PRELIMINARY CONSIDERATIONS

Concept of “Evidence”

1. “SECTION 1. Evidence defined. – Evidence is the means sanctioned by these

rules, of ascertaining in a judicial proceeding the truth respecting a matter of
fact.

2. To be considered evidence, the same must be “sanctioned” or allowed by the Rules of

Court. It is not evidence if it is excluded by law or by the Rules even if it proves the
existence or non-existence of a fact in issue. Thus, a hearsay evidence, a coerced
extrajudicial confession of the accused and an evidence obtained in violation of
constitutional rights even if ultimately shown to correspond to the truth, do not fall
within the definition of Sec. 1 of Rule 128.

Purpose of Evidence

The purpose of evidence under the Rules of Court is to ascertain the truth respecting a
matter of fact in a judicial proceeding.

Applicability of the Rules of Evidence

1. The rules of evidence, being parts of the Rules of Court, apply only to judicial proceedings.

“Sec. 4. In what cases not applicable. – These Rules shall not apply to
election cases, land registration, cadastral, naturalization and insolvency
proceedings, and other cases not herein provided for, except by analogy or in a
suppletory character and whenever practicable and convenient.”

2. It has been held that administrative bodies are not bound by the technical niceties of the
rules obtaining in a court of law. Technical rules of procedure and evidence are not strictly
applied and administrative due process cannot be fully equated with due process in strict
judicial terms. It has also been ruled that a reliance on the technical rules of evidence in
labor cases is misplaced. Hence, the application of the concept of judicial admissions in
such cases would be to exact compliance with technicalities of law that is contrary to the
demands of substantial justice.

3. The rule on formal offer of evidence is not applicable to a case involving a petition for
naturalization. In Ong Chia, the Regional Trial Court rendered judgment in favor of the
petitioner’s application for naturalization. On appeal, the Court of Appeals reversed the
Regional Trial Court and denied the application for naturalization on the basis of
documents not earlier formally offered in the trial court, raised for the first time on appeal
and merely attached to the appellant’s brief for the State. Petitioner contends that under
Sec. 34, Rule 132 of the Rules of Court, only evidence that has been formally offered shall
be considered by the court. Brushing aside petitioner’s contention, the Court held that the
rule on formal offer of evidence is not applicable to a case involving a petition for
naturalization unless applied by analogy or in a suppletory character and whenever
practicable and convenient.

4. The rule on the non-applicability of the Rules of Court including the rules of evidence, to
non-judicial proceedings.

“Technical rules of evidence are not binding in labor cases. Labor officials should
use every reasonable means to ascertain the facts in each case speedily and objectively,
without regard to technicalities of law or procedure, all in the interest of due process.”

“[T]he NLRC is not precluded from receiving evidence, even for the first time on
appeal, because technical rules of procedure are not binding in labor cases.”

5. Even assuming that petitioners were given mere photocopies, the proceedings before the
NLRC are not covered by the technical rules of evidence and procedure as observed in the
regular courts. Technical rules of evidence do not apply if the decision to grant the petition

1
 proceeds from an examination of its sufficiency as well as a careful look into the
arguments contained in position papers and other documents.

Application of the Rules on Electronic Evidence

While the definition of “evidence” under the Rules of Court makes reference only to
judicial proceedings, the provisions of the Rules on Electronic Evidence apply to all civil actions
and proceedings, as well as quasi-judicial and administrative cases. Sec. 2, Rule of 1 of the Rules
on Electronic Evidence provides:

“Sec. 2. Cases covered. – These Rules shall apply to all civil actions
and proceedings, as well as quasi-judicial and administrative cases.”

Evidence in Civil Cases Distinguished from Evidence in Criminal Cases

1. In civil cases, the party having the burden of proof must prove his claim by a
preponderance of evidence. In criminal cases, the guilt of the accused has to be proven
beyond reasonable doubt.

2. In civil cases, an offer of compromise is not an admission of any liability, and is not
admissible in evidence against the offeror. In criminal cases, except those involving quasi-
offenses or those allowed by law to be compromised, an offer of compromise by the
accused may be received in evidence as an implied admission of guilt.

3. In civil cases, the concept of presumption of innocence does not apply and generally there
is no presumption for or against a party except in certain cases provided for by law.
Example: A common carrier is presumed to have been at fault or negligent in case a
passenger is injured in the course of his transportation by the carrier.

In criminal cases, the accused enjoys the constitutional presumption of innocence.

Distinction Between Proof and Evidence

1. “Proof” is not the evidence itself.

2. Evidence is the medium or means by which a fact is proved or disproved. Proof is the
effect of evidence because without evidence there is no proof.

Falsus in Uno, Falsus in Omnibus

1. Literally falsus in uno, falsus in omnibus means “false in one thing, false in everything”.
The doctrine means that if the testimony of a witness on a material issue is willfully false
and given with an intention to deceive, the jury disregard all the witness’ testimony.

2. The maxim falsus in uno falsus in omnibus is not an absolute rule of law and is in fact
rarely applied in modern jurisprudence.

3. It is not a positive rule of law and is not strictly applied in this jurisdiction. Before this
maxim can be applied, the witness must be shown to have willfully 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.

2. For alibi to prosper, it is not enough for the accused to prove that he was somewhere else
when the crime was committed. He must likewise prove that it was physically impossible
2
 for him to be present at the crime scene or its immediate vicinity at the time of its
commission.

Alibi may serve as a basis for acquittal if it can really be shown by clear and
convincing evidence that it was indeed physically impossible for the accused to be at the
scene of the crime at the time.

Alibi cannot prevail over the positive identification of the accused as perpetrator of
the crime. In the face of positive identification of the accused by the prosecution witness,
such alibi crumbles like a sand fortress. 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.

It is not enough for the accused to prove that he was somewhere else when the
crime was committed. He must likewise prove that it was physically impossible for him to
be present at the crime scene or its immediate vicinity at the time of its commission.
Where there is even the least chance for the accused to be present at the crime scene,
the defense of alibi will not hold water.

4. While the defense of alibi is by nature a weak one, it assumes significance and strength
where the evidence for the prosecution is also intrinsically weak.

5. 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. It is generally viewed with caution by the court because it is easy to
contrive and difficult to disprove. 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.

Bar 1994

Al was accused of raping Lourdes. Only Lourdes testified on how the crime was
perpetrated. On the other hand, the defense presented Al’s wife, son, and daughter to testify
that Al was with them when the alleged crime took place. The prosecution interposed timely
objection to the testimonies on the ground of obvious bias due to the witness close relationship
with the accused.

If you were the judge:

1. Will the fact that the version of the defense is corroborated by three witnesses suffice
to acquit Al? Why?

Suggested answer:

The corroboration of the version of the defense by three witnesses is not sufficient for
acquittal. Alibi is one of the weakest defenses due to its being capable of easy fabrication. It
cannot prevail over the positive identification of the accused as perpetrator of the crime. For an
alibi to prevail, the defense must establish by positive clear satisfactory proof that it was
physically impossible for the accused to have been at the scene of the crime at the time of its
commission, and not merely that the accused was somewhere else. In the face of positive
identification of the accused by the prosecution witness, such alibi crumbles like a sand fortress.

Delay and Initial Reluctance in Reporting a Crime

3
 1. Delayed reporting by witnesses 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. The 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. Delay in reporting an incident of rape for instance, is not necessarily an indication that the
charge is fabricated; it is entirely possible for a rape victim to go through what
psychologists describe as a “state of denial” which is a way of coping with the
overwhelming emotional stress of an extremely shocking event.

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.

2. Positive evidence is, as a general rule, more credible than negative evidence. However,
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. A denial evidence is the weakest defense and can never overcome a positive testimony
particularly when it comes from the mouth of a credible witness. 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.

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.

Thus, if P claims to have been injured by the negligence of D who denies having
been negligent, the negligence of D and the causal connection between such negligence,
and the injuries of P taken as a whole, constitute the factum probandum of the suit. The
evidence offered by P, whether it be object, documentary or testimonial, constitute the
materials to prove the liability of D. the totality of the evidence to prove the liability refers
to the factum probans.

3. The factum probandum in a certain case may be affected by the judicial admissions of a
party. For instance, if the defendant in a suit based on a culpa aquiliana theory admits his
negligence in his answer to the complaint, there is no more need to prove negligence.
Hence, negligence ceases to be a factum probandum in the case.

If the factum probandum “signifies the fact or proposition to be established,” then

matters of judicial notice, conclusive presumptions and judicial admissions cannot qualify
as parts of the factum probandum of a particular case, because such matters need not be
established or proven.

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.

In a suit for instance, for collection of a sum of money, in the absence of any
admission by the defendant, the factum probandum of the plaintiff would be:
4
 (i) The existence of the debt of the defendant;

(ii) The maturity of the debt;

(iii) The demand made by the plaintiff upon the defendant to pay; and

(iv) The failure to pay despite the demand.

From the side of the defendant, the fact of payment of the obligation or the
prescription of the debt or the elements of any defense he may interpose would constitute
the factum probandum.

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.

a. Thus, in a prosecution for robbery, the prosecution has the burden to prove the
following matters beyond reasonable doubt:

(i) That there be personal property belonging to another;

(ii) That there is unlawful taking of that property;

(iii) That the taking is with intent to gain; and

(iv) That there is violence against or intimidation of persons or force upon things.

b. In a prosecution for illegal sale of prohibited or dangerous drugs, what determines if

there was a sale of dangerous drugs is proof of the concurrence of all the elements of
the offense. Conviction is proper if the following elements concur:

(i) The identity of the buyer and the seller, the object, and the consideration; and

(ii) The delivery of the thing sold and the payment therefor.

What is material to the prosecution for the sale of illegal drugs is the proof that the
sale actually took place, coupled with the presentation in court of evidence of corpus
delicti.

