)D!

EVIDENCE
(The Bar Lectures Series)
~-

WILLARD B. RIANO
Bar Reviewer and Professorial Lecturer in
Civil Procedure, Evidence, Criminal Procedure,
Contracts & Special Contracts and Commercial Laws
Former Executive Director, Recoletos Law Center
Member, Committee in Remedial Law,
U.P. Law Center
Member, Committee in Commercial Law,
U.P. Law Center
Former Law Executive Dean, San Sebastian College
Recoletos-Manila
Former Professorial Lecturer and
Member of the Corps of Professors,
Philippine Judicial Academy
Currently Dean, University of the East College of Law

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856 Nicanor Reyes, Sr. St.
Tel. Nos. 736-05-67 • 735-13·64
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 Philippine Copyright 2013, 2016

by

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WILLARD B. RIANO PREFACE

ISBN 978-971-23-8270-3
~,
No portion of this book may be copied or
reproduced in books, pamphlets, outlines or notes,
whether printed, mimeographed, typewritten, copied
in different electronic devices or in any other form, for
distribution or sale, without the written permission
of the author except brief passages in books, articles,
reviews, legal papers, and judicial or other official
proceedings with proper citation.
Any copy of this book without the correspond-
ing number and the signature of the author on this
page either proceeds from an illegitimate source or is
in possession of one who has no authority to dispose
of the same.
ALL RIGHTS RESERVED
BY THE AUTHOR
No. 0460
IS:BN-13: ,?8-"l?l-23-8270-3
Like the previous edition, this work was conceptualized
as a basic reference material for the bar reviewee and the new
lawyer. This work, like the author's earlier work on the subject,
also represents an attempt to provide a fresh look at the basic
principles of evidence. In so doing, this work departs from the
traditional presentation on the subject, a presentation often
described as too rigid and formalistic bordering on an almost
abstract methodology.
While the format of the present work is substantially
different from the author's earlier work, it is written with the
same goal of making evidentiary concepts more understand-
able so the reader may realize that the rules of evidence are.
neither mysterious nor profound, such rules having been
primarily derived from sheer logic and common reason.
The language of this work is often simple and at times
conversational and departs from the usual large doses of
"legalese" common in legal treatises. Concepts had been re-
arranged to give rhyme and rhythm to the rules and to ap-
proximate how the most significant and commonly used
evidentiary concepts are presented both in the bar examina-
tions and in litigation.
As mentioned, this work is written primarily for the

rIll u
student of law who, in a bar examination situation, would
be confronted with the need to formulate answers in the
shortest time possible. To enable the reader to get a "feel" of
9 11 789712 382703
the rules, this work made liberal use of both bar examination
concepts, practical illustrations and judicial interpretations of
Printed by
evidentiary principles. This work, however, could likewise be
a resource material for lawyers who wish to view the rules of

~~~i ~~~~~~.~~~~~.!~
m evidence from a non-traditional vantage point in the hope that
they may realize, from their experiences, that the principles of
Tel. No. 857-77-77
iii
evidence as used in the field, have edges that have been dulled
and obscured by less endearing habits in the courtroom.
While this work makes no pretensions to comprehensive-
ness, care has been taken to treat the subject in a manner that
is neither too abridged nor too expanded so the reader would
get a fair share of the fundamentals needed to squarely face
the demands of the bar examinations and the rigors of trial on
the subject. • DEDICATION
This new material remains anchored on the practical
principle that a bar candidate does not have to know everything To Nina ... my baby
on each bar subject. Knowing everything has never been a
mandatory requirement for passing the bar. It will never be. and
Also, the breadth and scope of bar examination topics yield to her baby ... Christopher
the conclusion that a profound knowledge of every nook and
cranny of each legal principle is next to impossible. Hence,
emphasis has been accorded to those topics normally involved
in the bar examinations for the past thirty or so years. Those
topics had been presented, in this work, in accordance with
the usual fact patterns in the bar and in a manner consistent
with the normal thought processes needed to give a reasonable
answer to a bar question.
This work would not have been possible without the
assistance of a lot of friends too many to mention. They know
who they are and the writer deeply owes them a tremendous
gratitude for the completion of this humble work. They too
know how the writer believes in that adage that "gratitude
when profound has a special way of being silent... "

Quezon City, Philippines

January 25,2016

Willard B. Riano

v
iv
 CONTENTS

•, Chapter I
Preliminary Considerations

A. Basic Principles
Concept of"evidence"; truth as purpose........................... 1
Scope and applicability of the rules on evidence .... ..... .... 2
When evidence is required; when not required ............... 6
Application of the Rules on Electronic Evidence............. 8
Some distinctions between evidence in civil cases
and evidence in criminal cases................................. 9
Distinction between proof and evidence........................... 10
Factum probandum and factum probans......................... 11
Liberal construction of the rules on evidence.................. 14
Absence of a vested right in the rules on evidence.......... 14
Waiver of the rules on evidence........................................ 15
B. Admissibility of Evidence
Requisites for the admissibility of evidence..................... 15
Illustrations of the requisites for admissibility............... 16
Relevant evidence (Bar 1981) ........................................... 18
Test for determining the relevancy of evidence............... 19
Collateral matters .. ........ ....... ...... ...... .. .............................. 20
When collateral matters are allowed ...... ......................... 20
Relevance of evidence on the credibility of a witness...... 21
Competent evidence (Bar 2004)........................................ 23
Competence of electronic evidence ................................... 24
Admissibility and weight (probative value)
of the evidence............................................................ 24
Multiple admissibility (Bar 1984; 1991; 2005) ................ 25
Conditional admissibility (Bar 2011) ............................... 26
Curative admissibility....................................................... 27
Direct and circumstantial evidence (Bar 2011) ............... 27
Conviction by circumstantial evidence
(Bar 1998; 2011)........................................................ 28

vi vii
 Cumulative evidence and corroborative evidence ........... 30 Examples of disputable presumptions
Positive and negative evidence......................................... 32 (Bar 2011; 2012) ....................................................... . 62
Competency of a witness distinguished from his C. Quantum of Evidence (Weight and Sufficiency
credibility (Bar 2004)................................................ 34 of Evidence)
Admissible evidence and credible evidence .............. .... ... 34
Inadmissible evidence in relation to arrests, Proof beyond reasonable doubt ........................................ . 66
searches and seizures (Bar 2000; 2009; 2010) ........ 34 Preponderance of evidence (Bar 2003; 2011) .................. . 67
Some jurisprudential tenets on probative value Substantial evidence (Bar 2003; 2011) ............................ . 68
and credibility........................................................... 39 Quantum of evidence in a petition for a
Writ of Amparo 70
C. Miscellaneous Doctrines Effect on the criminal case of failure to prove
Falsus in uno, falsus in omnibus ............................. ~........ 42 administrative liability ............................................ . 70
Alibi; denial (Bar 1994) ..................................................... 43 Clear and convincing evidence (Bar 2011) ...................... . 71
Alibi, not always false .... .. .. .. .. .. .... .. .. .. .......... .... .. ............... 44 Evidentiary weight of electronic evidence ...................... . 72
Frame-up ........................................................................... 46
Delay and initial reluctance in reporting a crime........... 47 Chapter Ill
Flight or non-flight of the accused.................................... 48 Judicial Notice and Judicial Admissions

Chapter II A. Judicial Notice

Burden of Proof, Quantum of Evidence Function of judicial notice................................................. 74

a11d Presumptions When judicial notice is mandatory................................... 75
When judicial notice is discretionary (Bar 2012)......... .. .. 76
A. Burden of Proof and Burden of Evidence Judicial notice and know ledge of the judge
(Bar 1980; 2011)........................................................ 78
Burden of proof (Bar 2004) .... .. .. .. .. .. .. ...... .. .. ...... .. .. .... .. .. .. . 49
Stage when judicial notice may be taken......................... 78
Some jurisprudential pronouncements on
Judicial notice offoreign laws; doctrine
burden of proof.......................................................... 50
of processual presumption (Bar 1997; 2005; 2011).. 79
Test for determining where the burden ofprooflies....... 52
Judicial notice ofthe law of nations................................. 79
Where burden of proof is fixed.......................................... 53
Judicial notice of municipal ordinances
Burden of evidence (Bar 2004).......................................... 53
(Bar 2005; 2011)........................................................ 80
Equipoise rule or equiponderance doctrine
Judicial notice of a court's own acts and records............. 80
(Bar 1995).................................................................. 54
No judicial notice of records of other cases;
B. Presumptions exceptions.................................................................. 80
Concept of presumptions................................................... 55 Judicial notice of proprietary acts of government-
Inference distinguished from a presumption................... 56 owned and controlled corporations.......................... 81
Judicial notice of post office practices.............................. 81
Kinds of presumptions...................................................... 57
Judicial notice of banking practices.................................. 82
Effect of presumptions...................................................... 57
Judicial notice of the financial condition
Meaning of conclusive presumptions (Bar 2012)............. 57
of the government..................................................... 82
Conclusive presumptions under the Rules of Court
(Bar 2012).................................................................. 58 Judicial notice of presidential powers.............................. 82
Judicial notice of other matters........................................ 83
Estoppel ......... .... ........ ... .... ................ ........ ......... ... ......... ... . 59
Effect of disputable presumptions.................................... 60 B. Judicial Admissions
Disputable presumptions under the Rules of Court........ 60
Admissions in pleadings and motions (Bar 2011) ........... 87

viii ix

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 Averments in pleadings which are not deemed Evidentiary concepts involved in the presentation
admissions................................................................. 89 of documentary evidence .......................................... 132
Implied admissions of allegations of usury...................... 89 Requisites for admissibility of documentary evidence .... 132
Implied admissions of actionable documents ... ;............... 89
Admissions in the pre-trial of civil cases ......................... 90 c. Best Evidence Rule
Admissions in the pre-trial of criminal cases Meaning of"best evidence" (Bar 1988) ............................. 133
(Bar 2008).................................................................. 90 Purpose of the rule (Bar 1994; 1998) ................................ 135
Implied admission in the modes of discovery Waiver of the rule .............................................................. 136
(Bar 1984).................................................................. 91 When document is merely collaterally in issue ............... 136
Admissions in amended pleadings (Bar 2011)................. 92 How to apply the best evidence rule ................................. 136
Nature of admissions in superseded pleadings............... 92 Illustrative applications of the best evidence rule ........... 137
Admissions in dismissed pleadings .. .................. .............. 93 Excuses for not presenting the original
Sworn statement of a proposed state witness.................. 93 document (Bar 1992; 1997) ...................................... 140
Admissions by counsel .. .. .. .. .... ... .. ....... ............ ....... .... ....... 93 Requisites for the introduction of secondary evidence
Effect of judicial admissions ..... .... .... .. .. .......... .. ..... .. .. ....... 93 in case of loss, destruction, or unavailability
How judicial admissions may be contradicted................. 95 of the original ............................................................ 141
Chapter IV Requisites for the introduction of secondary evidence
when the original is in the custody or control
Object and Documentary Evidence of the adverse party .................................................. 143
A. Object Evidence (Rule 130) Requisites for the introduction of secondary evidence
when the original consists of numerous accounts ... 144
Nature of object evidence ........................ ;......................... 97 Requisites for the introduction of secondary evidence
Requisites for admissibility of object evidence .... .. .. .. .. .... 99 when the original document is a public record ....... 146
Object evidence and the right against self- Effect of not offering a document in evidence after
incrimination (Bar 2010).......................................... 102
calling for its production and inspection ................. 146
Demonstrative evidence.................................................... 102
Meaning of "original" (Bar 1997; 2001) ............................ 146
View of an object or scene ................................................. 106
Categories of object evidence............................................ 107 Originals under the Rules on Electronic
Chain of custody in general .............................................. 108 Evidence (Bar 2003) .................................................. 149
Chain of custody in drug cases (Sec. 21 ofthe Original printout of facsimile transmissions
Comprehensive Drugs Act of2002) (Bar 2011)....... 111 (Bar 2012) .................................................................. 150
Links in the chain of custody............................................ 115 D. Parol Evidence Rule (Rule 130)
Importance of the marking of the evidence..................... 116
Effect of non-compliance with Sec. 21 Contracts and the parol evidence rule ............................. 151
of R.A. 9165, as amended......................................... 117 Application of the parol evidence rule
DNA evidence .......·............................................................. 117 (Bar 1978; 1981; 1983; 2012).................................... 152
Rules on DNA evidence..................................................... 121 Applicatior. of the rule only to parties and their
Paraffin tests ...... ................... ................... ...... ................... 126 successors-in-interest............................................... 155
Polygraph tests (Lie detector tests).................................. 127 Application of the rule to wills.......................................... 156
When and how to introduce parol evidence .............. ...... . 157
B. Documentary Evidence (Rule 130)
Prior, contemporaneous, and subsequent agreements.... 159
Meaning of documentary evidence (document Intrinsic ambiguity in the writing.................................... 160
as evidence)............................................................... 128 Mistake or imperfection in the writing and failure
Documents under the Rules on Electronic Evidence to express the true agreement
(Bar 2009)........... ....................................................... 129 of the parties (Bar 2001)........................................... 162

X xi
 Waiver of the parol evidence rule..................................... 164 Oath or affirmation ........................................................... 182
Probative value.................................................................. 164 Ability to perceive.............................................................. 183
Distinctions between the best evidence rule and Ability to make known the perception to others.............. 184
the parol evidence rule............................................. 165 Competency and credibility (Bar 2004)............................ 185
E. Authentication and Proof of Documents Factors that do not affect the competency
(Rule 132) of a witness (Bar 2011) ............................................. 186
Meaning of authentication (Bar 2012) ............................ . 165 B. Disqualification of Witnesses
Concept of a document ..................................................... . 166 Disqualification by reason of mental incapacity.............. 187
Public and private documents ......................................... . 167 •
Disqualification by reason of immaturity ........................ 188
Proof of a private document ............................................ .. 168 Child witness; meaning (Bar 2012) .... .. ... ......................... 189
When authentication of a private document Competency of a child witness; presumption;
is required ................................................................ . 168
competency examination.......................................... 189
Authentication of both the original and Survivorship disqualification rule or the dead
a photocopy of the original ...................................... . 169
man's statute (Bar 2001) .......................................... 191
When authentication of private documents How to apply the rule........................................................ 193
is not required .......................................................... . 169
170 Marital disqualification rule (Spousal immunity)
Ancient documents (Bar 1990) ........................................ .
171 (Bar 2000; 2010)........................................................ 197
How to prove genuineness of a handwriting ................... .
Exceptions to the marital disqualification rule............... 199
Importance of knowing whether a document is
public or private; proof of notarial documents ...... .. 171 Testimony where spouse is accused with others ......... .... 201
Public documents as evidence .......................................... . 173 Testimony by the estranged spouse (Bar 2006) ...... ......... 202
Proof of official record; attestation of a copy .................. .. 174 Marital privileged communications
Proof of foreign laws; doctrine of processual (Bar 1995; 2004; 2010).............................................. 204
presumption (presumed-identity) ........................... . 175 Explanation of distinctions between the marital
Special power of attorney executed abroad disqualification rule and the marital privileged
(Bar 2011) ................................................................ .. 175 communication rule.................................................. 206
Public record of a private document ................................ . 176 Attorney-client privilege (Bar 2008)................................. 208
Proof of lack of record ....................................................... . 176 Physician-patient privilege (Bar 1998) ............................ 210
Last wills and testaments ................................................ . 177 Priest/minister-penitent privilege.................................... 213
Explaining alterations in a document ............................ .. 177 Privileged communications to public officers................... 214
Proof of documents in an unofficial language ................ .. 178 Executive privilege; Presidential communications
Impeachment of judicial record ....................................... . 178 privilege..................................................................... 214
Registration of contracts .................................................. . 178 Privileged communications under the Rules on
Foreign judgments; divorces ........................................... .. 179 Electronic Evidence .. .. ..... ........... ..... ........ .............. ... 218
Church registries .............................................................. . 179 Parental and filial privilege (Bar 1998) ........................... 218
Other privileged communications not found
ChapterV in the Rules of Court................................................. 219
Testimonial Evidence C. Examination of Witnesses
A. Qualifications of Witnesses Open court examination; exceptions 220
Nature of testimonial or oral evidence ............................ . .180 Oath or affirmation 221
Presumption in favor of competence of a witness .......... .. 181 Examination of witnesses and record of
Qualifications of a witness .............................................. .. 181 proceedings (Bar 1978) 221

xii Xlll
 Rights and Obligations of a witness Unaccepted plea of guilty to a lesser offense................... 264
(Bar 1998; 2004; 2005) ............................................. . 222 Offer to pay or the payment of medical,
Examination of a child witness; hospital or other expenses........................................ 264
live-link television (Bar 2006) ................................. . 223 Subsequent remedial measures........................................ 264
Kinds of examinations ....................................................... . 227 Evidence of similar conduct (Bar 2011) ........................... 265
Death or absence of a witness .......................................... . 228 When evidence of similar acts or previous
Recalling a witness ........................................................... . 229 conduct is admissible................................................ 267
Leading questions ............................................................ . 229
230 . F. Judicial Affidavit Rule (A.M. 12-8-8-SC)
Leading questions to a child witness ............................... .
Misleading questions ........................................... :············· 231 Rationale for the Judicial Affidavit Rule......................... 268
D. Impeachment of a Witness Effectivity of the Judicial Affidavit Rule.......................... 269
Significance of the use of a judicial affidavit; exhibits .... 269
How to impeach a witness ............................................... . 233 Scope of the Judicial Affidavit Rule................................. 270
Impeachment by contradictory evidence ......................... . 233 Applicability of the Judicial Affidavit Rule
Impeachment by prior inconsistent statements ............. . 235 to criminal cases . ...... .. ....... ...... ....... .......................... 270
Impeachment by showing bad reputation ....................... . 239 Contents of the judicial affidavit...................................... 271
No impeachment by evidence of bad character Effect of non-compliance with the content
but by bad reputation .............................................. . 240 requirements of Sec. 3 ofthe Judicial
Evidence of good character of the witness ...................... . 240 Affidavit Rule............................................................ 273
No impeachment by evidence of particular Sworn attestation of the lawyer....................................... 273
wrongful acts ............................................................ . 241 Effect of a false attestation by the lawyer........................ 27 4
Exclusion and separation of witnesses ............................ . 243 Effect of non-compliance with the attestation
When the witness may refer to a memorandum ............. . 243 requirement............................................................... 27 4
E. Admissions, Confessions and the Res Inter Filing and service of the judicial affidavit and
Alios Acta Rule (Rule 130) exhibits; modes of service......................................... 27 4
Effects of failure to submit the judicial affidavits
Concept of admissions and confessions ........................... . 245 and exhibits on time ... ........ ............. .................... ..... 276
Effects of admissions ........................................................ . 246 Remedy in case oflate submission................................... 276
Classification of admissions and confessions .................. . 246 Offer of testimony in judicial affidavit............................. 277
Effect of extrajudicial confession of guilt; Objections to testimony in the judicial affidavit;
corpus delicti ............................................................ . 249 ruling of the court..................................................... 277
Admission by silence ........................................................ . 254 Appearance ofthe witness at the scheduled hearing...... 278
Res inter alios acta; branches .......................................... . 255 Effect of failure of a witness to appear at the
Distinctions between extrajudicial and judicial scheduled hearing; failure of counsel to appear...... 278
admissions ................................................................ . 256 When there is a need for the issuance of a subpoena...... 279
Exceptions to the res inter alios acta rule Oral offer and objections to exhibits................................. 279
(first branch) ............................................................ . 257
Admissions by a co-partner or agent ............................... . 257 Chapter VI
Admissions by a co-conspirator ... :........ ;.......................... . 259 Hearsay Evidence, Opinion Evidence
Admission by privies ........................................................ . 262 and Character Evidence
Offer of compromise in civil cases ................................... . 263
Offer of compromise in criminal ,1~.
A. Preliminaries
cases (Bar 1989; 2008) ............................................. . 263 ~~:<:
Hearsay evidence (Bar 2004; 2007; 2011)........................ 281
Plea of guilty later withdrawn ......................................... . 264 ~*'~
F.liil[ Hearsay may be oral or written........................................ 281

l
xiv ~i? i'·.
".
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XV
. ·~::,:

;~~t-
 Basis for excluding hearsay evidence .............................. . 281 D. Character Evidence
When evidence is hearsay ................................................ . 282 Inadmissibility of character evidence .............................. . 334
Specific elements of hearsay evidence ............. ,............... . 284 Evidence of bad moral character of the accused
Anecdotal illustration ....................................................... . 285 (Bar 2010) ................................................................. . 334
Examples of non-hearsay evidence .................................. . 289 Evidence of good moral character of the accused
Out-of-court statements offered to prove mental (Bar 2010; 2011) ....................................................... . 336
state of the declarant ............................................... . 290 Evidence of character of the offended party .................. .. 337
Out-of-court statement offered to prove its effect Sexual abuse shield rule in child sexual abuse cases .... .. 338
on the listener/hearer .............................................. . 291 •. Character evidence in civil cases ..................................... . 338
Out-of-court statement offered to prove that the Evidence of good character of a witness .......................... . 338
statement was made (Bar 2012) ............................. . 293
Independently relevant statements Chapter VII
(Bar 2003; 2009; 2011) ............................................. . 294
Offer of Evidence and Trial Objections (Rule 132)
B. Exceptions to the Hearsay Rule
299 Importance of offer of evidence (Bar 2003; 2012) .................... . 341
Dying declaration (Bar 2007; 2010) ................................. .
Marking of a document; not a formal offer 342
Elements of a dying declaration (Bar 1985; 1991) ......... . 307
308 When formal offer of evidence is not required ........................ .. 343
Assailing a dying declaration .......................................... .
When evidence is offered by petitioner
Parts of the res gestae (Bar 2007) .................................... . 310
but not by respondent 344
Res gestae under the Rules of Court ................................ . 312
When evidence is to be offered .... 344
A. Spontaneous statements .............. ;.......................... . 312 How an offer of evidence is made 346
Basis of admissibility ....................................................... . 314 Objections; purposes of objections (Bar 2012) 346
Objections to admissibility ............................................... . 315 G8neral and specific objections (Bar 1997) ............................. .. 347
Formal and substantive objections (Bar 1997) ....................... .. 349
B. Verbal acts (Bar 2011) ............................................. . 318 Objections must be timely 349
Entries in the course of business (Business Striking out an answer or testimony 351
Records Rule) ........................................................... . 321 Waiver of objections; belated objections (Bar 2004) ............... .. 353
Declarations against interest .......................................... . 323 Extent of waiver for failure to object ....................................... . 354
Declaration about pedigree .............................................. . 325 Rulings on objections 356
Family reputation or tradition regarding pedigree ........ . 326 Repetition of objections 358
Common reputation.......................................................... . 327 Tender of excluded evidence (offer of proof) 359
Entries in official records ................................................. . 327 Formal offer of evidence and formal offer of
Commercial lists and the like ......................................... .. 329 proof(Bar 1991) 363
Learned treatises .............................................................. . 329 Additional evidence after case is rested ................................. .. 364
Testimony or deposition at a former proceeding ............ . 329
Case Index 365
Exception to the hearsay rule in child abuse cases ........ . 330
c. Opinion Evidence
Admissibility of opinion evidence (Bar 2011) .................. 332
When opinion evidence is admissible; expert
testimony (Bar 2011) ................................................ 332
Opinion of an ordinary witness;
when admissible (Bar 2005)..................................... 333

xvi xvii
 Chapter I

~. PRELIMINARY CONSIDERATIONS

A. Basic Principles

Concept of "evidence"; truth as purpose

1. The term "evidence" is defined in Sec. 1 of Rule 128
of the Rules of Court, thus:

"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. The very tenor of the definition clearly indicates that

not every fact having a conceivable connection to the issue of
a case, or that which provides a reasonable inference as to the
truth or falsity of a matter alleged, is considered evidence.
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.
3. The definition, provided for under Sec. 1 of Rule 128,
significantly considers "evidence" not as an end in itself but
merely as a "means" of ascertaining the truth of a matter of
fact. Equally significant is the observation that "evidence,"
as defined in the Rules of Court, is a means of ascertaining

1
 2 EVIDENCE
(The Bar Lectures Series)
the truth, not in all types of proceedings, but specifically, in a
"judicial proceeding."
4. The purpose of evidence under the Rules of Court is
to ascertain the truth respecting a matter of fact in a judicial
proceeding (Sec. 1, Rule 128, Rules of Court). Evidence is
required because of the presumption that the court is not '
aware of the veracity of the facts involved in a case. It is,
therefore, incumbent upon the parties to prove a fact in issue
through the presentation of admissible evidence.
Thus, it was declared in no uncertain terms, that rules
on evidence are merely the means for ascertaining the truth
respecting a matter of fact (Atienza v. Board of Medicine, 642
SCRA 523, 531, February 9, 2011).
5. While the purpose of evidence is to know the truth, the
truth referred to in the definition is not necessarily the actual
truth but one aptly referred to as the judicial or legal truth.
The limitations of human judicial systems cannot always
guarantee knowledge of the actual or real truth. Actual truth
may not always be achieved in judicial proceedings because
the findings of the court would depend on the admissible
evidence presented before it.
Under Sec. 34 of Rule 132, courts, as a rule, are not even
authorized to consider evidence which has not been formally
offered. Thus, a supposed evidence that would undoubtedly
show the innocence of the accused will not be considered in
the decision of the court if not formally offered in evidence. If
it is evidence to the contrary that has been formally offered, it
is the latter which the court is boundto consider or appreciate.
For instance, while it may be the actual truth that it was
Mr. X who shot Mr. Y, if the available evidence presented
and admitted in court points to Mr. Z as the culprit, then the
judicial or legal truth is that it was Mr. Z, not Mr. X, who shot
Mr.Y.
Scope and applicability of the rules on evidence
1. The rules on evidence in the Rules of Court are
guided by the principle of uniformity. As a general policy, the
CHAPTER I - PRELIMINARY CONSIDERATIONS 3
A. Basic Principles
rules on evidence shall be the same in all courts and in all
trials and hearings (Sec. 2, Rule 128, Rules of Court).
2. The rules on evidence, being components of the
Rules of Court, apply only to judicial proceedings (Sec. 1,
Rule 128, Rules of Court). In relation to this, Sec. 4 of Rule
1 provides for the non-applicability of the Rules of Court,
including necessarily the rules on evidence, to certain specified
proceedings. The provision declares:
"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."
3. The general rule is that administrative agencies are
not bound by the technical rules on evidence. It can accept
documents which cannot be admitted in a judicial proceeding
where the Rules of Court are strictly observed. It can choose
to give weight or disregard such evidence, depending on its
trustworthiness (Sugar Regulatory Administration v. Tormon,
G.R. No. 195640, December 4, 2012).
The technical rules of evidence are not binding on labor
tribunals (Manalo v. TNS Philippines, Inc., G.R. No. 208567,
November 26, 2014). Thus, the argument, that the written
statements of certain employees are hearsay because such
employees were not presented for cross-examination, is not
persuasive. The rules of evidence are not strictly observed in
proceedings before the National Labor Relations Commission
(NLRC) which are summary in nature and decisions may be
made on the basis of position papers (Castillo v. Prudentialife
Plans, Inc., G.R. No. 196142, March 26, 2014).
Also, the rules on evidence are not strictly applied in
proceedings before administrative bodies such. as the Board
of Medicine (Atienza v. Board of Medicine, 642 SCRA 523,
February 9, 2011).
4. The Civil Service Commission, for example, conducts
its investigations for the purpose of ascertaining the truth
 4 EVIDENCE
(The Bar Lectures Series)
without necessarily adhering to technical rules of procedure
applicable in judicial proceedings. It was, therefore, sustained
by the Supreme Court when it validly appreciated certain
documents in resolving the formal charge against respondent
inspite of the fact that they were not duly authenticated but
its contents were. not disputed by respondent and whose only
objection was that they were not duly authenticated (Civil
Service Commission v. Colanggo, 553 SCRA 640).
5. Earlier, in Ong Chia v. Republic, 328 SCRA 749, the
Court emphasized that the rule on formal offer of evidence is
not applicable to a case involving a petition for naturalization.
Here, 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 Supreme
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.
6. A relatively more recent case, Sasan, Sr. v. NLRC,
569 SCRA 670, further illustrates the rule on the non-
applicability of the Rules of Court, including the rules on
evidence, to non-judicial proceedings.
In this case, the respondent, in support of its material
allegations, submitted before the NLRC several documents
which it did not present before the Labor Arbiter. Largely
on the basis of those documents presented for the first time
on appeal, the NLRC promulgated its decision modifying the
ruling of the Labor Arbiter.
Distressed by the decision of the NLRC, the petitioners
sought recourse with the Court of Appeals by filing a petition
CHAPTER I - PRELIMINARY CONSIDERATIONS 5
A. Basic Principles
for certiorari under Rule 65 of the Rules of Court. In its deci-
sion, the Court of Appeals affirmed the findings of the NLRC
holding that it did not commit a grave abuse of discretion.
In the Supreme Court, the petitioners raised, as one of the
issues, the acceptance and consideration by the NLRC of the
evidence presented before it for the first time on appeal. The
Supreme Court ruled that the issue is not a novel procedural
issue, and that Philippine jurisprudence is replete with cases
allowing the NLRC to admit evidence, not presented before the
Labor Arbiter, and submitted to the NLRC for the first time
on appeal. Since technical rules of evidence are not binding
in labor cases, the NLRC is not precluded from receiving
evidence for the first time on appeal.
7. In the Sasan case, the petitioners likewise inter-
posed a protest against the documentary evidence submitted
by the adverse party because they were mere photocopies.
The Court, in dismissing the objection, stressed once
again that, even assuming that the adverse party submitted
mere photocopies, the proceedings before the NLRC are not
covered by the technical rules on evidence and procedure as
observed in the regular courts. Technical rules on evidence do
!'
not apply if the decision to grant the petition proceeds from an
examination of its sufficiency as well as a careful look into the
arguments contained in position papers and other documents.
8. The rule that the provisions of the Rules of Court
do not apply to administrative or quasi-judicial proceedings
likewise found expression in the earlier case of Bantolino v.
Coca Cola Bottlers, Inc., 403 SCRA 699.
Here, the Court reiterated previous rulings that the rules
on evidence are not strictly observed in proceedings before
administrative bodies. The Court disregarded the findings
i. of the Court of Appeals which, among others, considered
!•:! the affidavits of the petitioners as mere hearsay, and, thus,
~.}·
1l
could not be admitted in evidence against their employers.
The Court unequivocally ruled that in a labor case, it is not
.o·,,_;
necessary for an affiant to appear and testify, and be cross-
~r.~. examined by counsel for the adverse party on his affidavit.
.
.
.
;
 6 EVIDENCE
(The Bar Lectures Series)
Administrative bodies are not bound by the technical niceties
of law and procedure and the rules obtaining in the courts of
law.
9. Similarly, it was declared that the parol evidence
rule, like other rules on evidence, should not be strictly
applied in labor cases. Hence, a Labor Arbiter is not precluded
from accepting and evaluating evidence other than, and even
contrary to, what is stated in the CBA (Cirtek Employees
Labor Union-Federation of Free Workers v. Cirtek Electronics,
Inc., 650 SCRA 656, 662-663, June 6, 2011; See also Abosta
Management Corporation v. National Labor Relations
Commission [First Division], 654 SCRA 505, 516-517, July 27,
2011).
When evidence is required; when not required
1. The basic rule is that, a mere allegation is not
evidence and is not equivalent to proof. For example, a charge
based on mere suspicion and speculation cannot be given
credence (Agdeppa v. Office of the Ombudsman, G.R. No.
146376, April23, 2014).
Evidence is the means of proving a fact. As the definition
says, it is offered in court to ascertain the truth "respecting a
matter of fact." Implied from the definition of "evidence" in
Sec. 1 of Rule 128 is the need for the introduction of evidence
when the court has to resolve a question of fact. Where no
factual issue exists in a case, there is no need to present
evidence because where the case presents a question of law,
such question is resolved by the mere application of the
relevant statutes of this jurisdiction to which no evidence is
required.
