
1. When an objection to evidence is deemed waived,
what exactly does the non-objecting party waive?
Answer: He waives objections to its admissibility. In
plain language, the evidence become admissible but
the waiver involves no admission that the evidence
possesses the weight attributed to it by the offering
party.
2. A waiver should not be construed as an admission
that the evidence is credible. It does not also mean
that the non-objecting party waives his right to
present controverting evidence. It only involves
waiver of objection to two matters, namely, the
relevance and the competence of the evidence. Why
is this so? Because these are the components of
admissibility and this is what Sec. 3, Rule 128 of the
Rules of Court tells us.
See Pages 471-473.
Rulings on Objections
Sec. 38 of Rule 132 provides:

56 | P L A T O N
Section 38. Ruling. — The ruling of the court must be given
immediately after the objection is made, unless the court desires to
take a reasonable time to inform itself on the question presented; but
the ruling shall always be made during the trial and at such time as
will give the party against whom it is made an opportunity to meet
the situation presented by the ruling.
The reason for sustaining or overruling an objection need not be
stated. However, if the objection is based on two or more grounds, a
ruling sustaining the objection on one or some of them must specify
the ground or grounds relied upon.
See also Pages 473-475.
Tender of Excluded Evidence (Offer of Proof)
1. Sec. 40 of Rule 132 provides:
Section 40. Tender of excluded evidence. — If documents or
things offered in evidence are excluded by the court, the
offeror may have the same attached to or made part of the
record. If the evidence excluded is oral, the offeror may
state for the record the name and other personal
circumstances of the witness and the substance of the
proposed testimony.
See illustration on Pages 475-476.
The first is where the counsel tells the court what the
proposed testimony will be. This is the method
prescribed in the Rules of Court.
The second method is by using the question and
answer form.
See illustration on Pages 478-479.
See also Pages 479-480.
Bar 1991: Distinguish formal offer of evidence from offer of proof.
Suggested Answer: Formal offer of evidence refers either to the offer
of the testimony of a witness prior to the latter's testimony, or the offer
of the documentary and object evidence after a party has presented his
testimonial evidence.
Offer of proof, is the process by which a proponent of an excluded
evidence tenders the same. If what has been excluded is testimonial
evidence, the tender is made by stating for the record the name and
other personal circumstances of the proposed witness and the
substance of his proposed testimony. If the evidence excluded is
documentary or of things, the offer of proof is made by having the
same attached to or made a part of the record.
–oOo–