Multiple Admissibility

1. There are times when a profered evidence is admissible for two or more purposes. Thus,
depending upon the circumstances, the declaration of a dying person may be admissible
for several purposes. It may be offered as a dying declaration, as part of the res gestae or
as a declaration against interest.

2. Sometimes it is inadmissible for one purpose but admissible for another or vice versa.

Bar 1984

When A was stabbed on the chest during a street brawl, he instinctively shouted for help.
B, who was nearby, heard the shout and immediately ran towards A who, upon inquiry by B,
stated that C had stabbed him.

If A should die on account of the stab wound, upon what rule or rules of evidence could B’s
testimony be received? Explain.

Suggested answer:

The testimony could be admitted either as a dying declaration or as part of the res gestae.

Assuming that A was under the consciousness of an impending death when he stated that
C had stabbed him, the declaration may be admitted as a dying declaration pursuant to Sec. 37
5
of Rule 130. If the statement was made without such consciousness, it could be admissible as
part of the res gestae under Sec. 42 of Rule 130, since the same was made immediately after a
startling event, i.e. the stabbing.

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 offered. 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.

Curative Admissibility

The doctrine of curative admissibility allows a party to introduce otherwise inadmissible

evidence to answer the opposing party’s previous introduction of inadmissible evidence if it
would remove any unfair prejudice caused by the admission of the earlier inadmissible evidence.
The doctrine should not be invoked where evidence was properly admitted.

It is submitted that in our jurisdiction, the principle of curative admissibility should not be
made to apply where the evidence was admitted without objection because the failure to object
constitutes a waiver of the inadmissibility of the evidence. In our jurisdiction, inadmissible
evidence not objected to becomes admissible.

For instance, where a party failed to object to hearsay evidence, then the same is
admissible.

It is likewise submitted that it is only where the objection was incorrectly overruled, that
the court should allow the other party to introduce evidence to contradict the evidence
improperly admitted in order to cure the prejudice caused to the other party against whom the
offered evidence was erroneously admitted. Common reason suggests that where there is a
waiver, there is no defect to cure.

Direct and Circumstantial Evidence

1. Direct evidence means evidence which if believed, proves the existence of a fact in issue
without inference or presumption.

2. Circumstantial evidence is that evidence that indirectly proves a fact in issue through an
inference which the fact finder draws from the evidence established.

3. Circumstantial or indirect evidence is the exact opposite of direct evidence. When the
evidence is circumstantial, a fact is established by making an inference from a previously
established fact. When the court does not have to make an inference from one fact to
arrive at a conclusion, the evidence is direct. For instance, the testimony of the victim that
he dreads the mere presence of the accused is direct evidence that the statement was
made. However, it is also circumstantial evidence to show that this fear prevented the
victim from attacking the accused without provocation.

Conviction by Circumstantial Evidence

1. In a criminal case, circumstantial evidence may be sufficient for conviction provided the
following requisites concur:

a. There is more than one circumstance;

b. The facts from which the inferences are derived are proven; and
6
 c. The combination of all the circumstances is such as to produce a conviction beyond
reasonable doubt.

2. All the circumstances proved must be consistent with each other, and they are to be taken
together as proved.

Bar 1998

A was accused of having raped X. Rule on the admissibility of

the following pieces of evidence:

1. A pair of short pants allegedly left by A at the crime scene x x x.

Suggested answer:

The evidence may be admissible as a circumstantial

evidence of his liability although not sufficient in itself to support
a conviction.

3. A conviction based on circumstantial evidence must exclude each and every hypothesis
consistent with innocence. Hence if the totality of the circumstances eliminates beyond
reasonable doubt the possibility of innocence, conviction is proper.

4. Direct evidence is not indispensible to prove a crime charged. It may be proved by

circumstantial evidence.

In the absence of direct evidence, the prosecution may resort to adducing

circumstantial evidence. Crimes are usually committed in secret and under conditions
where concealment is highly probable. If direct evidence is insisted on under all
circumstances, the prosecution of vicious felons who commit heinous crimes in secret or
secluded places will be impossible to prove.

Flight or Non-flight of the Accused

1. The fact that appellants never fled the locality where the crime was committed is not by
itself a valid defense against the prosecution’s allegations because non-flight does not
signify innocence. Non-flight is simply inaction, which may be due to several factors. It
cannot be singularly considered as evidence or as a manifestation determinative of
innocence. It is established in this jurisdiction that while flight indicates guilt, non-flight
does not mean innocence.

2. There is no law or principle holding that non-flight per se is proof, let alone conclusive
proof, of innocence. Much like the defense of alibi, the defense of non-flight cannot prevail
against the weight of positive identification of the appellants. On the other hand, flight per
se is not synonymous with guilt and must not always be attributed to one’s consciousness
of guilt. Flight alone is not a reliable indicator of guilt without other circumstances because
flight alone is inherently ambiguous.

Cumulative Evidence and Corroborative Evidence

1. Cumulative evidence refers to evidence of the same kind and character as that already
given and that tends to prove the same proposition. For example, when a witness testifies
that he saw the event testified to and two other witnesses testify having seen the same
event which the first witness claimed he saw, the subsequent testimonies constitute
cumulative evidence.

2. Corroborative evidence is one that is supplementary to that already given tending to

strengthen or confirm it. It is additional evidence of a different character to the same
point. The term connotes evidence which tends to confirm, validate, or strengthen
evidence already presented. Thus, is W testifies that the gun marked as Exhibit “A” was

7
 the weapon used in the shooting of the victim, the findings of the crime laboratory that the
gun bears only the fingertips of the accused corroborates the testimony of W.

Although traditionally, this type of evidence is of a different type from the one it
corroborates, the meaning of corroborative evidence has been loosely used in local courts
so as to cover also evidence of the same kind as that already proferred as long as it
affirms the previous evidence. For instance, the testimony of X that he saw Y hack the
victim with a bolo corroborates the previous testimony of Z that indeed he saw Y strike the
victim with a bladed weapon. Here, the previous testimony is corroborated by evidence of
the same kind, i.e., testimonial evidence from eyewitnesses. In the sense, the
corroborating evidence is also cumulative since the evidences are of the same kind and
character.

3. Corroborative testimony is not always required. For example, in a case, the accused avers
that his conviction for estafa is without legal basis because there was no other evidence,
documentary or testimonial, establishing his alleged crime except for the uncorroborated
testimony of the prosecution witness.

“There is no law which requires that the testimony of a single witness has to be
corroborated, except where expressly mandated in determining the value and credibility
of evidence. Witnesses are to be weighed, not numbered. “

4. Corroborative evidence is necessary only when there are reasons to suspect that the
witness failed the truth or that his observations are inaccurate.

Positive and Negative Evidence

1. Evidence is said to be positive when a witness affirms in the stand that a certain state of
facts does exist or that a certain event happened. It is negative when the witness states
that an event did not occur or that the state of facts alleged to exist does not actually
exist. Thus, the testimony of W that he saw P fire a gun at the victim is a positive
evidence. The testimony of W that he could not have fired the gun because he was not
armed during the incident, is a negative evidence.

2. A denial is a negative evidence. It is considered by the Court to be a very weak form of

defense and can never overcome an affirmative or positive testimony particularly when
the latter comes from the mouth of a credible witness. It is negative and self-serving which
cannot be given greater weight than the testimony of credible witnesses who testifies on
affirmative matters.

3. Mere denial by an accused, particularly when not properly corroborated or substantiated

by clear and convincing evidence, cannot prevail over the testimony of credible witnesses
who testify on affirmative matters.

Liberal Construction of the Rules of Evidence

1. Like all other provisions under the Rules of Court, the rules of evidence must be liberally
construed. Rules of Procedure are mere tools intended to facilitate rather than to frustrate
the attainment of justice. A strict and rigid application of the rules must always be
eschewed if it would subvert their primary objective of enhancing substantial justice.

Procedural rules must be liberally interpreted and applied so as not to frustrate

substantial justice.

2. The Rules on Electronic Evidence shall likewise be construed liberally.

Waiver of the Rules of Evidence

1. The rules of evidence may be waived. When an otherwise objectionable is not objected to,
the evidence becomes admissible because of waiver.
8
 For instance, while as a rule hearsay evidence is excluded and carries no probative
value, the rule admits of an exception. Where a party failed to object to hearsay evidence,
then the same is admissible.

2. May the parties stipulate waiving the rules of evidence?

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.” As long as no law or principles
of morality, good customs and public policy are transgressed or no tights of third persons
are violated, the rules of evidence may be waived by the parties. 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. Admissibility of evidence. – Evidence is admissible when it is

relevant to the issue and is not excluded by the law or 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; and

b. That all facts having rational probative value are admissible unless some specific rule
forbids them. The first axiom is, in substance, the axiom of relevance while the second
is the axiom of competence.

Inadmissible Evidence Under the Anti-Wiretapping Law (R.A. No. 4200)

1. The evidences considered inadmissible if obtained in violation of R.A. No. 4200 are spelled
out clearly in the law, thus:

a. Any communication or spoken word,

b. The existence, contents, substance, purport, effect, or meaning of the communication

or spoken word or any part thereof.

2. The provisions of Sec. 1 of R.A. No. 4200, does not consider it unlawful to record open and
public communications. What the law protects are private conversations and
communications. It is considered unlawful to:

a. Secretly overhear,

b. Intercept, or

c. Record private communication or spoken word when doing so is without the authority
of all the parties to such private communication. If only one party authorizes the
recording and the other does not, there is a violation of the law.