2. In certain instances, evidence is no longer required
to prove an assertion, as in the following:
(a) When the pleadings in a civil case do not tender an
issue of fact, a trial need not be conducted since there is no
more reason to present evidence. The case is then ripe for
judicial determination, through a judgment on the pleadings,
pursuant to Rule 34 of the Rules of Court.
CHAPTER I - PRELIMINARY CONSIDERATIONS 7
A. Basic Principles
(b) Presentation of evidence may, likewise, be dispensed
with by agreement of the parties. The parties to any action are
allowed by the Rules to agree in writing upon the facts involved
in the litigation and to submit the case for judgment upon the
facts agreed upon, without the introduction of evidence (Sec.
6, Rule 30, Rules of Court).
(c) Evidence is not required on matters of judicial notice
(Sec. 1, Rule 129, Rules of Court) and on matters judicially
admitted (Sec. 4, Rule 129, Rules of Court).
(d) Evidence is not required when the law presumes the
truth of a fact.
When, for instance, an injured passenger sues a common
carrier for breach of contract of carriage, evidence of the
negligence of the defendant carrier is dispensed with. This
is because Art. 1756 of the Civil Code of the Philippines
establishes the presumption that, "In case of death of or
injuries to passengers, common carriers are presumed to have
been at fault or to have acted negligently x x x." The same
presumption applies under Art. 1735 of the same Code when
the goods on board a common carrier are lost, destroyed or
deteriorated.
The constitutional presumption of innocence is a fitting
example. The accused has no duty to prove his innocence
because the law presumes that an accused in a criminal
prosecution is innocent until the contrary is proven. This basic
constitutional principle is fleshed out by procedural rules
which place upon the prosecution the burden of proving that
an accused is guilty of the offense charged by proof beyond
reasonable doubt. Whether the degree of proof has been met
is largely left for the trial courts to determine (See for further
j·
[ readings, People v. Baraoil, 676 SCRA 24, 31, July 9, 2012).
r
t (e) Evidence is, likewise, dispensed with when a rule
I'
['
presumes the truth of a fact. Under Rule 131 of the Rules of
~~
Court, two kinds of presumptions, conclusive and disputable,
~
t
have been established. .
f

8 EVIDENCE
(The Bar Lectures Series)
Thus, the tenant is not permitted to deny the title of his
landlord at the time of the commencement of the relation
of landlord and tenant between them. This presumption is
conclusive against the tenant (Sec. 2[b], Rule 131, Rules of
Court). On the other hand, it is disputably presumed that
official duty has been regularly performed (Sec. 3[m], R;,tle
131, Rules of Court).
Application of the Rules on Electronic Evidence
1. The application of the rules on evidence in the
Rules of Court contrasts with the application of the Rules on
Electronic Evidence. While the definition of "evidence" under
the Rules of Court makes reference only to judicial proceed-
ings, the provisions of the Rules on Electronic Evidence apply
as well to quasi-judicial and administrative cases. Sec. 2, Rule
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."
2. It was previously held that the provisions of the
Rules on Electronic Evidence do not apply to criminal actions.
They apply only to civil actions, quasi-judicial proceedings,
and administrative proceedings (Ang v. Court of Appeals,
G.R. No. 182835, April 20, 2010). Note: See, however, People
v. Enojas, G.R. No. 204894, March 10, 2014, which applied
the Rules on Electronic Evidence to criminal cases. Here,
the RTC admitted text messages against the accused in
conformity with the Court's earlier resolution (A.M. No. 01-
7-01 SC, September 24, 2012) expanding the coverage of said
rules to criminal cases as well. No reference to this resolution,
amending the coverage of the Rules on Electronic Evidence,
was mentioned in the earlier case ofAng v. Court of Appeals.
3. Ephemeral communications are now admissible
evidence, subject to certain conditions. Ephemeral electronic
communication refers to telephone conversations, text mes-
CHAPTER I - PRELIMINARY CONSIDERATIONS 9
A. Basic Principles
sages, chatroom sessions, streaming audio, streaming video,
and other forms of communication the evidence of which is not
recorded or retained (Bartolome v. Maranan, 740 SCRA 491).
Some distinctions between evidence in civil cases and
evidence in criminal cases
Sec. 2 of Rule 128 declares that the rules on evidence
shall be the same in all trials and hearings, except as other-
wise provided by law or these rules. To declare such is not
to say, however, that there are absolutely no distinctions
between a civil and a criminal proceeding. Indeed, there are
certain evidentiary differences between these proceedings.
(a) In civil cases, the party having the burden of proof
must prove his claim by a preponderance of evidence (Sec. 1,
Rule 133, Rules of Court). In criminal cases, the guilt of the
accused has to be proven beyond reasonable doubt (Sec. 2,
Rule 133, Rules of Court).
(b) 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 (criminal negligence) or those allowed by law to
be compromised, an offer of compromise by the accused may
be received in evidence as an implied admission of guilt (Sec.
27, Rule 130, Rules of Court).
(c) 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 (Art. 1756, Civil Code of
the Philippines). In criminal cases, the_ accused enjoys the
constitutional presumption of innocence (Sec. 14, Art. III,
Constitution of the Philippines). .
(d) The concept of "confession" does not apply to civil
cases which use the more appropriate term, "admission." A
confession is a declaration of an accused acknowledging his
 10 EVIDENCE
(The Bar Lectures Series)
guilt of the offense charged (See Sec. 33, Rule 130, Rules of
Court).
(e) In civil cases, evidence of the moral character (good
or bad) of a party is admissible as long as it is pertinent to
the issue of character involved in the case (Sec. 51[b], Rule _
130, Rules of Court). In criminal cases, the prosecution is not
allowed to prove the bad moral character of the accused even
if it is pertinent to the moral trait involved. It can only do so
in rebuttal (Sec. 51[a][2], Rule 130, Rules of Court).
(f) The rule on disqualification by reason of death or
insanity under Sec. 23 of Rule 130, applies only to civil cases
or special proceedings, not to criminal cases. This is because
the rule involves a claim or demand against the estate of the
deceased or the person of unsound mind (Sec. 23, Rule 130,
Rules of Court).
(g) The privileged communication rule on patient-
physician relationship has reference only to a civil case, not to
a criminal case (Sec. 24[c], Rule 130, Rules of Court).
(h) The rule on admission by a conspirator applies only
to a criminal case, not to a civil case (Sec. 30, Rule 130, Rules
of Court).
(i) The rule on extrajudicial confession applies to the
accused in a criminal case, not to the defendant in a civil case
(Sec. 3, Rule 133, Rules of Court).
Distinction between proof and evidence
1. "Proof' is not the evidence itself. There is proof
only because of evidence. It is merely the probative effect
of evidence and is the conviction or persuasion of the mind
resulting from a consideration of the evidence (29 Am. Jur.
2d, Evidence, §2).
2. Proof is the effect or result of evidence, while evi-
dence is the medium of proof (Jones on Evidence, Volume I,
Fourth Edition, §4, p. 5). · complaint as denied specifically by the defendant.
CHAPTER I - PRELIMINARY CONSIDERATIONS 11
A. Basic Principles
Factum probandum and factum probans
1. Evidence signifies a relationship between two facts,
namely:
(a) the fact or proposition to be established (factum
probandum); and
(b) the facts or material evidencing the fact or
proposition to be established (factum probans) (Wigmore,
Principles of Judicial Proof, 5).
2. Stated in another way, the factum probandum is the
fact to be proved; it is the fact which is in issue in a case 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 (Black's Law Dictionary, 5th Ed., p. 533).
Thus, if P claims to have been injured by the negligence
of D, who specifically denies having been negligent, the
negligence of D that caused the injuries of P constitutes the
factum probandum of the suit. The evidence offered by P,
whether it be object, documentary or testimonial, constitutes
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 proposi-
tion 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 alleged in the
12 EVIDENCE
(The Bar Lectures Series)
For instance, in a suit for collection of a sum of money,
in the absence of any admission by the defendant, the factum
probandum of the plaintiff would be:
(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.
If the fact of non-payment is the only matter disputed
in the answer, then it is only the issue of payment or non-
payment which constitutes the factum probandum in the
case, other allegations having been admitted.
It must be clarified, at this juncture, that the mere filing
of the complaint does not ipso facto give rise to a factum pro-
bandum. When the defendant files his answer and makes no
specific denial of the averments of the complaint, no factum
probandum arises because of the admissions. Where, let us
say, the defendant specifically denies a material allegation in
the complaint, the matter denied becomes the factum proban-
dum, the fact to be established.
The same rule applies to a criminal case. The mere filing
of an information does not automatically give rise to a factum
probandum. It only arises when the accused enters a plea of
not guilty.
5. In a criminal case, when the accused pleads not
guilty, the factum probandum refers to a matter that the
prosecution must prove beyond reasonable doubt in order to
justify a conviction.
(a) Thus, in a prosecution for robbery, the prose-
cution 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 pro-
perty;
CHAPTER I - PRELIMINARY CONSIDERATIONS 13
A. Basic Principles
(iii) that the taking is with intent to gain; and
(iv) that there is violence against or intimida-
tion of persons or force upon things (Art. 293, Revised
Penal Code; People v. Sandoval, 254 SCRA 436).
(b) To convict an accused for illegal possession of
firearms and explosives, the following two (2) essential
elements must be indubitably established, each of which
is a factum probandum:
(i) the existence of the subject firearm or
explosive which may be proved by the presentation of
the subject firearm or explosive or by the testimony
of witnesses who saw the accused in possession of
the same; and
(ii) the negative fact that the accused had no
license or permit to own or possess the firearm or ex-
plosive which may be established by the testimony
or certification of a representative of the PNP Fire-
arms and Explosives Unit that the accused has noli-
cense or permit to possess such firearm or explosive.
Even if the firearm or explosive is presented in
court, the failure of the prosecution to prove the absence
of a permit to own or possess the firearm or explosive is
fatal to its cause. The essence of the crime penalized is
primarily the lack of license or permit to carry or possess
the firearm, ammunition or explosive since possession,
by itself, is not prohibited by law (People v. Reyes, G.R.
No. 194606, February18, 2014).
(c) In a prosecution for illegal sale of prohibited
or dangerous drugs, what determines if there was a sale
of dangerous drugs is the 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 seller, the
object, and the consideration; and
(ii) the delivery of the thing sold and the
payment therefor(People v. Viterbo, G.R. No. 203434,
 14 EVIDENCE
(The Bar Lectures Series)
July 23, 2014; People v. Sapitula, G.R. No. 209212,
February 10, 2016).
The drug itself, constitutes the very corpus delicti of the
offense in illegal sale of drugs (People v. Casacop, G.R. No.
210454, January 13, 2016). This means that in every prosecu-
tion for the illegal sale of drugs, the presentation of the drugs -
as evidence in court is material because the identity of the
seized drugs should be established beyond reasonable doubt
(People v. Alagarme, G.R. No. 184789, February 23, 2015).
Liberal construction of the rules on evidence
1. Like all other provisions under the Rules of Court,
the rules on evidence must be liberally construed (Sec. 6,
Rule 1, Rules of Court). Rules of procedure are mere tools
intended to facilitate rather than 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.
Although strict compliance with the rules of procedure is
desired, liberal interpretation is warranted in cases where a
strict compliance ofthe rules will not serve the ends of justice
(Rubio v. Alabata, G.R. No. 203947, February 26, 2014).
However, the rule on liberal construction is not a license
to disregard the evidence, or lack thereof on record; or to
misapply the laws (Inter Orient Maritime Enterprises, Inc. v.
Creer III, G.R. No. 181921, September 17, 2014).
2. The Rules on Electronic Evidence shall, likewise,
be construed liberally (Sec. 2, Rule 2, Rules on Electronic
Evidence).
Absence of a vested right in the rules on evidence
There is no vested right in the rules on evidence (Ayala
de Roxas v. Case, 8 Phil. 197) because said rules are subject
to change by the Supreme Court pursuant to its powers to
promulgate rules concerning pleading, practice and procedure
(Sec. 5[5], Art. VIII, Constitution of the Philippines). The
change in the rules on evidence is, however, subject to the
constitutional limitation on the enactment of ex post facto
~
f>
ft.
CHAPTER I - PRELIMINARY CONSIDERATIONS 15
B. Admissibility of Evidence
laws (Sec. 22, Art. III, Bill of Rights, Constitution of the Philip-
pines). An ex post facto law includes that which alters the rules
on evidence and receives less or different testimony than that
required at the time of the commission of the offense in order
to convict the accused (Mekin v. Wolfe, 2 Phil. 74).
Waiver of the rules on evidence
1. The rules on evidence may be waived. When an
otherwise objectionable evidence is not objected to, the
evidence becomes admissible because ofwaiver.
For instance, while, as a rule, hearsay evidence is
excluded and carries no probative value, the rule admits
of an exception. Where a party fails to object to hearsay
evidence, then the same becomes admissible (SCC Chemicals
Corporation v. Court of Appeals, 353 SCRA 70).
2. May the parties stipulate waiving the rules on
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 rights of third persons are
violated, the rules on evidence may be waived by the parties.
B. Admissibility of Evidence
Requisites for the admissibility of evidence
1. Sec. 3 of Rule 128 provides:
i.
! "SEC. 3. Admissibility of evidence. - Evidence is
t
~ admissible when it is relevant to the- issue and is not
[
~ excluded by the law or these rules."
l,
i•
Thus, for evidence to be admissible, two elements must
concur, namely:
(a) the evidence is relevant; and
16 EVIDENCE
(The Bar Lectures Series)
(b) the evidence is not excluded by the rules (com-
petent). (See also Tan v. Hosana, G.R. No. 190846, Febru-
ary 3, 2016).
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 (I Wigmore, §§9-10, 289-295). The
first axiom is, in substance, the axiom of relevance while the
second is the axiom of competence.
2. No evidence is admissible unless it is relevant. How-
ever, relevancy alone does not make the evidence admissible.
An item of evidence may be relevant but not admissible. It is
not admissible because, although relevant, it may be incom-
petent, i.e., it is excluded by law or by a particular rule or by
both.
Neither is evidence admissible merely because it is
competent. Although evidence is competent, it may still be
inadmissible if it is not relevant. The formula for admissibility
is a simple one. To be admissible, the evidence must be both
relevant and competent.
Illustrations of the requisites for admissibility
1. In a prosecution for homicide, the witness swears
that the accused killed the victim because his ever truthful
boyhood friend told him so. The testimony, although relevant,
is not admissible because the witness was not testifying based
on his personal knowledge of the event. The testimony is
hearsay and this type of evidence is, as a rule, excluded by
the rules (See Sec. 36, Rule 130, Rules of Court). In short, the
testimony offered is relevant but incompetent.
2. In a prosecution for homicide, the wife of the accused
testified that the husband admitted to her in confidence that it
was he who killed their neighbor. If the testimony is offered as
evidence against the husband and is objected to by the latter,
the testimonial evidence will be inadmissible by virtue of a
CHAPTER I - PRELIMINARY CONSIDERATIONS 17
B. Admissibility of Evidence
particular provision of the Rules of Court which excludes it
as a specie of evidence notwithstanding its obvious relevance
to the issue of guilt (See Sec. 24[a}, Rule 130, Rules of Court).
Here, the testimony is also relevant but incompetent.
3. In a civil case for collection of a sum of money,
the testimony of an eyewitness to the transaction between
the creditor and the debtor is competent evidence because
the witness would be testifying on the basis of his personal
knowledge.
However, if the subject of the testimony includes the
alleged frequent bouts of dizziness of the debtor, that portion
of the testimony is made inadmissible by the fact that the
matters testified to are irrelevant to the issue of whether
or not a debt exists. In this case, the testimony becomes
irrelevant.
4. If a defense witness testifies having actually seen
the alleged victim fire a gun first at the accused without
the latter's provocation, the testimony of the eyewitness is
c:ompetent and the matters testified to are relevant to the plea
of self-defense. The testimony is, thus, admissible. It is not
only relevant but competent as well.
5. Upon a timely objection, oral evidence will be
excluded to prove a contract of a sale of a parcel of land which
does not conform to the statute of frauds (Art. 140.3{2], Civil
Code of the Philippines). Even if the evidence is relevant to
the issue of existence or non-existence of the contract, it is
inadmissible because it is excluded by law; hence, incompetent.
6. Documents obtained in violation of constitutional
guarantees, although containing relevant matters, are inad-
r-: missible because they are illegally obtained, as when evidence
is illegally seized (Sec. 3[2}, Art. III, Constitution of the Phil-
11
fl ippines). An extrajudicial confession, made during custodial
tJ investigation, is inadmissible when made in violation of a per-
~· j
,.~j son's Miranda rights, i.e., he was not informed of his right
q
,,. to counsel, right to remain silent and other applicable rights
irl
(People v. Bio, G.R. No. 195850, February 16, 2015).
l '
~:
~
'
 18 EVIDENCE
(The Bar Lectures Series)
Relevant evidence (Bar 1981)
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. The concept of
relevance is clearly one of logic. It deals with the rational
relationship between the evidence and the fact to be proved.
In other words, the evidence adduced should be directed to the
matters in dispute and any evidence which has neither direct
nor indirect relationship to such matters must be set aside as
irrelevant.
2. The matter of relevance under the Rules of Court
requires the existence of a fact in issue. Necessarily, this
fact in issue must be a disputed fact. 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, inadmissible. Where there is no issue as to a matter
of fact, there exists no purpose for an item of evidence.
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 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.
Take the case of the standard car accident as example.
Counsel for the plaintiff presents the testimony of another
car driver to testify to the following: that the defendant was
driving at a speed of one hundred twenty (120) kilometers per
hour in a sixty (60)-kilometer limit zone at the time plaintiff
was sideswiped and injured by the defendant. The witness
claims he knows whereof he speaks because he saw every-
thing that transpired. Whether or not such- testimony meets
the test of relevance will depend upon what counsel wants to
CHAPTER I - PRELIMINARY CONSIDERATIONS 19
B. Admissibility of Evidence
prove by the testimony. Initially, of course, counsel would want
to prove that, at the time of the accident, the defendant was
driving way beyond the speed limit. This is the immediate fact
sought to be established. Since there is a traceable connection
between the substance of the testimony and the fact to be
proved, the testimony is relevant. On the other hand, if the
testimony is offered to prove that the defendant is a thief, the
testimony has no logical connection at all to the fact sought to
be proved. Certainly, there is no connection between driving
at a very fast pace and the defendant's being a thief. The
testimony is, hence, irrelevant.
Relevance further requires that the immediate fact
proved must have a connection to the ultimate issue. In
the car accident case just illustrated, assume that counsel
has established through the witness that the defendant
was driving way beyond the speed limit at the time of the
accident. Establishing such a fact is not, however, sufficient.
This fact must be shown to be related to the ultimate issue in
the case. Now, the usual ultimate issue in every automobile
accident case is whether or not the damage caused to the
plaintiff arose out of the defendant's negligent operation of
his car. The question that should necessarily be asked is: Is
the immediate fact proved, i.e., defendant's driving beyond the
speed limit, related to the issue of negligence? If it is, then the
fact proved is relevant evidence. If it is not related to the issue
of negligence, it is irrelevant.
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 the fact in issue. The
determination of relevance is, thus, a matter of inference and
not of law. The test is, therefore, one of logic, common sense,
and experience.
2. The existence of the relationship between the fact
Ir· in issue and the offered evidence is one that is perceived
only by the mind without reference to a statute or rule. It is,
ifii
,,.,
F--
!:i
 20 EVIDENCE
(The Bar Lectures Series)
therefore, a matter of reasoning. It is a matter of reasoning
because relevance is a matter oflogic. The matter.ofrelevance
is one that is addressed to the discretion of the court. The case
of People v. Galleno, 291 SCRA 761, is enlightening:
"There is no precise and universal test of relevancy
provided by law. However, the determination of whether
particular evidence is relevant rests largely at the
discretion of the court, which must be exercised according
to the teachings oflogic and everyday experience."
Collateral matters
1. A matter is collateral when it is on a "parallel or
diverging line," merely "additional" or "auxiliary" (Black's Law
Dictionary, 5th Ed., p. 237). This term connotes an absence of
a direct connection between the evidence and the matter in
dispute.
2. For instance, the motive of a person and, in some
instances, his reputation are matters that may be considered
collateral to the subject of a controversy. A very strong motive
to kill the victim does not ipso facto make motive relevant
to the issue of guilt or innocence because the person with
absolutely no motive to kill could be the culprit. Evidence of
the bad reputation of the accused for being troublesome and
aggressive does not make the evidence admissible to prove his
guilt. After all, the culprit could have been the person with the
most endearing reputation.
When collateral matters are allowed
1. As a rule, evidence on a collateral matter is not
allowed (Sec. 4, Rule 128, Rules of Court). It is not allowed
because it does not have direct relevance to the issue of the
case. This rule, however, is not an absolute rule. There exists
an occasion when evidence on a collateral matter may be
allowed.
2. Under the .Rules of Court, a collateral matter may
be admitted if it tends in any reasonable degree to establish
CHAPTER I - PRELIMINARY CONSIDERATIONS 21
B. Admissibility of Evidence
the probability or improbability of the fact in issue (Sec. 4,
Rule 128, Rules of Court). In other words, while the collateral
evidence may not bear directly on the issue, it will be admitted
if it has the tendency to induce belief as to the probability or
improbability of the issues of the case as when it would have
the effect of corroborating or supplementing facts previously
established by direct evidence.
Illustration: Although evidence of character is generally
inadmissible (Sec. 51, Rule 130, Rules of Court), the accused
may prove his good moral character which is pertinent to the
moral trait involved in the offense charged (Sec. 51[a][1], Rule
130, Rules of Court).
In civil cases, evidence of the moral character of a party is
admissible when pertinent to the issue of character involved in
the case (Sec. 51[b], Rule 130, Rules of Court). Also, evidence
of the good character of a witness is admissible if his character
has been previously impeached (Sec. 14, Rule 132, Rules of
Court).
Relevance of evidence on the credibility of a witness
1. Evidence on the credibility of a witness, or the lack
of it, is always relevant. In every proceeding, the credibility
of the witness is always an issue because it has the inherent
tendency to prove or disprove the truthfulness of his assertion
and, consequently, the probative value of the proffered
evidence.
Every type of evidence sought to be admitted, whether it
1.:
be an object or document, requires the testimony of a witness
l who shall identify, testify, and affirm or deny the authenticity
.1:'
1 of the evidence. Thus, when the credibility of the sponsoring
witness is found wanting, Sec. 11 of Rule 132 authorizes his
impeachment by contradictory evidence~ by evidence that,
~-:i
'!i, in the past, he has made statements inconsistent with his
present testimony, or by evidence that his general reputation
for truth, honesty or integrity is bad.
r 2. In the assessment of the testimonies of witnesses, the
Court is guided by the rule that for evidence to be believed, it
I
22 EVIDENCE
(The Bar Lectures Series)
must not only proceed from the mouth of a credible witness, but
must also be credible in itself such as the common experience
of mankind can approve as probable under the circumstances.
There is no test of the truth of human testimony except its
conformity to our knowledge, observation, and experience.
Whatever is repugnant to these belongs to the miraculous, -
and is outside of judicial cognizance (People v. Calumpang,
454 SCRA 719; Ubales v. People, 570 SCRA 251; See also
People v. Fieldad, G.R. No. 196005, October 1, 2014).
3. The importance of the credibility of a witness in
a judicial proceeding is highlighted by rules which allow
the adverse party to test such credibility through a process
called 'cross-examination.' Hence, under Sec. 6 of Rule 132,
a witness may be cross-examined by the adverse party not
only on matters taken up in the direct examination. The broad
spectrum of the questions allowable in a cross-examination of
a witness, also includes those matters connected with those
testified to in the direct examination. It includes questions
designed to grant the cross-examiner sufficient fullness and
freedom to test the accuracy and truthfulness of the witness,
his freedom from interest or bias, or the reverse. It, likewise,
covers inquiries into matters that elicit all important facts
bearing upon the issue.
Since Sec. 6 of Rule 132 affirms the legitimacy of inquiries
into the credibility and biases of a witness, any objection to a
question that intends to demonstrate the lack or absence of
credibility of the witness on the ground that it is irrelevant or
merely collateral does not deserve to be sustained.
4. There are, however, instances provided in the rules
where the questions of the cross-examiner are circumscribed
by the matters taken up in the direct examination. Thus,
questions outside the subject matter of the direct examination
are not allowed.
(a) An accused may testifY as a witness on his
own behalf "but subject to cross-examination on matters
covered by direct examination" (Sec. l[d], Rule 115, Rules
of Court).
CHAPTER I - PRELIMINARY CONSIDERATIONS 23
B. Admissibility of Evidence
(b) A hostile witness may be impeached and
cross-examined by the adverse party, but such cross-
examination "must only be on the subject matter of his
examination-in-chief' (Sec. 12, Rule 132, Rules of Court).
Competent evidence (Bar 2004)
1. Competent evidence is one that is not excluded by
law or rules in a particular case (Moran, Comments on the
Rules of Court, Volume 5, 1980, citing Porter v. Valentine,
18 Misc. Rep. 213, 41 N.Y.S. 507; Hart v. Newland, 10 N.C.
122; Ryan v. Town of Brisol, 63 Conn., 26, 27, Atl. 309). "The
admissibility of the evidence depends on its relevance and
competence x x x" (Tating v. Marcella, 519 SCRA 79; Italics
supplied).
2. If the test of relevance is logic and common sense, the
test of competence is the law or rules. If the law or a particular
rule excludes the evidence, it is incompetent. Competence is
primarily, therefore, a matter oflaw or rule. The question as
to competence is: Is the evidence allowed by the law or rules? If
it is allowed, the evidence is competent. If it is not allowed, it
is incompetent.
Imagine and assume, for the sake of illustration, that a
rule of evidence has just been adopted mandating that only
documentary evidence to which have been attached a yellow
ribbon on the bottom right corner may be marked and admit-
ted in evidence. If the adverse counsel presents for identifica-
tion and marking a document to which had been attached a
red ribbon, the document is to be excluded because it is not
competent. It is incompetent because the rule says so regard-
less of its demonstrable logical relation to the fact in issue.
3. Competence, in relation to evidence in general,
refers to the eligibility of an evidence td-be received as such.
However, when applied to a witness, the term competent refers
to the qualifications of the witness. In other words; competence
refers to his eligibility to take the stand and testifY. It is in
this context that the term is normally associated with. Thus,
a trial objection employing the ground incompetent is usually
 24 EVIDENCE
(The Bar Lectures Series)
used in relation to the ineligibility of a witness to testify
because of the presence of a disability that renders him unfit
to sit on the stand.
If evidence offered is objected to on the ground that it
is incompetent, such objection is not an accepted form of ob-
jection because it is a general objection. The objection should
specify the ground for its incompetence such as leading, hear-
say or parol.
Although evidence is incompetent if excluded by law or
the rules, evidence is not objected to on the ground that it is
incompetent. It is so general a term and cannot be appreciated
in court. Courts neither need nor appreciate generalities.
General objections are viewed with disfavor because specific
objections are required under Sec. 36, Rule 132 of the Rules of
Court. Thus, for purposes of trial objections, evidence is never
incompetent. It is people who are. It is sloppy usage to object
to a testimony or document as incompetent. Such term more
appropriately describes a witness who, under evidentiary
rules, does not possess the qualifications of a witness or suffers
from a disqualification to be one.
Competence of electronic evidence
Electronic evidence is competent evidence and is admis-
sible if it complies with the rules on admissibility prescribed
by the Rules of Court and related laws, and is authenticated
in the manner prescribed by the Rules on Electronic Evidence
(Sec. 2, Rule 3, Rules on Electronic Evidence).
I to Sec. 42 of Rule 130.
Admissibility and weight (probative value} of the evidence
1. Admissibility of evidence refers to the question of
whether or not the evidence is to be considered at all. On the
other hand, the probative value of the evidence refers to the
question of whether or not it proves an issue (PNOC Shipping
and Transport Corporation v. Court ofAppeals, 297 SCRA 402
as cited in Atienza v. Board of Medicine, 642 SCRA 523, 529,
February 9, 2011).
CHAPTER I - PRELIMI~ARY CONSIDERATIONS 25
B. Admissibility of Evidence
Thus, a particular item of evidence may be admissible,
but its evidentiary weight depends on judicial evaluation
within the guidelines provided by the rules on evidence
(Heirs of Lourdes Saez Sabanpan v. Cormoposa, 408 SCRA
692). Admissibility is one thing, weight is another. To admit
evidence and not to believe it are not incompatible with each
other (Calamba Steel Center, Inc. v. Commissioner of Internal
Revenue, 457 SCRA 482).
2. Stated in another way, the admissibility of evidence
should not be equated with the weight of the evidence.
The admissibility of the evidence depends on its relevance
and competence while the weight of evidence pertains to
its tendency to convince and persuade. A particular item
of evidence may be admissible but its evidentiary weight
depends on judicial evaluation with the guidelines provided
by the rules on evidence (Tating v. Marcella, 519 SCRA 79).
Multiple admissibility (Bar 1984; 1991; 2005)
1. There are times when a proffered 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 (Sec. 37, Rule 130, Rules of Court), part of the res
gestae (Sec. 42, Rule 130, Rules of Court), or declaration against
interest (Sec. 38, Rule 130, Rules of Court). The statement by
a bus driver immediately after the collision, that he dozed off
in the wheel while driving, may be admissible as an admission
under Sec. 26 of Rule 130 or as part of the res gestae pursuant
The Court, in People v. Salafranca, 666 SCRA 501,
511, February 22, 2012, illustrates the principle of multiple
admissibility, thus:
"It appears from the foregoing testimony that
Bolanon had gone to the residence of Estaiio, his uncle,
to seek help right after being stabbed by Salafranca; that
Estaiio had hurriedly dressed up to bring his nephew to the
Philippine General Hospital by taxicab; that on the way to
the hospital, Estaiio had asked Bolanon who had stabbed
 26 EVIDENCE
(The Bar Lectures Series)
him, and the latter had told Estaiio that his assailant
had been Salafranca; that at the time of the utterance
Bolanon had seemed to be having a hard time breathing,
causing Estaiio to advise him not to talk anymore;
and that about ten minutes after his admission at the
emergency ward of the hospital, Bolanon had expired and
had been pronounced dead. Such circumstances qualified
the utterance of Bolanon as both a dying declaration and
as part of the res gestae, considering that the Court has
recognized that the statement of the victim an hour before
his death and right after the hacking incident bore all the
earmarks either of a dying declaration or part of the res
gestae, either of which was an exception to the hearsay
rule."
2. Sometimes, evidence is inadmissible for one purpose
but admissible for another or vice versa. For instance, evidence
of a person's bad general reputation for truth, honesty, or
integrity is objectionable if offered to prove that he committed
the crime charged but it may be admissible to impeach the
credibility of a witness under the authority of Sec. 11 of Rule
132.
3. Evidence may also be admissible against one party
but not against another. An extrajudicial statement of a rob-
bery suspect is not admissible against his co-accused under
the res inter alios acta rule but may be admissible against the
declarant himself as an admission pursuant to Sec. 26 of Rule
130.
Conditional admissibility (Bar 2011)
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 the court 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 tiine.
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.
CHAPTER I - PRELIMINARY CONSIDERATIONS 27
B. Admissibility of Evidence
Curative admissibility
1. The doctrine of curative admissibility allows a
party to introduce otherwise inadmissible evidence to answer
the opposing party's previous introduction of inadmissible
evidence. Thus, a party who first introduces either irrelevant
or incompetent evidence into the trial cannot complain of the
subsequent admission of similar evidence from the adverse
party relating to the same subject matter. Conversely, the
doctrine should not be invoked where evidence was properly
admitted (For further readings, see Werdell v. Turzynski, 128
Ill. App. 2d 139).