2. The foregoing rule, called "offer of proof" in other

jurisdictions, embodies the procedure for the "tender
of excluded evidence." Why make a tender of
excluded evidence? You do it for two reasons. First, to
allow the court to know the nature of the testimony
or the documentary evidence and convince the trial
judge to permit the evidence or testimony. Second,
even if he is not convinced to reverse his earlier
ruling, the tender is made to create and preserve a
record for appeal.
3. How is tender done? The procedure depends upon
the type of evidence excluded. Where the evidence
involved is documentary or object evidence, the
tender is made by having the document or object
attached to or made part of the record (Sec. 40, Rule
132).
Even if the rules do not spell out the details on how
this should be done, it is a common practice in almost
all jurisdictions, for the offering counsel to produce,
describe, identify the object or document, and in case
of the latter, to state the contents of the document
that is sought to be admitted where the substance of
the same is not apparent on its face. Reading the
substance of the document is an accepted way of
stating its contents for the record in states which
recognize a tender. A disclosure of the contents of
the document is necessary in order to aid the court in
determining its competence and relevance.
The next step is to state the purpose for which the
object or document sought to be attached is offered,
and to ask that it be marked for identification and
have it attached to the record. See example on Pages
477-478.
4. If the evidence excluded is testimonial, the offeror
may state for the record the name and other personal
circumstances of the witness and the substance of
the proposed testimony (Sec. 40, Rule 132).
There are two traditional methods of making the
tender:
57 | P L A T O N
 Appendix A
RULES ON ELECTRONIC EVIDENCE
A.M. No. 01-7-01-SC, July 17, 2001
EN BANC
RESOLUTION
Acting on the Memorandum dated 18 June 2001 of the Committee on the
Revision of the Rules of Court to Draft the Rules on E-Commerce Law [R.A. No.
8792] submitting the Rules on Electronic Evidence for this Court's consideration
and approval, the Court Resolved to APPROVED the same.
The Rules on Electronic Evidence shall apply to cases pending after their
effectivity. These Rules shall take effect on the first day of August 2001 following
thier publication before the 20th of July in two newspapers of general circulation
in the Philippines
17th July 2001.
RULES ON ELECTRONIC EVIDENCE
Rule 1
COVERAGE
Section 1. Scope. – Unless otherwise provided herein, these Rules shall apply
whenever an electronic document or electronic data message, as defined in Rule
2 hereof, is offered or used in evidence.
Section 2. Cases covered. – These Rules shall apply to all civil actions and
proceedings, as well as quasi-judicial and administrative cases.
Section 3. Application of other rules on evidence. – In all matters not specifically
covered by these Rules, the Rules of Court and pertinent provisions of statutes
containing rules on evidence shall apply.
Rule 2
DEFINITION OF TERMS AND CONSTRUCTION
Section 1. Definition of terms. – For purposes of these Rules, the following terms
are defined, as follows:
(a) "Asymmetric or public cryptosystem" means a system capable of
generating a secure key pair, consisting of a private key for creating
a digital signature, and a public key for verifying the digital signature.
(b) "Business records" include records of any business, institution,
association, profession, occupation, and calling of every kind,
whether or not conducted for profit, or for legitimate or illegitimate
purposes.
(c) "Certificate" means an electronic document issued to support a
digital signature which purports to confirm the identity or other
significant characteristics of the person who holds a particular key
pair.
(d) "Computer" refers to any single or interconnected device or
apparatus, which, by electronic, electro-mechanical or magnetic
impulse, or by other means with the same function, can receive,
record, transmit, store, process, correlate, analyze, project, retrieve
and/or produce information, data, text, graphics, figures, voice,
video, symbols or other modes of expression or perform any one or
more of these functions.
(e) "Digital signature" refers to an electronic signature consisting of a
transformation of an electronic document or an electronic data
message using an asymmetric or public cryptosystem such that a
person having the initial untransformed electronic document and the
signer's public key can accurately determine:
i. whether the transformation was created using the
private key that corresponds to the signer's public key;
and
ii. whether the initial electronic document had been
altered after the transformation was made.
(f) "Digitally signed" refers to an electronic document or electronic
data message bearing a digital signature verified by the public key
listed in a certificate.
(g) "Electronic data message" refers to information generated, sent,
received or stored by electronic, optical or similar means.
(h) "Electronic document" refers to information or the representation
of information, data, figures, symbols or other modes of written
expression, described or however represented, by which a right is
established or an obligation extinguished, or by which a fact may be
proved and affirmed, which is received, recorded, transmitted,
stored, processed, retrieved or produced electronically. It includes
digitally signed documents and any print-out or output, readable by
sight or other means, which accurately reflects the electronic data
message or electronic document. For purposes of these Rules, the
term "electronic document" may be used interchangeably with
"electronic data message".
(i) "Electronic key" refers to a secret code which secures and
defends sensitive information that crosses over public channels into
a form decipherable only with a matching electronic key.
(j) "Electronic signature" refers to any distinctive mark, characteristic
and/or sound in electronic form, representing the identity of a person
and attached to or logically associated with the electronic data
message or electronic document or any methodology or procedure
employed or adopted by a person and executed or adopted by such
person with the intention of authenticating, signing or approving an
electronic data message or electronic document. For purposes of
these Rules, an electronic signature includes digital signatures.
(k) "Ephemeral electronic communication" refers to telephone
conversations, text messages, chatroom sessions, streaming audio,
streaming video, and other electronic forms of communication the
evidence of which is not recorded or retained.
(l) "Information and communication system" refers to a system for
generating, sending, receiving, storing or otherwise processing
electronic data messages or electronic documents and includes the
computer system or other similar devices by or in which data are
recorded or stored and any procedure related to the recording or
storage of electronic data messages or electronic documents.
(m) "Key pair" in an asymmetric cryptosystem refers to the private
key and its mathematically related public key such that the latter can
verify the digital signature that the former creates.
(n) "Private key" refers to the key of a key pair used to create a
digital signature.
(o) "Public key" refers to the key of a key pair used to verify a digital
signature.
Section 2. Construction. – These Rules shall be liberally construed to assist the
parties in obtaining a just, expeditious, and inexpensive determination of cases.
The interpretation of these Rules shall also take into consideration the
international origin of Republic Act No. 8792, otherwise known as the Electronic
Commerce Act.
Rule 3
ELECTRONIC DOCUMENTS
Section 1. Electronic documents as functional equivalent of paper-based
documents. – Whenever a rule of evidence refers to the term writing, document,
record, instrument, memorandum or any other form of writing, such term shall be
deemed to include an electronic document as defined in these Rules.
Section 2. Admissibility. – An electronic document is admissible in evidence if it
complies with the rules on admissibility prescribed by the Rules of Court and
related laws and is authenticated in the manner prescribed by these Rules.
Section 3. Privileged communication. – The confidential character of a privileged
communication is not lost solely on the ground that it is in the form of an
electronic document.
58 | P L A T O N
 Rule 4
BEST EVIDENCE RULE
Section 1. Original of an electronic document. – An electronic document shall be
regarded as the equivalent of an original document under the Best Evidence
Rule if it is a printout or output readable by sight or other means, shown to reflect
the data accurately.
Section 2. Copies as equivalent of the originals. – When a document is in two or
more copies executed at or about the same time with identical contents, or is a
counterpart produced by the same impression as the original, or from the same
matrix, or by mechanical or electronic re-recording, or by chemical reproduction,
or by other equivalent techniques which accurately reproduces the original, such
copies or duplicates shall be regarded as the equivalent of the original.
Notwithstanding the foregoing, copies or duplicates shall not be admissible to the
same extent as the original if:
(a) a genuine question is raised as to the authenticity of the original;
or
(b) in the circumstances it would be unjust or inequitable to admit the
copy in lieu of the original.
Rule 5
AUTHENTICATION OF ELECTRONIC DOCUMENTS
Section 1. Burden of proving authenticity. – The person seeking to introduce an
electronic document in any legal proceeding has the burden of proving its
authenticity in the manner provided in this Rule.
Section 2. Manner of authentication. – Before any private electronic document
offered as authentic is received in evidence, its authenticity must be proved by
any of the following means:
(a) by evidence that it had been digitally signed by the person
purported to have signed the same;
(b) by evidence that other appropriate security procedures or
devices as may be authorized by the Supreme Court or by law for
authentication of electronic documents were applied to the
document; or
(c) by other evidence showing its integrity and reliability to the
satisfaction of the judge.
Section 3. Proof of electronically notarized document. – A document
electronically notarized in accordance with the rules promulgated by the
Supreme Court shall be considered as a public document and proved as a
notarial document under the Rules of Court.
Rule 6
ELECTRONIC SIGNATURES
Section 1. Electronic signature. – An electronic signature or a digital signature
authenticated in the manner prescribed hereunder is admissible in evidence as
the functional equivalent of the signature of a person on a written document.
Section 2. Authentication of electronic signatures. – An electronic signature may
be authenticated in any of the following manner:
(a) By evidence that a method or process was utilized to establish a
digital signature and verify the same;
(b) By any other means provided by law; or
(c) By any other means satisfactory to the judge as establishing the
genuineness of the electronic signature.
Section 3. Disputable presumptions relating to electronic signatures. – Upon the
authentication of an electronic signature, it shall be presumed that:
(a) The electronic signature is that of the person to whom it
correlates;
(b) The electronic signature was affixed by that person with the
intention of authenticating or approving the electronic document to
which it is related or to indicate such person's consent to the
transaction embodied therein; and
(c) The methods or processes utilized to affix or verify the electronic
signature operated without error or fault.
Section 4. Disputable presumptions relating to digital signatures. – Upon the
authentication of a digital signature, it shall be presumed, in addition to those
mentioned in the immediately preceding section, that:
(a) The information contained in a certificate is correct;
(b) The digital signature was created during the operational period of
a certificate;
(c) No cause exists to render a certificate invalid or revocable;
(d) The message associated with a digital signature has not been
altered from the time it was signed; and,
(e) A certificate had been issued by the certification authority
indicated therein.
Rule 7
EVIDENTIARY WEIGHT OF ELECTRONIC DOCUMENTS
Section 1. Factors for assessing evidentiary weight. – In assessing the
evidentiary weight of an electronic document, the following factors may be
considered:
(a) The reliability of the manner or method in which it was generated,
stored or communicated, including but not limited to input and output
procedures, controls, tests and checks for accuracy and reliability of
the electronic data message or document, in the light of all the
circumstances as well as any relevant agreement;
(b) The reliability of the manner in which its originator was identified;
(c) The integrity of the information and communication system in
which it is recorded or stored, including but not limited to the
hardware and computer programs or software used as well as
programming errors;
(d) The familiarity of the witness or the person who made the entry
with the communication and information system;
(e) The nature and quality of the information which went into the
communication and information system upon which the electronic
data message or electronic document was based; or
(f) Other factors which the court may consider as affecting the
accuracy or integrity of the electronic document or electronic data
message.
Section 2. Integrity of an information and communication system. – In any
dispute involving the integrity of the information and communication system in
which an electronic document or electronic data message is recorded or stored,
the court may consider, among others, the following factors:
(a) Whether the information and communication system or other
similar device was operated in a manner that did not affect the
integrity of the electronic document, and there are no other
reasonable grounds to doubt the integrity of the information and
communication system;
(b) Whether the electronic document was recorded or stored by a
party to the proceedings with interest adverse to that of the party
using it; or
(c) Whether the electronic document was recorded or stored in the
usual and ordinary course of business by a person who is not a
party to the proceedings and who did not act under the control of the
party using it.
Rule 8
BUSINESS RECORDS AS EXCEPTION TO THE HEARSAY RULE
59 | P L A T O N
Section 1. Inapplicability of the hearsay rule. – A memorandum, report, record or Section 2. Effectivity. – These Rules shall take effect on the first day of August
data compilation of acts, events, conditions, opinions, or diagnoses, made by 2001 following their publication before the 20th of July 2001 in two newspapers
electronic, optical or other similar means at or near the time of or from of general circulation in the Philippines. (Source: lawphil.net)
transmission or supply of information by a person with knowledge thereof, and
kept in the regular course or conduct of a business activity, and such was the
regular practice to make the memorandum, report, record, or data compilation by
electronic, optical or similar means, all of which are shown by the testimony of
the custodian or other qualified witnesses, is excepted from the rule on hearsay
evidence.