3. A person who did not participate in the acts mentioned in the immediately preceding
paragraph may be liable under Sec. 1 of R.A. No. 4200. This is because the law also
considers it unlawful to knowingly possess any tape record, wire record, disc record, or
9
 any such record, or copies thereof of any communication or spoken word secured or
obtained in a manner violative of the law. It is also unlawful to replay the same to any
other person or persons. It is even also unlawful to communicate the contents thereof
either verbally or in writing to another. The law also prohibits the furnishing of
transcriptions of the recorded communication, whether complete or partial to any other
person.

Sec. 2 of R.A. No. 4200 also imposes a penalty to persons “who willfully or
knowingly aid, permit or cause to be done” the acts described above.

4. The acts mentioned as punishable would not constitute a violation of the law if done by a
peace officer authorized by a written order of the court in cases involving:

a. Treason,
b. Espionage,
c. Provoking war and disloyalty in case of war,
d. Piracy,
e. Mutiny in the high seas,
f. Rebellion,
g. Conspiracy and proposal to commit rebellion,
h. Inciting to rebellion,
i. Sedition, and
j. Kidnapping as defined by the Revised Penal Code and violations of Commonwealth Act
No. 616 punishing espionage, and other offenses against national security. It is
important for the court order to be issued in accordance with the guidelines set forth in
Sec. 3 of R.A. No. 4200.

Surveillance of Suspects and Interception and Recording of Communications Under

the Human Security Act of 2007 (R.A. No. 9372)

1. Under Sec. 7 of the Human Security Act of 2007, the provisions of R.A. No. 4200
notwithstanding, a police or law enforcement official may listen to, intercept and record,
any communication, message, conversation, discussion, or written or spoken words
between the following:

a. Members of a judicially declared and outlawed terrorist organization, association, or

b. Group of persons or of any person charged with or suspected of the crime of terrorism
or conspiracy to commit terrorism.

2. In the interception and recording of communications, the officer may do so with the use of
any mode, form, kind or type of electronic or other surveillance equipment or interception
and tracking devices or with the use of any other suitable ways and means for that
purpose (Sec. 7, R.A. No. 9372).

3. Any of the above acts may not however, be done without a written order of the Court of
Appeals.

Relevant Evidence

1. Under Sec. 4 of Rule 128, evidence to be relevant must have such a relation to the fact in
issue as to induce belief in its existence or non-existence.

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. Since relevant evidence necessarily
relates to a disputed fact, it is obvious that evidence offered to prove an undisputed fact is
irrelevant, and, as such, is inadmissible.

10
 3. It is the relation to the fact in issue which makes evidence either relevant or irrelevant. If
the evidence induces belief as to the existence or the non-existence of the fact in issue,
the evidence is relevant. If it does not induce such belief, it is irrelevant.

4. Although competency of the evidence is a necessary component of admissible evidence,

the question that most often arises in court is the relevance of the evidence. When an
advocate offers a piece of evidence for the court’s consideration, he offers the evidence to
prove a fact. This fact may either be the immediate fact in issue or the ultimate fact in
issue.

Relevance further requires that the immediate fact proven must have a connection
to the ultimate issue.

Bar 1981

“S” is indebted to a bank. When the obligation falls due, he fails to pay and the bank sues
for collection. As part of the evidence of the bank, the accountant of “S” is placed on the stand
and in the course of his examination he is asked if he, in turn, is also indebted to the bank.

The lawyer of “S” interposes two objections to the question:

a. That it is impertinent.

If you were the judge, how would you rule on the objections.

Suggested answer:

a. The objection of “S” that the question is impertinent or irrelevant should be sustained. The
issue in the case is the indebtedness of the defendant to the bank and not the
indebtedness of the accountant of “S” to the bank.

Test for Determining the Relevancy of Evidence

1. Because of the definition of relevant evidence under Sec. 4 of Rule 128, it is obvious that
relevance is a matter of relationship between the evidence and a fact in issue. The
determination of relevance is thus, a matter of inference and not of law. The test would
therefore, be one of logic, common sense, and experience.

2. The existence of the relationship between the fact in issue and the offered evidence is one
that is perceived only by the mind without reference to a statute or a rule. It is therefore, a
matter of reasoning. It is a matter of reasoning because relevance is a matter of logic. The
matter of relevance is a matter that is addressed to the court.

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. If the law or a particular rule excludes the evidence, it is incompetent.
Competence is primarily therefore, a matter of law or a matter of rule. The question as to
competence is: Is the evidence allowed by the law or by the rules? If it is allowed, the
evidence is competent. If it is not allowed, it is incompetent.

Competence of Electronic Evidence

Electronic evidence is competent evidence and is admissible if it complies with the rules
on admissibility prescribed by the Rules of Court and is authenticated in the manner prescribed.

11
Collateral Matters

1. A matter is collateral when it is on a “parallel or diverging line”, merely “additional” or

“auxiliary”.

When Collateral Matters are Allowed

1. 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. 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.

JUDICIAL NOTICE AND ADMISSIONS

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.

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 the legislative, executive and judicial departments of the Philippines;

g. The laws of nature;

h. The measure of time; and

i. The geographical divisions.

3. It would be error for a court not to take judicial notice of an amendment to the Rules of
Court.

When Judicial Notice is Discretionary

1. Under the principle of discretionary judicial notice, “A court may take judicial notice of
matters which are of public knowledge, or are capable of unquestionable demonstration,
or ought to be known to judges because of their judicial functions”.

2. Stated in another way, the principles of discretionary judicial notice will apply where the
following requisites are met:

a. The matter must be one of common knowledge;

12
 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.

3. 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:

a. Generally known within the territorial jurisdiction of the trial court; or

b. 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.

4. A court therefore, cannot take judicial notice of a factual matter in controversy. The court
may take judicial notice of matters of public knowledge, or which are capable of
unquestionable demonstration, or ought to be known to judges because of their judicial
functions.

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.

But judicial notice is not judicial knowledge. The mere personal knowledge of the judge is
not the judicial knowledge of the court, and he is not authorized to make his individual
knowledge of a fact, not generally or professionally known, the basis of his action.

Bar 1980

A resident American, who came here from Massachusetts, made a will where he stated
that, in form, it is executed in accordance with Massachusetts law. The will, instituting his Filipino
widow was his sole heir, would not be valid in form under Philippine law. Upon his death, the
widow presented the will to the Court of First Instance of Manila. Probate was objected to by
distant relatives of the testator in California. The Judge had studied in Harvard, and was familiar
with Massachusetts law. Without the introduction of formal evidence, he granted probate, stating
that the will was, indeed, executed in accordance with Massachusetts law.

Suggested answer:

The judgment should be reversed on appeal. The trial judge erred when he took judicial
notice of Massachusetts law on the basis of his personal knowledge of the said law. The mere
personal knowledge of the judge is not the judicial knowledge of the court, and the judge is not
authorized to make his individual knowledge of a fact the basis of his action. Besides, it is a basic
rule that courts of the forum will not take judicial notice of the law prevailing in another country.
Foreign laws must be alleged and proved.

Judicial Notice of Foreign Laws; Doctrine of Processual Presumption

1. It is well-settled in our jurisdiction that our courts cannot take judicial notice of foreign
laws. Like any other facts, they must be alleged and proved.
13
 Foreign laws must be alleged and proved. In the absence of proof, the foreign law
will be presumed to be the same as the laws of the jurisdiction hearing the case under the
doctrine of processual presumption.

Bar 2005

Explain briefly whether the Regional Trial Court may motu propio, take judicial notice of
the following:

a. Foreign Laws.

Suggested answer:

a. Please refer to pars. 1, 2, and 3 of the preceding topic for answers.

Bar 1997

a. Suppose a foreign law was pleaded as part of the defense of the defendant but no
evidence was presented to prove the existence of said law, what is the presumption to be
taken by the court as to the wordings of the law?

Suggested answer:

a. The court should presume that the law of the foreign country is the same as Philippine
laws under the doctrine of processual presumption.

Judicial Notice of Municipal Ordinances

1. Municipal trial courts must take judicial notice of municipal ordinances in force in the
municipality in which they sit.

2. A Court of First Instance (now RTC), should also take judicial notice of municipal
ordinances in force in the municipalities within their jurisdiction but only when so required
by law. For example, the charter of the City of Manila requires all courts sitting therein to
take judicial notice of all ordinances passed by the city council.

3. The Court of Appeals may take judicial notice of municipal ordinances because nothing in
the Rules prohibits it from taking cognizance of an ordinance which is capable of
unquestionable demonstration.

Judicial Notice of a Court’s Own Acts and Records

A court may take judicial notice of its own acts and records in the same case.

No Judicial Notice of Records of Other Cases; Exceptions

1. While courts may take judicial notice of its own acts and records in the same case, as a
rule, courts are not authorized to take judicial notice of the contents of the records of
other cases, even when such cases have been tried or are pending in the same court, and
notwithstanding the fact that both cases may have been heard or are actually pending
before the same judge.

2. The following are the exceptions to the above rule in the immediately preceding
paragraph:

a. When in the absence of any objection, with the knowledge of the opposing party, the
contents of said other case are clearly referred to by title and number in a pending
action and adopted or read into the record of the latter; or

14
 b. When the original record of the other case or any part of it is actually withdrawn from
the archives at the court’s discretion upon the request, or with the consent, of the
parties, and admitted as part of the record of the pending case.

B. Judicial Admissions

1. “Sec. 4. Judicial admissions. – An admission, verbal or written, made by a party

in the course of the proceedings in the same case, does not require proof. The
admission may be contradicted only by showing that it was made through
palpable mistake or that no such admission was made.”

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. Admissions of a non-party do
not fall within the definition of Sec. 4 of Rule 129.

Second, the admission to be judicial, must be made in the course of the proceedings
in the same case. Thus, an admission made in another judicial proceeding will not be
deemed a judicial admission in another case where the admission was not made.

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 the 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.