2. For example, in an action for damages arising from a
car accident, the plaintiff, despite objection by the defendant,
was allowed to introduce evidence to show that, on several
occasions, the defendant, in the past, had injured pedestrians
because of his negligence. The evidence was offered to prove
the defendant's propensity for negligence. Of course, under the
rules, this kind of evidence is inadmissible because evidence
that a person did a certain thing at one time is not admissible
to prove that he did the same or a similar thing at another
time (Sec. 34, Rule 130, Rules of Court). If we were to follow
the concept of curative admissibility, the court may be asked
to give the defendant the chance to contradict or explain
his alleged past acts and to show evidence of his past acts
of diligence to counteract the prejudice which the improperly
admitted evidence may have caused.
Also, if hearsay evidence prejudicial to the defendant is
erroneously admitted despite objection, under the principle
of curative admissibility, the court should allow hearsay
v evidence favorable to the same defendant.
f'
1
~.
Direct and circumstantial evidence (Bar 2011)
.
1. Direct evidence proves a fact without the need to
.
~l
I)!
make an inference from another fact. Thus, the testimony
of a prosecution witness claiming that he personally saw
the accused when the latter drew and fired his pistol at the
victim, without the latter's provocation, is a direct testimonial
 28 EVIDENCE ::•
,1~
CHAPTER I ·- PRELIMINARY CONSIDERATIONS 29
(The Bar Lectures Series) l1
B. Admissibility of Evidence
l{

evidence. There is also a direct evidence when a witness, in
a prosecution for arson, testifies that he was only a few feet
away, behind a bush, when he saw the accused set the nipa hut
of the offended party on fire. Evidence is, likewise, direct when
a witness affirms in open court that the bus driver rammed
a car on the opposite lane, and that he saw what happened
because he was seated as a passenger right behind the driver.
Also, the original of a deed of sale is a direct evidence of the
terms of the agreement of the parties.
2. Circumstantial evidence or indirect evidence is that
evidence which indirectly proves a fact in issue through an
inference which the fact finder draws from the evidence estab-
lished (Espineli v. People, G.R. No. 179535, June 9, 2014).
3. Circumstantial or indirect evidence is the exact
opposite of direct evidence. When the evidence is circumstan-
tial, a fact is established by making an inference from a previ-
ously established fact. In other words, in this type of evidence,
the court uses a fact from which an assumption is drawn.
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 could have prevented the
victim from attacking the accused without provocation.
Also, when the fingerprints of the accused are found in a
crime scene of murder, such prints constitute circumstantial
evidence that he was in the same scene.
Conviction by circumstantial evidence (Bar 1998; 2011)
1. Direct evidence of the commission of a crime is not
the only matrix wherefrom a trial court may draw its conclu-
sion on a finding of guilt. Even in the absence of direct evi-
dence, conviction can be had if the established circumstances
constitute an unbroken chain, consistent with each other and
to the hypotheses that the accused is guilty, to the exclusion
~1:
of all other hypothesis that he is not. Resort to circumstantial
It
:·~ evidence is essential since to insist on direct testimony would,
i! in many cases, result in setting felons free and denying proper
protection to the community (People v. Lara, G.R. No. 199877,
August 13, 2012; See also Zabala v. People, G.R. No. 210760,
tl January 26, 2015; People v. Urzais, G.R. No. 207662, April13,
I!
~~ 2016).
il
II)
,, Proof of the commission of a crime need not always be
n
,,:'i by direct evidence, for circumstantial evidence could also
;~ be sufficiently and competently establish the crime beyond
reasonable doubt (People v. Bobby Belgay, G.R. No. 182794,
September 8, 2014). The rules on evidence allow a trial court
to rely on circumstantial evidence to support its conclusion of
guilt. The lack of direct evidence does not ipso facto bar the
finding of guilt against the accused. As long as the prosecution
establishes his participation in the crime through credible
and sufficient circumstantial evidence, he should be convicted
(People v. Consorte, G.R. No. 194068, July 9, 2014).
2. Circumstantial evidence is the rule of evidence that
applies when no witness saw the commission of a crime. 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
t.'
!L'
(c) The combination of all the circumstances is
such as to produce a conviction beyond reasonable doubt
(Sec. 4, Rule 133, Rules of Court; People v. Tanchanco,
,,,
670 SCRA 130, 142-143, April18, 2012; See also People
r
f.,
v. Lamsen, G.R. No. 198338, February 20, 2013; Callo-
-~~,, Claridad v. Esteban, G.R. No. 191567, March 20, 2013;
~·
~
Candelaria v. People, G.R. No. 2ii9386, December 8,
2014).
I'
!;
The above circumstances must constitute an unbroken
!
r
chain that inexorably leads to one fair conclusion: the accused
committed the crime to the exclusion of all others (People v.

t
.\
30 EVIDENCE
(The Bar Lectures Series)
Deocampo, 666 SCRA 288, 293, February 15, 2012; People v.
Chavez, G.R. No. 207950, September 22, 2014). Also, in the
appreciation of circumstantial evidence, the rule is that the
circumstances must be proved, and not presumed (Franco v.
People, G.R. No. 191185, February 1, 2016).
3. All the circumstances proved must be consistent
with one another, and they are to be taken together as proved.
Being consistent with one another and, taken together, they
must point unerringly to the direction of guilt and mere
suspicions, probabilities, or suppositions do not warrant a
conviction (Underhill, Criminal Evidence, 4th Ed., §18; People
v. Pascual, 576 SCRA 242; See also Callo-Claridad, G.R. No.
191567, March 20, 2013).
Cumulative evidence and corroborative evidence
1. Cumulative evidence refers to evidence of the same
kind and character as that already given which tends to prove
the same proposition (Wyne v. Newman, 75 Va., 811, 817 as
cited in Moran, Comments on the Rules of Court, Vol. 5, 1980,
p. 3).
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
(Edwards v. Edwards, Tenn. App., 501 S. W. 2d 283. 289 as
cited in Black's Law Dictionary, 5th Ed., p. 311).
As commonly used, the term connotes evidence which
tends to confirm, validate, or strengthen evidence already
presented. Thus, ifW testifies that the gun marked as Exhibit
"A" was the weapon used by the accused in the shooting of
the victim, the findings of the crime laboratory that the gun
bears only the fingerprints of the accused corroborates the
testimony ofW.
CHAPTER I - PRELIMINARY CONSIDERATIONS 31
B. Admissibility of Evidence
Corroborative evidence is usually of a different type from
I that previously offered but which tends to prove the same fact.
For instance, a witness claims that he saw Mr. X sign the
document subject of the action. Mr. X denies the authenticity
I
of his signature. Evidence by a handwriting expert that the
signature is indeed that of Mr. X is corroborative evidence.
Here, we have a testimonial evidence from an eyewitness, and
~
a testimony from an expert who did not personally witness the
signing of the document.
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
proffered 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 this sense, the corroborating evidence is also cumulative
even if it is 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.
In clear terms, the Supreme Court, speaking through
Justice Regalado, ordained:
"... it also bears mention that the testimony of a sin-
gle prosecution witness, where credible and positive, is
sufficient to prove beyond reasonable do-ubt the guilt of
the accused. There is no law which requires that the tes-
timony 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" (People u. Pabalan, 262 SCRA 574, 585).
32 EVIDENCE
(The Bar Lectures Series)
4. In People v. Rama, 350 SCRA 266, the defense faults
the trial court for relying on a single eyewitness account in
convicting the accused, Rama. The Supreme Court dismissed
the argument declaring that it has long been held that the
testimony of a sole eyewitness is sufficient to support a con-
viction so long as it is clear, straightforward and worthy of
credence.
Corroborative evidence is necessary only when there are
reasons to suspect that the witness falsified the truth or that
his observations are inaccurate (Mangangey v. Sandigan-
bayan, 546 SCRA 51).
5. Under the Rule on Examination of a Child Witness,
corroboration shall not be required of a testimony of a child.
His testimony, if credible by itself, shall be sufficient to
support a finding of fact, conclusion or judgment subject to
the standard of proof required in criminal and non-criminal
cases (Sec. 22, Rule on Examination of a Child Witness).
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 ofW that he could
not have fired the gun because he was not armed during the
incident is a negative evidence.
2. Positive and negative evidence may, likewise, refer
to the presence or absence of something. Thus, the presence
of fingerprints of a person in a particular place is positive
evidence of his having been present in said place although
absence of his fingerprints does not necessarily mean he was
not in the same place.
A negative finding in a paraffin test is not a conclusive
evidence that one has not fired a gun because it is possible
CHAPTER I - PRELIMINARY CONSIDERATIONS 33
B. Admissibility of Evidence
for a person to fire a gun and yet bear no traces of nitrates or
gunpowder, as when the culprit washes his hands or wears
gloves (People v. Cerilla, 539 SCRA 251).
3. The defense of denial is viewed with disfavor for
being inherently weak. It cannot prevail over the positive and
credible testimony of prosecution witnesses (People v. Reyes,
G.R. No. 194606, February 18, 2015). Greater weight is given
to the positive identification of the accused by the prosecution
witnesses than the accused's denial (People v. Salina, G.R.
No. 196784, January 13, 2016). Denials are considered with
suspicion and received with caution because they are easily
fabricated and concocted (People v. Salahuddin, G.R. No.
206291, January 18, 2016).
4. Denials, which are essentially negations of a fact,
do not prevail over an affirmative assertion of such fact. Trial
and appellate courts have generally viewed such defense in
criminal cases with considerable caution, if not with outright
rejection. Such judicial attitude comes from the recognition
that denials are inherently weak and unreliable by virtue of
their being excuses that are too easy and too convenient for the
guilty to make. To be worthy of consideration at all, denials
I should be substantiated by clear and convincing evidence
~
(Medina v. People, G.R. No. 182648, June 17, 2015). Between
the categorical statements of prosecution witnesses and the
I
!_
bare denial of the accused, the former must prevail (People
v. Salahuddin, G.R. No. 206291, January 18, 2016; See also
i
People v. DelaRosa, G.R. No. 206419, June 1, 2016).
~
~'
5. Denial, as a defense, can only prosper when substan-
tiated by clear and convincing evidence (People v. Colentava,
G.R. No. 190348, February 9, 2015). This pronouncement
indicates that a denial is not a totally impotent defense.
Denial may be weak but courts should not at once look
at them with disfavor. There are situations where an accused
may really have no other defenses but denial, which, if estab-
lished to be the truth, may tilt the scales of justice in his favor,
especially when the prosecution evidence itself is weak. The
defense of denial assumes significance when the prosecution's
I
 34 EVIDENCE
(The Bar Lectures Series)
evidence is such that it does not prove guilt beyond reasonable
doubt (Franco v. People, G.R. No. 191185, February 1, 2016).
Competency of a witness distinguished from his credibility
(Bar 2004)
1. The competency of a witness differs from his cre-
dibility. A witness may be competent, and yet give incredible
testimony; he may be incompetent, and yet his evidence, if
received, is perfectly credible (Black's Law Dictionary, 5th
Ed., p. 257). The term "credibility" refers to worthiness of
belief, that quality which renders ·a witness worthy of belief
(Black's Law Dictionary, 5th Ed., p. 330).
2. The meaning of credibility in law is exactly what
it means in ordinary usage: ''believability." After the compe-
tence of a witness is allowed, the consideration of his credi-
bility follows.
Admissible evidence and credible evidence
1. Evidence is admissible when it is relevant to the
issue and is not excluded by the law or rules (Sec. 3, Rule 128,
Rules of Court).
2. Admissible evidence is not necessarily credible
evidence. Admissibility and credibility must be sharply con-
trasted. They are entirely two different matters and involve
different concepts. The term "admissible" means that the
evidence is of such a character that the court, pursuant to
the rules of evidence, is bound to receive it or to allow it to
be introduced at the trial. Admissibility, however, does not
guarantee credibility. Admissibility is one thing and credibility
is another.
Inadmissible evidence in relation to arrests, searches and
seizures (Bar 2000; 2009; 2010)
Many cases decided by the courts raising the issue
of admissibility of evidence have been those connected to
searches as consequences of warranties!'! arrests by law
enforcement authorities.
CHAPTER I - PRELIMINARY CONSIDERATIONS 35
B. Admissibility of Evidence
1. A 1988 landmark case, People v. Aminnudin, 163
SCRA 402, demonstrates the inadmissibility of evidence due
to the legal infirmity of an arrest for noncompliance with the
requisites of the in flagrante delicto exception.
Here, more than two days before the arrest, constabulary
officers received a tip from an informer that the accused was
on board an identified vessel on a particular date and time
and was carrying marijuana. Acting on the information, they
waited for the accused and approached him as he descended
the gangplank of the ship and arrested him. A subsequent
inspection of his bag disclosed the presence of three kilos of
marijuana leaves.
The Court declared as inadmissible in evidence the
marijuana found in the possession of the accused as a product
of an illegal search and not being an incident to a lawful arrest.
Emphatically, the Supreme Court ruled that the accused was
not, at the moment of his arrest, committing a crime nor was
it shown that he was about to do so or had just done so. He was
merely descending the gangplank of the ship and there was no
outward indication calling for his arrest. To all appearances, he
was like any of the other passengers innocently disembarking
from the vessel. It was only when the informer pointed to him
as the carrier of the marijuana that he suddenly became a
suspect and so subjected to apprehension.
The Court added that from the information received by
the officers, they could have obtained a warrant since they
had at least two days to apply for the same but the officers
made no efforts to comply with the bill of rights. They chose
to ignore the law. The marijuana is incompetent evidence
because its seizure was illegal. The seizure was not incident
to a valid arrest.
2. In People v. Molina, 352 SCRA 174, the conviction by
the trial court was reversed and set aside when the Supreme
Court declared as invalid an arrest made merely on the basis
of alleged reliable information that the persons arrested were
carrying marijuana. The accused were arrested while inside
36 EVIDENCE
if~ CHAPTER I - PRELIMINARY CONSIDERATIONS 37
(The Bar Lectures Series) B. Admissibility of Evidence

a pedicab despite the absence of any outward indications of a
crime being committed.
Similarly, in Malacat v. Court ofAppeals, 283 SCRA 159,
the Supreme Court declared that a warrantless arrest cannot
be justified where no crime is being committed at the time
of the arrest because no crime may be inferred from the fact
that the eyes of the person arrested were "moving fast" and
"looking at every person" passing by.
3. Another classic case that illustrates an invalid
arrest and a subsequent illegal search and seizure is People
v. Mengote, 210 SCRA 174. The issue on the legality of the
arrest, search and seizure stemmed from a telephone call to
the police from an alleged informer that suspicious looking
men were at a street corner in Tondo shortly before noon. The
police operatives dispatched to the place saw three men one of
whom turned out to be Mengote, who was "looking from side
to side" clutching his abdomen. The operatives approached
the three men and introduced themselves as policemen. Two
of them accordingly tried to run away but the attempt was
foiled. The search yielded a revolver in the possession of
Mengote and a fan knife in the pocket of another. Mengote
contended that the revolver should not have been admitted in
I live ammunition which was later verified to be unlicensed. At
evidence because its seizure was a product of an illegal search
and not made as an incident to a lawful arrest.
ti·
f'
The Court ruled that the requirements of a warrantless
arrest were not complied with. There was no offense which
could have been suggested by the acts of Mengote of looking
from side to side while holding his abdomen. Observed the
I arrest and search.
Court:
"These are certainly not sinister acts. x x x He was
not skulking in the shadows but walking in the clear light
of day. There was nothing clandestine about his being on
that street at that busy hour in the blaze of the noonday.
sun. x x x By no stretch of the imagination could it have
been inferred from these acts that an offense had just
been committed, or was at least being attempted in their
presence."
1 113. It is settled, said the Court, that reliable information
f!
•I
4. One case, People v. Laguio, Jr., 518 SCRA 393, and
lr·1~i which drew much from the ruling in Aminnudin, likewise,
tt aptly illustrates the application of the doctrine.
[I In this case, two men were arrested while they were about
H
I[ to hand over a bag of shabu to a police officer. Questioned, the
arrested men told police operatives that they were working
for a modelling agency owned by a certain Wang, that they
knew of a scheduled delivery of shabu early the following
morning and that their employer, Wang, could be found at
t:·
~:' a certain apartment building in Malate, Manila. The police
t•
operatives looked for Wang to shed light on the illegal drug
activities of his alleged employees, proceeded to the location
of the apartment and placed the same under surveillance.
When Wang came out of the apartment towards a parked
car, two other police officers approached Wang, introduced
themselves as police officers, asked his name and, upon hearing
that he was Wang, immediately frisked him and asked him to
open the back compartment of the car. When frisked, there
r was found inside the front right pocket of Wang a pistol with
the same time, the other members of the operatives searched
the car and found inside it were transparent plastic bags
1:.
with shabu, cash in the amount of P650,000.00, electronic
and mechanical scales, and another unlicensed pistol with
magazine. Then and there, Wang objected to the warrantless
The Supreme Court, in no uncertain terms, declared
that the facts and circumstances surrounding the case did not
manifest any suspicious behavior on the part of Wang that
would reasonably invite the attention of the police. He was
merely walking from the apartment and was about to enter
a parked car when the police operatives arrested him, frisked
and searched his person and commanded him to open the
compartment of the car. He was not committing any visible
·.
offense then. Therefore, there can be no valid warrantless
.-'
arrest in flagrante delicto under paragraph (a) of Sec. 5, Rule

I
~: ..
 38 EVIDENCE
(The Bar Lectures Series)
alone, absent any overt act indicative of a feloi:l.ious enterprise
in the presence and within the view of the arresting officers,
is not sufficient to constitute probable cause that would justify
an in flagrante delicto arrest (Citing People v. Binad Sy Chua,
444 Phil. 757 and People v. Molina, 352 SCRA 174).
In Laguio, Jr., what was clearly established from the
testimonies of the arresting officers, said the Court, was that
Wang was arrested mainly on the information that he was the
employer of the two men who were previously arrested and
charged for illegal transport of shabu. They did not, in fact,
identify Wang to be their source of the shabu when they were
caught in flagrante delicto. Upon their declaration that there
will be a delivery of shabu on the early morning of the following
day and that Wang may be found in an apartment building in
Malate, the arresting officers conducted what they termed was
a "surveillance" operation in front of said apartment, hoping
to find a person who will match the description of Wang, the
employer ofthe arrested men.
The conclusion of the trial court that the warrantless
arrest was illegal and that, ipso jure, the warrantless search
incidental to the illegal arrest was, likewise, unlawful was
sustained by the Supreme Court.
5. In Valdez v. People, 538 SCRA 611, the prosecution's
evidence indicated that petitioner was arrested without a
warrant. When he alighted from a mini-bus at around 8:30
in the evening, he was accordingly looking around seemingly
searching for something and appeared suspicious. Besides, he
allegedly ran when the tanods approached him. After his arrest
following a chase, dried marijuana leaves were found inside
his bag according to the barangay tanods. His conviction by
the Regional Trial Court was affirmed by the Court of Appeals.
The accused prayed for his acquittal on appeal to the Supreme
Court alleging, among other defenses, that this warrantless
arrest was illegal and that the warrantless search of his. bag
was likewise contrary to law.
The Court ruled that in order to determine the admis-
sibility of the seized items in evidence, it is indispensable to
CHAPTER I - PRELIMINARY CONSIDERATIONS 39
B. Admissibility of Evidence
ascertain whether or not the search, which yielded the alleged
contraband, was lawful. The warrantless search would be jus-
tified only if it were incidental to a lawful arrest.
The Court found that even casting aside the petitioner's
version of the facts including his vehement denial of ownership
and possession of the seized items, the petitioner's unlawful
arrest stands out just the same. Not one of the circumstances
prevailing under Sec. 5 of Rule 113 authorizing warrantless
arrests applies to the arrest of the petitioner. Petitioner was
not committing a crime at the time he alighted from the
l bus, nor did he appear to be committing a crime. The act of
I
I petitioner of looking around after getting offthe bus was but
natural as he was finding his way to his destination. That he
purportedly attempted to run away as he was approached is
irrelevant and cannot, by itself, be construed as adequate for
a tanod to have personal knowledge that petitioner had just
engaged in, was actually engaging in or was attempting to
engage in criminal activity. It is not unreasonable to expect
the petitioner, after being approached by unknown persons
at night, to attempt to flee at their approach. Flight is not
a reliable indicator of guilt. When petitioner was arrested
without a warrant, he was neither caught in flagrante delicto
committing a crime nor was the arrest effected in hot pursuit.
(
;
The Court, in effect, ruled on the inadmissibility of the seized
I!' evidence.
6. In Comerciante v. People, G.R. No. 205926, July 22,
i.
1: 2015, the Court struck down, as illegal, an arrest and the
seizure of drugs because the basis for the arrest was that the
!t( accused was making "improper and unpleasant movements."
f(
L
~"
Some jurisprudential tenets on probative value and
credibility
')J.
"'i
,~,
1. Evidence to be believed must be credible in itself
as to hurdle the test of conformity with the knowledge and
1~'J.:
t"
1
~;
common experience of mankind. Whatever is repugnant to the
(~· standards of human knowledge, observation and experience
I·
'· becomes incredible and must lie outside judicial cognizance
I'
ti
I'iD:
b:;
 40 EVIDENCE
(The Bar Lectures Series)
(People u. De Guzman, 676 SCRA 347, 360, July 11, 2012; See
also People u. Fieldad, G.R. No. 196005, October 1, 2014).
2. Findings and conclusions of the trial court on the
credibility of witnesses are entitled to great respect because
the trial courts have the advantage of observing the demeanor
of witnesses as they testify. The determination by the trial
court of the credibility of witnesses, when affirmed by the
appellate court, is accorded full weight and credit as well as
great respect, if not conclusive effect (People u. Salina, G.R.
No. 196784, January 13, 2016), except when facts or circum-
stances of weight and influence were overlooked or the sig-
nificance of which was misappreciated or misinterpreted by
the lower courts (People u. dela Pefia, G.R. No. 207635, Febru-
ary 18, 2015; People u. Abella, G.R. No. 195666, January 20,
2016; See also Saraum u. People, G.R. No. 205472, January
25, 2016).
The task of assigning values to the testimonies of
witnesses and weighing their credibility is best left to the trial
judge by virtue of the first-hand impressions he derives while
the witnesses testify before him. The demeanor on the witness
chair of persons sworn to tell the truth in judicial proceedings
is a significant element of judicial adjudication because it can
draw the line between fact and fancy. Their forthright answers
or hesitant pauses, their quivering voices or angry tones, their
flustered looks or sincere gazes, their modest blushes or guilty
glances - all these can reveal if the witnesses are telling the
truth or lying in their teeth; As the final appellate reviewer irt
this case, then, the Court bows to the age-old norm to accord
the utmost respect to the findings ·and conclusions on the
credibility of witnesses reached by the trial judge on account
of his unmatched opportunity to observe the witnesses and on
account of his personal access to the various indicia available
but not reflected in the record (People u. Sabadlab, 668 SCRA
237, 247, March 14, 2012; See also People v. Espejon, G.R. No.
199445, February 4, 2015; Saraum u. People, G.R. No. 205472,
January 25, 2016).
CHAPTER I - PRELIMINARY CONSIDERATIONS 41
B. Admissibility of Evidence
3. "The Court is guided by the following jurisprudence
when confronted with the issue of credibility of witnesses on
appeal:
Fir&.t, the Court gives the highest respect to the RTC's
evaluation of the testimony of the witnesses, considering
its unique position in directly observing the demeanor of
a witness on the stand. From its vantage point, the trial
court is in the best position to determine the truthfulness
of witnesses.
Second, absent any substantial reason which
would justify the reversal of the RTC's assessments and
conclusions, the reviewing court is generally bound by the
lower court's findings, particularly when no significant
facts and circumstances, affecting the outcome of the
case, are shown to have been overlooked or disregarded.
And third, the rule is even more stringently applied
ifthe CA concurred with the RTC" (People v. Sanchez, 665
SCRA 639, 643, February 8, 2012; For further readings,
i
'\·. see People u. Sapitula, G.R. No. 209212, February 10,
2016).
4. People react differently under emotional stress.
There is no standard form of behavior when one is confronted
by a shocking incident, especially if the assailant is physically
near. The workings of the human mind when placed under
emotional stress are unpredictable. In a given situation, some
If may shout, others may faint, and still others may be frozen
into silence. Consequently, the failure of complainant to run
l away or shout for help at the very first opportunity cannot be
L
construed consent to the sexual intercourse (Sison u. People,
It 666 SCRA 645, 662, February 22, 2012; See also People u.
[ Court of Appeals, G.R. No. 183652, February 25, 2015).
I.
I
~ 5. Minor inconsistencies in the narration of facts by
~· the witnesses do not detract from their·essential credibility
f as long as their testimonies on the whole are coherent and
··;.;
~"'·' intrinsically believable. Trivial inconsistencies do not rock
the pedestal upon which the credibility of witnesses rests, but
[ enhances credibility as they manifest spontaneity and lack of
l!i
scheming(People v. Camat, 677 SCRA 640, 658, July 30, 2012;
i:
~i
r
i:"
I
42 EVIDENCE
(The Bar Lectures Series)
See also People v. Peteluna, G.R. No. 187048, January 23,
2013; People v. Ducay, G.R. No. 209590, November 19, 2014;
For further readings, see People v. Lagbo, G.R. No. 207535,
February 10, 2016).
It is perfectly natural for different witnesses testifying on
the occurrence of a crime to give varying details as there may
be some details which one witness may notice while the other
may not observe or remember. In fact, jurisprudence even
warns against a perfect dovetailing of narration by different
witnesses as it could mean that their testimonies were
fabricated and rehearsed (People v. Cabtalan, 666 SCRA 174,
191, February 15, 2012). Inaccuracies may, in fact, suggest
that the witnesses are telling the truth and have not been
rehearsed (People v. Torres, G.R. No. 189850, September 22,
2014).
C. Miscellaneous Doctrines
Fa/sus in uno, fa/sus in omnibus
1. Literally, falsus in uno, falsus in omnibus means
"false in one thing, false in everything" (Dawson v. Bertolinin,
70 R.I. 325, 38 A.2d 765, 768). It is particularly applied to the
testimony of a witness who may be considered unworthy of
belief as to all the rest of his evidence if he is shown to have
testified falsely in one detail (See Frondarina v. Malazarte,
G.R. No. 148423, December 6, 2006).
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 (People v. Batin, 539 SCRA 272). It deals only
with the weight of the evidence and is not a positive rule of
law. The rule is not an inflexible one of universal application.
Modern trend injurisprudence favors more flexibility when
the testimony of a witness may be partly believed and partly
disbelieved depending on the corroborative evidence present-
ed at the trial (People v. Negosa, 456 Phil. 861).
3. It is not a positive rule of law and is not strictly
applied in this jurisdiction. Before this maxim can be applied,
CHAPTER I - PRELIMINARY CONSIDERATIONS 43
C. Miscellaneous Doctrines
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 (Northwest
Airlines, Inc. v. Chiong, 543 SCRA 308).
For instance, in People v. Letigio, 268 SCRA 227, the
accused alleged that both prosecution witnesses in certain
aspects of their testimony, had "deliberately and wantonly
lied" in inculpating him, and contended that the maxim
"falsus in uno, falsus in omnibus" should be applied for his
exculpation.
Quoting an earlier pronouncement in People v. Mana-
lansan, 189 SCRA 619, the Court stressed:
"... The maxim falsus in unus, falsus in omnibus does
not lay down a categorical test of credibility. While the
witnesses may differ in their recollections of an incident,
it does not necessarily follow from their disagreements
that all of them should be disbelieved as liars and their
testimonies completely discarded as worthless."
In People v. Pacapac, 248 SCRA 77, the Court added that
the maxim:
"... is not a positive rule of law or of universal ap-
plication. It should not be applied to portions of the testi-
mony corroborated by other evidence, particularly where
the false portions could be innocent mistakes. Moreover,
the rule is not mandatory but merely sanctions a disre-
gard of the testimony of a witness if the circumstances
so warrant. To completely disregard all the testimony of
a witness on this ground, his testimony must have been
false as to a material point, and the witness must have
a conscious and deliberate intention to.Jalsify a material
point."
Alibi; denial (Bar 1994)
1. It is a settled doctrine that the defense of alibi is
inherently weak and must be rejected when the identity of the
 44 EVIDENCE
(The Bar Lectures Series)
accused is satisfactorily and categorically established by the
eyewitnesses to the offense, especially when such eyewitnesses
have no ill-motive to testify falsely (People v. Viojela, G.R.
No. 177140, October 17, 2012; See Ibanez v. People, G.R. No.
190798, January 27, 2016).
Denial, which is the usual refuge of offenders, is an
inherently weak defense, and must be buttressed by other
persuasive evidence of non-culpability to merit credibility. The
defense of denial fails even more when the assailant, as in this
case, was positively identified by credible witnesses, against
whom no ulterior motive could be ascribed (People v. Asilan,
669 SCRA 405, 419, April 11, 2012). Positive identification
prevails over alibi since the latter can be easily fabricated and
is inherently unreliable (People v. Dadao, G.R. No. 201860,
January 22, 2014; See also People v. Lagbo, G.R. No. 207535,
February 10, 2016).
2. Alibi crumbles in the light of positive identification
by truthful witnesses. The positive identification of the
accused, when categorical and consistent, and without any ill-
motive on the part of the eyewitnesses testifying on the matter,
prevails over alibi and denial (People v. Camat, 677 SCRA
640, 658-659, July 30, 2012; See also People v. Cabungan,
G.R. No. 189355, January 23, 2013; People v. Domingo, G.R.
No. 211672, June 1, 2016).
Alibi; not always false
1. Alibi is not always false and without merit (People
v. Cacayan, 557 SCRA 550). Contrary to the common notion,
alibi is not always a weak defense. Sometimes, the fact that
the accused was somewhere else may just be the plain and
unvarnished truth. But to be exonerating, the defense of alibi
must be so airtight that it would adtnit of no exception. It must
be demonstrated that the person charged with the crime was
not only somewhere else when the offense was committed, but
was so far away that it would be physically impossible to be
at the place of the crime or its immediate vicinity at the time
of its commission. The reason is that no person can be in two
CHAPTER I - PRELIMINARY CONSIDERATIONS 45
C. Miscellaneous Doctrines
places at the same time (People v. Baro, 383 SCRA 75; People
v. Ubina, 527 SCRA 307).
2. 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 (People v. Canlas, 372
SCRA 401). The rule that alibi is a weak defense has never
been intended to change the burden ofproofin criminal cases.
The burden of proof still lies in the prosecution to establish
the guilt ofthe accused (People v. De Guzman, 676 SCRA 347,
365, July 11, 2012; See also Franco v. People, G.R. No. 191185,
February 1, 2016).
3. 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 of its commission (People u. Cacayan, 557
SCRA 550; People v. De Leon, 580 SCRA 617).
4. For the defense of alibi to prosper, the requirements
of time and place must be strictly met. It is not enough to
prove that the accused was somewhere else when the crime
was committed, but he must also demonstrate by clear and
convincing evidence that it was physically impossible for him
to have been at the scene of the crime at the time the same
was committed (People v. Castro, 668 SCRA 291, 300-301,
March 14, 2012; See also People v. Baraoil, 676 SCRA 24, 35,
July 9, 2012; Ibanez v. People, G.R. No. 190798, January 27,
2016).
"Physical impossibility refers to distance and facility
~
of access between the situs criminis and the location of the
~· accused when the crime was committed. He must demonstrate
f..
~
that he was so far away and could not have been physically
,, present at the scene of the crime and its immediate vicinity
when the crime was committed" (People ..v. Mercado, G.R. No.
" 213832, December 7, 2015).
5. In People v. Mercado, G.R. No. 213832, December 7,
r: 2015, the Court did not appreciate the defense of alibi because
~· the place where the accused claimed to be was merely seven
(7) kilometers from where the killings occurred.
~·
i;:

46 EVIDENCE
(The Bar Lectures Series)
In the celebrated case of People v. Larrafiaga, 463 SCRA
652, the Supreme Court gave no credence to the alibi that
the accused, Larraiiaga, was in Quezon City on the date and
time the alleged crime was committed because it was not
impossible for him to be in Cebu on said date and time. The
Court ratiocinated, thus:
"During the hearing, it was shown that it takes
only one (1) hour to travel by plane from Manila to Cebu
and that there are four (4) airline companies plying the
route. One of the defense witnesses admitted that there
are several flights from Manila to Cebu each morning,
afternoon and evening ... "
Frame-up
1. Allegations of frame-up by police officers are com-
mon and standard defenses in most dangerous drugs cases.