Section 2. Overcoming the presumption. – The presumption provided for in

Section 1 of this Rule may be overcome by evidence of the untrustworthiness of
the source of information or the method or circumstances of the preparation,
transmission or storage thereof.

Rule 9
METHOD OF PROOF

Section 1. Affidavit evidence. – All matters relating to the admissibility and

evidentiary weight of an electronic document may be established by an affidavit
stating facts of direct personal knowledge of the affiant or based on authentic
records. The affidavit must affirmatively show the competence of the affiant to
testify on the matters contained therein.

Section 2. Cross-examination of deponent. – The affiant shall be made to affirm

the contents of the affidavit in open court and may be cross-examined as a
matter of right by the adverse party.

Rule 10
EXAMINATION OF WITNESSES

Section 1. Electronic testimony. – After summarily hearing the parties pursuant

to Rule 9 of these Rules, the court may authorize the presentation of testimonial
evidence by electronic means. Before so authorizing, the court shall determine
the necessity for such presentation and prescribe terms and conditions as may
be necessary under the circumstances, including the protection of the rights of
the parties and witnesses concerned.

Section 2. Transcript of electronic testimony. – When examination of a witness is

done electronically, the entire proceedings, including the questions and answers,
shall be transcribed by a stenographer, stenotypist or other recorder authorized
for the purpose, who shall certify as correct the transcript done by him. The
transcript should reflect the fact that the proceedings, either in whole or in part,
had been electronically recorded.

Section 3. Storage of electronic evidence. – The electronic evidence and

recording thereof as well as the stenographic notes shall form part of the record
of the case. Such transcript and recording shall be deemed prima facie evidence
of such proceedings.

Rule 11
AUDIO, PHOTOGRAPHIC, VIDEO, AND EPHEMERAL EVIDENCE

Section 1. Audio, video and similar evidence. – Audio, photographic and video
evidence of events, acts or transactions shall be admissible provided it shall be
shown, presented or displayed to the court and shall be identified, explained or
authenticated by the person who made the recording or by some other person
competent to testify on the accuracy thereof.

Section 2. Ephemeral electronic communications. – Ephemeral electronic

communications shall be proven by the testimony of a person who was a party to
the same or has personal knowledge thereof. In the absence or unavailability of
such witnesses, other competent evidence may be admitted.

A recording of the telephone conversation or ephemeral electronic

communication shall be covered by the immediately preceding section.

If the foregoing communications are recorded or embodied in an electronic

document, then the provisions of Rule 5 shall apply.

Rule 12
EFFECTIVITY

Section 1. Applicability to pending cases. – These Rules shall apply to cases

pending after their effectivity.