Admissions Made in Pleadings and Motions

1. Admissions made in the pleadings of a party are deemed judicial admissions. The
admission includes admissions made in the complaint.

2. The admissions made in a motion are judicial admissions which are binding on the party
who made them. Such party is precluded from denying the same unless there is proof of
palpable mistake.

Implied Admissions of Actionable Documents

1. When an action or defense is founded upon a written instrument, the genuineness and due
execution of the same instrument shall be deemed admitted unless the adverse party,
under oath, specifically denies them and sets forth what he claims to be the facts. The
failure to deny the genuineness and due execution of the said documents amounts to a
judicial admission pursuant to Section 8, Rule 8 of the Rules of Court.

Admissions in the Pre-trial of Civil Cases

1. One of the purposes of a pre-trial in a civil case is for the court to consider the possibility
of obtaining stipulations or admissions of facts. Admissions therefore in the pre-trial, as
well as those made during the depositions, interrogatories or requests for admission, are
all deemed judicial admissions because they are made in the course of the proceedings of
the case.

15
 2. Admissions in pre-trial briefs are judicial admissions and well-settled is the rule that an
admission, verbal or written, made by a party in the course of the proceedings in the same
case, does not require proof.

Admissions in the Pre-trial of Criminal Cases

1. Although an admission made during the pre-trial is deemed to have been made in the
course of a judicial proceeding and is necessarily a judicial admission, an admission made
by the accused in the pre-trial of a criminal case is not necessarily admissible against him.
To be admissible, the conditions set forth by Sec. 2 of Rule 118 must be complied with:

“SECTION 2. Pre-trial agreement. – All agreements or

admissions made or entered during the pre-trial conference
shall be reduced in writing and signed by the accused and
counsel, otherwise they cannot be used against the accused.”

2. Does the above rule-requiring an admission made or entered into during the trial
conference to be reduced in writing and signed by the accused and his counsel before the
same maybe used in evidence against the accused, equally apply to stipulation of facts
made during the trial? No.

Bar 2008

Bembol was charged with rape. Bembol’s father, Ramil, approached Artemon, the victim’s
father, during the preliminary investigation and offered P1 million to Artemon to settle the case.
Artemon refused the offer.

a. During the pre-trial, Bembol personally offered to settle the case for P1 million to the
private prosecutor, who immediately put the offer on record in the presence of the trial
judge. Is Bembol’s offer a judicial admission of his guilt?

Suggested answer:

a. Bembol’s offer is a judicial admission. A judicial admission is one that is verbal or written,
made by a party in the course of the course of the proceedings in the same case. Bembol
is a party to the case. The offer was made in the course of a judicial proceeding.

An admission is judicial if made not only in the pleadings, or by verbal or written

manifestations in the trial but also in a pre-trial of the case, the judicial admission could be
considered as an implied admission of guilt.

Implied Admissions in the Modes of Discovery

1. Admissions obtained through depositions, written interrogatories or requests for admission

are also considered judicial admissions.

Bar 1984

Through his lawyer plaintiff A sent to defendant B, through B’s counsel, a request for
admission of certain facts stated therein material to the case pending between them. B did not
reply at all.

On appeal from an adverse decision, A assigned as error the trial court’s disregard of the
facts, the admission of which was the subject of his unanswered request. A contented that as his
request for admission forms part of the records of the case, although not formally submitted in
evidence, and the records do not show that the defendant ever replied thereto, there was a clear
judicial admission by the defendant of all the material facts stated in the request, and that had
the trial court considered such admissions, it would have been contrary to the findings of fact.

Is the plaintiff correct?

16
Suggested answer:

The plaintiff is correct. Sec. 2 of Rule 26 of the Rules of Court requires the other party to
file and serve a sworn statement either denying specifically the matter of which an admission or
requested or setting forth in detail the reasons why he cannot truthfully either admit or deny
those matters. Under the same section, failure to do so will result into an implied admission of
each of the matters of which an admission is requested. Since the defendant failed to comply
with the requirements of the Rules, he is deemed to have made an implied admission of the
matters subject of the request for admission.

Consequence of judicial Admissions

1. Specifically, under Sec. 4, Rule 129 of the Rules of Court, 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.

2. The mistake that would relieve a party from the effects of his admission is not only
mistake. It 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”.

3. 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.

C. Admissions, Confessions and the Res Inter Alios Acta Rule

Concept of Admissions and Confessions

1. In a confession, there is an acknowledgement of guilt; in an admission, there is merely a

statement of fact not directly involving an acknowledgement of guilt or of the criminal
intent to commit the offense with which one is charged.

2. A confession is the declaration of an accused acknowledging his guilt of the offense

charged, or of any offense necessarily included therein.

3. A confession is a specific type of admission which refers only to an acknowledgement of

guilt. As used, the term admission refers to acknowledgement of facts which although may
be incriminating, falls short of an admission of guilt.

4. An admission may be implied like an admission by silence. A confession cannot be implied.

It should be a direct and positive acknowledgement of guilt.

5. Applied to a criminal case, a confession is an acknowledgement in express terms, by a

party in a criminal case, of his guilt of the crime charged, while an admission is a
statement by the accused, direct or implied, of facts pertinent to the issue, and tending, in
connection with proof of other facts, to prove his guilt. In other words, an admission is
something less than a confession.

Admissions Distinguished from Declarations Against Interest

17
 a. To be admitted as a declaration against interest, the declarant must be dead or unable to
testify; and admission is admissible even if the person making the admission is alive and is
in court;

b. A declaration against interest is made before the controversy arises; an admission is made
at any time, even during the trial;

c. A declaration against interest is made against one’s pecuniary or moral interest; an

admission is admissible as long as it is inconsistent with his present claim or defense and
need not be against one’s pecuniary or moral interest;

d. A declaration against interest is admissible even against third persons; an admission is

admissible only against the party making the admission;

e. A declaration against interest is an exception to the hearsay rule; an admission is not, and
is admissible not as an exception to any rule.

Effects of Admissions

1. An admission by a party may be given in evidence against him. His admission is not
admissible in his favor, because it would be self-serving evidence.

2. The act, declaration or omission of a party as to a relevant fact may be given in evidence
against him. This rule is based on the notion that no man would make any declaration
against himself, unless it is true.

Corpus Delicti

1. 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 – for example, that a man has died or a
building has been burned; and

b. Some person’s criminal responsibility for the act.

2. While an extrajudicial confession will not be sufficient for conviction unless corroborated
by evidence of corpus delicti, a judicial confession will support conviction without proof of
corpus delicti independent of the judicial confession.

3. In the prosecution for illegal sale of dangerous drugs, it is not enough to prove that the
transaction took place and that the buyer and seller were identified. The corpus delicti
must be offered in evidence. Here the corpus delicti must be offered in evidence. Here, the
corpus delicti is the illegal drug. To prove the corpus delicti, a special procedure must be
followed. The police officer should comply with the proper procedure in the custody of the
seized drugs. After seizure and confiscation, the drugs must be physically inventoried and
photographed in the presence of the accused, and or his representative, who shall be
required to sign the copies if the inventory and be given a copy thereof. The failure to
comply with such a requirement raises a doubt whether what was submitted for laboratory
examination and presented in court were the ones actually recovered from the accused.
Failure of the officer to comply with this procedure negates the presumption that official
duties have been performed.

4. Note that Republic Act No. 7438 (Sec. 2[f]) has extended the meaning of ‘custodial
investigation’ to include the practice of issuing an invitation to a person who is
investigated in connection with an offense he is suspected to have committed.

Admission by Silence

1. “SECTION 32. Admission by silence. – An act or declaration made in the presence

and within the hearing or observation of a party who does or says nothing when
18
 the act or declaration is such as naturally to call for action or comment if not
true, and when proper and possible for him to do so, may be given in evidence
against him.”

2. Not every silence is an implied admission. For instance, the silence of a person under
investigation for the commission of an offense should not be construed as an admission by
silence because of constitutional reasons.

3. For silence to be deemed an admission, it is necessary:

a. That he heard and understood the statement;

b. That he was at liberty to make a denial;

c. That the statement was about a matter affecting his rights or in which he was
interested and which naturally calls for a response;

d. That the facts were within his knowledge; and

e. That the fact admitted from his silence is material to the issue.

Res Inter Alios Acta; Branches

1. The res inter alios acta rule has two branches:

a. The rule that the rights of a party cannot be prejudiced by an act, declaration, or
omission of another.

b. The rule that evidence of previous conduct or similar acts at one time is not admissible
to prove that one did or did not do the same act at another time.

2. Both common reason and fairness demand that a man’s actions and declarations should
affect him alone and should not affect others.

3. 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;

b. Admission by a co-conspirator; and
c. Admission by privies.

2. The basis for admitting the above admission is that the person making the statement is
under the same circumstances as the person against whom it is offered. Such
circumstances give him substantially the same interest and the same motive to make a
statement about certain matters.

Admissions by a Co-partner or Agent

1. An agent performs some service in representation or on behalf of his principal. 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.

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
19
 relationships. Under the law, every partner is an agent of the partnership for the purpose
of its business and the act of the partner in carrying out the usual course of business binds
the partnership as a rule.

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 bit remains admissible against
the partner or agent making the declaration.

5. The above rules also apply to the declarations or acts of a joint owner, joint debtor, or
other persons jointly interested with the party.

Admissions by a Co-conspirator

1. Assume that two months after a successful bank robbery, A was arrested as a direct
participant in the crime. During a television interview, he admitted his participation in the
robbery. He also implicated B and C as his other companions in planning and executing
the robbery. Is his statement admissible? The statement is admissible as to him but not as
to B and C.

To be admissible against B and C, 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.