For this claim to prosper, the defense niust adduce clear and
convincing evidence to overcome the presumption that gov-
ernment officials have performed their duties in a regular
and proper manner. Thus, in the absence of proof of motive to
falsely impute such a serious crime against the accused, the
presumption of regularity in the performance of official· duty
shall prevail (People v. Almodiel, G.R. No. 200951, September
5, 2012; See also, People v. Steve, G.R. No. 204911, August 6,
2014).
2. The defense of frame-up is not looked upon with
favor due to its being conveniently concocted. In one case, the
accused did not assail the integrity of the drug confiscated
from him except by insisting on being framed-up by the
policemen. The Court considered the defense as insincere
because the accused did not bother to formally charge the
policemen for the supposed frame-up and extortion. Such
failure can only be regarded, according to the Court, as his
tacit admission that the evidence had not been tampered or
meddled with. The Court, likewise, observed that the accused
did not even adduce evidence to substantiate his story of being
falsely incriminated (People v. Bautista, 666 SCRA 518, 536,
February 22, 2012; See also People v. Velasquez, 669 SCRA
[
CHAPTER I - PRELIMINARY CONSIDERATIONS 47
C. Miscellaneous Doctrines
I'
I
307, 318, Aprilll, 2012; See also People v. Tapugay, G.R. No.
f 200336, February 11, 2015).
I
I Delay and initial reluctance in reporting a crime
1: 1. Delayed reporting by witnesses of what they know
t
i about a crime does not render their testimonies false or
i'
incredible, for the delay may be explained by the natural
I 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 (People v.
Navarro, 297 SCRA 331).
2. The celebrated double murder and frustrated mur-
der cases of People v. Teehankee, Jr., 249 SCRA 54, illustrate
the willingness of the Court to take judicial notice of the natu-
ral reticence of witnesses to get involved in the solution of
crimes.
The witness, who actually saw the shooting of the victims
by the accused and had a clear and positive identification of
the plate number of the assailant's car, denied having wit-
nessed the crime during the investigation by the police and
the NBI. He refused to volunteer information to anyone as to
what he supposedly witnessed. It was only after consistent
prodding and assurance of protection from NBI officials that
he agreed to cooperate with the authorities. The Court recog-
nized that the initial reluctance of the fear-gripped witness to
reveal to the authorities what he supposedly witnessed was
sufficiently explained during the trial. His fear was not imagi-
nary. He saw with his own eyes the s~_nseless violence per-
petrated by the accused. He knew that the accused belonged
to an influential family. In his own words, he testified that his
reluctance was due to. his fear for his and his family's safety.
3. Even the victim may choose to keep quiet rather
than expose a defilement to the harsh glare of public scrutiny.
48 EVIDENCE
(The Bar Lectures Series)
Only when the delay is unreasonable or unexplained may it
work to discredit the complainant (People v. Navarette, Jr.,
666 SCRA 689, 704, February 22, 2012; See also People v.
Patefio, G.R. No. 209040, December 9, 2015).
Flight or non-flight of the accused
1. Flight per se is not synonymous with guilt. However,
when flight is unexplained, it is a circumstance from which
an inference of guilt may be drawn. "Indeed, the wicked flee
when no man pursueth, but the innocent are as bold as a
lion" (People v. Camat, 677 SCRA 610, 667, July 30, 2012;
See also Candelaria v. People, G.R. No. 209386, December
8, 2014). Flight betrays a desire to evade responsibility and
is, therefore, a strong indication of guilt (People v. Adviento,
668 SCRA 486, 500-501, March 20, 2012; People v. Cruz, 726
SCRA 608). . one has to prove what he alleges. It is well-settled that he
2. Culprits behave differently and even erratically in
externalizing and manifesting their guilt. Some may escape
or flee - a circumstance strongly illustrative of guilt -
while others may remain in the same vicinity so as to create
a semblance of regularity, thereby avoiding suspl.cion from
other members of the community (People v. Dadao, G.R. No.
201860, January 22, 2014).
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 a manifestation determinative of innocence
(People v. Amodia, 571 SCRA 444). 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 (People v. Dacibar, 325 SCRA
725).
- oOo-
Chapter II
BURDEN OF PROOF, QUANTUM
OF EVIDENCE AND PRESUMPTIONS
A. Burden of Proof and Burden of Evidence
Burden of proof (Bar 2004)
1. The burden of proof, or "onus probandi," traditionally
refers to the obligation of a party to a litigation to persuade
the court that he is entitled to relief. To persuade the court,
who alleges a fact has the burden of proving the same. As
I
I
t
jurisprudence puts it: "A mere allegation is not evidence" (Tze
Sun Wong v. Wong, G.R. No. 180364, December 3, 2014).
I The term is defined in Sec. 1, Rule 131 of the Rules of
Court, thus:
t "SECTION 1. Burden of proof. - Burden of proof
r
is the duty of a party to present evidence on the facts in
IL issue necessary to establish his claim or defense by the
amount of evidence required by law."
2. It is, thus, inaccurate to state that the burden of
proof rests solely on the shoulders of the plaintiff. The burden
1·.')·.
k•
of proof, under the clear terms of Sec. 1 ofRule 131, is the duty
of a party to present evidence not only to establish a claim but
also a defense. It will be observed that the rule does not define
burden of proof as the duty of the plaintiff but as the duty
~ of a "party." Hence, if a party alleges the existence of a fact,
that party has the burden of proof whether that party be the
~~-f plaintiff or the defendant. If the plaintiff, for example, alleges
~!
'J that the defendant owes him a sum of money, the plaintiffhas
49
 50 EVIDENCE
(The Bar Lectures Series)
the burden to prove the debt. If the defendant asserts that he
has paid the debt, then he has the burden to prove payment.
AB aptly described by the Court: "Burden of proof is
the duty of a party to present evidence on the facts in issue
necessary to establish his claim or defense by the amount or
evidence required by law" (BJDC Construction v. Lanuzo, G.R.
No. 161151, March 24, 2014). Thus, in an action anchored on
a quasi-delict under Art. 2176 of the Civil Code, the plaintiff
has the burden of proving that the fault or negligence of
the defendant was the proximate cause of the injuries he
sustained. On the other hand, the defendant has the burden
to prove his defense as when he claims that the injuries of the
plaintiff were caused, not by his wrongful conduct, but by a
third person or a caso fortuito.
Some jurisprudential pronouncements on burden of proof
1. In civil cases, it is a basic rule that the party making
allegations has the burden of proving them by preponderance
of evidence (Alana v. Magud-Logmao, G.R. No. 175540,
April 7, 2014). By preponderance of evidence is meant that
the evidence adduced by one side is, as a whole, superior to
that of the other side (NFF Industrial Corporation v. G & L
Associated Brokerage, G.R. No. 178169, January 12, 2015).
2. In administrative cases, the complainant bears
the onus in proving the averments of his complaint by
substantial evidence. Pointing out circumstances based on
mere conjectures and suppositions are not sufficient to prove
accusations (Lorenzana v. Austria, A.M. No. RTJ-09-2200,
April2, 2014).
3. In termination cases, the law places the burden of
proof upon the employer to show by substantial evidence that
the termination was for a lawful cause and in the manner
required by law (Deoferio v. Intel Technology Philippines, Inc.,
G.R. No. 202996, June 18, 2014). It is, however, incumbent
upon the employee to first establish by substantial evidence
the fact of his or her dismissal (Noblejas v. Italian Maritime
Academy Phils., Inc., G.R. No. 207888, June 9, 2014).
CHAPTER II - BURDEN OF PROOF, QUANTUM 51
OF EVIDENCE AND PRESUMPTIONS
A. Burden of Proof and Burden of Evidence
4. Whoever claims entitlement to the benefits provided
by law should establish his right thereto by substantial
evidence (lnterOrient Maritime Enterprises, Inc. v. Creer III,
G.R. No. 181921, September 17, 2014). In claims for disability
benefits, for instance, the onus probandi falls on the claimant
to establish his claim for disability benefits (Bahia Shipping
Services, Inc. v. Hipe, Jr., G.R. No. 204699, November 12,
2014).
5. In disbarment proceedings, the burden of proof rests
on the complainant to establish respondent attorney's liability
by clear, convincing and satisfactory evidence (Chu v. Guico,
A.C. No. 10573, January 13, 2015).
6. He, who attacks the constitutionality of a law,
has the onus probandi to show why the law is repugnant
to the Constitution. Failing to overcome its presumption
of constitutionality, a claim that a law is cruel, unusual or
inhuman, must fail. The reason for the rule is the presumption
that the legislature intended to enact a valid, sensible and
just law which operates no further than may be necessary to
effectuate the specific purpose of the law. Every statute is,
therefore, presumed to be valid and constitutional (Perez v.
People, 544 SCRA 532).
7. The Court has held that 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 thejurat, one
never appeared before the notary public and acknowledged
the deed to be a voluntary act (Chua v. Westmont Bank, 667
SCRA 56, 65, February 27, 2012).
8. The burden of proof that a debt was contracted lies
with the creditor-plaintiff. He who asserts, not he who denies,
must prove (Homeowners Savings & Loan Bank v. Dailo, 453
SCRA 283). However, jurisprudence tells us that one who
pleads payment has the burden of proving it; the burden rests
on the defendant to prove payment, rather than on the plain-
tiff to prove non-payment (Bognot v. RRI Lending Corporation,
G.R. No. 180144, September 24, 2014; See also Philippine
 52 EVIDENCE
(The Bar Lectures Series)
Commercial International Bank [now BDO Unibank, Inc.] v.
Franco, G.R. No. 180069, March 5, 2014).
9. In an eminent domain case, the local government
that seeks to expropriate private property has the burden of
proving that the elements for the valid exercise of the right
of eminent domain have been complied with (Jesus is Lord
Christian Foundation, Inc. v. City of Pasig, 466 SCRA 235).
10. In accident insurance cases, the insured's beneficiary
has the burden of proof in demonstrating that the cause of
death is due to the covered peril. Once that fact is established,
the burden then. shifts to the insurer to show any excepted
peril that may have been stipulated by the parties (Vda. de
Gabriel v. Court ofAppeals, 264 SCRA 137).
11. The party suing for the attachment of the property
of the adverse party has the burden to justify the attachment
because a general averment will not stiffice to support the
issuance of a writ for preliminary attachment. It is necessary
to recite in what particular manner an applicant for the writ of
attachment was defrauded. It is not enough for the complaint
to ritualistically cite that the defendants are guilty of fraud
in contracting the obligation. Fraud cannot be presumed. Sec.
1 of Rule 131 instructs that each party must prove his own
affirmative allegations (Allied Banking Corporation v. South
Pacific Sugar Corporation, 543 SCRA 585).
12. In international law, the party who wants to have
a foreign law applied to a dispute or case has the burden of
proving the foreign law. Foreign laws do not prove themselves
in our jurisdiction, and our courts are not authorized to take
judicial notice of them (Del Socorro v. Van Wilsem, G.R. No.
193707, December 10, 2014).
Test for determining where burden of proof lies
1. The test for determining where the burden of proof
lies is to ask which party to an action or suit will fail ifhe
offers no evidence competent to show the facts averred as the
basis for the relief he seeks to obtain. If the defendant has
affirmative defenses, he bears the burden of proof as to those
CHAPTER II - BURDEN OF PROOF, QUANTUM 53
OF EVIDENCE AND PRESUMPTIONS
A. Burden of Proof and Burden of Evidence
defenses which he sets up in answer to the plaintiffs cause of
action. Hence, if the defendant sets up the affirmative defense
of prescription, he must prove the date when prescription
began to run (Aznar Brothers Realty Co. v. Aying, 458 SCRA
496; Bank of the Philippine Islands u. Spouses Royeca, 559
SCRA207).
2. The burden of proof rests with the party who wants
to establish a legal right in his favor. For instance, one who
asserts a right to a preliminary injunction has the burden to
prove such right. If he claims a right granted by law, he must
prove his claim by competent evidence, relying on the strength
of his own evidence and not upon the weakness of that of his
opponent (China Banking Corporation v. Ta Fa Industries,
Inc., 553 SCRA 211).
Where burden of proof is fixed
The burden of proof is fixed by the pleadings. The claim
of the plaintiff, which he must prove, is spelled out in his
complaint. The defendant's defenses, which he must, likewise,
prove, are found in his answer to the complaint. The burdens
of proof of both parties do not shift during the course of the
trial.
For instance, as previously adduced, the burden of proof
to establish that the defendant owes the plaintiff remains
with the plaintiff; the burden of proof to establish that the
loan has been paid remains with the defendant, throughout
the litigation (Bank of the Philippine Islands v. Spouses
Royeca, 55.9 SCRA 207).
Burden of evidence (Bar 2004)
1. The burden of evidence is the duty of a party to
go forward with the evidence to overthrow the prima facie
evidence against him (Bautista v. Sarmiento, 138 SCRA 587;
See also People v. Court of Appeals, 21st Division, G.R. No.
183652, February 25, 2015).
As the trial progresses, one party may have presented
an evidence that weighs heavily in his favor and sufficient to

54 EVIDENCE
(The Bar Lectures Series)
convince the court of the justness of his claim. If this occurs,
the other party has the burden to come forward with his own
evidence to counteract whatever positive impression which
the evidence of the other party may have been created in the
mind of the court. This duty, also called the burden of coming
forward with the evidence (1 Jones on Evidence, 6th Ed., p.
523), is what is referred to as burden of evidence.
2. In illegal possession of firearms, the prosecution has
the burden of proving the accused's lack of authority to have a
firearm. The prosecution having proved that the accused was
not issued a firearms license, the burden of evidence was then
shifted to appellant to prove his authorization to possess a
firearm (People v. Salahuddin, G.R. No. 206291, January 18,
2016).
3. Generally, "the burden lies upon the prosecution to
prove the guilt of the accused beyond reasonable doubt rather
than upon the accused that he was in fact innocent." If the
accused, however, admits killing the victim, but pleads self-
defense, the burden of evidence is shifted to him to prove such
defense by clear, satisfactory and convincing evidence that
excludes any vestige of criminal aggression on his part. To
escape liability, it now becomes incumbent upon the accused
to prove by clear and convincing evidence all the elements
of that justifying circumstance (Flores v. People, G.R. No.
181354, February 27, 2013).
Equipoise rule or equiponderance doctrine (Bar 1995}
1. The equipoise doctrine is based on the principle
that no one shall be deprived of life, liberty or property
without due process oflaw (Sec. 1, Art. III, Constitution of the
Philippines).
2. The doctrine refers to a situation where the evidence
of the parties is evenly balanced, or there is doubt on which
side the evidence preponderates (or weighs more heavily). In
this case, the decision should be against the party with the
burden of proof. ·
'~
I CHAPTER II - BURDEN OF PROOF, QUANTUM 55
r.:\ OF EVIDENCE AND PRESUMPTIONS
·I B. Presumptions
-:
1I
fi Hence, in a civil case, where the burden of proof is on
the plaintiff and the evidence does not suggest that the scale
of justice should weigh in his favor, the court should render
a verdict for the defendant (Rivera v. Court of Appeals, 284
SCRA 673; Marubeni Corp. v. Lirag, 362 SCRA 620).
In a criminal case, the equipoise rule provides that where
the evidence is evenly balanced, the constitutional presump-
tion of innocence tilts the scales in favor of the accused. Thus,
where the inculpatory facts and circumstances are capable
of two or more explanations one of which is consistent with
the innocence of the accused and the other consistent with
his guilt, then the evidence does not fulfill the test of moral
certainty and is not sufficient to support a conviction (People
v. Saturno, 355 SCRA 578; People v. !son, G.R. No. 205097,
June 8, 2016).
3. The equipoise rule, however, is not applicable where
the evidence presented is not equally weighty, such as where
the evidence of the prosecution is overwhelming (Malana v.
People, 549 SCRA 451).
B. Presumptions
Concept of presumptions
1. A presumption is an assumption of fact resulting
from a rule oflaw which requires such fact to be assumed from
another fact or group of facts found or otherwise established
in the action (Black's Law Dictionary, 5th Ed., p. 1067, citing
Uniform Rule 13; NJ Evidence Rule 13). A presumption is
an inference of the existence or non-existence of a fact which
courts are permitted to draw from proof of other facts (In the
Matter of the Intestate Estates of Delgado and Rustia, 480
SCRA334).
2. A presumption is not evidence .(California Evidence
Code, cited in Black's Law Dictionary, 5th Ed., p. 1167). They
merely affect the burden of offering evidence (1 Wharton's
Criminal Evidence, Sec. 64).
In a sense, a presumption is an inference which is
mandatory unless rebutted (29 Am Jur 29, Evidence, §181).
 56 EVIDENCE
(The Bar Lectures Series)
1:
~
Example: D is the debtor of C, creditor for P1 million
payable in t:welve (12) equal monthly installments. If evidence
is. introduced that the installment payment for December
has been received by the creditor, a presumption arises
that previous installments have been paid. This is because,
under the law, the receipt of a later installment of a debt,
without reservation as to prior installments, gives rise to
the presumption that such installments have been pirid (Art.
1176, Civil Code of the Philippines; Sec. 3[i], Rule 131, Rules
of Court).
Inference distinguished from a presumption
1. An inference is a factual conclusion that can
rationally be drawn from other facts (29 Am Jur 2d §182 citing
Computer Identics Corp. v. SouthernPacific Co.[CA1 Mass]). It
is, in other words, one that is a result of the reasoning process.
It need not have a legal effect because it is not mandated by
law. "The factfinder is free to accept or reject the inference"
(29 Am .Jur 2d §182).
A presumption, on the other hand, is a rule of law
directing that if a party proves certain facts (the basic facts) at
a trial or hearing, the factfinder must also acceptan additional
fact (the presumed fact) as proven unless sufficient evidence
is introduced tending to rebut the presumed fact. In a sense,
therefore, a presumption is an inference which is mandatory
unless rebutted (29 Am Jur 2d §181).
2. · Thus, if X proposes marriage toY, it may be infetred
that X is in love withY. This is a mere inference and has in fact
no legal effect. There are no legal relations established by the
mere fact that one is in love. On the other hand, if X enters into
a contract of sale of a car with Y, there arises a presumption
that the contract was entered into with a sufficient cause or
consideration(Sec. 3[r], Rule 131, Rules of Court) and although
the cause is not stated in the contract, it is presumed that it
exists and is lawful, unless the contrary is proven (Art. 1354,
Civil Code of the Philippines). The presumption, involved in
~··
the example, has a definite legal effect.
t
{
CHAPTER II - BURDEN OF PROOF, QUANTUM 57
OF EVIDENCE AND PRESUMPTIONS
B. Presumptions
Kinds of presumptions
Presumptions are classified into presumptions oflaw and
presumptions of fact. Presumptions of law are, in turn, either
conclusive or disputable (In the Matter of the Intestate Estates
of Delgado and Rustia, 480 SCRA 334).
The presumption that an accused is innocent of the
crime charged until the contrary is proven is a presumption of
law embodied in the Constitution (Sec. 14[2], Art. III, Bill of
Rights, Constitution of the Philippines). Art. 1756 of the Civil
Code of the Philippines also illustrates another presumption
mandated by the law. Under the said provision, in case of death
or injuries to passengers, common carriers are presumed to
have been at fault or to have acted negligently.
An assumption offact does not arise from any direction of
the law. It arises because reason itself allows a presumption
from the facts. If A attacks B without provocation, the logical
presumption arises that A does not have tender feelings ·
towards B. A presumption of fact is, in effect, actually a mere
inference because it does not necessarily give rise to a legal
effect.
This must be the reason for the trend to discard the
distinction between a presumption of fact and a presumption
of law (Black's Law Dictionary, 5th Ed., p. 1067).
Effect of presumptions
A party in whose favor the legal presumption exists may
rely on and invoke such legal presumption to establish a fact
in issue. One need not introduce evidence to prove the fact
for a presumption is prima facie proof of the fact presumed
(Diesel Construction Co., Inc. u. UPS! Property Holdings, Inc.,
549 SCRA 12).
Meaning of conclusive presumptions (Bar 2012)
1. As classified in Rule 131 of the Rules of Court, a
presumption may either be:
(a) conclusive (presumptions juris et de jure); or
(b) disputable (presumptionsjuris tantum).
58 EVIDENCE
{The Bar Lectures Series)
2. A presumption is conclusive when the presumption
becomes irrebuttable upon the presentation of the evidence
and any evidence tending to rebut the presumption is not
admissible.
Thus, the Supreme Court taught that conclusive pre-
sumptions are "inferences which the law makes so peremp-
tory that it will not allow them to be overturned by any con-
trary proof however strong" (Datalift Movers, Inc. v. Belgravia
Realty & Development Corporation, 500 SCRA 163).
"A conclusive or irrebuttable presumption is not a
presumption at all; it is a substantive rule oflaw directing that
proof of certain basic facts conclusively proves an additional
fact which cannot be rebutted. Such presumption rests upon
grounds of expediency or public policy so compelling in
character as to override the requirement of proof' (29 Am Jur
2d, Evidence, §184; Citations omitted).
3. A presumption is disputable or rebuttable if it may
be contradicted or overcome by other evidence (Sec. 3, Rule
131, Rules of Court). In the language of Sec. 3 of Rule 131,
disputable presumptions "are satisfactory, if uncontradicted,
but may be contradicted and overcome by other evidence."
When evidence that rebuts the presumption is intro-
duced, the force of the presumption disappears. Example:
While evidence of receipt of payment of a later installment
gives rise to the presumption that previous installments have
been paid, yet when evidence is shown that prior installments
remain unpaid, the presumption falls.
Conclusive presumptions under the Rules of Court (Bar
2012)
1. The following are the conclusive presumptions
under Sec. 2, Rule 131 ofthe Rules of Court:
"SEC. 2. Conclusive presumptions. - x x x
(a) Whenever a party has, by his own declaration,
act, or omission, intentionally or deliberately led another
to believe a particular thing is true, and to act upon such
l: CHAPTER II - BURDEN OF PROOF, QUANTUM 59
' OF EVIDENCE AND PRESUMPTIONS
ri·.i B. Presumptions
l
t'
I'
'·
belief, he cannot, in any litigation arising out of such
1: declaration, act or omission, be permitted to falsify it.
l (b) The tenant is not permitted to deny the title
If.
of his landlord at the time of the commencement of the
p relation of landlord and tenant between them."
[·'
!i
2. The conclusive presumptions under the Rules
I' of Court are based on the doctrine of estoppel. Under this
doctrine, the person making the representation cannot claim
benefit from the wrong he himself committed (Phil. Pryce
Assurance Corp. u. Court of Appeals, 230 SCRA 164).
!
): 3. The first conclusive presumption is often referred to
t
as estoppel in pais or estoppel by conduct.
I·
Estoppel
I 1. Under the doctrine of estoppel, an admission or
representation is rendered conclusive upon the person making
it, and cannot be denied or disproved as against the person
relying thereon (Spouses Manzanilla u. Waterfields Industries
Corporation, G.R. No. 177484, July 18, 2014).
Example: Persons who assume to be a corporation without
legal authority to act as such shall be considered a corporation
by estoppel and shall be liable as general partners (Sec. 21,
Corporation Code of the Philippines).
2. Under Art. 1431 of the Civil Code, through estoppel,
an admission or representation is rendered conclusive upon
the person making it, and cannot be denied or disproved
as against the person relying on it. Where a party, by his
deed or conduct, has induced another to act in a particular
manner, estoppel effectively bars the former from adopting an
inconsistent position, attitude or course of conduct that causes
loss or injury to the latter. The doctrine- of estoppel is based
upon the grounds of public policy, fair dealing, good faith and
justice, and its purpose is to forbid one to speak against his
own act, representations, or commitments, to the injury of
one to whom they were directed and who reasonably relied
thereon (Harold u. Aliba, 534 SCRA 478).

60 EVIDENCE
(The Bar Lectures Series)
3. "Because of the conclusive presumption under
Section 2(b) of Rule 131, the Rules of Court sufficiently shields
the lessor from being questioned by the lessee, regarding its
title or better right of possession as lessor because having
admitted the existence of a lessor-lessee relationship, the
lessee is barred from assailing the lessor's title of better right
ofpossession x x x As long as the lessor-lessee relationship
between the parties exists, the lessee cannot, by any proof,
however strong, overturn the conclusive presumption that the
lessor has valid title to or better right of possession to the
subject leased premises than it has" (Datalift Movers, Inc. v.
Belgravia Realty & Development Corporation, 500 SCRA 163)
(Bar 2012).
Effect of disputable presumptions
The effect of a presumption upon the burden of proof is to
create the need of presenting evidence to overcome the prima
facie case created by the presumption. If no contrary proof is
offered, the presumption will prevail (Diaz v. People, G.R. No.
208113, December 2, 2015).
Disputable presumptions under the Rules of Court
1. A significant example of a disputable presumption
under the Rules of Court is the presumption that "official
duty has been regularly performed" (Sec. 3[m], Rule 131) (Bar
2012).
For example, in buy-bust operations, the Court has
usually presumed the regularity of performance of their
official duties in favor of members of the buy-bust team
(People v. Mendoza, G.R. No. 192432, June 23, 2014). Settled
is the rule that, in cases involving violations of the Dangerous
Drugs Act, credence is given to prosecution witnesses, who are
police officers, for they are presumed to have performed their
duties in a regular manner, unless there is evidence to the
contrary suggesting ill motive on the part of the police officers
or deviation from the regular performance of their duties"
(People v. Alejandro, G.R. No. 205227, April 7, 2014).
CHAPTER II - BURDEN OF PROOF, QUANTUM 61
OF EVIDENCE AND PRESUMPTIONS
B. Presumptions
This presumption of regularity of court proceedings in-
cludes presumptions of regularity of service of summons. It is,
therefore, incumbent upon the party questioning the validity
of the service to rebut these presumptions with competent and
proper evidence. The return is prima facie proof of the facts
indicated therein (Masagana Concrete Products v. NLRC, 313
SCRA 576).
2. The Court, however, emphasized that the pre-
sumption of regularity in the performance of official duty
obtains only when there is no deviation from the regular
performance of duty (People v. Casabuena, G.R. No. 186455,
November 19, 2014). It is rebuttable by affirmative evidence
of irregularity or of a failure to perform a duty (People u.
Alejandro, G.R. No. 205227, April 7, 2014).
3. The presumption of regularity does not apply in a
petition for a writ of amparo. Under Sec. 17 ofthe Rule on the
Writ of Amparo, the "respondent public official or employee
cannot invoke the presumption that official duty has been
t' regularly performed to evade responsibility or liability."
l
l 4. It is incumbent upon the prosecution to prove during
t the trial that prior to questioning, the confessant was warned of
!:
!: his constituti.onally-protected rights because the presumption
f of regularity of official acts does not apply during in-custody
~·
'
investigation. Trial courts should further keep in mind that
even if the confession of the accused is gospel truth, if it was
made without the assistance of counsel, it is inadmissible in
evidence regardless of the absence of coercion or even if it had
~-
been voluntarily given (People u. Camat, 256 SCRA 52).
5. The presumption of regularity in the performance of
official functions cannot, by itself, overcome the presumption
of innocence. Evidence of guilt beyond reasonable doubt, and
nothing else, is required to erase all doubts as to the culpability
of the accused (Zafra v. People, 671 SCRA 396,405, April25,
2012). Also, the presumption of regularity in the performance
of official duty does not constitute proof beyond reasonable
I doubt. It should be noted that the presumption is precisely
just that - a presumption. Once challenged by evidence, it
I
62 EVIDENCE
(The Bar Lectures Series)
cannot be regarded as binding truth (People v. Caranto, G.R.
No. 193768, March 5, 2014). Reliance on the legal presumption
of regularity in the performance of official duty is inadequate
to uphold a conviction. After all, the burden of proving the
guilt of the accused rests on the prosecution which must rely
on the strength of its own evidence and not on the weakness
of the defense (People v. Enad, G.R. No. 205764, February 3,
2016).
In case of conflict between the presumption of regularity
in the performance of duty of police officers and the presump-
tion of innocence of the accused, the latter must prevail as the
law imposes upon the prosecution the highest degree of proof
of evidence to sustain conviction (People v. Guinto, G.R. No.
198314, September 24, 2014).
Examples of disputable presumptions (Bar 2011; 2012)
1. Some significant disputable · presumptions under
Sec. 3 ofRule 131 are:
(a) That a person is innocent of a crime or wrong;
(b) That an unlawful act was done with unlawful
intent;
(c) That a person intends the ordinary conse-
quences of his voluntary act; (Bar 2012)
(d) That a person takes ordinary care of his busi-
ness;
(e) That evidence willfully suppressed would be
adverse if produced;
(f) That money paid by one to another was due to
the latter;
(g) That a thing delivered by one to another
belonged to the latter;
(h) That an obligation delivered up to the debtor
has been paid;
(i) That prior rents or installments had been paid
when a receipt for the later ones is produced;
CHAPTER II - BURDEN OF PROOF, QUANTUM 63
OF EVIDENCE AND PRESUMPTIONS
B. Presumptions
(j) That a person acting in a public office was
regularly appointed or elected to it;
(k) That official duty has been regularly performed;
(Bar 2012)
(l) That a court, or judge acting as such, whether
in the Philippines or elsewhere, was acting in the lawful
exercise of jurisdiction;
Note: Please refer to other disputable presumptions in
Sec. 3 ofRule 131.
2. One of the most significant presumptions, which is,
at the same time, a constitutional right (Sec. 14[2], Art. III
[Bill of Rights], Constitution of the Philippines), is the right to
be presumed innocent of a crime or wrong.
3. The constitutional presumption of innocence is
enjoyed by the accused until final conviction and, in this
regard, the prosecution's case must rise and fall on its own
merits and cs.nnot draw its strength from the weakness of the
defense (People v. Mingming, 573 SCRA 509). The evidence of
I
~ the prosecution must stand on its own strength and not rely
I on the weakness of the defense (People v. Bontuyan, G.R. No.
206912, September 10, 2014).
4. The presumption that evidence, when willfully sup-
pressed, would be adverse, if produced, does not apply if (a)
the evidence is at the disposal of both parties; (b) the suppres-
sion was not willful; (c) it is merely corroborative or cumula-
tive; and (d) the suppression is covered by the privileged com-
munication between physician and patient (Blue Cross Health
Care, Inc. v. Olivares, 544 SCRA 580).
1 5. Generally, a notarized document carries the eviden-
tiary weight conferred upon it with respect to its due execu-
tion, and documents acknowledged before a notary public have
in their favor the presumption of regularity which may only
be rebutted by clear and convincing evidence (Rural Bank of
"'(ii Cabadbaran, Inc. v. Melecio-Yap, G.R. No. 178451, July 30,
~;i
'\ 2014; See also Tan v. Hosana, G.R. No. 190846, February 3,
·~.
2016).
,,
't
 64 EVIDENCE
(The Bar Lectures Series)
6. The settled rule is that, in the absence of satisfactory
explanation, one found in possession of and who used a forged
document is the forger and therefore, guilty of falsification.
If a person had in his possession a falsified document and he
made use of it (uttered it), taking advantage of it and profiting
thereby, the clear presumption is that he is the material
author of the falsification (Maliwat v. Court of Appeals, 256
SCRA 718).
The presumption, that whoever possesses or uses a
spurious document is its forger, applies only in the absence
of a satisfactory explanation (Metrobank v. Tobias III, 664
SCRA 165, 179-180, January 25, 2012). Hence, a satisfactory
explanation would render the presumption ineffective.
7. Ajudgment or final order against a person, rendered
by a tribunal of a foreign country with jurisdiction to render
said judgment or final order, is presumptive evidence of a
right as between the parties and their successors-in-interest.
If the judgment or final order is upon a specific thing, said
judgment or final order is conclusive upon the title to the
thing. The presumptions are not, however, irrefutable. In
either case, the judgment or final order may be repelled by
any of the following: (a) want of jurisdiction; (b) want of notice
to the party; (c) collusion; (d) fraud; or (e) clear mistake oflaw
or fact (Sec. 48, Rule 39, Rules of Court).