60 | P L A T O N
 Appendix B
RULE ON EXAMINATION OF A CHILD WITNESS
A.M. NO. 004-07-SC, November 21, 2000
Section 1. Applicability of the Rule. - Unless otherwise provided, this Rule
shall govern the examination of child witnesses who are victims of crime,
accused of a crime, and witnesses to crime. It shall apply in all criminal
proceedings and non-criminal proceedings involving child witnesses.
Section 2. Objectives. - The objectives of this Rule are to create and maintain
an environment that will allow children to give reliable and complete evidence,
minimize trauma to children, encourage children to testify in legal proceedings,
and facilitate the ascertainment of truth.
Section 3. Construction of the Rule. - This Rule shall be liberally construed to
uphold the best interests of the child and to promote maximum accommodation
of child witnesses without prejudice to the constitutional rights of the accused.
Section 4. Definitions. -
(a) A "child witness" is any person who at the time of giving
testimony is below the age of eighteen (18) years. In child abuse
cases, a child includes one over eighteen (18) years but is found by
the court as unable to fully take care of himself or protect himself
from abuse, neglect, cruelty, exploitation, or discrimination because
of a physical or mental disability or condition.
(b) "Child abuse" means physical, psychological, or sexual abuse,
and criminal neglect as defined in Republic Act No. 7610 and other
related laws.
(c) "Facilitator" means a person appointed by the court to pose
questions to a child.
(d) "Record regarding a child" or "record" means any photograph,
videotape, audiotape, film, handwriting, typewriting, printing,
electronic recording, computer data or printout, or other
memorialization, including any court document, pleading, or any
copy or reproduction of any of the foregoing, that contains the name,
description, address, school, or any other personal identifying
information about a child or his family and that is produced or
maintained by a public agency, private agency, or individual.
(e) A "guardian ad litem" is a person appointed by the court where
the case is pending for a child who is a victim of, accused of, or a
witness to a crime to protect the best interests of the said child.
(f) A "support person" is a person chosen by the child to accompany
him to testify at or attend a judicial proceeding or deposition to
provide emotional support for him.
(g) "Best interests of the child" means the totality of the
circumstances and conditions as are most congenial to the survival,
protection, and feelings of security of the child and most
encouraging to his physical, psychological, and emotional
development. It also means the least detrimental available
alternative for safeguarding the growth and development of the child.
(h) "Developmental level" refers to the specific growth phase in
which most individuals are expected to behave and function in
relation to the advancement of their physical, socio-emotional,
cognitive, and moral abilities.
(i) "In-depth investigative interview" or "disclosure interview" is an
inquiry or proceeding conducted by duly trained members of a
multidisciplinary team or representatives of law enforcement or child
protective services for the purpose of determining whether child
abuse has been committed.
Section 5. Guardian ad litem. -
(a) The court may appoint a guardian ad litem for a child who is a
victim of, accused of, or a witness to a crime to promote the best
interests of the child. In making the appointment, the court shall
consider the background of the guardian ad litem and his familiarity
with the judicial process, social service programs, and child
development, giving preference to the parents of the child, if
qualified. The guardian ad litem may be a member of the Philippine
Bar. A person who is a witness in any proceeding involving the child
cannot be appointed as a guardian ad litem.
(b) The guardian ad litem:
(1) Shall attend all interviews, depositions, hearings,
and trial proceedings in which a child participates;
(2) Shall make recommendations to the court
concerning the welfare of the child;
(3) Shall have access to all reports, evaluations, and
records necessary to effectively advocate for the child,
except privileged communications;
(4) Shall marshal and coordinate the delivery of
resources and special services to the child;
(5) Shall explain, in language understandable to the
child, all legal proceedings, including police
investigations, in which the child is involved;
(6) Shall assist the child and his family in coping with
the emotional effects of crime and subsequent criminal
or non-criminal proceedings in which the child is
involved;
(7) May remain with the child while the child waits to
testify;
(8) May interview witnesses; and
(9) May request additional examinations by medical or
mental health professionals if there is a compelling need
therefor.
(c) The guardian ad litem shall be notified of all proceedings but
shall not participate in the trial. However, he may file motions
pursuant to sections 9, 10, 25, 26, 27 and 31(c). If the guardian ad
litem is a lawyer, he may object during trial that questions asked of
the child are not appropriate to his developmental level.
(d) The guardian ad litem may communicate concerns regarding the
child to the court through an officer of the court designated for that
purpose.
(e) The guardian ad litem shall not testify in any proceeding
concerning any information, statement, or opinion received from the
child in the course of serving as a guardian ad litem, unless the court
finds it necessary to promote the best interests of the child.
(f) The guardian ad litem shall be presumed to have acted in good
faith in compliance with his duties described in sub-section (b).
Section 6. Competency. - Every child is presumed qualified to be a witness.
However, the court shall conduct a competency examination of a child, motu
proprio or on motion of a party, when it finds that substantial doubt exists
regarding the ability of the child to perceive, remember, communicate, distinguish
truth from falsehood, or appreciate the duty to tell the truth in court.
(a) Proof of necessity. - A party seeking a competency examination
must present proof of necessity of competency examination. The
age of the child by itself is not a sufficient basis for a competency
examination.
(b) Burden of proof. - To rebut the presumption of competence
enjoyed by a child, the burden of proof lies on the party challenging
his competence.
(c) Persons allowed at competency examination. Only the following
are allowed to attend a competency examination:
(1) The judge and necessary court personnel;
61 | P L A T O N
 (2) The counsel for the parties;
(3) The guardian ad litem;
(4) One or more support persons for the child; and
(5) The defendant, unless the court determines that
competence can be fully evaluated in his absence.
(d) Conduct of examination. - Examination of a child as to his
competence shall be conducted only by the judge. Counsel for the
parties, however, can submit questions to the judge that he may, in
his discretion, ask the child.
(e) Developmentally appropriate questions. - The questions asked at
the competency examination shall be appropriate to the age and
developmental level of the child; shall not be related to the issues at
trial; and shall focus on the ability of the child to remember,
communicate, distinguish between truth and falsehood, and
appreciate the duty to testify truthfully.
(f) Continuing duty to assess competence. - The court has the duty
of continuously assessing the competence of the child throughout
his testimony.
Section 7. Oath or affirmation. - Before testifying, a child shall take an oath or
affirmation to tell the truth.
Section 8. Examination of a child witness. - The examination of a child
witness presented in a hearing or any proceeding shall be done in open court.
Unless the witness is incapacitated to speak, or the question calls for a different
mode of answer, the answers of the witness shall be given orally.
The party who presents a child witness or the guardian ad litem of such child
witness may, however, move the court to allow him to testify in the manner
provided in this Rule.
Section 9. Interpreter for child. -
(a) When a child does not understand the English or Filipino
language or is unable to communicate in said languages due to his
developmental level, fear, shyness, disability, or other similar
reason, an interpreter whom the child can understand and who
understands the child may be appointed by the court, motu proprio
or upon motion, to interpret for the child.
(b) If a witness or member of the family of the child is the only
person who can serve as an interpreter for the child, he shall not be
disqualified and may serve as the interpreter of the child. The
interpreter, however, who is also a witness, shall testify ahead of the
child.
(c) An interpreter shall take an oath or affirmation to make a true and
accurate interpretation.
Section 10. Facilitator to pose questions to child. -
(a) The court may, motu proprio or upon motion, appoint a facilitator
if it determines that the child is unable to understand or respond to
questions asked. The facilitator may be a child psychologist,
psychiatrist, social worker, guidance counselor, teacher, religious
leader, parent, or relative.
(b) If the court appoints a facilitator, the respective counsels for the
parties shall pose questions to the child only through the facilitator.
The questions shall either be in the words used by counsel or, if the
child is not likely to understand the same, in words that are
comprehensible to the child and which convey the meaning intended
by counsel.
(c) The facilitator shall take an oath or affirmation to pose questions
to the child according to the meaning intended by counsel.
Section 11. Support persons. -
(a) A child testifying at a judicial proceeding or making a deposition
shall have the right to be accompanied by one or two persons of his
own choosing to provide him emotional support.
(1) Both support persons shall remain within the view of
the child during his testimony.
(2) One of the support persons may accompany the
child to the witness stand, provided the support person
does not completely obscure the child from the view of
the opposing party, judge, or hearing officer.
(3) The court may allow the support person to hold the
hand of the child or take other appropriate steps to
provide emotional support to the child in the course of
the proceedings.
(4) The court shall instruct the support persons not to
prompt, sway, or influence the child during his
testimony.
(b) If the support person chosen by the child is also a witness, the
court may disapprove the choice if it is sufficiently established that
the attendance of the support person during the testimony of the
child would pose a substantial risk of influencing or affecting the
content of the testimony of the child.
(c) If the support person who is also a witness is allowed by the
court, his testimony shall be presented ahead of the testimony of the
child.
Section 12. Waiting area for child witnesses. - The courts are encouraged to
provide a waiting area for children that is separate from waiting areas used by
other persons. The waiting area for children should be furnished so as to make a
child comfortable.
Section 13. Courtroom environment. - To create a more comfortable
environment for the child, the court may, in its discretion, direct and supervise the
location, movement and deportment of all persons in the courtroom including the
parties, their counsel, child, witnesses, support persons, guardian ad litem,
facilitator, and court personnel. The child may be allowed to testify from a place
other than the witness chair. The witness chair or other place from which the
child testifies may be turned to facilitate his testimony but the opposing party and
his counsel must have a frontal or profile view of the child during the testimony of
the child. The witness chair or other place from which the child testifies may also
be rearranged to allow the child to see the opposing party and his counsel, if he
chooses to look at them, without turning his body or leaving the witness stand.
The judge need not wear his judicial robe.
Nothing in this section or any other provision of law, except official in-court
identification provisions, shall be construed to require a child to look at the
accused.
Accommodations for the child under this section need not be supported by a
finding of trauma to the child.
Section 14. Testimony during appropriate hours. - The court may order that
the testimony of the child should be taken during a time of day when the child is
well-rested.
Section 15. Recess during testimony. -
The child may be allowed reasonable periods of relief while undergoing direct,
cross, re-direct, and re-cross examinations as often as necessary depending on
his developmental level.
Section 16. Testimonial aids. - The court shall permit a child to use dolls,
anatomically-correct dolls, puppets, drawings, mannequins, or any other
appropriate demonstrative device to assist him in his testimony.
Section 17. Emotional security item. - While testifying, a child shall be allowed
to have an item of his own choosing such as a blanket, toy, or doll.
Section 18. Approaching the witness. - The court may prohibit a counsel from
approaching a child if it appears that the child is fearful of or intimidated by the
counsel.
62 | P L A T O N
Section 19. Mode of questioning. - The court shall exercise control over the (2) His physical and mental health, including any mental
questioning of children so as to (1) facilitate the ascertainment of the truth, (2) or physical disability;
ensure that questions are stated in a form appropriate to the developmental level
of the child, (3) protect children from harassment or undue embarrassment, and
(4) avoid waste of time. (3) Any physical, emotional, or psychological injury
experienced by him;