Observe that the declaration of A was made long after the conspiracy was over. It then
was no longer made during the existence of the conspiracy. In fact, at the time of the
declaration, A was no longer a co-conspirator.

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.

2. The rule requiring the concurrence of the above elements does not apply when the co-
accused takes the witness stand and repeats his extrajudicial confession as a witness. 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.

Jurisprudence holds that the general rule is that the extrajudicial confession or
admission of one accused is admissible only against the said accused but it is inadmissible
against the other accused. 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 transported into judicial admissions.
20
Admission by Privies

1. “Privies” are persons who are partakers or have an interest in any action or thing, or any
relation to another. For an admission of a predecessor-in-interest to be admissible against
the successor-in-interest, the following requisites must be present:

a. There must be an act, declaration or an omission by a predecessor-in-interest;

b. The act, declaration or omission of the predecessor must have occurred while he was
holding (not after) the title to the property;

c. The act, declaration or omission must be in relation to the property.

2. Accordingly, when the former owner of the property made the declaration after he ceased
to be the owner of the property, the rule on admission by privies does not apply and what
applies is the general rule that the rights of a party cannot be prejudiced by an act,
declaration, or omission of another.

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 of 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

1. In case the accused withdraws his guilty plea, that plea of guilty later withdrawn, is not
admissible in evidence against the accused who made the plea.

An Unaccepted Plea of Guilty to a Lesser Offense

An unaccepted plea of guilty to a lesser offense, is not admissible in evidence against the
accused who made the plea or offer.

An Offer to Pay or the Payment of Medical, Hospital or Other Expenses

It is not admissible in evidence as proof of civil or criminal liability for the injured party.
This act of rendering aid is sometimes called the “good Samaritan rule”. The phrase is used to
refer to the rendering of voluntary aid to a suffering person.

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
at a particular time as probative of a contention that he has done a similar act at another
time.

21
 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.

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;

OBJECT AND DOCUMENTARY EVIDENCE

Meaning of Object Evidence

1. Object or real evidence as defines by the Rules of Court refers to evidence that is
addressed to the senses of the court.

“SECTION 1. Object as evidence. – Object as evidence are those

addressed to the senses of the court. When an object is relevant to the
fact in issue, it may be exhibited to examined or viewed by the court.”

Requisites for Admissibility of Object Evidence

1. The admissibility of object or real evidence like any other evidence requires that the object
be both relevant and competent.

2. Object not to be excluded by the Rules, must pass the test of authentication.

3. To authenticate the object, there must be someone who should identify the object to be
the actual thing involved in the litigation. It requires a witness to testify in the
characteristics of the document even if the document no longer requires authentication.

4. To authenticate the object, the witness must have capacity to identify the object as the
very thing involved in the litigation. Better still, he must have actual and personal
knowledge of the exhibit he is presenting for admission. This is because “a witness can
only testify to those facts which he knows of his personal knowledge; that is, which are
derived from his own perception…”.

5. Cutting through all the legal foliage, we find the following as the basic requisites for the
admissibility of an object or real evidence:

a. The evidence must be relevant;

b. The evidence must be authenticated;
c. The authentication must be made by a competent witness; and
d. The object must be formally offered in evidence.

The formal offer of evidence is particularly a vital act before the admission of evidence
because the court “shall consider no evidence which has not been formally offered”.

6. An object evidence when offered in accordance with the requisites for its admissibility
becomes evidence of the highest order and speaks more eloquently than witnesses put
together.

Object Evidence and the Right Against Self-incrimination

The right against self-incrimination cannot be invoked against object evidence.

Categories of Object Evidence

22
 1. For purpose of authentication of an object or for laying the foundation for the exhibit,
object evidence may be classified into the following:

a. Objects that have readily identifiable marks (unique objects);

b. Objects that are made readily identifiable (objects made unique); and
c. Objects with no identifying marks and cannot be marked (non-unique objects).

2. If the object has a unique characteristic, like the serial number of a caliber 45 pistol, it
becomes readily identifiable.

3. Witness may be able to identify the same in court if he claims that he made the thing
acquire a unique characteristic like placing identifying marks on it.

Chain of Custody

1. The third category refers to those objects which are no readily identifiable, were not made
identifiable or cannot be made identifiable like drops of blood or oil, drugs in powder form,
fiber, grains of sand and similar objects. Under this situation, the proponent of the
evidence must establish a chain of custody.

2. To guaranty the integrity of the physical evidence and to prevent the introduction of
evidence which is not authentic.

3. Each of the link in the chain must show how he received the object, how he handled it to
prevent substitution and how it was transferred to another. Each of the handlers of the
evidence is a link in the chain and must testify to make the foundation complete.

As long as one of the “chains” testifies and his testimony negates the possibility of
tampering and that the integrity of the evidence is preserved, his testimony alone is
adequate to prove the chain of custody.

4. CHAIN OF CUSTODY. 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.

“A unique characteristic of narcotic substances is that they are not readily

identifiable as in fact they are subject to scientific analysis to determine their composition
and nature.”

5. In authenticating the same, a more stringent standard than that applied to readily
identifiable objects is necessary. This exacting standard entails a chain of custody of the
item with sufficient completeness to render it improbable for the original item to be
exchanged with another, contaminated or tampered.

As a method of authenticating evidence, the chain of custody rule requires that the
admission of an exhibit be preceded by evidence is sufficient to support a finding that the
matter in question is what the proponent claims it to be. The likelihood of tampering, loss
or mistake with respect to an exhibit is greatest when the exhibit is small and is one that
has physical characteristics fungible in nature and similar in form to substances familiar to
people in their daily life.

6. The Supreme Court recognized that a police buy-bust operation carries a built-in danger
for abuse because by its very nature, anti-narcotics operation involves the need for
entrapment procedures and the use of shady characters as informants and the secrecy
that shrouds drug deals enables the planting of marijuana or heroin in the pockets or
hands of unsuspecting persons. Such operations therefore, have to be governed by a
specific procedure with respect to the seizure and custody of the drugs. The required
procedure is embodied in Section 21, paragraph 1, Article II of Republic Act No. 9165.

Chain of Custody in Drug Cases

1. Sec. 81[b] of R.A. No. 9165 which implements R.A. No. 9165, defines:
23
 “b. “Chain of Custody” means the duly recorded authorized movements and
custody of seized drugs or controlled chemicals or plant sources of dangerous drugs
or laboratory equipment of each stage, from the time of seizure/confiscation to
receipt in the forensic laboratory to safekeeping to presentation in court for
destruction. Such record of movements and custody of seized item shall include the
identity and signature of the person who held temporary custody of the seized item,
the date and time when such transfer of custody were made in the course of
safekeeping and use in court as evidence, and the final disposition.”

2. “The same is implemented by Section 21(a), Article II of the Implementing Rules and
Regulation of Republic Act No. 9165”.

But a mere statement that the integrity and evidentiary value of the evidence
is not enough. It must be accompanied by proof.

3. The same provision clearly states as well, that it must still be shown that there exists
justifiable grounds and proof that the integrity and evidentiary value of the evidence have
been preserved.

“What is of outmost importance is the preservation of the integrity and

evidentiary value of the seized items, as the same would be utilized in the
determination of the guilt or innocence of the accused. The existence of the
dangerous drug is a condition sine qua non for conviction for the illegal sale of
dangerous drugs. The dangerous drug itself constitutes the very corpus delicti of
the crime and the fact of its existence is vital to a judgment of conviction.

“To be admissible, the prosecution must show by records or testimony, the

continuous whereabouts of the exhibit at least between the time it came into
possession of the police officers and until it was tested in the laboratory to
determine its composition up to the time it was offered in evidence.”

4. It also found that while there was testimony regarding the marking of the seized items at
the police station, there was no mention whether the same had been done in the presence
of appellant or his representatives. There was likewise no mention that any representative
from the media, DOJ or any elected official had been present during the inventory or that
any of these people had been required to sign the copies of the inventory.

According to the proviso of the IRR of Section 21(a) of R.A. No. 9165, non-
compliance with the procedure shall not render void and invalid the seizure of and
custody of the drugs only when:

a. Such non-compliance was under justifiable grounds; and

b. The integrity and the evidentiary value of the seized items are properly
preserved by the appending team.

Clearly, there must be proof that these two (2) requirements were met before
any such non-compliance may be said to fall within the scope of the proviso.
Significantly, not only does the present case lack the most basic or elementary
attempt at compliance with the law and its implementing rules; it fails as well to
provide any justificatory ground showing that the integrity of the evidence had all
along been preserved.

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. A map, a diagram, a photograph and
a model, fall under this category.

2. The admissibility of this type of evidence largely depends on laying the proper foundation
for the evidence. Does the evidence sufficiently and accurately represent the object it
seeks to demonstrate or represent? If it does, the evidence would be admissible.

24
 3. Photographs – Photographs of persons, things and places when instructive to the
understanding of the case, will be admitted in evidence. For a still photograph to be
admitted, the same must be relevant and competent. It is competent when it is properly
authenticated by a witness who is familiar with the scene or person portrayed and who
testifies that the photograph faithfully represents what it depicts.

Under the electronic evidence rules, photographic evidence of events, acts or

transactions shall be admissible in evidence provided:

a. It shall be presented, displayed and shown to the court; and

b. It shall be identified, explained or authenticated by either:
(i) The person who made the recording, or by
(ii) Some other person competent to testify on the accuracy thereof.

In determining whether photographs should be admitted, a trial judge must

determine whether they are relevant, and whether a proper foundation has been laid.

4. Motion pictures and recordings – Court practices regarding motion pictures and tape
recordings have been liberalized and the testimony of a person present when the activities
of taking the picture and the recording has been held sufficient. He must testify that the
motion picture accurately, faithfully represents the place or person, it purports to portray.