8. While the judgment or final order rendered by a
Philippine court, among others, in respect to the probate of a
will or the administration of the estate of a deceased person
is conclusive upon the will or administration, the probate of a
will or granting letters of administration shall only be prima
facie evidence of the death of the testator (Sec. 47, Rule 39,
Rules of Court).
9. The persons mentioned in Art. 2180 of the Civil Code
like employers, and owners or managers of establishment,
among others, are liable for the acts of those persons for
whom they are responsible. Under the same provision, such
responsibility shall cease when the persons mentioned prove
that they observed all the diligence of a good· father of a family
to prevent damage. This indicates that there is a presumption
CHAPTER II - BURDEN OF PROOF, QUANTUM 65
OF EVIDENCE AND PRESUMPTIONS
B. Presumptions
that employers and other persons in Art. 2180 have, likewise,
bee11 negligent in case those under them have caused damage
to another.
Whenever an employee's negligence causes damage or
injury to another, there instantly arises a presumptionjuris
tantum that the employer failed to exercise diligentissimi
patris familias in the selection (culpa eligiendo) or supervision
(culpa in vigilando) of its employees (Macalinao v. Ong, 477
SCRA 740).
10. It is disputably presumed that a driver was negli-
gent, if he had been found guilty of reckless driving or violat-
ing traffic regulations at least twice within the next preceding
two months (Art. 2184, Civil Code of the Philippines).
11. There is prima facie presumption of negligence on
the part of the defendant if the death or injury results from
his possession of dangerous weapons or substances, such as
firearms and poison, except when the possession or use thereof
is indispensable in his occupation or business (Art. 2188, Civil
Code of the Philippines).
12. In some cases where negligence is difficult to
prove, the doctrine of res ipsa loquitur permits an inference
of negligence on the part of the defendant where the thing
or transaction speaks for itself (Josefa v. Manila Electric
Company, G.R. No. 182705, July 18, 2014). The doctrine of res
ipsa loquitur establishes a presumption of negligence against
the defendant and furnishes a substitute for a specific proof
of negligence. The doctrine can be invoked only when, under
I the circumstances, direct evidence is absent and not readily
available. For the doctrine to apply, the following must be
I
satisfactorily shown:
(a) The accident is of a kind which ordinarily does
t not occur in the absence of someone:s negligence;
r
I
(b) It is caused by an instrumentality within the
exclusive control of the defendant or defendants; and
!i
(c) The possibility of contributing conduct which
would make the plaintiff responsible is eliminated
(Ramos u. Court of Appeals, 321 SCRA 584; Macalinao
[
66 EVIDENCE
(The Bar Lectures Series)
v. Ong, 477 SCRA 740; See Solidum v. People, G.R. No.
192123, March 10, 2014).
13. The legal presumption is that a person takes ordi-
nary care of his concerns. To this, case law dictates that the
natural presumption is that one does not sign a document
without first informing himself of its contents and conse-
quences (Diaz v. People, G.R. No. 208113, December 2, 2015).
C. Quantum of Evidence (Weight and
Sufficiency of Evidence)
Proof beyond reasonable doubt
1. In criminal cases, the burden of proof as to the
guilt of the accused lies with the prosecution because of the
presumption that the accused is presumed innocent until the
contrary is proven (Sec. 14[2], Art. III, Bill ofRights, Philippine
Constitution).
Jurisprudence reiterates the above rule by declaring that
"[I]n every criminal prosecution, the State must prove beyond
reasonable doubt, all the elements of the crime charged
and the complicity or participation of the accused" (People
v. Maraorao, 674 SCRA 151, 159, June 20, 2012; See also
People v. Roxas, G.R. No. 218396, February 10, 2016). Proof
beyond reasonable doubt is the degree of proof that, after
investigation of the whole record, produces moral certainty
in an unprejudiced mind of the accused's culpability (Atienza
v. People, G.R. No. 188694, February 12, 2014). Proof beyond
reasonable doubt does not mean such a degree of proof that
excludes all possibility of error. Only moral certainty is
required (Sec. 2, Rule 133, Rules of Court).
Sec. 2 of Rule 133 provides for the quantum of evidence
required in criminal cases as follows:
"SEC. 2. Proof beyond reasonable doubt. - In a
criminal case, the accused is entitled to an acquittal,
unless his guilt is shown beyond reasonable doubt.
Proof beyond reasonable doubt does not mean such
CHAPTER II - BURDEN OF PROOF, QUANTUM 67
OF EVIDENCE AND PRESUMPTIONS
C. Quantum of Evidence (Weight and Sufficiency of Evidence)
a degree of proof as, excluding possibility of error,
produces absolute certainty. Moral certainty only
is required, or that degree of proof which produces
conviction in an unprejudiced mind."
2. The presumption of innocence of an accused in a
criminal case is a basic constitutional principle fleshed out by
procedural rules which place on the prosecution the burden
of proving that the accused is guilty of the offense charged
by proof beyond reasonable doubt. Corollary thereto, the evi-
dence of the prosecution must stand on its own strength and
not rely on the weakness of the evidence of the defense (People
u. Bontuyan, G.R. No. 206912, September 10, 2014; Saraum u.
People, G.R. No. 205472, January 25, 2016; See also Franco u.
People, G.R. No. 191185, February 1, 2016).
Preponderance of evidence (Bar 2003; 2011)
1. Sec. 1 of Rule 133 provides:
"SECTION 1. Preponderance of evidence; how
determined. -In civil cases, the party having the burden
of proof must establish his case by a preponderance of
evidence. In determining where the preponderance or
superior weight of evidence on the issues involved lies,
the court may consider all the facts and circumstances
of the case, the witnesses' manner of testifying, their
intelligence, their means and opportunity of knowing
the facts to which they are testifying, the nature
of the facts to which they testify, the probability or
improbability of their testimony, their interest or want of
,, interest, and also their personal credibility so far as the
same may legitimately appear upon the trial. The court
~ may also consider the number of witnesses, though
the preponderance is not necessarily with the greater
f number."
t
~ 2. In civil cases, the party having the burden of proof
l
I must establish his case by a preponderance of evidence.
Preponderance of evidence is the weight, credit, and value
f of the aggregate evidence on either side and is usually
considered to be synonymous with the term "greater weight
of the evidence" or "greater weight of the credible evidence."

68 EVIDENCE
(The Bar Lectures Series)
Preponderance of evidence is a phrase which, in ·the last
analysis, means probability of the truth. It is evidence which
is more convincing to the court as worthier of belief than that
which is offered in opposition thereto (Chua v. Westmont Bank,
667 SCRA 56, 68, February 27, 2012; Asian Construction and
Development Corporation v. Mendoza, 675 SCRA 284, 290,
June 27, 2012; Lim v. Mindanao Wines & Liquor Galleria, 675
SCRA 628, 640, July 4, 2012; Spouses Ramos v. Obispo, G.R.
No. 193804, February 27, 2013; See also Standard Insurance
Co., Inc. v. Cuaresma, G.R. No. 200055, September 10, 2014).
3. Preponderance of evidence means that the evidence
adduced by one side is, as a whole, superior to or has greater
weight than that of the other. It is evidence which is more
convincing to the court as worthy of belief than that which is
offered in opposition thereto (BJDC Construction v. Lanuzo,
G.R. No. 161151, March 24, 2014).
4. In determining whether or not there is preponder-
ance of evidence, the court may consider the following:
(a) all the facts and circumstances of the case;
(b) the witnesses' manner of testifying, their
intelligence, their means and opportunity of knowing the
facts to which they are testifying; the nature of the facts
to which they testify, the probability or improbability of
their testimony;
(c) the witnesses' interest or want of interest, and
also their personal credibility so far as the same may
ultimately appear in the trial;
(d) the number of witnesses, although it does mean
that the preponderance is necessarily with the greater
number (Sec. 1, Rule 133, Rules of Court).
Substantial evidence (Bar 2003; 2011)
1. The pertinent rule on substantial evidence is found
in Sec. 5 of Rule 133. The relevant provision declares:
I In agrarian cases, all that is required is mere substantial
I "SEC. 5. Substantial evidence. -·In cases filed
before administrative or quasi-judicial bodies, a fact may
~'
~. CHAPTER II - BURDEN OF PROOF, QUANTUM 69
~.
~. OF EVIDENCE AND PRESUMPTIONS
C. Quantum of Evidence (Weight and Sufficiency of Evidence)
i
I
t· be deemed established if it is supported by substantial
evidence, or that amount of relevant evidence which a
reasonable mind might accept as adequate to justify a
conclusion."
2. Substantial evidence refers to such relevant evi-
I· dence which a reasonable mind might accept as adequate
to support a conclusion (Montinola v. Philippine Airlines,
G.R. 'No. 198656, September 8, 2014). In administrative cases,
the quantum of evidence required is that of substantial evi-
dence. It does not require evidence that is overwhelming or
even preponderant (Astorga and Repol Law Offices v. Villan-
ueva, A.M. No. P-09-2669, February 24, 2015; See also Asian
International Manpower Services, Inc. v. Department of Labor
and Employment, G.R. No. 210308, April6, 2016).
3. In administrative or quasi-judicial proceedings,
like those conducted before the NLRC, the standard of proof
is substantial evidence which is understood to be more than
just a scintilla or such amount of relevant evidence which
a reasonable mind might accept as adequate to justify a
conclusion (Morales v. Harbour Centre Port Terminal, Inc.,
664 SCRA 110, 121, January 25, 2012; See also Republic v.
Arias, G.R. No. 188909, September 17, 2014).
~. :, In claims for workmen's compensation, for example,
IH the degree of proof required is merely substantial evidence.
~;f
This means that it suffices that the claims be based on mere
\:1:
;i't probability, not certainty of causal relations (Leviste v. Social
Security System, 539 SCRA 120). However, the employee has
the burden to present substantial evidence or such relevant
evidence which a reasonable mind might accept as adequate to
r.:j
justify a conclusion, showing a reasonable connection between
the conditions of his work and his illness, or that the risk of
contracting the same was increased by his working conditions
(Masangcay v. Trans-Global Maritime Agency, Inc., 569 SCRA
592).
evidence (Heirs of E. B. Roxas, Inc. v. Tolentino, 167 SCRA
334).

70 EVIDENCE
(The Bar Lectures Series)
Quantum of evidence in a petition for a Writ of Amparo
In a petition for a writ of amparo, the parties shall
establish their claims by substantial evidence (Sec. 17, The
Rule on the Writ ofAmparo, effective October 24, 2007).
Effect on the criminal case of failure to prove administrative
liability
In Paredes v. Court ofAppeals, 528 SCRA 577, the accused
argued that as his liability in the administrative case against
him was not established by substantial evidence, so will his
criminal case necessarily fall, demanding as it does, a heavier
quantum of proof, i.e., proof beyond reasonable doubt. To this
argument the Supreme Court declared:
"The petition must fail.
x x x It is indeed a fundamental principle ... that
administrative cases are independent from criminal
actions for the same act or omission. Thus, an absolution
from a criminal charge is not a bar to an administrative
prosecution, or vice versa. One thing is administrative
liability; quite another thing is the criminal liability for
the same act.
XXX
Criminal and administrative proceedings may
involve similar operative facts; but each requires a
different quantum of evidence.
XXX
Thus considering the difference in the quantum
of evidence, as well as the procedure followed and the
sanctions imposed in criminal and administrative
proceedings, the findings and conclusions in one should
not necessarily be binding on the other. Notably, the
evidence presented in the administrative case may not
necessarily be the same evidence to be presented in the
criminal cases. The prosecution is certainly not precluded
from, adducing additional evidence to discharge the
burden of proof required in the criminal cases.
XXX
)I
;1 CHAPTER II - BURDEN OF PROOF, QUANTUM 71
~
OF EVIDENCE AND PRESUMPTIONS
C. Quantum of Evidence (Weight and Sufficiency of Evidence)
!lj Conversely [th]e [Court] ha[s] also ruled that
the dismissal of the criminal case is not per se a bar to
administrative sanctions . . . To paraphrase, dismissal of
the criminal case does not foreclose administrative action
I involving the same facts" (Paredes v. Court of Appeals,
528 SCRA 577).
Clear and convincing evidence (Bar 2011)
1. Evidence is clear and convincing if it produces
in the mind of the trier of fact a firm belief or conviction as
to allegations sought to be established. It is intermediate,
being more than preponderance, but not to the extent of
such certainty as is required beyond reasonable doubt as in
criminal cases (Black's Law Dictionary, 5th Ed., p. 227).
":[
2. The Court, in Government of Hongkong Special
Administrative Region v. Olalia, Jr. (521 SCRA 470), explained
this quantum of evidence, thus:
"An extradition proceeding being sui generis, the
standard of proof required in granting or denying bail can
neither be the proof beyond reasonable doubt in criminal
cases nor the standard of proof of preponderance of evi-
dence in civil cases. While administrative in character, the
standard of substantial evidence used in administrative
cases cannot likewise apply given the object of extradition
law which is to prevent the prospective extraditee from
fleeing [Philippine] jurisdiction. In his separate opinion
in Purganan, then Associate Justice, now Chief Justice
< Reynato S. Puna, proposed that a new standard which he
termed 'clear and convincing evidence' should be used in
'il
" granting bail in extradition cases. According to him, this
h ,<. standard should be lower than proof beyond reasonable
doubt but higher than preponderancf! of evidence. The
,,,';
i~'' '
potential extraditee must prove by 'clear and convincing
ii;\ evidence' that he is not a flight risk and will abide with all
the orders and processes of the extraditiun court."
i~i':
3. One recent case makes a more liberal use of the "clear
and convincing evidence" rule when it declared: "Once an
accused in a prosecution for murder or homicide admitted his
infliction of the fatal injuries, he assumed the burden to prove
72 EVIDENCE
(The Bar Lectures Series)
by clear, satisfactory and convincing evidence the justifying
circumstance that would avoid his criminal liability" (People
v. Fontanilla, 664 SCRA 150, 158, January 25, 2012; Italics
supplied).
Evidentiary weight of electronic evidence
1. In assessing the evidentiary weight of electronic
evidence, certain factors may be considered, like:
(a) The reliability of the manner in which it was
generated, stored or communicated;
(b) The reliability of the manner in which its origi-
nator was identified;
(c) The integrity of the information and communi-
cation system;
(d) The familiarity of the witness or the person who
made the entry with the communication and information
system;
(e) The nature and quality of the information which
went into the communication and information system;
and
(f) Other factors which the court may consider.
(Sec. 1, Rule 7, Rules on Electronic Evidence).
2. All matters relating to the admissibility and eviden-
tiary weight of an electronic document may be established
by an affidavit stating facts of direct personal knowledge of
the affiant or based on authentic records. The affidavit must
affirmatively show the competence of the affiant to testify on
the matters contained therein (Sec. 1, Rule 9, Rules on Elec-
tronic Evidence).
The affiant shall be made to affirm the contents of the
affidavit in open court and may be cross-examined as a matter
of right by the adverse party (Sec. 2, Rule 9, Rules on Electronic
Evidence).
- oOo-
Chapter Ill
JUDICIAL NOTICE AND JUDICIAL
ADMISSIONS
Ir
I
A. Judicial Notice
1. The relevant provisiOns on judicial notice under
Rule 129 provide:
"SECTION 1. Judicial notice, when mandatory. -A
court shal! take judicial notice, without the introduction
of evidence, of the existence and territorial extent of
states, their political history, forms of government and
symbols of nationality, the law of nations, the admiralty
and maritime courts of the world and their seals, the
political constitution and history of the Philippines, the
official acts of the legislative, executive and judicial
departments of the Philippines, the laws of nature, the
measure of time, and the geographical divisions.
SEC. 2. Judicial notice, when discretionary. - 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.
SEC. 3. Judicial notice, when hearing necessary.
- During the trial, the court, on its own initiative, or on
request of a party, may announce its intention to take
judicial notice of any matter and allow the parties to be
heard thereon.
@,
After the trial, and before judgment or on appeal,
~,i{
"~::.·
~·.~:
the proper court, on its own initiative or on request of
--~" a party, may take judicial notice of any matter and allow
the parties to be heard thereon if such matter is decisive
of a material issue in the case."
73

74 EVIDENCE
(The Bar Lectures Series)
2. There are matters in a litigation which must be
admitted without need for evidence. For example, when the
complainant in a criminal case alleges that he was assaulted
by the accused in Quezon City, it would be ridiculous to
require the prosecution to prove that a place called Quezon
City exists. Also, if the accused is charged with the violation
of a statute, there is no need to introduce evidence that said
statute exists because the court is charged with knowledge of
the law, it being the product of an official act of the legislative
department of the Philippines.
There is, likewise, no need to adduce evidence to prove
that there are twenty-four (24) hours in a day or that the sun
rises in the east and sets in the west. The fact that Cebu lies
in the Visayan region needs no further evidence. To require
evidence for such obvious facts would be totally absurd. Now,
all these matters which the court may take cognizance of
without evidence are called matters of "judicial notice."
3. Judicial notice is based on the maxim, "what is
known need not be proved"; hence, when the rule is invoked,
the court may dispense with the presentation of evidence on
judicially-cognizable facts (Thayer, Preliminary Treatise on
Evidence, p. 277 cited in Jones, The Law on Evidence in Civil
Cases, Volume I, 3rd Ed.).
4. The taking of judicial notice is a matter of expedi-
ency and convenience for it fulfills the purpose that the evi-
dence is intended to achieve, and in this sense, it is equivalent
to proof (Land Bank of the Philippines v. Yatco Agricultural
Enterprises, G.R. No. 172551, January 15, 2014).
Function of judicial notice
Judicial notice takes the place of proof and is of equal
force. It displaces evidence and fulfills the purpose for which
the evidence is designed to fulfill. Hence, it makes evi-
dence unnecessary (Moran, Comments on the Rules of Court,
1980, p. 38 citing Alzua v. Johnson, 21 Phil. 308). When
the court takes judicial notice of a matter, ·the court accepts
and recognizes the same without necessity of formal proof.
L
!i CHAPTER III - JUDICIAL NOTICE AND JUDICIAL ADMISSIONS
A. Judicial Notice
75
r:
[i Evidence shall be dispensed with because the matter is so well
i. known and is of common knowledge not to be disputable.
1
When judicial notice is mandatory
1. A matter of judicial notice may either be mandatory
(Sec. 1, Rule 129, Rules of Court) or discretionary (Sec. 2,
Rule 129, Rules of Court). vVhen the matter is subject to a
i mandatory judicial notice, no motion or hearing is necessary
for the court to take judicial notice of such matter because it is
~
what it says it is- "mandatory."
2. The following are matters subject to mandatory
judicial notice:
(a) existence and territorial extent of states;
(b) political history, forms of government and
symbols of nationality of states;
(c) law of nations;
(d) admiralty and maritime courts of the world and
their seals;
(e) political constitution and history of the Philip-
t pmes;
(f) official acts of the legislative, executive and
judicial departments of the Philippines;
(g) laws of nature;
(h) measure of time; and
(i) geographical divisions.
3. It would be error for a court not to take judicial
notice of an amendment to the Rules of Court. In a case, the
Supreme Court declared that even if petitioners did not raise
or allege the amendment of the Rules of Court in their motion
for reconsideration before it, the Court of Appeals should
have taken mandatory judicial notice of the Supreme Court's
resolution in A.M. No. 00-02-03-SC amending Sec. 4 of Rule
65, effective September 1, 2000. Under Sec. 1 of Rule 129, a
court shall take judicial notice, among others, of the official
l
 76 EVIDENCE
(The Bar Lectures Series)
acts not only of the legislative and executive departments but
also of the judicial department (Siena Realty Corporation v.
Gal-lang, 428 SCRA 422).
It is axiomatic that a court has the mandate to apply
relevant statutes and jurisprudence in determining whether
the allegations in a complaint establish a cause of action.
While it focuses on the complaint, a court clearly cannot
disregard decisions material to the proper appreciation of the
questions before it. In resolving the motion to dismiss, the trial
court should have taken cognizance of the official acts of the
legislative, executive, and judicial departments because they
are proper subjects of mandatory judicial notice as provided
by Sec. 1 of Rule 129 of the Rules of Court (DENR v. DENR
Region 12 Employees, 409 SCRA 359).
4. In a case questioning the title of the University of
the Philippines to certain lots, the Court rii.led that the lower
courts should take judicial notice of the fact that Congress
and the Supreme Court have both officially recognized the
university's indefeasible title to its landholdings. The official
acts of the legislative, executive and judicial departments
of the Philippines are matters of mandatory judicial notice
(Republic of the Philippines v. Rosario, G.R. No. 186635,
January 27, 2016).
When judicial notice is discretionary (Bar 2012)
1. Under the pri:odple 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" (Sec. 2, Rule 129, Rules of Court).
2. The principal guide in determining what facts may
be assumed to be judicially-known is that of notoriety. Hence,
it can be said that judicial notice is limited to facts evidenced
by public records and facts of general notoriety. Moreover, a
judicially-noticed fact must be one not subject to a reasonable
dispute in that it is either: (1) generally known within the
territorial jurisdiction of the trial court; or (2) capable of
lj CHAPTER III - JUDICIAL NOTICE AND JUDICIAL ADMISSIONS 77
A. Judicial Notice
1:·
!:
!. accurate and ready determination by resorting to sources
1: whose accuracy cannot reasonably be questionable.
r•
I! "Things of 'common knowledge,' of which courts take
1:
II! judicial notice of, are matters coming to the knowledge of
men generally in the course of the ordinary experiences of
!·r
'·.·!
life, or they may be matters which are generally accepted by
il mankind as true and are capable of ready and unquestioned
i;, demonstration. Thus, facts which are universally known, and
which may be found in encyclopedias, dictionaries or other
:'·{
publications, are judicially noticed, provided, they are of such
"~f universal notoriety and so generally understood that they
r
~' may be regarded as forming part of the common knowledge
of every person. As the common knowledge of man ranges
l
far and wide, a wide variety of particular facts have been
judicially noticed as being matters of common knowledge. But
a court cannot take judicial notice of any fact which, in part, is
dependent on the existence or non-existence of a fact of which
I
the court has no constructive knowledge" (Expertravel and
Tours, Inc. v. Court of Appeals, 459 SCRA 147).
3. The power to take judicial notice is to be exercised
by courts with caution especially in an expropriation case
which involves a vast tract of land. Care must be taken that
fl. the requisite notoriety exists; and every reasonable doubt on
the subject should be promptly resolved in the negative. (Land
Bank of the Philippines v. Wycoco, 419 SCRA 67).
In Wycoco, the trial court, in arriving at the valuation of
the land, took judicial notice of the alleged prevailing market
value of agricultural lands in the place without apprising the
parties of its intention to take judicial notice thereof despite
the requirement of a hearing under Sec. 3, Rule 129 of the
Rules on Evidence.
The Supreme Court, in the same case, held that, inas-
much as the valuation of the property is the very issue in the
case at bar, the trial court should have allowed the parties
to present evidence thereon instead of practically assuming a
valuation without basis.
 78 EVIDENCE
(The Bar Lectures Series)
Judicial notice and knowledge of the judge (Bar 1980; 2011)
1. Judicial notice may be taken of a fact which judges
ought to know because of their judicial functions (Sec. 2, Rule
129, Rules of Court).
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, as
the basis of his action (State Prosecutors v. Muro, 236 SCRA
505; Land Bank of the Philippines v. Wycoco, supra).
2. Judicial notice is not limited by the actual knowl-
edge ofthe individual judge or court. Ajudge must take judi-
cial notice of a fact if it is one which is the proper subject of
judicial cognizance even if it is not within his personal knowl-
edge. Consequently, a judge may not take judicial notice of a
fact which he personally knows if it is not part of the evidence
or not a fact generally known within its territorial jurisdiction
(29 Am Jur, Evidence, §35; Moore v. Dresden Investment Co.,
162 Wash, 289, 298 Pac. 465, 77 A.L.R. 1258 cited in Jones,
The Law of Evidence in Civil Cases, Vol. 1, §132).
Stage when judicial notice may be taken
The court can take judicial notice of a fact during or after
I
trial pursuant to the procedure in Sec. 3 of Rule 129 of the
Rules of Court, as follows:
1. Judicial notice may be taken during the trial of the
case. The court, during the trial, may announce its intention
to take judicial notice of any matter. It may do so on its own
initiative or on the request of any party and allow the parties
to be heard (Sec. 3, Rule 129, Rules of Court).
2. Judicial notice may also be taken by the proper court
after the trial, and before judgment. Judicial notice may also
be taken on appeal. The proper court, on its own initiative or
on request of a party, may take judicial notice of any matter
and allow the parties to be heard thereon -if such rna tter is
decisive of a material issue in the case (Ibid.).
CHAPTER III - JUDICIAL NOTICE AND JUDICIAL ADMISSIONS 79
A. Judicial Notice
Judicial notice of foreign laws; doctrine of processual
presumption (Bar 1997; 2005; 2011}
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. Australian marital
laws, for example, are not among those matters that judges
are supposed to know by reason of their judicial functions
(Garcia v. Garcia-Recio, 366 SCRA 437; Vda. de Catalan v.
Catalan-Lee, 665 SCRA 487, 496, February 8, 2012). Thus, a
party who wants to have a foreign law applied to a dispute or
case has the burden of proving the foreign law (Del Socorro v.
Van Wilsem, G.R. No. 193707, December 10, 2014).
In general, and in the absence of statutory requirement
to the contrary, the courts of the forum will not take judicial
notice of the law prevailing in another country (29 Am Jur,
Evidence, §116). 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 (Northwest Orient Air-
lines v. Court of Appeals, 241 SCRA 192).
For instance, the Court cannot determine whether the
termination of plaintiff is in accordance with Singaporean law
because of the failure to prove the applicable law of Singapore.
Philippine courts do not take judicial notice of foreign laws.
In the absence of evidence of the law of the foreign country,
Philippine laws should be applied under the doctrine of
processual presumption (Laureano v. Court of Appeals, 324
SCRA414).
2. It was, however, held that where the foreign law is
within the actual knowledge of the court, such as when the
law is generally well-known, had been ruled upon in previous
cases before it, and none of the parties claim otherwise, the
court may take judicial notice of the foreign law (PCIB v.
Escolin, 56 SCRA 266).
Judicial notice of the law of nations
When the foreign law refers to the law of nations, said
law is subject to a mandatory judicial notice under Sec. 1 of
 80 EVIDENCE
(The Bar Lectures Series)
Rule 129. Under the Philippine Constitution, the Philippines
adopts the generally-accepted principles of international law
as part of the law of the land (Sec. 2, Art. II, Constitution of
the Philippines). Being parts of the law of the land, they are,
therefore, technically, in the nature of local laws and, hence,
subject to a mandatory judicial notice under Sec. 1 of Rule
129.
Judicial notice of municipal ordinances (Bar 2005; 2011)
1. Municipal trial courts should take judicial notice of
municipal ordinances in force in the municipality in which
they sit (U.S. u. Blanco, 37 Phil. 126).
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 ofthe City of Manila
requires all courts sitting therein to take judicial notice of
all ordinances passed by the city council (City of Manila u.
Garcia, 19 SCRA 413). The RTC must take judicial notice
also of municipal ordinances in cases on appeal to it from the
inferior court in which the latter took judicial notice of (U.S.
u. Hernandez, 31 Phil. 342; U.S. u. Blanco, supra; Moran,
Comments on the Rules of Court, 1980, p. 42).
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 (Gallego u. People, 8 SCRA
813).
Judicial notice of a court's own acts and records
A court will take judicial notice of its own acts and records
in the same case (Republic u. Court ofAppeals, 277 SCRA 633).
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
CHAPTER III - JUDICIAL NOTICE AND JUDICIAL ADMISSIONS 81
A. Judicial Notice
authorized to take judicial notice ofthe 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 (Land Bank of the Philippines v. Yatco
Agricultural Enterprises, G.R. No. 172551, January 15, 2014).
2. The following are the exceptions to the rule in the
immediately preceding paragraph: (a) when, in the absence of
any objection and 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 (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 (Tabuena u. Court of Appeals, 196 SCRA
650; People u. Mendoza, 204 SCRA 288; Jumamil u. Cafe, 470
SCRA 475; Calamba Steel Center, Inc. u. Commissioner of
Internal Revenue, 457 SCRA 482).
Judicial notice of proprietary acts of government-owned
and controlled corporations
A management contract entered into by a government-
owned and controlled corporation like that involving the
Philippine Ports Authority is not among the matters which
the courts can take judicial notice of. It cannot be considered
an official act of the executive department because it was
entered into while performing a proprietary function (Asian
Terminals, Inc. u. Malayan Insurance Co., Inc., 647 SCRA
111, 130-131, April4, 2011).
Judicial notice of post office practices
That a registered letter when posted is immediately
stamped with the date of its receipt, indicating therein the
number of the registry, both on the covering envelope itself
~ and on the receipt delivered to the person who delivered the
letter to the office is not a proper subject of judicial notice.
I
'
'
 82 EVIDENCE
(The Bar Lectures Series)
This post office practice is not covered by any of the instances
under the Ru1es and is not of unquestionable demonstration
(Republic v. Court of Appeals, 107 SCRA 504).
Judicial notice of banking practices
May judicial notice be taken of the practice of banks in
conducting background checks on borrowers and sureties?
While a court is not mandated to take judicial notice of
this practice under Sec. 1 of Rule 129 of the Rules of Court,
IJ
it, nevertheless, may do so under Sec. 2 of the same rule on
discretionary judicial notice. Sec. 2 of Rule 129 provides that a
court may take judicial notice of "matters which are of public
knowledge, or ought to be known to judges because of their
judicial functions." Thus, the Court has taken judicial notice
of the practices of banks ·and other financial institutions.
Precisely, it has noted that it is their uniform practice, before
approving a loan, to investigate, examine and assess would-be
borrowers' credit standing or real estate offered as security
for the loan applied for (Solidbank Corporation v. Mindanao
Ferroalloy Corporation, 464 SCRA 409).
Judicial notice of the financial condition of the government
Judicial notice could be taken of the fact that the
government is and has for many years been financially
strapped, to the point that even the most essential services
have suffered serious curtailment (La Bugal-B'laan Tribal
Association v. Ramos, 445 SCRA 1).
Judicial notice of presidential powers
The trial court should take judicial notice of R.A.
No. 6734, as implemented by E.O. No. 429, as legal basis of
the President's power to reorganize the executive depart-
ment. The official acts of the legislative, executive and judicial
departments are proper subjects of mandatory judicial notice
(DENR v. DENR Region 12 Employees, 409 SCRA 359).
} (Doughlas v. Lopez, 325 SCRA 129).
::h
CHAPTER Ill - JUDICIAL NOTICE AND JUDICIAL ADMISSIONS 83
A. Judicial Notice
Judicial notice of other matters
1. Courts cannot take judicial notice of the assessed
value of a realty (Penta Pacific Realty Corporation v. Ley
' ,! Construction and Development Corporation, 741 SCRA 426).
J
l: 2. It is a matter of judicial notice that an overseas
t1 worker bears a great degree of emotional strain while making
>
':'
~
:~
an effort to perform his work well (Fil-Pride Shipping
Company, Inc. v. Balasta, G.R. No. 193047, March 3, 2014;
Magsaysay Mitsui OSK Marine, Inc. v. Bengson, 738 SCRA
184).
3. A court cannot take judicial notice of an administra-
tive regulation or of a statute that is not yet effective. The
reason is simple. A law which is still inexistent cannot be
of common knowledge capable of ready and unquestionable
demonstration (State Prosecutors v. Muro, 236 SCRA 505).
4. MTC and MCTC judges may act as notaries public
ex officio in the notarization of documents connected only
with the exercise of their official functions and duties (Borre
v. Mayo, Adm. Matter 1765-CFI, 100 SCRA 314; Penera v.
Dalocanog, Adm. Matter 2113-MJ, 104 SCRA 193). They may
not, as notaries public ex officio, undertake the preparation
and acknowledgment of private documents, contracts and
other acts of conveyances which bear no direct relation to the
performance of their functions as judges.