The court may allow the child witness to testify in a narrative form.
(4) The nature of the alleged abuse;

Section 20. Leading questions. - The court may allow leading questions in all
stages of examination of a child if the same will further the interests of justice. (5) Any threats against the child;

Section 21. Objections to questions. - Objections to questions should be (6) His relationship with the accused or adverse party;
couched in a manner so as not to mislead, confuse, frighten, or intimidate the
child.
(7) His reaction to any prior encounters with the
accused in court or elsewhere;
Section 22. Corroboration. - Corroboration shall not be required of a testimony
of a child. His testimony, if credible by itself, shall be sufficient to support a
finding of fact, conclusion, or judgment subject to the standard of proof required (8) His reaction prior to trial when the topic of testifying
in criminal and non-criminal cases. was discussed with him by parents or professionals;

Section 23. Excluding the public. - When a child testifies, the court may order (9) Specific symptoms of stress exhibited by the child in
the exclusion from the courtroom of all persons, including members of the press, the days prior to testifying;
who do not have a direct interest in the case. Such an order may be made to
protect the right to privacy of the child or if the court determines on the record
that requiring the child to testify in open court would cause psychological harm to (10) Testimony of expert or lay witnesses;
him, hinder the ascertainment of truth, or result in his inability to effectively
communicate due to embarrassment, fear, or timidity. In making its order, the
(11) The custodial situation of the child and the attitude
court shall consider the developmental level of the child, the nature of the crime,
of the members of his family regarding the events about
the nature of his testimony regarding the crime, his relationship to the accused
which he will testify; and
and to persons attending the trial, his desires, and the interests of his parents or
legal guardian. The court may, motu proprio, exclude the public from the
courtroom if the evidence to be produced during trial is of such character as to be (12) Other relevant factors, such as court atmosphere
offensive to decency or public morals. The court may also, on motion of the and formalities of court procedure.
accused, exclude the public from trial, except court personnel and the counsel of
the parties.
(f) The court may order that the testimony of the child be taken by
live-link television if there is a substantial likelihood that the child
Section 24. Persons prohibited from entering and leaving courtroom. - The would suffer trauma from testifying in the presence of the accused,
court may order that persons attending the trial shall not enter or leave the his counsel or the prosecutor as the case may be. The trauma must
courtroom during the testimony of the child. be of a kind which would impair the completeness or truthfulness of
the testimony of the child.
Section 25. Live-link television testimony in criminal cases where the child
is a victim or a witness. - (g) If the court orders the taking of testimony by live-link television:

(a) The prosecutor, counsel or the guardian ad litem may apply for
an order that the testimony of the child be taken in a room outside
the courtroom and be televised to the courtroom by live-link
television.
Before the guardian ad litem applies for an order under this section,
he shall consult the prosecutor or counsel and shall defer to the
judgment of the prosecutor or counsel regarding the necessity of
applying for an order. In case the guardian ad ltiem is convinced that
the decision of the prosecutor or counsel not to apply will cause the
child serious emotional trauma, he himself may apply for the order.
The person seeking such an order shall apply at least five (5) days
before the trial date, unless the court finds on the record that the
need for such an order was not reasonably foreseeable.
(1) The child shall testify in a room separate from the
courtroom in the presence of the guardian ad litem; one
or both of his support persons; the facilitator and
interpreter, if any; a court officer appointed by the court;
persons necessary to operate the closed-circuit
television equipment; and other persons whose
presence are determined by the court to be necessary
to the welfare and well-being of the child;
(2) The judge, prosecutor, accused, and counsel for the
parties shall be in the courtroom. The testimony of the
child shall be transmitted by live-link television into the
courtroom for viewing and hearing by the judge,
prosecutor, counsel for the parties, accused, victim, and
the public unless excluded.

(3) If it is necessary for the child to identify the accused

(b) The court may motu proprio hear and determine, with notice to
at trial, the court may allow the child to enter the
the parties, the need for taking the testimony of the child through
courtroom for the limited purpose of identifying the
live-link television.
accused, or the court may allow the child to identify the
accused by observing the image of the latter on a
(c) The judge may question the child in chambers, or in some television monitor.
comfortable place other than the courtroom, in the presence of the
support person, guardian ad litem, prosecutor, and counsel for the
(4) The court may set other conditions and limitations on
parties. The questions of the judge shall not be related to the issues
the taking of the testimony that it finds just and
at trial but to the feelings of the child about testifying in the
appropriate, taking into consideration the best interests
courtroom.
of the child.