In the case of tape recording, the witness should identify the speakers, state how he
recognized their voices and that the recording was not taken in violation of the Anti Wire-
Tapping Law (R.A. No. 4200).

Under the Rules on Electronic Evidence, the authentication process need not involve
the person who actually made the recording. It can be done by some other person as long
as he is one who can testify as to its accuracy. There is also a requirement that the
recording be shown, presented or displayed to the court.

5. Diagrams, models and maps – These types of demonstrative evidence are presented to
indicate the relative locations or positions of objects and persons. Like any other exhibit,
the touchstone fro admissibility of maps, diagrams and models is the ability of the witness
to authenticate the exhibit.

6. X-ray pictures – X-ray pictures, also referred to as “skiagraphs” or “radiographs” are

admissible when shown to have been made under circumstances as to assure their
accuracy and where relevant to a material issue in the case.

Ephemeral Electronic Communications

1. These forms of communications refer to telephone conversations, text messages,

chatroom sessions, streaming audio, and other forms of electronic communication, the
evidence of which is not recorded or retained.

2. Ephemeral electronic communications shall be proven by the testimony of a person who

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

If the ephemeral electronic communication or a telephone conversation is recorded,

it now is no longer ephemeral hence, it shall be proven following the procedure provided
for under Sec. 1 of Rule 11 of the Electronic Rules of Evidence.
(i) The person who made the recording, or
(ii) By some other person competent to testify on the accuracy thereof.

DNA Evidence

1. The Supreme Court by upholding the order of the trial court and the Court of Appeals
requiring the petitioner to submit himself for DNA testing, had the occasion to reiterate its
earlier yet novel stand that DNA testing is a valid means of determining paternity.

25
 2. A rape-slay case of a 9-year old girl, admitted in evidence the DNA samples of the victim
which were found in the bloodstained garments of the accused. Vaginal swabs taken from
the victim were also admitted and were found to show the DNA profile of the accused who
was subsequently convicted.

Vallejo is considered by the Court to be the “first real breakthrough of DNA as

admissible and authoritative evidence in Philippine jurisprudence”. From a mere
recognition of the existence of DNA testing, Vallejo moved towards an open use of DNA
evidence in deciding cases. Vallejo adopted the following guidelines to be used by courts
in assessing the probative value of DNA evidence:
a. How the samples were collected;
b. How they were handled;
c. The possibility of contamination of the samples;
d. The procedure followed in analyzing the samples;
e. Whether the proper standards and procedure were followed in conducting the
tests; and
f. The qualification of the analyst who conducted the test.

3. Yatar also made a lengthy discussion of DNA, the process of DNA testing and the reasons
for its admissibility. Yatar significantly upheld the constitutionality of compulsory DNA and
rejected the contention that compulsory testing would infringe on the constitutional right
against self-incrimination. The case significantly and clearly recognized DNA testing and
the admissibility of its results as evidence.

Rule on DNA Evidence

1. In what situation does the Rule on DNA Evidence apply?

The Rule on DNA Evidence is the primary rule to be applied whenever DNA evidence
is offered, used or proposed to be offered or used as evidence in:
a. Criminal actions,
b. Civil actions, and
c. Special proceedings.

2. Is the order of the court granting a DNA testing appealable?

It is not appealable and is immediately executor.

3. What then is the remedy against the court order if it is not appealable?

The remedy is a petition for certiorari but under Sec. 5 “any petition for certiorari
therefrom shall not, in any way, stay the implementation thereof, unless a higher court
issues an injunctive order”.

4. What remedy is available to the convict if the results of the post DNA testing are favorable
to him?

If the results of the DNA testing are favorable to the convict, he may file a petition
for a writ of habeas corpus in the court of origin.

II – Documentary Evidence

Meaning of a Document as Evidence (Documentary Evidence)

1. “SEC. 2. Documentary evidence. – Documents as evidence consists of writings or

any material containing letters, words, numbers, figures, symbols or other
modes of written expressions 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.

26
 When a contract is presented in court to show that it exists or simply to establish its
condition, it is not offered to prove its contents. The contract therefore, is not considered a
documentary evidence but an object or real evidence.

Bar 1994

At the trial of Ace for the violation of the Dangerous Drugs Act, the prosecution offers in
evidence a photocopy of the marked bills used in the “buy-bust” operation. Ace objects to the
introduction of the photocopy on the ground that the Best Evidence Rule prohibits the
introduction of secondary evidence in lieu of the original.

1. Is the photocopy real (object) evidence or documentary evidence.

Suggested answer:

1. The photocopy is real (object) evidence and not a documentary evidence. Although it is
conceded that the bills contain letters, words, numbers and other modes of written
expression, these facts alone do not make the bills documentary evidences. The bills were
obviously presented to show that money exchanged hands in the buy-bust operations and
not to prove anything written on the bills.

Documents under the Rules on Electronic Evidence

1. An electronic document, also known interchangeably as electronic data message, based

on the definition of the Rules, does not only refer to the information itself. It also refers to
the representation of that information.

The rule also emphasizes that an electronic document is one that may be used for
any of the following purposes:

a. To establish a right;
b. To extinguish an obligation; or
c. To prove or affirm a fact.

2. Electronic documents are the functional equivalents of paper-based documents.

Bar 2003

a. State the rule on admissibility of electronic documents.

Suggested answer:

a. Electronic documents are admissible in evidence. Whenever the rules of evidence refer to
the terms of a writing, document, record, instrument, memorandum or any other form of
writing, such term shall be deemed to include an electronic document as defined in the
Rules on Electronic Evidence. If it is a private electronic document offered as authentic, its
authenticity needs to be proven by the person introducing the document before it is
admitted in evidence.

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; and
d. The document must be formally offered in evidence.

A – Best Evidence Rule

27
Concept of “Best Evidence”

1. It is not intended to mean the “most superior” evidence. More accurately, it is the “original
document” rule, or the “primary evidence” rule.

2. It merely comprehends a situation where the evidence offered is substitutionary in nature

when what should be offered is the original evidence.

3. The above principle is reiterated, thus: The only actual rule that the term “best evidence”
denotes is the rule requiring that the original of a writing must, as a general proposition,
be produced.

4. There is no reason to apply the “best evidence” rule when the issue does not involve the
contents of a writing. The 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.

The Court held that the rule finds no application to a case where a party never
disputed the terms and conditions of the promissory note, leaving the court to conclude
that as far as the parties herein are concerned, the wordings or contents of the note are
clear enough and leave no room for disagreement. The defense of lack of consideration
and the contention that the signature in the note was not made in the personal capacity of
the respondent are defenses which do not question the “precise wordings” of the
promissory note which should have paved the way for the application of the “best
evidence rule”.

5. Petitioner’s insistence on the presentation of the check in evidence as a condition sine qua
non for conviction under BP 22 is wrong.

“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
contents.

6. Where however, the purpose of the prosecution is to prove the contents of the check,
more specifically the names of the drawer and endorsee, the date and amount and the
dishonor thereof, as well as the reason for such dishonor, it is incumbent upon the
prosecution to adduce in evidence the original copy of the check to prove the contents
thereof.

7. Where the issue is only as to whether such document was actually executed, or exists or
on the circumstances relevant to or surrounding its execution, the best evidence rule does
not apply and testimonial evidence is admissible. Any other substitutionary evidence is
likewise admissible without need to account for the original.

Illustrative Applications of the Best Evidence Rule

Illustration No. 1

The wedding ceremony is an event or a fact with an existence independent of any writing.
Thus, a witness may testify that Pedro died in his presence without presenting a death
certificate. He may also testify that he traveled to Los Angeles without necessarily presenting the
plane ticket and that his father gave him a car without presenting a deed of donation, without
invoking the ‘best evidence’ rule.

Illustration No. 2

Should the objection be sustained? No! As in the first illustration, the best evidence rule
does not apply. While it is conceded that a document is involved in the question and response,
the inquiry involved the existence and execution of the marriage contract. An inquiry into these
matters does not bring the best evidence rule into operation there being no inquiry as to the
contents of the document. In the words of the Rules of Court, the best evidence rule applies only
when the subject of inquiry is the contents of a document. Take note that the subject of inquiry
under the best evidence rule is the contents of a writing, not the truth thereof.
28
When Document is Merely Collaterally in Issue

1. When a document is involved in the inquiry but the document is only collaterally in issue,
the best evidence rule does not apply. A document is collaterally in issue when the
purpose of introducing the document is not to establish its terms but to show facts that
have no reference to its contents like its existence, condition, execution or delivery.

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 stem to apply the best evidence rule is to determine the matter inquired into. If
the inquiry involves a document and its contents are the subject of that same inquiry, the
best evidence rule applies and must therefore, be complies with. The procedural
compliance of the rule requires the presentation of the original document, and not a copy
of that document. So long as the original is available, no other evidence can be
substituted for the original because the original is the “best evidence” in relation to mere
copies or substitutes thereof.

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:

a. Finding an adequate legal excuse for the failure to present the original; and
b. 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

The excuses for the non-production of the original document refer to the instances when
the original does not have to be produced even when the contents of the document are the
subjects of inquiry. These instances are those mentioned in Sec. 3, Rule 130 of the Rules of
Court.

Loss, Destruction or Unavailability of the Original

1. 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.

Original is in the Custody or Control of the Adverse Party

1. A showing that the original document is in the custody or 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 a 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
29
 d. That the adverse party failed to produce the original document despite the
reasonable notice.

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

There are instances when the original of a document is a public record or is recorded in a
public office. Public records are generally not to be removed from the places where they are
recorded and kept. For this reason, the proof of the contents of a document which forms part of a
public record may be done by secondary evidence. This evidence is a certified true copy of the
original. This certified copy is to be issued by the public officer in custody of the public records.