However, the Court, taking judicial notice ofthe fact that
there are still municipalities which have neither lawyers nor
notaries public, ruled that MTC and MCTC judges assigned
to municipalities or circuits with no lawyers or notaries public
may, in their capacities as notaries public ex officio, perform
any act within the competency of a regular notary public,
provided that: (1) all notarial fees charg~d be for the account
of the Government and turned over to the municipal treasurer
(Lapena, Jr. v. Marcos, 114 SCRA 572); and (2) certification
be made in the notarized documents attesting to the lack of
any lawyer or notary public in such municipality or circuit

84 EVIDENCE
(The Bar Lectures Series)
5. It must be emphasized that the circumstances of
minority and relationship mentioned in the Revised Penal
Code are special qualifying circumstances which must be
alleged in the information and duly proven by the prosecution.
Here, although the minority of the victim was properly
alleged in the information, there is insufficient evidence of
private complainant's age. The trial court erred when it took
judicial notice of private complainant's age to be fourteen. It
should have required competent evidence, such as her birth
certificate, as proof of the victim's actual age at the time of
the commission of the offense (People v. Metin, 403 SCRA 105
[2003]).
6. In this age of modern technology, the courts may
take judicial notice that business transactions may be made
by individuals through teleconferencing. Teleconferencing is
interactive group communication (three or more people in two
or more locations) through an electronic medium. In general
terms, teleconferencing can bring people together under one
roof even though they are separated by hundreds of miles.
This type of group communication may be used in a number
of ways, and have three basic types: (1) video conferencing
- television-like communication augmented with sound; (2)
computer conferencing - printed communication through
keyboard terminals; and (3) audio-conferencing - verbal
communication via the telephone with optional capacity for
telewriting or telecopying. Although judicial notice may be
taken of teleconferencing as a means of making business
transactions, there is no judicial notice that one was conducted
in a particular case (Expertravel and Tours, Inc. v. Court of
Appeals, 459 SCRA 147).
7. It can be judicially noticed that the scene of the rape
is not always nor necessarily isolated or secluded, for lust is
no respecter of time or place. The offense of rape can and has
been committed in places where people congregate, e.g., inside
a house where there are occupants, a five (5)-meter room with
five (5) people inside, or even in the same room which the
victim is sharing with the accused's sister (People v. Tundag,
342 SCRA 704).
\
l
;.-~
CHAPTER III - JUDICIAL NOTICE AND JUDICIAL ADMISSIONS 85
A. Judicial Notice
8. The trial court properly took judicial notice that
Talamban, Cebu City is an urban area. Judicial notice is the
cognizance of certain facts which judges may properly take
and act on without proof because they already know them. A
municipal jurisdiction, whether designated as chartered city
or provincial capital, is considered as urban in its entirety
if it has a population density of at least 1,000 persons per
square kilometer. The City ofCebu was created on October 20,
1934 under Commonwealth Act 58. It is a highly urbanized
city classified as entirely urban. Thus, all its barangays,
including Talamban, are considered urban (Chiongbian-Oliva
v. Republic, 522 SCRA 599).
9. It is of judicial notice that the judiciary is beset with
the gargantuan task in unclogging dockets, not to mention
,}.!
;I
the shortage of judges occupying positions in far-flung areas.
iil Apart from presiding in the trial of cases, justices and judges
r.;
are required to resolve the same within a prescribed period
mandated by law (Government Service Insurance System v.
Vallar, 536 SCRA 620).
10. Judicial notice can be taken of the fact that
testimonies during trial are much more exact and elaborate
than those stated in sworn statements, usually being
incomplete and inaccurate for a variety of reasons, at times
1 because of partial and innocent suggestions or for want of
1:
f specific inquiries (Estioca v. People, 556 SCRA 300). It is of
[ judicial notice that sworn statements are almost always
I incomplete, often inaccurate and generally inferior to the
l testimony of witness in open court (People v. Sorila, Jr., 556
!' SCRA392).
11. The Supreme Court has taken judicial notice of
I'
;il scientific findings that drug abuse can damage the mental
faculties of the user - it is beyond question, therefore, that
'l,
any employee under the influence of drugs cannot possibly
li continue doing his duties without posing a serious threat to
"'i,
~0 the lives and property ofhis co-workers and even his employer
:F:·
[·~
(Bughaw, Jr. v. Treasure Island Industrial Corporation, 550
i'~
1:t
SCRA307). .
.i
l~ii;
 86 EVIDENCE
(The Bar Lectures Series)
12. It is a matter of judicial knowledge that persons
have killed or committed serious offenses for no reason at all
(People v. Zeta, 549 SCRA 541).
13. If, counsel moves to another address without
informing the court of that change, such omission or neglect
is inexcusable and will not stay the finality of the decision.
The court cannot be expected to take judicial notice of the new
address of a lawyer who has moved, or ascertain, on its own
whether or not the counsel of record has been changed and
who the new counsel could possibly be or where he probably
resides or holds office (Karen and Khristy Fishing Industry v.
Court of Appeals, 536 SCRA 243).
14. Notwithstanding a person's standing in the business
community, the court cannot take judicial notice of said
person's home address or office after his departure from
the government as a cabinet member (Garrucho v. Court of
Appeals, 448 SCRA 165).
B. Judicial Admissions
1. Under Sec. 4 of Rule 129, judicial admissions are
described and defined as follows:
"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."
2. Ajudicial admission requires no proof(Commissioner
of Internal Revenue v. Petron, 668 SCRA 735, 758, March
21, 2012). They are legally binding on the party making the
admission (Eastern Shipping Lines v. BPI I MS Insurance
Corporation, G.R. No. 182864, January 12, 2015).
3. To be a judicial admission under Sec. 4 of Rule 129,
certain elements must be considered:
CHAPTER III - JUDICIAL NOTICE AND JUDICIAL ADMISSIONS 87
B. Judicial Admissions
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
J made in another judicial proceeding will not be deemed a
t' judicial admission in another case where the admission was
not made. Instead, it will be considered an extrajudicial
admission for purposes of the other proceeding where such
admission is offered.
It has been held that "... To be considered as a judicial
admission, the same must be made in the same case in which
it is offered" (Programme Incorporated v. Province of Bataan,
492 SCRA 529; Camitan v. Fidelity Insurance Corporation,
551 SCRA 540).
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 written admission.
4. The stipulation of facts at the pre-trial of a case
constitutes judicial admissions. The veracity of judicial
admissions requires no further proof and may be controverted
only upon a clear showing that the admissions were made
through palpable mistake or that no admissions were made.
Thus, the admissions of parties during the pre-trial, as
embodied in the pre-trial order, are binding and conclusive
upon them (Cuenca v. Talisay Tourist Sports Complex, 569
SCRA 616).
5. A party may make judicial admissions in (a) the
pleadings, (b) during trial, either by verbal or written mani-
festations or stipulations, or (c) in other stages of the judicial
proceedings (Manzanila v. Waterfields .Industries Corpora-
tion, G.R. No. 177484, July 18, 2014).
Admissions in pleadings and motions (Bar 2011)
1. Admissions made in the pleadings of a party are
deemed judicial admissions (Ching v. Court of Appeals, 331

88 EVIDENCE
(The Bar Lectures Series)
SCRA 16). The admission includes those made in the com-
plaint (Delfin v. Billones, 485 SCRA 38).
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 (Herrera-Felix v. Court of Appeals,
436 SCRA 87).
3. An admission in the answer to the complaint takes
on the character of a judicial admission contemplated in Sec. 4,
Rule 129 of the Rules of Court. A judicial admission conclusi-
vely binds the party making it. He cannot thereafter contradict
it. The exception is found only in those rare instances when
the trial court, in the exercise of its discretion and because
of strong reasons to support its stand, may relieve a party
from the consequences of his admission. A party cannot
subsequently take a position contrary to, or inconsistent with,
his pleadings (Heirs of Pedro Clemefia v. Heirs of Irene B.
Bien, 501 SCRA 405).
4. An admission made in a pleading may be an actual
admission as when a party categorically admits a material
allegation made by the adverse party. An admission may,
likewise, be inferred from the failure to specifically deny
the material allegations in the other party's pleadings. The
rules of civil procedure, for example, require a defendant to
specifically deny the material averments of the other party.
"Material averments in the complaint, other than those
as to the amount of unliquidated damages, shall be deemed
admitted when not specifically denied ... " (Sec. 11, Rule 8,
Rules of Court).
5. In one case, the petitioner argued that the lower
courts erred in admitting certain text messages he sent des-
pite the failure of the offeror to authenticate such messages.
The record, however, discloses his having admitted to have
sent the text messages. The Court ruled that, any question as
to the admissibility of the messages as evidence is rendered
moot and academic if the party raising such issue admits the
: :
!
CHAPTER III - JUDICIAL NOTICE AND JUDICIAL ADMISSIONS 89
'' B. Judicial Admissions
1f authorship ofthe same (BBB u. AAA, G.R. No.193225, Febru-
( ary 9, 2015).
L 6. Admissions, however, made in drafts of pleadings
not yet filed are obviously not judicial admissions because
they are not parts of the records of the case.
Averments in pleadings which are not deemed admissions
There are averments in the pleadings which are not
deemed admitted even if the adverse party fails to make a
specific denial of the same like immaterial allegations (Sec. 11,
Rule 8, Rules of Court), conclusions, non-ultimate facts in the
pleading (Sec. 1, Rule 8, Rules of Court) as well as the amount
of unliquidated damages (Sec. 11, Rule 8, Rules of Court).
Implied admissions of allegations of usury
Under Sec. 11 of Rule 8, if the complaint makes an
allegation of usury to recover usurious interest, the defendant
must not only specifically deny the same but must, likewise,
t
do so under oath. Failure to make the proper denial under
I
oath would involve an implied admission of the allegation of
usury.
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 (Sec. 8, Rule 8, Rules of Court;
Philippine National Bank u. Refrigeration Industries, Inc.,
479 SCRA 240).
2. The failure to deny the genuineness and due execu-
tion of an actionable document does not preclude a party from
arguing against the document by evidence of fraud, mistake,
compromise, payment, statute of limitations, estoppel, and
want of consideration (Acabal v. Acabal, 454 SCRA 555; Phil-
ippine National Bank v. Refrigeration Industries, Inc., 479
90 EVIDENCE
(The Bar Lectures Series)
SCRA 240). He is, however, precluded from arguing that the
document is a forgery because the genuineness of the docu-
ment has been impliedly admitted by his failure to deny the
same under oath.
Admissions in the pre-trial of civil cases
1. One ofthe purposes of a pre-trial in a civil case is for
the court to consider the possibility of obtaining stipulations
or admissions of facts (Sec. 2[d], Rule 18, Rules of Court). A
pre-trial is mandatory (Sec. 2, Rule 18, Rules of Court) and
because it is mandatory, it is an important part of a civil
proceeding. 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.
2. Admissions made in a stipulation offacts by the par-
ties in the pre-trial are treated as judicial admissions (East-
ern Shipping Lines, Inc. v. BPI I MS Insurance Corporation,
G.R. No. 182684, January 12, 2015). For instance, petitioner's
admission as to the execution of the promissory note at the
pre-trial sufficed to settle the question of the genuineness of
the signatures therein. The admission, having been made in a
stipulation of facts at pre-trial by the parties, must be treated
as a judicial admission (SCC Chemicals Corporation v. Court
of Appeals, 353 SCRA 70).
Admissions in the pre-trial of criminal cases (Bar 2008)
1. Although an admission made during the pre-trial
is deemed to have been made in the course of a judicial pro-
ceeding 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 con-
ditions set forth by Sec. 2 of Rule 118 must be complied with.
The pertinent rule provides:
"SEC. 2. Pre-trial agreement. - All agreements
or admissions made or entered during the pre-trial
conference shall be reduced in writing and signed by
CHAPTER III - JUDICIAL NOTICE AND JUDICIAL ADMISSIONS 91
B. Judicial Admissions
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 pre-trial conference to be reduced in
writing and signed by the accused and his counsel before the
same may be used in evidence against the accused), equally
apply to stipulation of facts made during the trial?
In resolving the question in the negative, the Supreme
Court ruled:
I
"A stipulation of facts entered into by the prose-
cution and defense counsel during trial in open court
i is automatically reduced in writing and contained in
the official transcript of proceedings had in court. The
I conformity of the accused in the form of his signature
I affixed thereto is unnecessary in view of the fact ... that
I an attorney who is employed to manage a party's conduct
t
i of a lawsuit ... has prima facie authority to make relevant
admissions by pleadings, by oral or written stipulation ...
which, unless allowed to be withdrawn are conclusive. In
fact judicial admissions are frequently those of counsel
or of the attorney of record, who is, for the purpose ofthe
trial, the agent of his client. When such admissions are
made, ... they bind the client ... " (People v. Hernandez, 206
SCRA 25; Silot v. De la Rosa, 543 SCRA 533).
Implied admissions in the modes of discovery (Bar 1984)
f 1. Admissions obtained through depositions, written
r interrogatories or requests for admission are also considered
! judicial admissions (Programme Incorporated v. Province of
Bataan, 492 SCRA 529). The filing of written interrogatories
l( under Rule 25 and request for admission by adverse party
under Rule 26, is mandatory in civil cases. Within one day
If
('
.
from the receipt of the complaint, aside from the preparation
of the required summons, the court shail issue an order
requiring the parties to avail of Rules 25 and 26 (l[A][I][.2],
f'
A.M. No. 03-1-09-SC, July 13, 2004).
2. Under Sec. 1 of Rule 26 ofthe Rules of Court, a party
may, at any time after the issues have been joined, file and
 92 EVIDENCE
(The Bar Lectures Series)
serve upon any other party a written request for the admission
by the latter of the genuineness of any material and relevant
document described in and exhibited with the request. The
request for admission may also be of the truth of any material
and relevant matter of fact set forth in the request.
The party to whom the request is directed must file and
serve, upon the party requesting the admission, a sworn
statement either denying specifically the matters of which an
admission is requested or setting forth in detail the reasons
why he cannot truthfully either admit or deny those matters.
The sworn statement must be filed and served within the
period designated in the request which shall not be less than
fifteen (15) days after service thereof, or within such further
time as the court may allow on motion. If the sworn statement
required is not filed and served, each of the matters of which
an admission is requested shall be deemed admitted (Sec. 2,
Rule 26, Rules of Court).
3. Under Sec. 3 of Rule 26, any admission made
pursuant to the request for admission is for the purpose of the
pending action only. The admission shall not be considered as
one for any other purpose nor may the same be used against
him in any other proceeding.
Admissions in amended pleadings (Bar 2011}
When a pleading is amended, the amended pleading
supersedes the pleading that it amends and the admissions in
the superseded pleading may be received in evidence against
the pleader (Sec. 8, Rule 10, Rules of Court).
Nature of admissions in superseded pleadings
It has been held that the admissions in a superseded
pleading are to be considered as extrajudicial admissions
which must be proven. The Supreme Court declared that
pleadings that have been amended disappear from the re-
cord, lose their status as pleadings, and cease to be judicial
admissions, and to be utilized as extrajudicial admissions,
they must, in order to have such effect, be formally offered in
CHAPTER Ul - JUDICIAL NOTICE AND JUDICIAL ADMISSIONS 93
B. Judicial Admissions
evidence (Torres u. Court of' Appeals, 131 SCRA 24; Ching v.
Court o{ Appeals, 331 SCRA 16).
Admissions in dismissed pleadings
Admissions made in pleadings that have been dismissed
are merely extrajudicial admissions (Servicewide Specialists,
Inc. u. Court of Appeals, 257 SCRA 643).
Sworn statement of a proposed state witness
If the motion to discharge an accused as a state witness
is denied, his sworn statement, submitted to support the
motion, shall be inadmissible in evidence (Sec. 17, Rule 119,
Rules of Court).
Admissions by counsel
Admissions by a counsel are generally conclusive upon
a client (De Garcia v. Court o{ Appeals, 37 SCRA 129). Even
the negligence of counsel binds the client (Sarraga u. Banco
Filipino Savings & Mortgage Bank, 393 SCRA 566).
This rule is not, however, without exception. In cases
where reckless or gross negligence of counsel deprives the
client of due process of law, or when its application will result
in outright deprivation of the client's liberty or property, or
when the interests of justice so require, relief is accorded the
client who suffered by reason of the lawyer's gross or palpable
mistake or negligence (Salazar u. Court of Appeals, 376 SCRA
459; Silot v. De la Rosa, 543 SCRA 533).
Effect of judicial admissions
1. Judicial admissions are legally binding on the
party making the admissions (Noynay v. Citihomes Builder
and Development, Inc., 735 SCRA 708). It is an established
principle that judicial admissions cannot be contradicted by
the admitter who is the party himself and binds the person
who makes the same, absent any showing that this was made
through palpable mistake, no amount of rationalization can
offset it (Philippine Charter Insurance Corporation v. Central
94 EVIDENCE
(The Bar Lectures Series)
Colleges of the Philippines, 666 SCRA 540, 553, February 22,
2012; De la Peiia v. Avila, 665 SCRA 553, 567, February 8,
2012; Commissioner of Internal Revenue v. Manila Electric
Company [MERALCO], G.R. No. 181459, June 9, 2014).
A party who judicially admits a fact cannot later chal-
lenge that fact, as judicial admissions are a waiver of proof;
production of evidence is dispensed with. A judicial admis-
siori removes the admitted fact from the field of controversy.
Consequently, an admission made in the pleadings cannot
be controverted by the party making such admission, and is
conclusive to such party, and all proofs to the contrary or in-
consistent therewith should be ignored, whether objection is
interposed or not. The allegations, statements or admissions
contained in a pleading are conclusive as against the pleader.
A party cannot subsequently take a position contrary to or
inconsistent with what was pleaded (Eastern Shipping Lines,
Inc. v. BPI I MS Insurance Corporation, G.R. No. 182864,
January 12, 2015).
The reason for the above rulings is found under the
doctrine of estoppel. Under the doctrine, an admission or
representation is rendered conclusive upon the person
making it, and cannot be denied or disproved as against the
person relying thereon (Manzanilla v. Waterfields Industrial
Corporation, G.R. No. 177484, July 18, 2014).
2. The trial court may reject evidence that a party
adduces to contradict a judicial admission he made in
his pleading since such admission is conclusive as to him
(Equitable Cardnetwork, Inc. v. Capistrano, 665 SCRA 454,
465, February 8, 2012). The judicial admission removes an
admitted fact from the field of controversy (Josefa v. Manila
Electric Company, G.R. No. 182705, July 18, 2014).
3. No evidence is needed to prove a judicial admission
and it cannot be contradicted unless it is shown to have been
made through palpable mistake or that no such admission
was made (Arroyo, Jr. v. Taduran, 421 SCRA 423) but despite
the presence of judicial admissions in a party's pleading, the
trial court is still given leeway to consider other evidence
CHAPTER III - JUDICIAL NOTICE AND JUDICIAL ADMISSIONS 95
B. Judicial Admissions
presented (Santos v. Lumbao, 519 SCRA 408 citing Atillo
v. Court of Appeals, 266 SCRA 596; Philippine Health-Care
Providers, Inc. v. Estrada/Cara Health Services, 542 SCRA
616) because said admissions may not necessarily prevail
over documentary evidence (Asean Pacific Planners v. City of
Urdaneta, 566 SCRA 219).
4. 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.
How judicial admissions may be contradicted
1. Sec. 4 of Rule 129 provides for either of two ways to
contradict ajudicial admission, namely:
(a) by showing that the admission was made
through palpable mistake, or
(b) by showing that no such admission was made.
The mistake that would relieve a party from the effects
:l of his admission is not any mistake. It must be one that is
4 "palpable," a mistake that is "clear to the mind or plain to see"
:q
(New Oxford American Dictionary, 2001 Ed., p. 1232). It is a
mistake that is "readily perceived by the senses or the mind"
r (Oxford English Reference, Second Edition, Revised, 2002,
p. 1049).
2. A party may also argue that he made "no such ad-
mission." This argument may be invoked when the statement
of a party is taken out of context or that his statement was
made not in the sense it is made to appear by the other party
Here, the party upon whom the admission is imputed does
not deny making a statement. What he denies is the meaning
attached to his statement, a meaning made to appear by the
adverse party as an admission.
The Committee on the Revision of the Rules of Court
explained the second exception in this wise:
96 EVIDENCE
(The Bar Lectures Series)

"... if a party invokes an 'admission' by an adverse

party, but cites the admission 'out of context,' then the
one making the 'admission' may show that he made no
'such' admission, or that his admission was taken out of Chapter IV
context.
"... that the party can also show that he made no
OBJECT AND DOCUMENTARY EVIDENCE
'such admission,' i.e., not in the sense that the admission
is. made to appear. A. Object Evidence
(Rule 130)
That is the reason for the modifier 'such' because if the
rule simply states that the admission may be contradicted Nature of object evidence
by showing that 'no admission was made,' the rule would
not really be providing for a contradiction of the admission 1. Object or real evidence, as defined by the Rules of
but just a denial" (Atillo v. Court of Appeals, 266 SCRA 596; Court, refers to evidence that is addressed to the senses of the
Sicam v. Jorge, 529 SCRA 443). court.

"SECTION 1. Object as evidence. - Objects as

- oOo ,.--- 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."

2. Object evidence does not refer to the perception of

the witness and a recollection of that perception. It is not a
reconstruction of past events as related by a witness on the
stand. Real or object evidence is not a verbal description of
something. It is not a replica or a mere representation of
something. Object or real evidence is exactly what its name
suggests. It is the real thing itself like the knife used to slash
the victim's throat, the ring actually stolen by the accused, the
bullet extracted from the victim's chest, the mangled fender
· of a truck that was rear-ended by a bulldozer, or the blood
splattered on the wall of the room where the victim was found.
It consists of tangible things like a gun, a broken glass, a piece
of bloody clothing or the defective ladder that caused the fall
of the plaintiff.
Object or real evidence appeals directly to the senses of
the court. Instead of relying on the recollection of the witness,

97
 98 EVIDENCE
(The Bar Lectures Series)
an object evidence will enable the court to have its own first-
hand perception of the evidence. If the court wants to know
whether or not the bolo used in the crime is long or short, big
or small, sharp or blunted, the object evidence would be the
bolo itself.
3. Object evidence could have a very persuasive effect
on the part of the court. A display of one's injury is very
powerful. No one can dispute a missing arm or a severed leg.
No other evidence is necessary to establish the injury.
Even a human being may be a form of real evidence.
Where the racial characteristics of a party are at issue, the
court may, at its discretion, view the person concerned. In a
criminal case where the complaining witness avers that he
was stabbed in the arm by the accused, the court may inspect
his arm. The absence of any scar in the spot where the injury
was allegedly in:fl.icted may convince the court that the wit-
ness was untruthful in his testimony.
The court may, likewise, allow the exhibition of the
weapon allegedly used in attacking the victim, the bloody
garment of the victim or the personal effect, like a glove, left
by the supposed assailant in the scene of the crime.
4. Object evidence could provide a dramatic end to
a case. In one sensational American double murder case
committed in 1994 involving the football great, O.J. Simpson,
the court allowed the prosecution to have the accused Simpson
try on a glove whichthe prosecution claimed to have been left
by the murderer in the crime scene. After a few breathless
moments, gasps from the audience broke the silence in the
courtroom when the glove did not fit the hand of the accused.
During the oral arguments before the jury, the defense
repeatedly chanted an argument that proved powerful and
effective: "!fit doesn't fit, you must acquit!" O.J. Simpson was
acquitted.
5. Object evidence is not visual alone. It covers the
entire range of human senses: hearing, taste, smell, and
touch. In a case where the issue is infringement of a musical
CHAPTER IV- OBJECT AND DOCUMENTARY EVIDENCE
99
A. Object Evidence (Rule 130)
composition, the court may listen to the composition involved.
The court may not only look at but also touch the blade of
a knife to know whether or not it could have produced the
incision characteristic of sharp blades.
6. Physical evidence is a mute but eloquent manifes-
tation of truth, and it ranks high in our hierarchy of trustwor-
thy evidence - where the physical evidence runs counter to
the testimonial evidence, the physical evidence should prevail
(Bank of the Philippine Islands v. Reyes, 544 SCRA 206).
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. To be relevant, the evidence must have a
relationship to the fact in issue. To be competent, it must
not be excluded by the rules or by law. The legal basis of this
requirement is Sec. 3 of Rule 128: ((Evidence is admissible
when it is relevant to the issue and is not excluded by the law
or these rules."
2. For the object not to be excluded by the Rules, the
same must pass the test of authentication. The threshold
foundation for real evidence is its being authenticated. Is
it the real thing? In other words, is it the actual object it is
claimed to be?
To authenticate the object, it must be shown that it is
the very thing that is either the subject matter of the lawsuit
or the very one involved to prove an issue in the case. If
the prosecution wants the admission of the gun used in the
murder, it must prove that it was the very same gun used by
''
r;,l the accused. Another gun, although identical with the actual
gun in all respects, would not satisfy the requirements of
J authentication.
f
:t
3. To authenticate the object, there must be someone
who should identify the object to be the actual thing involved
rl in the litigation. This someone is the witness. An object
::Ji
~~ evidence, being inanimate, cannot speak for itself. It cannot
,~;r,
I·B
~~13
100 EVIDENCE
(The Bar Lectures Series)
present itself to the court as an exhibit. Even a supposedly
ancient document (a private document that is more than thirty
years old produced from a custody in which it would naturally
be found if genuine and is unblemished by any alterations or
circumstances of suspicion) requires a witness to testify on the
characteristics of the document even if it no longer requires
authentication (See Sec. 21, Rule 132, Rules of Court).
4. It must be emphasized that every evidence, whether
it be a document or an object, needs a witness. Even object
evidence requires statements from a witness to make its way
into the realm of admissible evidence. In short, testimonial
evidence provides the foundation for all types of evidence.
This is a very basic rule. In layman's term, the evidence must
be "sponsored" by a witness. 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 ... " (Sec. 36, Rule
130, Rules of Court).
5. An object evidence is not taken in isolation. It is
weighed in relation to the testimony of a witness. Also, in
giving credence to a testimony, the court takes into considera-
tion the physical evidence. If the testimony bears a striking
similarity with the physical evidence, the testimony becomes
worthy ofbelief(People v. Larrafiaga, 463 SCRA 652).
6. When the truth or falsity of a fact in issue may be
explained by the presentation of an object, the same may be
exhibited before the court. If the witness wants to show the
condition of a particular article or substance, his testimony
will be enhanced by the presentation of said article or
substance. More often than not, the presentation of object
evidence supplements the credibility of the testimony .of a
witness when the object has a clear relevance to the issue of
the case.
CHAPTER IV -- OBJECT AND DOCUMENTARY EVIDENCE 101
A. Object Evidence (Rule 130)
Cutting through all the legal foliage, the Court finds 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 compe-
tent witness; and
(d) The object must be formally offered in evidence.
The authentication of the object by a competent witness
is to comply with the element of competence as an essential
ingredient of admissibility. After its authentication, the object
needs to be offered in evidence at the appropriate time.
As a rule, 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
f offered" (Sec. 34, Rule 132, Rules of Court).
The requirements of relevance by the testimony of a
competent witness rarely pose a problem. Relevance is a
matter of reasoning and the court will draw an inference
of the relevancy of the evidence from the issues of the case.
Also, almost no party would offer a witness who has no
personal knowledge of the object to be authenticated. The
problem commonly lies in showing that the object sought
to be admitted is, in fact, the real thing and not a mere
substitute or representation of the real thing. This problem of
authentication is commonly called "laying the foundation" for
the evidence.
7. 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
:t
:t
together. The presence of the victim's ravished body in a deep
~
ravine with handcuffs on her wrist is a physical evidence that
:]
bolsters the testimony of the witness (People v. Larrafiaga,
463 SCRA 652). In contrast, in another case, the absence
i of external ir..juries in the body of the alleged victim belies
r:
I
(
~i·.
 "\·
CHAPTER IV - OBJECT AND DOCUMENTARY EVIDENCE 103
102 EVIDENCE
A. Object Evidence (Rule 130)
(The Bar Lectures Series)
r~:

her claim that she was dragged to the bushes by the accused
(People v. Ganduma, 160 SCRA 799).
Object evidence and the right against self-incrimination (Bar
2010)
The right against self-incrimination cannot be invoked
against object evidence.
In one early case, the accused-appellant argued that the
admission as evidence of the victim's wallet, together with its
contents, viz., (1) his residence certificate; (2) his identification
card; and (3) bunch of keys, violated his right against self-
incrimination.
The Court held that the right against self-incrimination,
guaranteed under the fundamental law, had no application
in this case because no testimonial compulsion was involved
(People v. Malimit, 264 SCRA 167).
Demonstrative evidence
1. Demonstrative evidence is not the actual thing but
it is referred to as "demonstrative" because it represents or
demonstrates the real thing. It is not strictly "real" evidence
because it is not the very thing involved in the case. A map, a
diagram, a photograph, and a model, fall under this category.
This category of evidence is not separately defined in the
Rules of Court and appears to have been incorporated under
the general term "object" evidence.
2. The admissibility of this type of evidence largely
depends on laying the proper foundation for the evidence.
The rule boils down to one basic question: Does the evidence
sufficiently and accurately represent the object it seeks to
demonstrate or represent? If it does, the evidence would be
admissible.
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.
Some courts insist on requiring the photographer to
:(¥
testify but this view has been eroded by the tendency of
~ modern courts to admit as a witness one who has familiarity
with the scene portrayed (Sison v. People, 250 SCRA 58, 75).
Under the Rules on Electronic Evidence, photographic
i1' evidence of events, acts or transactions shall be admissible in
il
! evidence provided that:
(a) It shall be presented, displayed and shown to
t:!··
; the court; and
~r: (b) It shall be identified, explained or authenticated
I
q by either:
i!
(i) The person who made the recording; or
(ii) Some other person competent to testify
on the accuracy thereof (Sec. 1, Rule 11, Rules on
Electronic Evidence).
The admissibility of photographs is within the discretion
of the trial court, and its ruling in this respect will not be
interfered with, except upon a clear showing of an abuse of
discretion. In determining whether photographs should be
admitted, a trial judge must determine whether they are
relevant, and whether a proper foundation has been laid (29A
Am Jur Evidence, 2d §960).
Example:
Q: Where do you work Mr. Witness?
A: I work in National Bank of_~he Philippines, Sir.
Q: Where is the bank where you work located?
A: It is located in the corner of Guess and Rado
Sts. in St. Jude Village.
Q: How long have you worked in that bank?
104 EVIDENCE
(The Bar Lectures Series)
A: For the past ten years, Sir.
Q: I am showing you a photograph. Could you
identify this photograph?
A- Of course, Sir. This is a picture of the corner of
Guess and Rado Sts. in St. Jude Village.
Q: How do you recognize it?
A: I've worked in this area for the past ten years
and I have seen this corner almost everyday.
Q: How accurate is this photograph?
A: It is an exact depiction of the place, Sir.
4. Motion pictures and recordings - The rules that
apply to photographs generally apply to motion pictures
and recordings. Because of the possibility of tampering
and distortion, courts have traditionally required a stricter
standard for laying the foundation for motion pictures and
tape recordings. Courts then would require detailed testimony
as to the qualifications of the operator, a detailed description
of the equipment used, and the conditions under which the
photograph and the recordings were taken.
Modern courts, however, have taken judicial notice ofhow
motion cameras and tape recorders work and their general
reliability and prevalent use. 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 recording have been held sufficient. He
must testify that the motion picture accurately and faithfully
represents the place or person it purports to portray.
In the case of tape recordings, the witness should identify
the speakers, state how he recognizes their voices and that the
recording was not taken in violation of the Anti Wire-Tapping
Law (R.A. 4200).