(d) The judge may exclude any person, including the accused,
(h) The testimony of the child shall be preserved on videotape,
whose presence or conduct causes fear to the child.
digital disc, or other similar devices which shall be made part of the
court record and shall be subject to a protective order as provided in
(e) The court shall issue an order granting or denying the use of live- section 31(b).
link television and stating the reasons therefor. It shall consider the
following factors:
Section 26. Screens, one-way mirrors, and other devices to shield child
from accused. -
(1) The age and level of development of the child;

63 | P L A T O N
 (a) The prosecutor or the guardian ad litem may apply for an order
that the chair of the child or that a screen or other device be placed
in the courtroom in such a manner that the child cannot see the
accused while testifying. Before the guardian ad litem applies for an
order under this section, he shall consult with the prosecutor or
counsel subject to the second and third paragraphs of section 25(a)
of this Rule. The court shall issue an order stating the reasons and
describing the approved courtroom arrangement.
(b) If the court grants an application to shield the child from the
accused while testifying in the courtroom, the courtroom shall be
arranged to enable the accused to view the child.
Section 27. Videotaped deposition. -
(a) The prosecutor, counsel, or guardian ad litem may apply for an
order that a deposition be taken of the testimony of the child and that
it be recorded and preserved on videotape. Before the guardian ad
litem applies for an order under this section, he shall consult with the
prosecutor or counsel subject to the second and third paragraphs of
section 25(a).
(b) If the court finds that the child will not be able to testify in open
court at trial, it shall issue an order that the deposition of the child be
taken and preserved by videotape.
(c) The judge shall preside at the videotaped deposition of a child.
Objections to deposition testimony or evidence, or parts thereof, and
the grounds for the objection shall be stated and shall be ruled upon
at the time of the taking of the deposition. The other persons who
may be permitted to be present at the proceeding are:
(1) The prosecutor;
(2) The defense counsel;
(3) The guardian ad litem;
(4) The accused, subject to sub-section (e);
(5) Other persons whose presence is determined by the
court to be necessary to the welfare and well-being of
the child;
(6) One or both of his support persons, the facilitator
and interpreter, if any;
(7) The court stenographer; and
(8) Persons necessary to operate the videotape
equipment.
(d) The rights of the accused during trial, especially the right to
counsel and to confront and cross-examine the child, shall not be
violated during the deposition.
(e) If the order of the court is based on evidence that the child is
unable to testify in the physical presence of the accused, the court
may direct the latter to be excluded from the room in which the
deposition is conducted. In case of exclusion of the accused, the
court shall order that the testimony of the child be taken by live-link
television in accordance with section 25 of this Rule. If the accused
is excluded from the deposition, it is not necessary that the child be
able to view an image of the accused.
(f) The videotaped deposition shall be preserved and
stenographically recorded. The videotape and the stenographic
notes shall be transmitted to the clerk of the court where the case is
pending for safekeeping and shall be made a part of the record.
(g) The court may set other conditions on the taking of the
deposition that it finds just and appropriate, taking into consideration
the best interests of the child, the constitutional rights of the
accused, and other relevant factors.
(h) The videotaped deposition and stenographic notes shall be
subject to a protective order as provided in section 31(b).
(i) If, at the time of trial, the court finds that the child is unable to
testify for a reason stated in section 25(f) of this Rule, or is
unavailable for any reason described in section 4(c), Rule 23 of the
1997 Rules of Civil Procedure, the court may admit into evidence the
videotaped deposition of the child in lieu of his testimony at the trial.
The court shall issue an order stating the reasons therefor.
(j) After the original videotaping but before or during trial, any party
may file any motion for additional videotaping on the ground of newly
discovered evidence. The court may order an additional videotaped
deposition to receive the newly discovered evidence.
Section 28. Hearsay exception in child abuse cases. - A statement made by a
child describing any act or attempted act of child abuse, not otherwise admissible
under the hearsay rule, may be admitted in evidence in any criminal or non-
criminal proceeding subject to the following rules:
(a) Before such hearsay statement may be admitted, its proponent
shall make known to the adverse party the intention to offer such
statement and its particulars to provide him a fair opportunity to
object. If the child is available, the court shall, upon motion of the
adverse party, require the child to be present at the presentation of
the hearsay statement for cross-examination by the adverse party.
When the child is unavailable, the fact of such circumstance must be
proved by the proponent.
(b) In ruling on the admissibility of such hearsay statement, the court
shall consider the time, content and circumstances thereof which
provide sufficient indicia of reliability. It shall consider the following
factors:
(1) Whether there is a motive to lie;
(2) The general character of the declarant child;
(3) Whether more than one person heard the statement;
(4) Whether the statement was spontaneous;
(5) The timing of the statement and the relationship
between the declarant child and witness;
(6) Cross-examination could not show the lack of
knowledge of the declarant child;
(7) The possibility of faulty recollection of the declarant
child is remote; and
(8) The circumstances surrounding the statement are
such that there is no reason to suppose the declarant
child misrepresented the involvement of the accused.
(c) The child witness shall be considered unavailable under the
following situations:
(1) Is deceased, suffers from physical infirmity, lack of
memory, mental illness, or will be exposed to severe
psychological injury; or
(2) Is absent from the hearing and the proponent of his
statement has been unable to procure his attendance
by process or other reasonable means.
(d) When the child witness is unavailable, his hearsay testimony
shall be admitted only if corroborated by other admissible evidence.
Section 29. Admissibility of videotaped and audiotaped in-depth
investigative or disclosure interviews in child abuse cases. - The court may
admit videotape and audiotape in-depth investigative or disclosure interviews as
evidence, under the following conditions:
(a) The child witness is unable to testify in court on grounds and
under conditions established under section 28 (c).
(b) The interview of the child was conducted by duly trained
members of a multidisciplinary team or representatives of law
64 | P L A T O N
 enforcement or child protective services in situations where child
abuse is suspected so as to determine whether child abuse
occurred.
(c) The party offering the videotape or audiotape must prove that:
(1) the videotape or audiotape discloses the identity of
all individuals present and at all times includes their
images and voices;
(2) the statement was not made in response to
questioning calculated to lead the child to make a
particular statement or is clearly shown to be the
statement of the child and not the product of improper
suggestion;
(3) the videotape and audiotape machine or device was
capable of recording testimony;
(4) the person operating the device was competent to
operate it;
(5) the videotape or audiotape is authentic and correct;
and
(6) it has been duly preserved.
The individual conducting the interview of the child shall be available at trial for
examination by any party. Before the videotape or audiotape is offered in
evidence, all parties shall be afforded an opportunity to view or listen to it and
shall be furnished a copy of a written transcript of the proceedings.
The fact that an investigative interview is not videotaped or audiotaped as
required by this section shall not by itself constitute a basis to exclude from
evidence out-of-court statements or testimony of the child. It may, however, be
considered in determining the reliability of the statements of the child describing
abuse.
Section 30. Sexual abuse shield rule. -
(a) Inadmissible evidence. - The following evidence is not admissible
in any criminal proceeding involving alleged child sexual abuse:
(1) Evidence offered to prove that the alleged victim
engaged in other sexual behavior; and
(2) Evidence offered to prove the sexual predisposition
of the alleged victim.
(b) Exception. - Evidence of specific instances of sexual behavior by
the alleged victim to prove that a person other than the accused was
the source of semen, injury, or other physical evidence shall be
admissible.
A party intending to offer such evidence must:
(1) File a written motion at least fifteen (15) days before trial,
specifically describing the evidence and stating the purpose for
which it is offered, unless the court, for good cause, requires a
different time for filing or permits filing during trial; and
(2) Serve the motion on all parties and the guardian ad litem at least
three (3) days before the hearing of the motion.
Before admitting such evidence, the court must conduct a hearing in chambers
and afford the child, his guardian ad litem, the parties, and their counsel a right to
attend and be heard. The motion and the record of the hearing must be sealed
and remain under seal and protected by a protective order set forth in section
31(b). The child shall not be required to testify at the hearing in chambers except
with his consent.
Section 31. Protection of privacy and safety. -
(a) Confidentiality of records. - Any record regarding a child shall be
confidential and kept under seal. Except upon written request and
order of the court, a record shall only be released to the following:
(1) Members of the court staff for administrative use;
(2) The prosecuting attorney;
(3) Defense counsel;
(4) The guardian ad litem;
(5) Agents of investigating law enforcement agencies;
and
(6) Other persons as determined by the court.
(b) Protective order. - Any videotape or audiotape of a child that is
part of the court record shall be under a protective order that
provides as follows:
(1) Tapes may be viewed only by parties, their counsel,
their expert witness, and the guardian ad litem.
(2) No tape, or any portion thereof, shall be divulged by
any person mentioned in sub-section (a) to any other
person, except as necessary for the trial.
(3) No person shall be granted access to the tape, its
transcription or any part thereof unless he signs a
written affirmation that he has received and read a copy
of the protective order; that he submits to the jurisdiction
of the court with respect to the protective order; and that
in case of violation thereof, he will be subject to the
contempt power of the court.
(4) Each of the tape cassettes and transcripts thereof
made available to the parties, their counsel, and
respective agents shall bear the following cautionary
notice:
"This object or document and the contents thereof are
subject to a protective order issued by the court in (case
title) , (case number) . They shall not be examined,
inspected, read, viewed, or copied by any person, or
disclosed to any person, except as provided in the
protective order. No additional copies of the tape or any
of its portion shall be made, given, sold, or shown to any
person without prior court order. Any person violating
such protective order is subject to the contempt power
of the court and other penalties prescribed by law."
(5) No tape shall be given, loaned, sold, or shown to
any person except as ordered by the court.
(6) Within thirty (30) days from receipt, all copies of the
tape and any transcripts thereof shall be returned to the
clerk of court for safekeeping unless the period is
extended by the court on motion of a party.
(7) This protective order shall remain in full force and
effect until further order of the court.
(c) Additional protective orders. - The court may, motu proprio or on
motion of any party, the child, his parents, legal guardian, or the
guardian ad litem, issue additional orders to protect the privacy of
the child.
(d) Publication of identity contemptuous. - Whoever publishes or
causes to be published in any format the name, address, telephone
number, school, or other identifying information of a child who is or is
alleged to be a victim or accused of a crime or a witness thereof, or
an immediate family of the child shall be liable to the contempt
power of the court.
(e) Physical safety of child; exclusion of evidence. - A child has a
right at any court proceeding not to testify regarding personal
65 | P L A T O N
 identifying information, including his name, address, telephone
number, school, and other information that could endanger his
physical safety or his family. The court may, however, require the
child to testify regarding personal identifying information in the
interest of justice.