B – Parol Evidence Rule

Application of the Parol Evidence Rule

1. The term “parol” evidence means something ‘oral’ or verbal but with reference to
contracts, “parol evidence” means extraneous evidence or evidence aliunde.

2. The parol evidence rule becomes operative when the issues in the litigation are the terms
of a written agreement.

3. 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.

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:
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
d. The existence of other terms agreed to by the parties or their successors in
interest after the execution of the written agreement.

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. Without complying with this requirement – putting in issue in the pleadings –
parol evidence cannot be introduced.

Prior, Contemporaneous and Subsequent Agreements

1. The traditional rules limit the inadmissibility of parol evidence or extrinsic evidence to
prior or contemporaneous stipulations.

30
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 or 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.

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.

Mistake or Imperfection in the Writing and Failure to Express the True Agreement of
the Parties

1. The admission of evidence aliunde may be justified when there is a mistake or

imperfection in the written agreement. Again, this mistake or imperfection must be put in
issue in the pleading by the party who wants to prove the defect in the writing.
2. Although parol evidence is admissible to explain the meaning of a contract, it cannot serve
the purpose or incorporating into the contract additional contemporaneous conditions
which are not mentioned at all in the writing unless there has been fraud or mistake.

Distinctions Between the Best Evidence Rule and the Parol Evidence Rule

1. The best evidence rule establishes a preference for the original document over a
secondary evidence thereof. The parol evidence rule is not concerned with the primacy of
evidence but presupposes that the original is available.

2. The best evidence rule precludes the admission of secondary evidence if the original
document is available. The parol evidence rule precludes the admission of other evidence
to prove the terms of a document other than the contents of the documents itself for the
purpose of varying the terms of the writing.

3. The best evidence rule can be invoked by any litigant to an action whether or not said
litigant is a party to the document involved. The parol evidence rule can be invoked only
by the parties to the document and their successors in interest.

4. The best evidence rule applies to all forms of writing. The parol evidence applies to written
agreements (contracts), and “wills”.

Waiver of the Parol Evidence Rule

The parol evidence rule can be waived by failure to invoke the benefits of the rule. This
waiver may be made by failure to object to the introduction of evidence aliunde. Inadmissible
evidence may be rendered admissible by failure to object.

Probative Value

1. Even if parol evidence is admitted, such admission would not mean that the court would
give probative value to the parol evidence.

Authentication under the Rules on Electronic Evidence

1. The person seeking to introduce an electronic document in any legal proceeding has the
burden of proving its authenticity.

2. As previously mentioned, the authentication of electronic document requires any of the

following means:

31
 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.

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. 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 or Rule 132, every document duly notarized may be presented
in evidence without further proof, the certificate of acknowledgement being prima facie
evidence of the execution of the instrument or document involved.

In other words, notarized documents, being public documents, do not require

authentication, unlike private documents. They also enjoy the prima facie presumption of
authenticity and due execution.
3. It is well-settled that a document acknowledgement before a notary public is a public
document that enjoys the presumption of regularity. It is a prima facie evidence of the
truth of the facts stated therein and a conclusive presumption of its existence and due
execution. To overcome this presumption, there must be presented evidence that is clear
and convincing. Absent such evidence, the presumption must be upheld. In addition, one
who denies the due execution of a deed where one’s signature appears has the burden of
proving that contrary to the recital in the jurat, one never appeared before the notary
public and acknowledged the deed to be a voluntary act. Denials without clear and
convincing evidence to support the claim of fraud and falsity are not sufficient to
overthrow the above-mentioned presumption.

Ancient Documents

There is an exception to the rule requiring proof of the genuineness and due execution of
a private document. The exception is in the case of a private “ancient document”. A private
document is considered ancient when it is more than thirty (30) years old, is produced from a
custody in which it would naturally be found if genuine, and is unblemished by any alterations or
circumstances of suspicion.

How to Explain Alterations in a Document

The party producing the document as genuine but which bears alterations after its
execution has the duty to account for any alteration found in a document purported to be
genuine. For such purpose, he may show any of the following:

a. That the alteration was made by another without his concurrence; or

b. That the alteration was made with the consent of the parties affected by it;
c. That the alteration was otherwise properly or innocently made; or that the alteration did
not in anyway change the meaning or language of the instrument.

Failure to do any of the above will make the document inadmissible in evidence.

TESTIMONIAL EVIDENCE

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.

32
 2. When applied to a witness, competence means that the witness is qualified to take the
stand and testify. It means that he is fit or that he is eligible to testify on a particular
matter in a judicial proceeding.

Competence of a witness therefore, refers to his personal qualifications to testify.

Competence also includes the absence of any factor that would disqualify him from being
a witness.

3. It is a legal truth that identification precedes authentication. Without a witness, no

evidence can ever be authenticated.

Qualifications of a Witness

1. As to eth 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 a
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; and
b. He must not possess the disqualifications imposed by law or the rules.

Oath or Affirmation

1. The willingness to take an oath or affirmation is an essential qualification of a witness. No

court would and should allow the testimony of someone who desires to testify but who
refuses to swear or to make an affirmation.

2. It is enough that the witness understands and believes that some

earthly evil will occur to him for lying.

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.

Competency and Credibility

1. Competence is a matter of law or in this jurisdiction, also a matter of rules. In deciding the
competence of a witness, the court will not inquire into the trustworthiness of the witness.

2. Although he may be competent as a witness, his testimony may not be given much weight
by the court or no weight at all if the court deems him not worthy of belief. The
competence of the witness must hence, be sharply distinguished from his credibility.

3. While bias and drug abuse may not be grounds for barring a witness from testifying, they
may serve as grounds for attacking the credibility of the witness.

33
 4. Questions concerning the credibility of a witness are best addressed to the sound
discretion of the trial court as it is in the best position to observe his demeanor and bodily
movements.

5. The Supreme Court is not the proper forum from which to secure a re-evaluation of factual
issues, except only where the factual findings of the trial court do not find support in the
evidence on record or where the judgment appealed from was based on a
misapprehension of facts.

Other Factors that Do Not Affect the Competency of a Witness

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 (Example: those who have
been convicted of falsification of a document, perjury or false testimony are
disqualified from being witnesses to a will).

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.

B – Disqualification of Witness

Disqualification by Reason of Mental Incapacity

1. His incapacity at the time of perception although without legal effect on his competency to
testify, would however, concededly has an adverse effect on his credibility.
2. Is the mental condition of the proposed witness at the time he is to testify such that he is
incapable of intelligently making known his perception to others?

Disqualification by Reason of Immaturity

1. In disqualification by reason of immaturity, the incompetence of the witness must occur at

the time the witness perceives the event including his incapability to relate his perceptions
truthfully.

2. He is unable to fully take care of himself or protect himself from abuse, neglect, cruelty,
exploitation, or discrimination because of physical or mental disability or condition.

Competency of a Child Witness

1. Every child is presumed qualified to be a witness. This is the presumption established by

the Rule on Examination of a Child Witness and to rebut the presumption of competence
enjoyed by a child, the burden of proof lies on the party challenging his competence.

2. When the court 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, the court shall conduct a competency examination of the
child. The court may do so motu propto or on motion of a party.

3. The competency examination of the child shall be conducted only by the judge.

4. The questions asked at the competency examination shall be appropriate to the age and
developmental level of the child. The questions shall not be related to the issues at the
trial but shall focus on the ability of the child to remember, to communicate, to distinguish
between truth and falsehood and to appreciate the duty to testify truthfully.

5. The assessment is designed to be a continuing one. The court has the duty of continuously
assessing the competence of the child throughout his testimony.

34
Survivorship Disqualification Rule or the Dead Man’s Statute

1. The survivorship disqualification rule (dead man’s statute) is detailed in Section 23 or Rule
130 and provides:

“Section 23. Disqualification by reason of death or insanity of

adverse party. – Parties or assignors of parties to a case, or persons in
whose behalf a case is prosecuted, against an executor or administrator or
other representative of a deceased person, or against a person of unsound
mind, 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.”

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 or 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; and
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.

What is the effect of the death of Mr. D? The rule is clear. Mr. C is rendered
incompetent to testify as to the transaction he had with Mr. D. He is incompetent because
of the possibility that his claim is fraudulent. If Mr. C were to be heard, there would be a
high risk of paying a fraudulent or a fictitious claim. It is Mr. C who has the motive to lie.
He is the survivor. Mr. D cannot lie. He is dead. The rule is definitely one that does not
protect the survivor even at the risk of not paying a just and valid claim because it is the
survivor who has the stronger reason to file a false claim. The rule is for the protection of
the guy who died. Hence, the name, Dead Man’s Statute.
2. 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 persons therefore entitled to invoke the protection of the dead man’s statute are the
executor, administrator and any other representative of a deceased person, when they are
the defendants in a claim against the estate of the deceased. The protection may likewise
be invoked by a person of unsound mind in a claim filed against him.

The rule will not apply where the plaintiff is the executor or administrator as
representative of the deceased or if the plaintiff is 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”.

3. 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. Thus, offering the testimony of a so-called “disinterested witness” is not a transgression of

the rule since the prohibition extends only to the party or his assignor or the person in
whose behalf the case is prosecuted.

35
 Consider the following illustration:

Mr. C calls his secretary to testify about the transaction that occurred in her
presence.

Counsel for Mr. C: “The witness is not a plaintiff or an assignor of the plaintiff or one on
whose behald the claim against the estate is prosecuted.”

5. If the subject of the testimony is on some other matter, the witness may testify on such
matter as when the subject of the testimony is on a fact which transpired after the death
of such person. Also, since a claim or demand against the estate implies a claim adverse
to the estate, a testimony beneficial to such estate should not be excluded.