The modern approach to motion pictures and recordings
is reflected in local rules. Under the Rules on Electronic
Evidence, the authentication process need not involve the
CHAPTER IV - OBJECT AND DOCUMENTARY EVIDENCE 105
A. Object Evidence (Rule 130)
person who actually made the recording. Under the Rules on
Electronic Evidence, audio, photographic and video evidence
of events, acts or transactions shall be admissible provided
it shall be shown, presented or displayed to the court and
shall be identified, explained or authenticated by the person
who made the recording or by some other person competent
to testify on the accuracy thereof. Hence, authentication can
be done by some other person other than by the person who
made the recording or took the photograph as long as he can
testify as to its accuracy (Sec. 1, Rule 11, Rules on Electronic
Evidence).
5. Diagrams, models and maps - These types of
demonstrative evidence are presented to indicate the relative
locations or positions of objects and persons. Aside from the
requirement of relevance, a diagram, model or map must be
identified by a witness who is familiar with what the evidence
depicts, and that the same is an accurate representation of
the scene it portrays. Like any other exhibit, the touchstone
for admissibility of maps, diagrams and models is the ability
of the witness to authenticate the exhibit. Some courts may
require that the model, diagram or map be made or drawn to
scale. If not drawn to scale, the court must be so informed. The
question as to the sufficiency of the authentication is a matter
of judicial discretion (29A Am Jur 2d, Evidence, §§989, 990).
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 relevancy to a material issue in the case.
Authenticated x-rays are normally involved in personal injury
cases to show the location and extent .of the injury. X-rays
are properly authenticated by the x-ray technician or the
~1
~~ physician who testifies to the competence..ofthe person taking
.i
~%
it, the procedure taken and that the x-ray picture shown is
t:
that of the person, the anatomical part or the. object involved
-1 in the case (T.C. Young Construction Co. v. Brown [Ky] 372
I
~· SW2d 670, 99 ALR3d 288). Because the science oftaJrJng x-ray
\'
pictures is now well-founded and generally recognized, almost
~
J
'·
'
'
.
106 EVIDENCE
(The Bar Lectures Series)
all courts no longer require testimony as to the reliability of
an x-ray machine (29A Am Jur 2d, Evidence, §§977).
7. Scientific tests, demonstrations and experiments
- The issue of refusing or granting requests for demonstra-
tions, experiments and tests in open court is a matter subject
to judicial discretion (Cleary, McCormick On Evidence, 3rd
Ed., 676 citing Spaak v. Chicago & Northwestern Railway Co.,
231F.2d 279 [7th Cir.1956]).
8. Text messages - Text messages are to be proved
by the testimony of a person who was a party to the same
or has personal knowledge of them (People v. Enojas, G.R.
No. 204894, March 10, 2014). This rule applies to telephone
conversations and other ephemeral electronic communication.
In the absence or unavailability of the required witnesses,
other competent evidence may be admitted (Sec. 2, Rule 11,
Rules on Electronic Evidence).
View of an object or scene
1. Under Sec. 1 of Rule 130, when an object is relevant
to the fact in issue, it may be exhibited to, examined or viewed
by the court. In this sense, object evidence has been referred
to as "autoptic" evidence.
2. Courts have recognized that there are times when
a party cannot bring an object to the court for viewing in the
courtroom. In such a situation, the court may take a view of an
object. The court may make an ocular inspection of a contested
land to resolve questions of fact raised by the parties. It may
inspect a crime scene to clarify itself with certain matters
raised by the litigants. It may view the conditions of vehicles
involved in a civil case for damages. Going out of the courtroom
to observe places and objects is commonly termed as "view."
The "view" is expressly authorized by Sec. 1· of Rule 130
but even without this express provision, it is well-recognized
that the court has an inherent power to order a view when
there is a need to do so (See Sec. 5, Rule 135, Rules of Court).
3. The inspection may be made inside or outside the
courtroom. An inspection or view outside the courtroom
CHAPTER IV - OBJECT AND DOCUMENTARY EVIDENCE 107
A. Object Evidence (Rule 130)
should be made in the presence of the parties or at least with
previous notice to them. It is error for the judge, for example,
to go alone to the land in question, or to the place where the
crime was committed and take a view without the previous
knowledge of the parties. Such inspection or view is part of
the trial since evidence is thereby being received (Moran,
Comments on the Rules of Court, Vol. 5, pp. 78-79, 1980).
Categories of object evidence
1. For purposes of authentication of an object or for
laying the foundation for the exhibit, object evidence may be
classified into the following (29A Am Jur, §§945-947):
(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 (non-unique
objects).
2. If the object has a unique characteristic, like the
serial number of a caliber .45 pistol, it becomes readily
identifiable. So long as the witness testifies that the object
has a unique characteristic, he saw the object on the relevant
date, remembers its characteristics, asserts that the object
shown to him in court is the same or substantially in the
same condition as when he first saw it and alleges that those
':%
:j characteristics are those of the object he is identifYing in court,
;l
·:: the authentication requirement is satisfied.
3. If the object does not have a unique characteristic,
like the typical kitchen knife that has no serial number, is
commonplace, and identical with a lot cif knives of the same
kind and quality, the witness may be able to identify the
same in court if he claims that he made·the thing acquire a
:~
a
"f
unique characteristic like placing identifYing marks on it. All
1 he has to do in court is to testify as to what he did to make
\i
~~
the object identifiable and that the object presented to him for
·~~~ identification in court has the characteristics he made on the
object.
108 EVIDENCE
(The Bar Lectures Series)
Chain of custody in general
1. The third category of object evidence refers to those
which are not 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. The purpose of establishing a chain of custody is to
ensure that the integrity and evidentiary value of the seized
items are preserved, so much so that unnecessary doubts as to
the identity of the evidence are removed (People v. Langcua,
G.R. No. 190343, February 6, 2013).
Illustrations:
A The fact situation is a criminal case. The police
investigator is testifying that he found a gun in the crime
scene.
Q: Officer, you said you found a gun on the bed
of the victim in the morning of September 15,
A:
2012 at around 9:00A.M.?
I did, Sir.
Q:
A:
Would you please describe the weapon you saw?
It was a .45ACP, Colt Gold Cup Series, a five-
inch barrel, blue finish, a black handle with
Ib
wrap around grooves, and with the initials
"P.M." on the lower left hand side of its handle.
Q: (After other questions) Would you be able to
recognize the gun if shown to you right now?
A: I would be able to recognize it, Sir.
Q: I would like to show you this gun. Will you
please examine it? (Witness examines the gun.)
What relationship does this gun have to the
gun you said you found on the victim's bed?
I
{)
~:·~
A: It is the very same gun, Sir.
i·!
L
CHAPTER IV - OBJECT AND DOCUMENTARY EVIDENCE 109
A. Object Evidence (Rule 130)
Q: How are you able to recognize this as the very
same gun?
A: It has the same characteristics as the gun I
found in the crime scene. The initials "P.M."
are still here. Besides, it has the same serial
number in the barrel as the one I recorded in
my notebook and as I wrote in my official report.
(Counsel now proceeds to have the exhibit
appropriately marked.)
B. If the object found by the police investigator
was a knife that has no distinguishing features, the
examination would go something like the following:
Q: Officer, you said you saw a knife in the victim's
bedroom?
A: I did, Sir.
Q: Would you please describe the knife you saw?
; A: It was of the kind you normally buy in a wet
market. It had a brown wooden handle and a
I
I
Q:
four-inch non-stainless blade.
What did you do with the knife you found?
A: With my own Swiss knife, I scratched my
initials on the handle of the knife then placed
it inside the evidence plastic bag I always carry
f:;.:,
Kl with me.
(The witness is then shown a knife and
asked to identify it.) The witness answers:
A: It is the same knife, Sir. I can see the initials I
made. You can see them yourself.
''
.
(Counsel seeks permission of the court for
the marking of the knife as exhibit.)
C. If the object is not readily identifiable, a chain
of custody must be shown. To avoid gaps in the chain
of custody and prevent further evidentiary objections,
 110 EVIDENCE
(The Bar Lectures Series)
ideally, all the persons who handled the object should be
called to the stand. Assume that the fact situation is a
murder case committed allegedly by poisoning the victim.
During a judicially authorized search of the house of the
accused, the police found five grams of what appears to
be a toxic substance in powder form inside a plastic bag
kept in the closet of the accused. The police investigator
who found the substance is called first to testify. The
following would be the general thrust of the examination
in the absence of a law or rule providing the contrary:
Q: Officer, after finding the substance you said you
saw in the closet of the accused, what did you
A:
do?
I placed the substance inside a plastic evidence
bag then sealed it with a sealer which our office
provides for the purpose. The evidence bag has
in its opening a special non-detachable paper
where you can write on after sealing the bag. I
wrote my name on it, the date, the name of the
accused, his address, and the time I found it.
Q: What did you do with it after that?
A: Following our internal procedures, I logged the
evidence in our evidence log book and handed it
to the chemist in our crime laboratory. He gave
me a receipt for it.
Q: In what condition was the evidence bag when
you handed it to the chemist?
A: It was sealed, Sir.
Ideally, the next witness would be the chemist who
would testify to having personally received the evidence bag
described by the investigator. The chemist would further
testify having removed the powdery substance or a portion
of it from the bag for examination by making an opening in
the bag without disturbing the previously sealed portion of
the bag, that after putting back the remainder in the bag and
CHAPTER IV - OBJECT AND DOCUMENTARY EVIDENCE 111
r
I
A. Object Evidence (Rule 130)
sealing the portion of the bag which he had opened, he wrote
thereon the appropriate markings and put the evidence in
a locker safe. The chemist would testify, too, that, from the
time he kept the evidence, it was never handled by anyone
else and that, as it is shown in court, there appear no signs of
tampering.
It has been held, however, that the forensic chemist, if
Iij a public officer, need not testify to identify and describe how
the report was made. This is because the chemistry report
is a public document. As such, "it is admissible in evidence
I without further proof of its due execution and genuineness"
(Kummer v. People, G.R. No. 174461, September 11, 2013).
I Chain of custody in drug cases (Sec. 21 of the Comprehen-
sive Drugs Act of 2002) (Bar 2011)
1. In the Philippines, the confiscation and seizure
of drugs require a stringent specific procedure to establish
the chain of custody. The required procedure is embodied
in Sec. 21, paragraph 1, Art. II of R.A. 9165, as amended by
R.A. 10640.
2. The Court recognizes that a unique characteristic of
narcotic substances is that they are not readily identifiable;
hence, 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 with (See Mallillin u. People, 553 SCRA 619). In
drug cases, the identity of the dangerous drugs should be
established beyond doubt by showing .that the items offered
in court were the same substance involved in the buy-bust
operation. The chain of custody performs the function of
ensuring that unnecessary doubts concerning the identity of
the evidence (See People v. Dahil, G.R. No. 212196, January
12, 2015).
3. Sec. 1(b) of the Dangerous Drugs Board Regulation
No. 1, Series of 2002 (in relation to Sec. 81[b] of R.A. 9165),
112 EVIDENCE
(The Bar Lectures Series)
which implements R.A. 9165, defines "chain of custody" as
follows:
"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" (People v. Obmiranis, 574 SCRA 140).
4. In Mallillin v. People, 553 SCRA 619, the Court had
the occasion to expound on the chain of custody rule, thus:
"As a method of authenticating evidence, the chain
of custody rule requires that the admission of an exhibit
be preceded by evidence sufficient to support a finding
that the matter in question is what the proponent claims
it to be. It would include testimony about every link in
the chain, from the moment the item was picked up to
the time it is offered into evidence, in such a way that
every person who touched the exhibit would describe
how and from whom it was received, where it was and
what happened to it while in the witness' possession, the
condition in which it was received and the condition in
which it was delivered to the next link in the chain. These
witnesses would then describe the precautions taken to
ensure that there had been no change in the condition of
the item and no opportunity for someone not in the chain
to have possession of the same (See also People v. Posada,
667 SCRA 790, 808, March 12, 2012; Zafra v. People, 671
SCRA 396, 406, April 25, 2012).
While testimony about a perfect chain is not always
the standard because it is almost always impossible to
obtain an unbroken chain of custody, it becomes indis-
pensable and essential when the item of real evidence is
not distinctive and is not readily identifiable, or when its
CHAPTER IV - OBJECT AND DOCUMENTARY EVIDENCE 113
A. Object Evidence (Rule 130)
condition at the time of testing or trial is critical, or when
a witness has failed to observe its uniqueness. The same
standard likewise obtains in case the evidence is suscep-
tible to alteration, tampering, contamination. and even
substitution and exchange. In other words, the exhibit's
level of susceptibility to fungibility, alteration or tamper-
ing - without regard to whether the same is advertent
or otherwise not - dictates the level of strictness in the
application of the chain of custody rule" (Also cited in Fa-
jardo u. People, 677 SCRA 541, 549, July 25, 2012).
5. The procedure to be followed in the custody and
handling of seized dangerous drugs is provided for in Sec. 21,
Art. II ofR.A. 9165, as amended by R.A. 10640, thus:
(a) "The apprehending team having initial custody
and control of the dangerous drugs, controlled precursors
and essential chemicals, instruments/paraphernalia
and/or laboratory equipment shall, immediately after
seizure and confiscation, conduct a physical inventory
of the seized items and photograph the same in the
presence of the accused or the person/s from whom
such items were confiscated and/or seized, or his/her
representative or counsel, with an elected public official
and a representative of the National Prosecution Service
or the media who shall be required to sign the copies of
the inventory and be given a copy thereof: Provided, That
the physical inventory and photograph shall be conducted
at the place where the search warrant is served; or at
the nearest police station or at the nearest office of the
apprehending officer/team, whichever is practicable,
in case of warrantless seizures: Provided, finally, That
noncompliance with these requirements under justifiable
grounds, as long as the integrity and the evidentiary
value of the seized items are properly preserved by the
apprehending officer/team, shall not render void and
invalid such seizures and custody over said items."
Note that the law requires the apprehending team
having initial custody of the drugs to conduct a physical
inventory of the drugs as well as to photograph the same.
114 EVIDENCE
(The Bar Lectures Series)
Such acts are to be done immediately and in the presence
of the persons enumerated in the law as witnesses. Such
persons are required to sign the copies of the inventory
and shall each be given a copy of the same.
(b) Within twenty-four (24) hours upon the confis-
cation or seizure of the drugs, the same shall be submit-
ted to the PDEA Forensic Laboratory for a qualitative
and quantitative examination (Sec. 21[2], RA. 9165).
(c) The forensic laboratory examiner is required
to issue within twenty-four (24) hours after the receipt
of the drugs, a certification of the forensic laboratory
examination results which shall be done under oath (Sec.
21[3], R.A. 9165).
(d) After the filing of the criminal case, the court
shall, within seventy-two (72) hours, conduct an ocular
inspection of the confiscated drugs, and through the
PDEA shall within twenty-four (24) hours proceed with
the destruction of the same in the presence of the accused
or the person from whom such drugs were confiscated,
his representative or counsel, a representative from the
media and the DOJ, civil society groups and any elected
public official (Sec. 21[4], R.A. 9165).
(e) The Dangerous Drugs Board shall then issue a
sworn certification as to the fact of destruction or burning
of the substances. The certification shall be submitted to
the court. Also to be submitted are the representative
samples of the substances in the custody of the PDEA.
Such samples shall be of a minimum quantity as deter-
mined by the Board (Sec. 21[6], R.A. 9165).
6. The alleged offender or his/her representative or
counsel shall be allowed to personally observe all of the above
proceedings. His presence shall not constitute an admission
of guilt. However, after having been duly notified in accord-
ance with law and said alleged offender or accused refuses
or fails to appoint a representative within seventy-two (72)
hours before the actual burning or destruction of the evidence
CHAPTER IV - OBJECT AND DOCUMENTARY EVIDENCE 115
A. Object Evidence (Rule 130)
in question, the Secretary of Justice shall appoint a member
of the public attorney's office to represent the former (Sec.
21[6], R.A. 9165; See also Valleno v. People, G.R. No. 192050,
January 9, 2013).
Links in the chain of custody
1. Since it is called a chain, there must be links to
the chain. The links are the people who actually handled or
had custody of the object. Each of the links 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. This is the ideal way
to show the chain of custody.
2. Jurisprudence identified the links that the prosecu-
tion must establish in the chain of custody in a buy-bust situ-
ation to be as follows:
First, the seizure and marking of the confiscated
drugs recovered from the accused;
Second, the turnover of the illegal drug seized by the
apprehending officer to the investigating officer;
Third, the turnover by the investigating officer of
the illegal drug to the forensic chemist for laboratory
examination; and
Fourth, the turnover and submission of the marked
illegal drug by the forensic chemist to the court (See
People v. Kamad, 610 SCRA 295, 307-308 and cited in
People v. Dahil, G.R. No. 212196, January 12, 2015; See
also People v. Sapitula, G.R. No. 209212, February 10,
2016).
3. Because of the definition of custody as defined by
Sec. l(b) of the Dangerous Drugs Board Regulation No. 1,
Series of 2002, the movement of the drugs from one person
to another must be duly recorded. Such record of movements
 116 EVIDENCE
(The Bar Lectures Series)
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.
Importance of the marking of the evidence
It must be noted that "marking" is not found in
R.A. 9165, as amended. It is different from the inventory-
taking and photography under Sec. 21 of the said law. Howev-
er, long before Congress passed R.A. 9165, the Supreme Court
had consistently held that failure of the authorities to imme-
diately mark the seized drugs would cast reasonable doubt
on the authenticity of the corpus delicti (People v. Dahil, G.R.
No. 212196, January 12, 2015).
"Crucial in proving the chain of custody is the marking
of the seized drugs or other related items immediately after
they had been seized from the accused. "Marking" means the
placing by the apprehending officer or the poseur-buyer of
his/her initials and signature on the items seized. Marking
after seizure is the starting point in the custodial link;
hence, it is vital that the seized contraband be immediately
marked because succeeding handlers of the specimens will
use the markings as reference. The marking of the evidence
serves to separate the marked evidence from x x x all other
similar or related evidence from the time they are seized
from the accused until they are disposed of at the end of the
criminal proceedings, thus, preventing switching, planting or
contamination of evidence" (People v. Dahil, G.R. No. 212196,
January 12, 2015).
The marking should be made immediately and in the
presence of the apprehended violator upon arrest. The
immediate marking upon confiscation or recovery of the
dangerous drugs or related items is indispensable in the
preservation of their integrity and evidentiary value (People
v. Gonzales, G.R. No. 182417, April3, 2013; See also Valencia
v. People, G.R. No. 198804, January 22, 2014).
CHAPTER IV - OBJECT AND DOCUMENTARY EVIDENCE 117
A. Object Evidence (Rule 130)
Effect of non-compliance with Sec. 21 of R.A. 9165, as
amended
1. In case there is a failure to comply with the
requirements of the law in the handling of confiscated drugs,
the law, as amended by R.A. 10640, clearly requires the
i·
authorities to show the following:
'·!
(a) the non-compliance must be because of justifi-
able grounds; and
(b) the apprehending officer/team must have prop-
erly preserved the integrity and evidentiary value of the
seized items.
As long as the above are met, the non-compliance of Sec.
21 shall not render the seizure and custody of the seized items
:I
\~ void and invalid. (Bar 2011)
2. Failure to strictly comply with the law does not
necessarily render the arrest of the accused illegal or render
inadmissible the items seized or confiscated from him (People
v. Dahil, G.R. No. 212196, January 12, 2015; See also People v.
Tapugay, G.R. No. 200336, February 11, 2015; People v. Enad,
G.R. No. 205764, February 3, 2016). However, the prosecution
~ must still prove that (a) there is a justifiable ground for the
t1·
'i non-compliance, and (b) the integrity and evidentiary value of
the seized items were properly preserved (Valencia v. People,
G.R. No. 198804, January 22, 2014).
.,
DNA evidence
1. In a case where the admissibility of DNA testing as
a means for determining paternity has become the focal issue
in controversy for the first time, the Supreme Court described
DNA in the following words:
-~~
"DNA, or deoxyribonucleic acid, i~-- a molecule that
encodes the genetic information in all living organisms.
~ A person's DNA is the same in each cell and it does
not change throughout a person's lifetime; the DNA in
a person's blood is the same as the DNA found in his
saliva, sweat, bone, the root and shaft of hair, earwax,
118 EVIDENCE
(The Bar Lectures Series)
mucus, urine, skin tissue and vaginal or rectal cells. Most
importantly, because ofpolymorphisms in human genetic
structure, no two individuals have the same DNA, with
the notable exception of identical twins" (Agustin v. Court
ofAppeals, 460 SCRA 315).
2. Agustin has its roots in an action for support filed
by a mother and her son against the latter's alleged biological
father who denied having sired the child. The plaintiffs then
moved for the issuance of an order directing all the parties
to submit themselves to DNA testing pursuant to Rule 28
(Physical and Mental Examination of Persons) of the Rules
of Court. The defendant opposed the motion by invoking his
constitutional right against self-incrimination. He, likewise,
moved for the dismissal of the complaint for lack of a cause
of action. The trial court denied the motion to dismiss and
ordered the parties to submit themselves to DNA paternity
testing. The Court of Appeals later affirmed the trial court.
The Supreme Court, in 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. In Agustin, the Supreme Court briefly
sketched its past decisions on DNA testing which the Court
initially considered as not as accurate and authoritative as the
scientific forms of identification evidence such as fingerprints
(People v. Teehankee, 249 SCRA 54). The Supreme Court
admitted in Agustin that, in early cases, "[The Court's] faith
in DNA testing ... was not quite so steadfast in the previous
decade."
Earlier, in Pe Lim v. Court of Appeals (270 SCRA 1), also
a case for support filed by the mother in behalf of her child
against the supposed natural father, the Court cautioned
against the use of DNA evidence because, as a relatively new
science, it has not yet been accorded official recognition by
Philippine courts and held that paternity would still have
to be resolved by such conventional evidence as the relevant
incriminating acts, verbal and written, by the putative father.
~ CHAPTER IV - OBJECT AND DOCUMENTARY EVIDENCE 119
A. Object Evidence (Rule 130)
Consistent with the rulings of the era, the Court, as well as
the lower courts, decided against the defendant-father on
the basis of the incriminating letters written by him and not
because of any DNA testing or similar procedure.
3. In 2001, however, the Supreme Court showed signs
of opening up to DNA evidence, in Tijing v. Court of Appeals
(354 SCRA 17), when it recognized the existence ofthe facility
(UP-NSRI DNA Analysis Laboratory) and expertise in using
DNA test for identification and parentage testing. Although
acknowledging that the test is still open to challenge being
a novel scientific technique, the Supreme Court, in Tijing,
categorically declared that "eventually, courts should not
hesitate to rule on the admissibility of DNA evidence . . .
courts should apply the results of science when competently
obtained in aid of situations presented, since to reject said
result is to deny progress. Though it is not necessary in this
case to resort to DNA testing, in the future, it would be useful
to all concerned in the prompt resolution of parentage and
identity issues."
4. One year after Tijing, in what could be considered as
a landmark decision, the Supreme Court in People v. Vallejo
(382 SCRA 192 [2002}), 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
l
,.(
authoritative evidence in Philippine jurisprudence." From
l
it.
a mere recognition of the existence of DNA testing, Vallejo
r moved towards an open use of DNA evidence in deciding cases.
~.
f 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;
 120 EVIDENCE
(The Bar Lectures Series)
';;
(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 (Bar 2009; 2010).
In People v. Janson (400 SCRA 584), the importance of
DNA evidence was, likewise, recognized although the accused,
who was charged with rape, was acquitted because of doubts
as to who the real malefactor was. Here, the Court lamented
the lack of DNA evidence as a means to still the Court's doubts.
In Tecson v. COMELEC (424 SCRA 277), the Court
acknowledged the weight of DNA evidence when the Court
was faced with the issue of filiation of Fernando Poe, Jr. Any
doubt as to filiation or paternity, according to the Court,
would have been cleared up by a positive match through DNA
testing.
5. Following the trail blazed by Vallejo, the Supreme
Court in 2004 in People v. Yatar, 428 SCRA 504 (May 19, 2004),
relied on evidence, including DNA evidence, in affirming the
conviction of the accused for rape with homicide when the
test showed that a match existed between the DNA profile
of the semen found in the victim and. the DNA profile of the
blood sample given by the accused. Yatar also made a lengthy
discussion on DNA, the process of DNA testing and the
reasons for its admissibility. Yatar significantly upheld the
constitutionality of compulsory DNA testing and rejected the
contention that it 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.
6. A clear acknowledgment of the importance of DNA
evidence is exemplified in the later case of In re Estate of
Rogelio Ong v. Diaz (540 SCRA 480). The case originated in
a complaint for compulsory recognition and -support filed by
a minor represented by her mother. The defendant, Rogelio
CHAPTER IV - OBJECT AND DOCUMENTARY EVIDENCE 121
A. Object Evidence (Rule 130)
Ong, died during the pendency of his appeal. Amidst the
protestation of the estate-petitioner for DNA testing because
of the death of the defendant, the Court, invoking the newly-
promulgated rules on DNA evidence, held that the test may
provide the definitive key to the resolution of the issue and
even if the defendant had already passed away, biological
samples could be obtained for the testing. "... [E]ven [the]
death of Rogelio cannot bar the conduct of DNA testing." The
Supreme Court affirmed the judgment ofthe Court of Appeals
remanding the case to the trial court for DNA testing.
Rules on DNA evidence
1. The Rule on DNA Evidence (referred to in this work
as RDE) was promulgated by the Supreme Court through
A.M. 06-11-05-SC and, in accordance with Sec. 14 thereof,
took effect on October 15, 2007, following publication in a
newspaper of general circulation.
2. 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 (Sec. 1, RDE).
When a matter is not specifically governed by the Rule
on DNA Evidence, the Rules of Court and other pertinent
provisions oflaw on evidence shall apply (Sec. 2, RDE).
3. What is (a) DNA? (b) DNA profile? (c) DNA evidence?
(a) DNA refers to deoxyribonucleic acid which is
the chain of molecules found in every nucleated cell of
the body (Sec. 3[b], RDE).
(b) DNA "profile" is the genetic information derived
from DNA testing of biological samples obtained from a
122 EVIDENCE
(The Bar Lectures Series)
person where such biological sample is clearly identifi-
able as originating from that person (Sec. 3[d], RDE).
(c) The totality of the DNA profiles, results and
other genetic information directly generated from
the DNA testing of biological samples is called "DNA
evidence" (Sec. 3[c], RDE).
4. What is the significance of DNA?
The significance lies in the uniqueness of the totality of
the DNA of a person. It is a scientific fact that the totality of
an individual's DNA is unique for the individual, except for
identical twins (Sec. 3[b], RDE).
5. How may an order for a DNA testing be obtained?
A person who has a legal interest in the litigation may file
an application for DNA testing order before the appropriate
court, at any time (Sec. 4, RDE).
The order for a DNA testing shall not, however, be issued
as a matter of course and from the mere fact that the person
requesting for the testing has a legal interest in the litigation.
For the order to be issued, there must be a further showing
that:
(a) A biological sample exists that has relevance to
the case;
(b) The biological sample (i) was not previously
subjected to the DNA testing requested; or (ii) if it was
previously subjected to DNA testing, the results may
require confirmation for good reasons;
(c) The DNA testing uses a scientifically-valid
technique;
(d) The DNA testing has the scientific potential to
produce new information that is relevant to the proper
resolution of the case; and
(e) The existence of other factors, if any, which the
court may consider as potentially affecting the accuracy
and integrity ofthe DNA testing (Sec. 4, RDE).
CHAPTER IV - OBJECT AND DOCUMENTARY EVIDENCE 123
A. Object Evidence (Rule 130)
Finding that the above requirements have been complied
with, the court shall now issue an order, if appropriate, to
(a) take biological samples from any person or crime scene
evidence; and (b) impose reasonable conditions on the testing
to protect the integrity of the biological sample and the liability
of the test results (Sec. 5, RDE).
Note: The court may motu proprio order a DNA testing
(Sec. 4, RDE).
6. Is a court order always required before undertaking
a DNA testing?
It is not always required. The last paragraph of Sec. 4 of
the RDE allows a testing without a prior court order if done
before a suit or proceeding is commenced at the request of
any party, including law enforcement agencies. This also
means that a litigation need not exist prior to DNA testing.
Thus, a court order shall be required only ifthere is a pending
litigation, but not before the litigation.
7. Is the order of the court granting a DNA testing
appealable?
It is not appealable and is immediately executory. Sec.
5 of the RDE clearly provides that "An order granting the
DNA testing shall be immediately executory and shall not be
appealable ... "
8. What then is the remedy against the court order if it
is not appealable?
The remedy is a petition for certiorari under Rule 65 of
the Rules of Court but under Sec. 5 "any petition for certiorari
initiated therefrom shall not, in any way, stay the imple-
mentation thereof, unless a higher court issues an injunctive
ord6r" (Sec. 5, RDE).
9. Is there an automatic admission of the DNA evi-
dence obtained in the testing?
There is none. By the· terms of Sec, 5 of the RDE, the
grant of a DNA testing application shall not be construed
 124 EVIDENCE
(The Bar Lectures Series)
as an automatic admission into evidence of any component
of the DNA evidence that may be obtained as a result of the
testing. This necessarily means that the court will still have to
evaluate the probative value of the proposed evidence before
its admission.
The determination of the probative value of the DNA
evidence rests upon sound judicial assessment taking into
consideration the following matters:
(a) The chain of custody, including how the biologi-
cal samples were collected, how they were handled, and
the possibility of contamination of the samples;
(b) The DNA testing methodology, including the
procedure followed in analyzing the samples, the advan-
tages and disadvantages of the procedure, and compli-
ance with the scientifically-valid standards in conducting
the tests;
(c) The forensic DNA laboratory, including its
accreditation and the qualification of the analyst who
conducted the test; if the laboratory is not accredited,
the court shall consider the relevant experience of the
laboratory in forensic casework and its credibility shall
be properly established; and
(d) The reliability of the testing result (Sec. 7,
RDE).
10. If a person has already been convicted under a final
and executory judgment, may he still avail of DNA testing?
(Bar 2012)
He may still have DNA testing. The test after his convic-
tion is termed a "post-conviction" DNA testing. Significantly,
Sec. 6 of the RDE allows a post-conviction DNA testing. It
may be available to (a) the prosecution, or (b) the person con-
victed by a final and executory judgment, provided that the
following requirements are met:
(a) a biological sample exists;
CHAPTER IV- OBJECT AND DOCUMENTARY EVIDENCE 125
A. Object Evidence (Rule 130)
(b) such sample is relevant to the case; and
(c) the testing would probably result in the reversal
or modification of the judgment of conviction (Sec. 6,
RDE).
11. Is a court order required for a post DNA testing?
Sec. 6 of the RDE is clear. It may be available "without
need of prior court order."
12. 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 with
the court of origin. The court shall then conduct a hearing and
in case the court finds, after due hearing, that the petition
is meritorious, it shall reverse or modify the judgment of
conviction and order the release of the convict, unless his
detention is justified for a lawful cause (Sec. 10, RDE).
The petition shall be filed with the court of origin as a
rule. However, the rule also allows the petition to be filed
either with the Court of Appeals or with the Supreme Court, or
with any member of said courts. A hearing may be conducted
by the latter courts or by any member thereof or instead of
conducting a hearing, may instead remand the petition to the
court of origin and issue the appropriate orders (Sec. 10, RDE).
Note that under Sec. 10, the petition for a writ of habeas
corpus may also be filed by the prosecution.
13. Are the DNA profiles of a person open to public
scrutiny?
1!.
1! They are not. DNA profiles and all the results or other
information obtained from DNA testing are confidential.
Whoever discloses, utilizes or publishes in any form any
,. information concerning a DNA profile without the proper
1t•t court order shall be liable for indirect contempt of the court
1f• wherein such DNA evidence was offered, presented or sought
·n
!1
to be offered and presented (Sec. 11, RDE).
 EVIDENCE
126
(The Bar Lectures Series)
Except upon order of the court, the DNA profiles and
other results shall only be released to any of the following:
(a) The person from whom the sample was taken;
(b) Lawyers representing parties in the case or
action where the DNA evidence is offered and presented
or sought to be offered and presented;
(c) Lawyers of private complainants in a criminal
action;
(d) Duly authorized law enforcement agencies;
and
(e) Other persons as determined by the court
(Sec. 11, RDE).