(f) Destruction of videotapes and audiotapes. - Any videotape or

audiotape of a child produced under the provisions of this Rule or
otherwise made part of the court record shall be destroyed after five
(5) years have elapsed from the date of entry of judgment.

(g) Records of youthful offender. - Where a youthful offender has

been charged before any city or provincial prosecutor or before any
municipal judge and the charges have been ordered dropped, all the
records of the case shall be considered as privileged and may not
be disclosed directly or indirectly to anyone for any purpose
whatsoever.

Where a youthful offender has been charged and the court acquits him, or
dismisses the case or commits him to an institution and subsequently releases
him pursuant to Chapter 3 of P. D. No. 603, all the records of his case shall also
be considered as privileged and may not be disclosed directly or indirectly to
anyone except to determine if a defendant may have his sentence suspended
under Article 192 of P. D. No. 603 or if he may be granted probation under the
provisions of P. D. No. 968 or to enforce his civil liability, if said liability has been
imposed in the criminal action. The youthful offender concerned shall not be held
under any provision of law to be guilty of perjury or of concealment or
misrepresentation by reason of his failure to acknowledge the case or recite any
fact related thereto in response to any inquiry made to him for any purpose.

"Records" within the meaning of this sub-section shall include those which may
be in the files of the National Bureau of Investigation and with any police
department or government agency which may have been involved in the case.
(Art. 200, P. D. No. 603)

Section 32. Applicability of ordinary rules. - The provisions of the Rules of

Court on deposition, conditional examination of witnesses, and evidence shall be
applied in a suppletory character.

Section 33. Effectivity. - This Rule shall take effect on December 15, 2000
following its publication in two (2) newspapers of general circulation. (Source:
lawphil.net)