In other words, the rule does not altogether intend to keep the witness out of the
stand altogether. The witness is merely precluded from testifying on particular topics.
Also, witnesses who testify on the basis of their knowledge of a transaction not based on
their dealings with the deceased are not barred. As the Court ruled: “The dead man’s
statute does not operate to close the mouth of a witness as to any matter of fact coming
to his knowledge in any other way than through personal dealings with the deceased
person, or communication made by the deceased to the witness.”

6. The survivorship disqualification rule is intended to benefit the estate of the deceased or
insane person.

Marital Disqualification Rule (Spousal Immunity)

1. The marital disqualification rule is provided for in Section 22 of Rule 130 and quoted
hereunder:

2. The rule prohibiting a testimony in favor of the spouse is intended to discourage the
commission of perjury.

The case of Alvarez v. Ramirez (473 SCRA 72) gives the specific reasons for the
rule, thus:

a. There is identity of interests between husband and wife;

b. If one were to testify for or against the other, there is a consequent danger of
perjury;
c. The policy of the law is to guard the security and confidence 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.

3. 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.

4. The rule applies whether the witness-spouse is a party to the case or not but the other
spouse must be a party.

5. The prohibited testimony is one that is given or offered during the existence of the
marriage.

6. 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.

7. It goes without saying that the testimony is admissible where no objection is interposed by
the spouse who has the right to invoke the prohibition. In other words, the benefit of the
rule maybe waived and it may be waived impliedly or expressly.

8. The testimony covered by the marital disqualification rule not only consists of utterances
but also the production of documents.
36
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. When an offense directly attacks or directly and vitally impairs the conjugal relations, it
comes within the exception to the statute.

3. Also, if the wide is sued for adultery, the husband cannot be barred from testifying against
the wife. In a suit for annulment of marriage, each spouse can testify against each other.
The same rule applies when the husband is sued by the wife for bigamy.

4. In order for a spouse to be allowed to testify against the other in a civil case, the case
must be a “civil case by one against the other”. Where the civil case is between a spouse
and the direct descendants or ascendants of the other, the marital disqualification rule still
applies. Thus, if the wife sues the father of her husband for collection of a loan, the
husband may be barred from testifying against the wife upon the objection of the latter.
This is because the civil case is not by one against the other but between a spouse and
the parent of the other.

5. However, crimes committed against a spouse’s collateral relatives like uncles, aunties,
cousins or nephews and nieces are not covered by the exception because they are neither
direct descendants nor ascendants.

Testimony Where Spouse is Accused With Others

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.

Testimony by the Estranged Spouse

1. This literal construction of the rule has however, been rejected by the Supreme Court.

2. Subsequently, before the continuation of the testimony of his estranged wife, petitioner,
through counsel, filed a motion to disqualify Esperanza Alvarez from testifying against
him. In a subsequent petition for review on certiorari, the issue sought to be resolved by
the Court was whether Esperanza Alvarez can testify against her estranged husband.

In sustaining the Court of Appeals allowing the testimony of Esperanza Alvarez, the Court
explained:

“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 situations, 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.”

“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

37
 1. 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.

2. It is unlike Section 24(a) which explicitly requires that the confidential information be
received during the marriage.

The implication is clear: confidential information received from a third person is not
covered by the privilege.

3. 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. Without such intention,
common reason suggests that the information is not confidential. The wife was allowed, in
a prosecution for murder, to testify of the assailant because there was no intent of
confidentiality in the information. The declaration is intended to be communicated after
the husband’s death because it was made in the furtherance of justice.

In particular, if a third person (other than a child of the family) is present with the
knowledge of the communicating spouse, this stretches the web of confidence beyond the
marital pair, and the communication is unprivileged. If children of the family are present
this likewise deprives the conversation of protection unless the children are too young to
understand what is said.

Explanation of Distinctions Between the Marital Disqualification Rule and the Marital
Privileged Communication Rule

1. The marital disqualification rule under Section 22 of Rule 130 does not refer to confidential
communications between the spouses.

In the sense, Section 22 is broader because it prevents testimony for or against the
spouse on any fact and not merely a disclosure of confidential information.

2. 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.

Attorney-Client Privilege

1. The communication or advice must have been give either in the course of the professional
employment or with a view to professional employment.

2. The relationship between the attorney and the client is said to exist where a person
employs the professional services of an attorney or seeks professional guidance, even
though the lawyer declines to handle the case.

3. The consultation would not be one made in the course of a professional employment or
with a view to professional employment as required by Section 24(b) Rule 130, Rules of
the Court, and if proven to be so, would not be within the ambit of the privilege.

4. It is sufficient that the statements have been made in the course of legitimate professional
relationship between the attorney and the client.

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.

38
 6. The traditional and still applicable rule is that an inquiry into the fact of consultation or
employment is not privileged. The identity of the client, is protected if the revelation of
such information would necessarily reveal privileged information.

7. The purpose of the professional relationship or with a view to such relationship or those
knowledge acquired by such employees in such capacity are covered by the privilege. Like
the attorney, their employer, these persons cannot be examined as to the communication
made by the client or the advice given by the attorney without the client’s consent and
also the employer’s consent.

8. If the communications made by the client to his attorney were also made to third persons,
the intention of secrecy does not appear. The cases in American jurisprudence have
permitted the eavesdropper to speak.

9. This rule however, should be made to apply only where the suit is between the attorney
and his client. The communication would still be privileged where the suit is by or against
a third party.

10.The protection of the privilege will generally survive the death of the client. Where there is
an attack on the validity of the will, communications made to the attorney on the drawing
of the will, while confidential during the lifetime of the client are not intended to require
secrecy after his death. The reason for the prohibition is found in the relation of attorney
and client, which is one of trust and confidence of the highest degree. A lawyer becomes
familiar with all the facts connected with his client’s case. He learns from his client the
weak points of the action as well as the strong ones. Such knowledge must be considered
sacred and guarded with care.

11.In fine, the factors are as follows:

a. There exists an attorney-client relationship, or a prospective attorney-client

relationship, and it is by reason of this relationship that the client made the
communication.

On the other hand, a communication from a (prospective) client to a lawyer for

some purpose other than on account of the (prospective) attorney-client relation is
not privileged.

b. The client made the communication in confidence.

c. The legal advice must be sought from the attorney in his professional capacity.
The communication made by a client to his attorney must not be intended for
mere information, but for the purpose of seeking legal advice from his attorney
as to his rights or obligations. The communication must have been transmitted
by a client to his attorney for the purpose of seeking legal advice.

“If the client seeks an accounting service or business or personal assistance, and
not legal advice, the privilege does not attach to a communication disclosed for
such purpose.”

Bar 2008

A tugboat owned by Speedy Port Service, Inc. (SPS) sank in Manila Bay while helping tow
another vessel, drowning five (5) of the crew in the resulting shipwreck. At the maritime board
inquiry, the four (4) survivors testified. SPS engaged Atty. Ely to defend against potential claims
and to sue the company owning the other vessel for damages to the tug. Ely obtained signed
statements from the survivors. He also interviewed other persons, in some instances making
memoranda. The heirs of the fived (5) victims filed an action for damages against SPS. Plaintiff’s
counsel sent written interrogatories to Ely, asking whether statements of witnesses were
obtained; if written, copies were to be furnished; if oral, the exact provisions were to be set forth
in detail. Ely refused to comply, arguing that the documents and information asked are privileged
communication. Is the contention tenable? Explain.
Suggested answer:

The information sought is neither a communication by the client to the attorney not it is an
advice by the attorney to his client.

39
Physician-Patient Privilege

1. This privilege, embodied in Section 24(c) of Rule 130 applies to a civil case, whether the
patient is a party or not. The phraseology of the rule implies that the privilege cannot be
claimed in a criminal case presumably because the interest of the public in criminal
prosecution should be deemed more important than the secrecy of the communication.

2. The person against whom the privilege is claimed is a person duly authorized to practice
medicine, surgery or obstetrics.

3. It is necessary for the operation of the privilege that the physician is acting in his
“professional capacity” and that the advice or treatment given or acquired in such
capacity. The physician may be said to be “acting in a professional capacity” when he
attends to the patient foe either curative or preventative treatment. Hence, it is submitted
that results of autopsies may not be deemed covered by the privilege because autopsies
are not intended for treatment.

4. Similarly, where the purpose is to ask a physician to have one’s appearance disguised by
cosmetic or plastic surgery to escape apprehension, the privilege does not apply. Common
reason suggests that all these cases be deemed outside the operation of the privilege
because the purpose is not for treatment or prevention of any disease or injury.

Priest/Minister-Patient Privilege

1. Accordingly, where the penitent discussed business arrangements with the priest, the
privilege does not apply.

Privileged Communications to Public Officers

1. It is the interest of the public that is sought to be protected by the rule. The privilege may
be invoked not only during the term of office of the public officer but also after.

Executive Privilege; Presidential Communications Privilege

1. “The power of the government to withhold information from the public, the courts, and the
Congress.”

2. When Congress exercises its powers of judicial inquiry, the department heads are not
exempt by the mere fact that they are department heads. Accordingly, only one executive
official may be exempted from the power of inquiry of Congress – the President upon
whom executive power is vested and is beyond the reach of congress except through the
power of impeachment.

The requirement then to secure presidential consent under Section 1 is limited only
to appearances in the question hour, and is valid on its face. Under Section 22 of Art. VI,
the appearances of department heads in the question hour is discretionary on their part.

Section 1 however, declared the Court, cannot be applied to appearances of

department heads in inquire in aid of legislation and Congress is not bound to respect the
refusal of the department heads in such inquiry, unless a valid claim of privilege is
subsequently made by the President herself or by the Executive Secretary.

In the absence of a specific basis for the claim, there is no way of determining
whether it falls under one of the traditional privileges or whether it should be respected.

40