66 | P L A T O N
 Appendix C
RULE ON DNA EVIDENCE
A.M. No. 06-11-5-SC, 2 October 2007
SECTION 1. Scope. – This Rule shall apply whenever DNA evidence, as defined
in Section 3 hereof, is offered, used, or proposed to be offered or used as
evidence in all criminal and civil actions as well as special proceedings.
Sec. 2. Application of other Rules on Evidence. – In all matters not specifically
covered by this Rule, the Rules of Court and other pertinent provisions of law on
evidence shall apply.
Sec. 3. Definition of Terms. – For purposes of this Rule, the following terms
shall be defined as follows:
a. “Biological   sample”   means   any   organic   material   originating   from   a   procedure, and compliance with the scientifically valid standards in
person’s  body,  even  if  found  in  inanimate  objects,  that  is  susceptible   conducting the tests;
to DNA testing. This includes blood, saliva and other body fluids,
tissues, hairs and bones;
b. “DNA”  means  deoxyribonucleic  acid,  which  is  the  chain  of  molecules   analyst who conducted the tests. If the laboratory is not accredited,
found in every nucleated cell of the body. The totality of an
individual’s  DNA  is  unique  for  the  individual, except identical twins;
c. “DNA   evidence”   constitutes   the   totality   of   the   DNA   profiles,   results   d.
and other genetic information directly generated from DNA testing of
biological samples;
d. “DNA  profile”  means  genetic  information  derived  from  DNA  testing  of   The provisions of the Rules of Court concerning the appreciation of evidence
a biological sample obtained from a person, which biological sample
is clearly identifiable as originating from that person;
e. “DNA   testing”   means   verified   and   credible   scientific   methods   which  
include the extraction of DNA from biological samples, the
generation of DNA profiles and the comparison of the information
obtained from the DNA testing of biological samples for the purpose
of determining, with reasonable certainty, whether or not the DNA
obtained from two or more distinct biological samples originates from
the same person (direct identification) or if the biological samples
originate from related persons (kinship analysis); and
f. “Probability   of   Parentage”   means   the   numerical   estimate   for   the   c.
likelihood of parentage of a putative parent compared with the
probability of a random match of two unrelated individuals in a given
population.
Sec. 4. Application for DNA Testing Order. – The appropriate court may, at
any time, either motu proprio or on application of any person who has a legal
interest in the matter in litigation, order a DNA testing. Such order shall issue
after due hearing and notice to the parties upon a showing of the following:
a. A biological sample exists that is relevant to the case;
b. The biological sample: (i) was not previously subjected to the type of
DNA testing now requested; or (ii) was previously subjected to DNA
testing, but the results may require confirmation for good reasons;
c. The DNA testing uses a scientifically valid technique;
d. The DNA testing has the scientific potential to produce new
information that is relevant to the proper resolution of the case; and
e. The existence of other factors, if any, which the court may consider
as potentially affecting the accuracy of integrity of the DNA testing.
This Rule shall not preclude a DNA testing, without need of a prior court order, at
the behest of any party, including law enforcement agencies, before a suit or
proceeding is commenced.
Sec. 5. DNA Testing Order. – If the court finds that the requirements in Section
4 hereof have been complied with, the court shall –
a. Order, where appropriate, that biological samples be taken from any
person or crime scene evidence;
b. Impose reasonable conditions on DNA testing designed to protect
the integrity of the biological sample, the testing process and the
reliability of the test results, including the condition that the DNA test
results shall be simultaneously disclosed to parties involved in the
case; and
c. If the biological sample taken is of such an amount that prevents the
conduct of confirmatory testing by the other or the adverse party and
where additional biological samples of the same kind can no longer
be obtained, issue an order requiring all parties to the case or
proceedings to witness the DNA testing to be conducted.
An order granting the DNA testing shall be immediately executory and shall not
be appealable. Any petition for certiorari initiated therefrom shall not, in any way,
stay the implementation thereof, unless a higher court issues an injunctive order.
The grant of DNA testing application shall not be construed as an automatic
admission into evidence of any component of the DNA evidence that may be
obtained as a result thereof.
Sec. 6. Post-conviction DNA Testing. – Post-conviction DNA testing may be
available, without need of prior court order, to the prosecution or any person
convicted by final and executory judgment provided that (a) a biological sample
exists, (b) such sample is relevant to the case, and (c) the testing would probably
result in the reversal or modification of the judgment of conviction.
Sec. 7. Assessment of probative value of DNA evidence. – In assessing the
probative value of the DNA evidence presented, the court shall consider the
following:
a. The chair of custody, including how the biological samples were
collected, how they were handled, and the possibility of
contamination of the samples;
b. The DNA testing methodology, including the procedure followed in
analyzing the samples, the advantages and disadvantages of the
c. The forensic DNA laboratory, including accreditation by any
reputable standards-setting institution and the qualification of the
the relevant experience of the laboratory in forensic casework and
credibility shall be properly established; and
The reliability of the testing result, as hereinafter provided.
shall apply suppletorily.
Sec. 8. Reliability of DNA Testing Methodology. – In evaluating whether the
DNA testing methodology is reliable, the court shall consider the following:
a. The falsifiability of the principles or methods used, that is, whether
the theory or technique can be and has been tested;
b. The subjection to peer review and publication of the principles or
methods;
The general acceptance of the principles or methods by the relevant
scientific community;
d. The existence and maintenance of standards and controls to ensure
the correctness of data generated;
e. The existence of an appropriate reference population database; and
f. The general degree of confidence attributed to mathematical
calculations used in comparing DNA profiles and the significance
and limitation of statistical calculations used in comparing DNA
profiles.
Sec. 9. of DNA Testing Results. – In evaluating the results of DNA testing, the
court shall consider the following:
a. The evaluation of the weight of matching DNA evidence or the
relevance of mismatching DNA evidence;
b. The results of the DNA testing in the light of the totality of the other
evidence presented in the case; and that
c. DNA results that exclude the putative parent from paternity shall be
conclusive proof of non-paternity. If the value of the Probability of
Paternity is less than 99.9%, the results of the DNA testing shall be
considered as corroborative evidence. If the value of the Probability
of Paternity is 99.9% or higher there shall be a disputable
presumption of paternity.
Sec. 10. Post-conviction DNA Testing – Remedy if the Results Are Favorable
to the Convict. – The convict or the prosecution may file a petition for a writ of
habeas corpus in the court of origin if the results of the post-conviction DNA
testing are favorable to the convict. In the case the court, after due hearing finds
the petition to be meritorious, if shall reverse or modify the judgment of conviction
and order the release of the convict, unless continued detention is justified for a
lawful cause.
A similar petition may be filed either in the Court of Appeals or the Supreme
Court, or with any member of said courts, which may conduct a hearing thereon
or remand the petition to the court of origin and issue the appropriate orders.
Sec. 11. Confidentiality. – DNA profiles and all results or other information
obtained from DNA testing shall be confidential. Except upon order of the court, a
DNA profile and all results or other information obtained from DNA testing shall
only be released to any of the following, under such terms and conditions as may
be set forth by the court:
a. Person from whom the sample was taken;
b. Person from whom the sample was taken;
c. Lawyers of private complainants in a criminal action;
67 | P L A T O N
 d. Duly authorized law enforcement agencies; and
e. Other persons as determined by the court.

Whoever discloses, utilizes or publishes in any form any information concerning

a DNA profile without the proper court order shall be liable for indirect contempt
of the court wherein such DNA evidence was offered, presented or sought to be
offered and presented.

Where the person from whom the biological sample was taken files a written
verified request to the court that allowed the DNA testing for the disclosure of the
DNA profile of the person and all results or other information obtained from the
DNA testing, he same may be disclosed to the persons named in the written
verified request.

Sec. 12. Preservation of DNA Evidence. The trial court shall preserve the DNA
evidence in its totality, including all biological samples, DNA profiles and results
or other genetic information obtained from DNA testing. For this purpose, the
court may order the appropriate government agency to preserve the DNA
evidence as follows:

a. In criminal cases:

i. for not less than the period of time that any

person is under trial for an offense; or
ii. in case the accused is serving sentence,
until such time as the accused has served
his sentence;

a. In all other cases, until such time as the decision in the case where
the DNA evidence was introduced has become final and executory.

The court may allow the physical destruction of a biological sample before the
expiration of the periods set forth above, provided that:

a. A court order to that effect has been secured; or

b. The person from whom the DNA sample was obtained has
consented in writing to the disposal of the DNA evidence.

Sec. 13. Applicability to Pending Cases. Except as provided in Section 6 and

10 hereof, this Rule shall apply to cases pending at the time of its effectivity.

Sec. 14. Effectivity. This Rule shall take effect on October 15, 2007, following
publication in a newspaper of general circulation. (Source: lawphil.net)

68 | P L A T O N