The person from whom the biological sample was taken
may also request that his DNA profile and all results or other
information obtained from the DNA testing be disclosed to the
person designated in his request. This request, however, must
be in writing, verified and filed with the court that allowed the
DNA testing (Sec. 11, RDE).
14. The trial court is mandated to preserve the DNA
evidence in its totality, including all biological samples, DNA
profiles and results or other genetic information obtained from
DNA testing in accordance with Sec. 12 of the RDE.
Paraffin tests
1. Paraffin tests, in general, have been considered as
inconclusive by the Court because scientific experts concur in
the view that paraffin tests have proved extremely unreliable
in use. The tests can only establish the presence or absence
of nitrates or nitrites on the hand, but the tests alone cannot
determine whether the source of the nitrates or nitrites was
the discharge of a firearm.
The presence of nitrates should be taken only as an
indication of a possibility, or even a probability, but not of
infallibility that a person has fired a gun; since nitrates are
also admittedly found in substances other than gunpowder.
CHAPTER IV - OBJECT AND DOCUMENTARY EVIDENCE 127
f A. Object Evidence (Rule 130)
A person who tests positive may have handed one or more
substances with the same positive reaction for nitrates such
as explosives, fireworks, fertilizers, pharmaceuticals, tobacco
and leguminous plants. The argument that the negative
result of gunpowder nitrates from the paraffin test conducted,
shows an absence of physical evidence that one fired a gun,
is untenable as it is possible for one to fire a gun and yet be
negative for the presence of nitrates as when the hands are
washed before the test (People v. Cajumocan, 430 SCRA 311;
People v. Baconguis, 417 SCRA 66).
A person who uses tobacco may also have nitrate or nitrite
deposits on his hands since these substances are present in
the products of combustion of tobacco (Revita v. People, 570
SCRA356).
2. The negative findings of a paraffin test do not con-
clusively show that a person did not discharge a gun, if he
fired a gun with a glove on, or if he thoroughly washed his
hands thereafter. Besides, a paraffin test is not conclusive
owing to several factors like wind direction, firing at a hard
object, using a long barrel or a low. caliber gun and profuse
perspiration (People v. Baltazar, 352 SCRA 678; People v.
Galvez, 519 SCRA 521; See also People v. Buduhan, 561 SCRA
337).
Polygraph tests (Lie detector tests)
1. A polygraph test operates on the principle that
stress causes physiological changes in the body which can be
measured to indicate whether the subject of the examination
is telling the truth. During an examination in which a poly-
graph is used, sensors are attached to the subject so that the
polygraph can mechanically record the subject's physiological
responses to a series of questions.
2. Courts, accordingly and uniformly, reject the results
of polygraph tests when offered in evidence for the purpose of
establishing the guilt or innocence of one accused of a crime
because it has not yet attained scientific acceptance as a
I reliable and accurate means of ascertaining truth or deception
 128 EVIDENCE
(The Bar Lectures Series)
(U.S. u. Tedder, [CA4 SC] 801 F2d 1437; 29A Am Jur 2d
§1007; People u. Reanzares, 334 SCRA 624; People u. Adouiso,
309 SCRA 1; People u. Carpo, 356 SCRA 248).
B. Documentary Evidence
(Rule 130)
Meaning of documentary evidence (document as evidence)
1. Another category of evidence is documentary evi-
dence. Documents, as evidence, do not exclusively refer to
writings. They may refer to any other material like objects as
long as it contains letters, words, numbers, figures, symbols or
other modes of written expression and offered as proof of their
contents. There are, therefore, two categories of documents as
evidence, namely:
(a) writings; or
(b) any other material containing modes of written
expressions.
The relevant provision provides:
"SEC. 2. Documentary evidence. - Documents
as evidence consist of writings or any material contain-
ing letters, words, numbers, figures, symbols or other
modes of written expressions offered as proof of their
contents."
2. Under the first category are those instantly recog-
nizable documents like written contracts and wills. Under
the second category are those which are not traditionally
considered as writings but are actually objects which contain
modes of written expressions.
However, being writings or materials containing modes
of written expressions do not ipso facto make such materials
documentary evidence. 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.
CHAPTER IV - OBJECT AND DOCUMENTARY EVIDENCE 129
B. Documentary Evidence (Rule 130)
Wnen 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.
Documents under the Rules on Electronic Evidence (Bar
2009)
1. Sec. l(h), Rule 2 of the Rules on Electronic Evidence
defines an 'electronic document' as follows:
"(h) 'Electronic document' refers to information or
the representation of information, data, figures, symbols
or other modes of written expressions, described or
however represented, by which a right is established
or an obligation extinguished, or by which a fact may
be proved and affirmed, which is received, recorded,
transmitted, stored, processed, retrieved or produced
electronically. It includes digitally signed documents
and any print-out or output, readable by sight or other
means, which accurately reflects the electronic data
message or electronic document. For purposes of these
Rules, the term 'electronic document' may be used
interchangeably with 'electronic data message."'
2. An electronic document, also known interchangeably
as electronic data message (Sec. 1[h], Rule 2, Rules on Elec-
tronic Evidence), based on the definition of the Rules, does not
only refer to the information itself. It also refers to the rep-
resentation of that information. Whether it be the informa-
tion itself or its representation, for the document to be deemed
'electronic,' it is important that it be received, recorded, trans-
mitted, stored, processed, retrieved or produced electronically
(Bar 2012).
It is submitted that the rule does not absolutely require
that the electronic document be initially generated or
produced electronically. A contract, for instance, prepared
through the traditional written way may be converted to
an electronic document if ·transmitted or received or later
recorded electronically.
130 EVIDENCE
(The Bar Lectures Series)
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 (Sec. 1[h], Rule 2, Rules
on Electronic Evidence).
· 3. Electronic documents are the functional equivalents
of paper-based documents (Sec. 1 of Rule 3 of the Rules on
Electronic Evidence). The provision declares:
"Whenever a rule of evidence refers to the term of
writing, document, record, instrument, memorandum or
any other form of writing, such term shall be deemed
to include an electronic document as defined in these
Rules."
Since an electronic document is the functional equiva-
lent of a paper-based document, whenever a rule of evidence
makes reference to the terms of a writing, document, record,
instrument, memorandum or any other form ofwriting, such
terms are deemed to include electronic documents (Sec. 1, Rule
3, Rules on Electronic Evidence). It is, therefore, but logical to
consider the rules on evidence in the Rules of Court, including
statutes containing rules of evidence, to be of suppletory
application to the Rules on Electronic Evidence in all matters
not specifically covered by the latter (Sec. 3, Rule 1, Rules on
Electronic Evidence) (Bar 2003; 2010).
4. Under Sec. 1, Rule 5 of the Rules on Electronic
Evidence, the person offering the document has the burden to
prove its authenticity. Thus:
"SECTION 1. Burden of proving authenticity. -
The person seeking to introduce an electronic document
in any legal proceeding has the burden of proving its
authenticity in the manner provided in this Rule."
5. The manner of authentication of an electronic
document is outlined under Sec. 2, Rule 5 of the Rules on
Electronic Evidence as follows:
CHAPTER IV - OBJECT AND DOCUMENTARY EVIDENCE 131
B. Documentary Evidence (Rule 130)
"SEC. 2. Manner of authentication. - Before any
private electronic document offered as authentic is
received in evidence, its authenticity must be proved by
any of the following means:
(a) by evidence that it had been digitally signed
by the person purported to have signed the same; (Bar
2012)
(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."
Notice that the aforementioned rigorous requirements
for the authentication of an electronic document do not apply
to all electronic documents. Sec. 2 of Rule 5 will obviously apply
only when the document is a private electronic document and
the same is offered as an authentic document.
If the electronic document is offered simply for what it
is or for what it is claimed to be without regard to whether
or not it is authentic, Sec. 2 of Rule 5 finds no relevance. In
such a case, the electronic document has only to be identified
pursuant to the suppletory application of Sec. 20 of Rule 132
of the Rules of Court. Accordingly, under the said provision,
"Any other private document need only be identified as that
which it is claimed to be."
6. When, for instance, a document is electronically
notarized, the manner of authentication under Sec. 2 of Rule
5 will not likewise apply. When so notarized, it is transformed
into a public document and is to be proved not in accordance
with the Rules on Electronic Evidence but in accordance with
the Rules of Court. The tenor of Sec. 3, Rule 5 of the Rules on
Electronic Evidence is enlightening:
"SEC. 3. Proof ofelectronically notarized document.
- A document electronically notarized in accordance
with the Rules promulgated by the Supreme Court shall
be considered as a public document and proved as a
notarial document under the Rules of Court."
132 EVIDENCE
(The Bar Lectures Series)
Sec. 30 of Rule 132 of the Rules of Court provides for the
manner of proving notarial documents. In distinct terms, the
provision categorically states that "Every instrument duly
acknowledged or proved and certified as provided by law, may
be presented in evidence without further proof, the certificate
of acknowledgment being prima facie evidence of the execution
of the instrument or document involved" (Italics supplied).
Evidentiary concepts involved in the presentation of docu-
mentary evidence
To be admissible, documentary evidence, like any other
evidence, must be relevant and competent. It is also subject to
general exclusionary rules such as the rule on hearsay, best
evidence rule, and parol evidence rule.
Thus, depending upon the specific purpose for which
the contents of the document is offered, there are certain
inevitable issues which may arise in connection with the
admissibility of the document aside from the issue of relevance.
Has the document been authenticated? Is it relevant? Is it
the best evidence? Is it a mere parol evidence and so must
be excluded? Is it hearsay and, therefore, must be rejected?
It would, therefore, be critical to remember that whenever
a documentary evidence is involved, the best evidence rule,
parol evidence rule, and hearsay rule, or any one of these rules
may come into play. However, where the evidence is offered as
an object evidence, the best evidence rule, parol evidence rule,
and hearsay rule find no application.
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 evi-
dence.
CHAPTER IV - OBJECT AND DOCUMENTARY EVIDENCE 133
C. Best Evidence Rule
C. Best Evidence Rule
Meaning of "best evidence" (Bar 1988)
1. The "best evidence" rule as embodied in Sec. 3 of
Rule 130 of the Rules of Court provides:
"SEC. 3. Original document must be produced;
exceptions. - When the subject of inquiry is the con-
tents of a document, no evidence shall be admissible
other than the original document itself, except in the
following cases:
(a) When the original has been lost, or destroyed,
or cannot be produced in court, without bad faith on the
part of the offeror;
(b) When the original is in the custody or under
the control of the party against whom the evidence is
offered, and the latter fails to produce it after reasonable
notice;
(c) When the original consists of numerous
accounts or other documents which cannot be examined
in court without great loss of time and the fact sought
to be established from them is only the general result of
the whole; and
(d) When the original is a public record in the
custody of a public officer or is recorded in a public
office."
·:1
!.
~~- 2. The term "best evidence," as used in the "best
1
;~
'" evidence rule," has been a source of misconception. It has often
'·
been misunderstood and given a meaning it does not deserve.
Despite the word "best," the rule does not proclaim itself as
.j the highest and most reliable evidence in the hierarchy of
,,.
'·~: evidence. The term "best" has nothing to do with the degree
of its probative value in relation to other types of evidentiary
rules. It is not intended to mean the "most superior" evidence.
More accurately, it is the "original document" rule or the
"primary evidence" rule.
3. The best evidence rule does not apply to all types
of evidence. It does not comprehend object and testimonial
evidence. It only applies when the evidence is documentary.
 134 EVIDENCE
(The Bar Lectures Series)
Also, it does not apply just because a document is offered in
evidence. The rule only covers situations in which the suQject
of inquiry is the contents of the document. Subject to certain
exceptions, under the best evidence rule, when the subject of
inquiry relates to the contents of a document, no evidence shall
be admissible other than the original document itself. In other
words, one who wants to prove the contents of a document need
to present the original document. Where the purpose of the
offeror is one other than to prove the contents of a document,
compliance with the best evidence rule is not necessary. The
key, therefore, to the understanding of the ''best evidence" rule
is simply to remember that the rule cannot be invoked unless
the contents of a writing is the subject of judicial inquiry, in
which case, the best evidence is the original writing itsel£
4. An early case ruled:
"x x x the rule-applies only where the content of
the document is the subject of the inquiry. Where the
issue is the execution or existence of the document or
the circumstances surrounding its execution, the best
evidence rule does not apply and testimonial evidence is
admissible." (Arceo v. People, 495 SCRA204; Underscoring
supplied).
5. The RTC, in one case, was sustained for admitting
in evidence mere copies of certain deeds. As held, the ''best
evidence rule" applies only when the content of such document
is the subject of the inquiry. Where the issue is only as to
whether such document was actually executed, or existed, or
on the circumstances relevant to or surrounding its execution,
the best evidence rule does not apply and even testimonial
evidence is admissible. Any other substitutionary evidence is,
likewise, admissible without need to account for the original
(Chua Gaw v. Chua, 551 SCRA 505).
6. In a prosecution for ill-gotten wealth, the Republic
offered in evidence photocopies of certain documents to prove
the contents thereof which would implicate the respondents.
The Court categorically ruled that such offer of mere
photocopies violate the "best evidence" rule, which mandates
that the evidence must be the original document itself. The
CHAPTER IV- OBJECT AND DOCUMENTARY EVIDENCE 135
C. Best Evidence Rule
Republic, observed the Court, did not even make an attempt
to provide a plausible reason why the originals were not
presented and why the photocopies should be admitted as
secondary evidence (Republic v. Marcos-Manotoc, 665 SCRA
367, 386, February 8, 2012).
7. In an action against a taxpayer, the best evidence
obtainable under the then Sec. 16 of the 1977 NIRC, as
amended, does not include mere photocopies of records and
documents. The copies presented have no probative weight
and are mere scraps of paper. The copies cannot prove any
deficiency in the taxes of the taxpayer (Commissioner of
Internal Revenue v. Hantex Trading Co., Inc., 454 SCRA 301).
This is because inquiry as to the contents of the documents is
inevitable to prove the deficiency.
Purpose of the rule (Bar 1994; 1998)
1. "The best evidence rule ensures that the exact
contents of a document are brought before the court. In
deeds, wills, and contracts, a slight variation in words may
mean a great deal of difference in the rights and obligations
of the parties. A substantial hazard of inaccuracy exists in
the human process of making a copy by handwriting or
typewriting x x x. The best evidence rule, likewise, acts as an
insurance against fraud. If a party is in the possession of the
best evidence in its place, the presumption naturally arises
that the better evidence is withheld for fraudulent purposes
that its production would expose and defeat. The rule,
likewise, protects against misleading inferences resulting
from the intentional or unintentional introduction of selected
portions of a larger set of writings" (Republic v. Mupas, G.R.
No. 181892, September 8, 2015).
I 2. The theory, therefore, is that the copy of the original
:l is not as reliable as the latter because o( possible inaccuracy
:I in the process of copying and the danger of erroneous
!i transmission of the original.
:I
'f
1 The above principle is reiterated, thus: The only actual
'(
L
f
rule that the term "best evidence" denotes is the rule requiring
a
that the original of a writing must, as general proposition,
I
i
1

136 EVIDENCE
(The Bar Lectures Series)
be produced (EDSA-Shangrila Hotel v. BF Corporation, 556
SCRA25).
Waiver of the rule
The best evidence rule may be waived if not raised in
the trial. In one case, although the marriage certificate, the
marriage license, and other pieces of documentary evidence
were only photocopies, the fact that these have been examined
and admitted by the trial court, with no objections having
been made as to their authenticity and due execution, means
that these documents are deemed sufficient proof of the facts
contained therein (Sy v. Court of Appeals, 330 SCRA 550).
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.
2. If a witness testifies that the victim was writing a
letter when he was shot by the accused, the judge would likely
rule against the party who insists on the presentation of the
letter because it is not the subject of an important issue in
the case and, hence, merely collateral.
Also, if a witness testifies that he actually saw the debtor
tender payment of his obligation to the creditor, he need not
be required to produce the original promissory note evidencing
the debt because it is the act of payment which is the focal
point of the testimony, not the document. The document need
not be, likewise, presented when the witness merely testifies
to the delivery of a deed of sale by X to Y because proving
the contents of the document itself is not the purpose of the
testimony.
How to apply the best evidence rule
1. The first step in applying the best evidence rule is
to determine the matter inquired into. If the inquiry involves
!
I
CHAPTER IV- OBJECT AND DOCUMENTARY EVIDENCE 137
C. Best Evidence Rule
I
I a document, and its contents are the subject of that same
inquiry, the best evidence rule applies and must, therefore,
t be complied with. The procedural compliance of the rule
I requires the presentation of the original document, and not
a copy of that document. So long as the original is available,
f no other evidence can be substituted for the original because
the original is the "best evidence" and not the mere copies or
substitutes thereof.
To reiterate, the best evidence rule applies only when
the contents of the document is the subject of inquiry. Where
the issue is only as to whether such document was actually
executed, or exists, the best evidence rule does not apply.
In fact, testimonial evidence may be admissible (Skunac
Corporation v. Sylianteng, G.R. No. 205879, April23, 2014).
2. Now what is to be done if, for one reason or another,
the original cannot be presented in evidence? If this happens,
the second step now comes into play. This step involves two
stages: (1) finding an adequate legal excuse for the failure to
present the original; and (2) presenting a secondary evidence
allowed 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."
Illustrative applications of the best evidence rule
Illustration No.1
In a case where counsel wants to show that a
marriage ceremony took place between H and W, the
following questions were asked: ·~.
Q: Mr. Witness, where were you on September 26,
2015 at around 7:30 in the evening?
A: I was in the Manila Cathedral attending the
wedding ofH and W where! stood as a principal
sponsor.
138 EVIDENCE
(The Bar Lectures Series)
Q: Can you tell this Court what happened when
you were there?
A: There was a marriage ceremony officiated by
the parish priest for the marriage of H and W.
Opposing counsel objects at this stage:
"Objection, Your Honor! The best evidence is
the marriage contract!"
Should the court sustain the objection? No! The best
evidence rule does not apply. For the best evidence rule to
apply, two requisites must concur:
(a) The subject matter must involve a document;
and
(b) The subject of the inquiry is the contents of the
document.
The subject of the inquiry and response in the illustra-
tion does not even involve a document. The evidence is purely
testimonial. Where the contents of a document is not in issue,
the best evidence rule cannot be invoked and more so when
the evidence does not involve a document. The illustration
merely involves an inquiry into an activity that occurred in
the presence of the witness. Thus, a witness may testify as
to an event he perceived. The wedding ceremony is an event
or a fact with an existence independent of any writing. The
ceremony was observed and perceived by the witness, and
one's perception, if relevant to an issue in the case, is a
legitimate subject of a testimony. 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.
Illustration No. 2
Q: After the wedding ceremony Mr. Witness, what
happened, if any?
A: The priest asked all sponsors to sign a document.
CHAPTER IV - OBJECT AND DOCUMENTARY EVIDENCE 139
C. Best Evidence Rule
Q: Did you and the other sponsors sign the docu-
ment?
A: We all did, Sir.
Q: How about H and W?
A: They also signed, Sir.
Q: How about the priest?
A: He signed the document, Sir.
Q: By the way, what document did all of you sign?
! A: The marriage contract, Sir.
The opposing counsel objects: "Objection, Your Honor!
The best evidence is the marriage contract. Counsel should
show the marriage contract."
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
r
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
i1
~,.
inquiry as to the contents of the document. In the words ofthe
~
Rules of Court, the best evidence rule applies only when the
subject of inquiry is the contents of a document (Sec. 3, Rule
130, Rules of Court). Thus, a witness may be asked whether
or not he sold his land in writing to another, and an objection
that the deed of sale is the best evidence of the sale is improper
because the testimony made no reference to the contents of
the deed.
It is always vital to remember that the best evidence rule
applies only when the purpose is to establish the contents
of a writing. When the evidence introduced concerns some
external fact about a writing like its existence, execution
or delivery, without reference to its terms, the rule cannot
be invoked (People v. Tandoy, 192 SCRA 28; 4 Wigmore
On Evidence, §1178, 1188; People v. Bago, 330 SCRA 115)
because the writing is not a documentary evidence but a mere
140 EVIDENCE
(The Bar Lectures Series)
object evidence. The best evidence rule does not apply to an
object evidence. Hence, the original need not be presented.
The existence or condition of that writing may be proved by
any other evidence, like oral testimony (People v. Tandoy, 192
SCRA28).
IDustration No. 3
Assume that we are continuing the hypothetical
involving the testimony of a sponsor of the wedding:
Q: Mr. Witness, you testified that you, the other
sponsors, as well as both H and W, signed the
marriage contract. Is that right?
A: That is correct, Sir.
Q: You also testified that you read the contract
before you signed it. Is that correct?
A: That is correct, Sir.
Q: What did the marriage contract contain as to
the name of the officiating priest?
Opposing counsel objects: "Objection, Your
Honor! Counsel should present the marriage
contract under the best evidence rule!"
Should the objection be sustained? It should. In this
illustration, the best evidence rule is properly invoked. Here,
counsel is trying to prove some contents in the marriage
contract through oral testimony without producing the ori-
ginal document.
Excuses for not presenting the original document (Bar 1992;
1997}
The excuses for the non-production of the original docu-
ment 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 ofthe Rules of Court, namely:
CHAPTER IV - OBJECT AND DOCUMENTARY EVIDENCE 141
C. Best Evidence Rule
(a) When the original has been lost or destroyed,
or cannot be produced in court, without bad faith on the
part of the offeror;
(b) When the original is in the custody or under the
control of the party against whom the evidence is offered,
and the latter fails to produce it after reasonable notice;
(c) When the original consists of numerous ac-
counts or other documents which cannot be examined in
court without great loss of time and the fact sought to be
established from them is only the general result of the
whole; and
(d) When the original is a public record in the
custody of a public officer or is recorded in a public office.
Requisites for the introduction of secondary evidence in
case of loss, destruction, or unavailability of the original
1. Secondary evidence refers to evidence other than
the original instrument or document itself(EDSA Shangri-La
Hotel and Resort, Inc. v. BF Corporation, 556 SCRA 25).
Secondary evidence, like a copy of the original, is admis-
sible as an exception if the original writing has been lost,
destroyed or cannot be produced in court without bad faith
on the part of the party offering the secondary evidence. This
exception does not only cover loss or destruction but also other
reasons for the failure to produce the original in court even if
the original is not lost or destroyed, as when the original is
beyond the territorial jurisdiction of the court (Reynolds on
Evidence, 2nd Ed., §61; PNB v. Olila, 98 Phil. 1002).
2. 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 existence and
execution of the original document;
(b) The offeror must show the cause of its unavail-
ability such as the loss or destruction of the original; and
 142 EVIDENCE
(The Bar Lectures Series)
(c) The offeror must show that the unavailability
was not due to his bad faith (See also Republic v. Mupas,
G.R. No. 181892, September 8, 2015). ·
After complying with the requirements for laying the
basis for the introduction of secondary evidence, the offeror
may now be allowed to prove the contents of the documents by
secondary evidence.
3. Based on the Rules, the presentation of secondary
evidence should be in the following order:
(a) a copy of the original;
(b) a recital of the contents of the document in some
authentic document; or
(c) by the testimony of witnesses (Sec. 5, Rule 130,
Rules of Court).
Accordingly, the correct order of proof is as follows:
existence, execution, loss and contents although, at the sound
discretion of the court, this order may be changed if necessary
(Citibank, N.A. Mastercard v. Teodoro, 411 SCRA 577, 585).
4. One case, involving two women who claimed to be
the legal spouse of the same man, is illustrative.
In the case, the respondent filed an action for the
declaration of nullity of the second marriage ofher husband to
the petitioner. The respondent alleged in her complaint that
she had married her husband in 1942. The petitioner, on the
other hand, claimed to be the legal wife of the same man on the
basis of her marriage to him in 1979. She alleged, by way of
I
defense, that the man she married was not the legal husband,
but only the common law husband, of the respondent.
The respondent, who had no original marriage certificate
to prove the marriage, offered in evidence the certifications
from both the civil registrar of the place of marriage and the
National Statistics Office, attesting to the destruction of all
records of marriage during the Second World War. Since
I there was no copy of the record of marriage, she submitted the
following secondary evidences: (a) certificate of her marriage
to her husband issued by the parish priest of the place where
CHAPTER IV - OBJECT AND DOCUMENTARY EVIDENCE
143
C. Best Evidence Rule
the marriage was solemnized; (b) birth certificates of her
children by her husband; (c) certificate of baptism of one child
indicating that he was born to respondent and her husband;
(d) the testimony of respondent herself; and (e) the testimony
of the sister of her husband as to the fact of marriage.
The Court ruled that the evidences offered established
the fact of marriage of respondent to the man she claimed to
be her husband. The marriage of petitioner to the same man,
was declared null and void (See Macua Vda. de Avenido v.
Avenido, G.R. No. 173540, January 22, 2014).
Citing precedents, the Court, in the same case, declared:
"While a marriage certificate is considered the
primary evidence of a marital union, it is not regarded
as the sole and exclusive evidence of marriage.
Jurisprudence teaches that the fact of marriage may be
proven as relevant evidence other than the marriage
certificate. Hence, even a person's birth certificate may
be recognized as competent evidence of the marriage
between his parents."
Requisites for the introduction of secondary evidence when
the 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 first lay the basis for its introduction. Laying
the basis requires proof of the following:
(a) that the original exists;
(b) that said document is under the custody or
control of the adverse party;
(c) that the proponent of secondary evidence has
given the adverse party reasonable notice to produce the
original document; and
(d) that the adverse party failed to produce the
original document despite the reasonable notice.
 144 EVIDENCE
(The Bar Lectures Series)
2. In one case, the Supreme Court emphasized that the
mere fact that the original of the writing is in the custody or
control of the party against whom it is offered does not warrant
the admission of secondary evidence. The offeror must prove
that he has done all in his power to secure the best evidence by
giving notice to the said party to produce the document. The
notice may be in the form of a motion for the production of the
original, or made in open court in the presence of the adverse
party, or via a subpoena duces tecum, provided that the party
in custody of the original has sufficient time to produce the
same. When such party has the original of the writing and
does not voluntarily offer to produce it or refuses to produce
it, secondary evidence may be admitted (Magdayao u. People,
436 SCRA 677).
3. After the foundational requirements for the intro-
duction of secondary evidence have been complied with,
secondary evidence may now be presented as in the case of
loss (Sec. 6, Rule 130, Rules of Court). This means that the
contents of the document may now be proven by a copy of the
document, a recital of its contents in some authentic docu-
ment, or by testimony of witnesses in the order stated (Sec. 5,
Rule 130, Rules of Court).
Requisites for the introduction of secondary evidence when
the original consists of numerous accounts
1. Under this exception, secondary evidence is admis-
sible:
(a) if the original consists of numerous accounts or
other documents;
(b) such accounts or documents cannot be exam-
ined 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 (Sec. 3[c], Rule 130,
Rules of Court).
2. The main reason for this exception lies in the
determination by the court that production of the original
CHAPTER IV - OBJECT AND DOCUMENTARY EVIDENCE 145
C. Best Evidence Rule
writings and their examination in court would result in great
loss of time considering that the evidence desired from the
voluminous accounts is only the general result of the whole
like a summary of the accounts. Under this exception, a
witness may be allowed to offer a summary of a number of
documents, or the summary itself may be admitted, if the
underlying documents are so voluminous and intricate as to
make an examination of all of them impracticable. They may
also be presented in the form of charts or calculations (29A
Am Jur, Evidence, §§1059-1060).
3. The trial court may admit a summary of the
voluminous original documents, in lieu of original documents,
if the party has shown that the underlying writings are
numerous and that an in-court examination of these docu-
ments would be inconvenient. In other words, the rule does
away with the item-by-item court identification of voluminous
exhibits which would only be burdensome and tedious for the
parties and the court (See Republic v. Mupas, G.R. No. 181892,
September 8, 2015).
For example, an accountant's written summary of some
150,000 sales invoices for goods sold by the plaintiff may
be allowed under this exception despite the objection of the
defendant that the sales invoices constitute the original
documents and should be presented (Campania Maritima v.
Allied Free Workers Union, 77 SCRA 24).
As a condition precedent to the admission of a summary of
numerous documents, the proponent must lay a proper foun-
dation for the admission of the original documents on which
the summary is based. This means that the source documents
must be shown to be original and not secondary and must be
made accessible to the opposing party so that the correctness
of the summary may be tested on cross-examination or may be
refuted in pleadings. A proper foundation for the introduction
of a summary may be established through the testimony of
the person responsible for the summary's preparation, or the
person who supervised the preparation of the summary (See
Republic v. Mupas, G.R. No. 181892, September 8, 2015).
146 EVIDENCE
(The Bar Lectures Series)
Requisites for the introduction of secondary evidence when
the 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 (Sec~ 3[d), Rule
130, Rules of Court). Public records are generally not to be
removed from the places where they are recorded and kept
(Sec. 26, Rule 132, Rules of Court). For this reason, the proof
of the contents of a document, which forms part of a public
record may be done by secondary evidence. 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
(Sec. 7, Rule 130, Rules of Court).
Effect of not offering a document in evidence after calling
for its production and Inspection
If the party who calls for the production of a document
does not offer the same in evidence, no unfavorable inference
may be drawn from such failure. This is because under Sec. 8
of Rule 130, a party who calls for the production of a document
is not required to offer it. The pertinent provision states:
"SEC. 8. Party who calls for document not bound
to offer it. - A party who calls for the production of a
document and inspects the same is not obliged to offer
it as evidence."
Meaning of "original" (Bar 1997; 2001)
1. Sec. 4 of Rule 130 elucidates on the concept of the
term "original," thus:
"SEC. 4. Original of document. -
(a) The original of a document Is one the contents
of which are the subject of inquiry.
(b) When a document Is In two or more copies
executed at or about the same time, with Identical con-
tents, all such copies are equally regarded as originals.
(c) When an entry is repeated in the regular
course of business, one being copied from another at
CHAPTER IV - OBJECT AND DOCUMENTARY EVIDENCE 147
C. Best Evidence Rule
or near the time of the transaction, all the entries are
likewise equally regarded as originals."
2. The layman's concept refers to the original as the
first one written and from which mere copies are made,
transcribed or imitated. Accordingly, from this perspective,
there can only be one original. This is not, however, so. Under
the Rules of Court, there are instances when subsequent
documents are also regarded as originals. One example is that
provided for in Sec. 4(c) of Rule 130. Here, when an entry is
repeated in the regular course of business, one being copied
from another at or near the time of transaction, all the entries
are equally regarded as originals.
To be considered originals under this provision, certain
requisites must be complied with:
(a) there must be entries made and repeated in the
regular course of business; and
(b) the entries must be made at or near the time of
the transaction.
Thus, if a data clerk makes an entry of a transaction
which is repeated several times for the files of each department
of the company, each document where the entry was made
is an original as long as the entries are made at or near the
time of the transaction and in the regular course of business.
Also, when a lawyer writes a pleading in two or more copies
which are executed at the same time, with identical contents,
each document is an original (See Sec. 4[b], Rule 130, Rules
of Court). So are writings with identical contents made by
printing, mimeographing, lithography and other similar
methods executed at the same time. Thus, each newspaper
sold in the stand is an original in itself....
3. American authorities declare that where a docu-
ment is executed in duplicate or multiplicate form, each one
of the parts is primary evidence of the contents of the docu-
ment, and the other need not be produced. In such a case, each
is deemed an original (Anglo-American Packing, etc., Co. v.
148 EVIDENCE
(The Bar Lectures Series)
Cannon, 31 Fed. 313 cited in Jones On Evidence, §209). The
rule observed in the Philippines is the same. Thus, where car-
bon sheets are inserted between two or more sheets of writ-
ing so that the writing of a contract upon the outside sheet,
including the signature of the party to be charged thereby,
produces a facsimile upon the sheets beneath, such signature
being thus reproduced by the same stroke of pen which made
the surface or exposed impression, all of the sheets so written
on are regarded as originals and either of them may be intro-
duced in evidence without accounting for the nonproduction of
the others (Capital Shoes Factory, Ltd. v. Traveller Kids, Inc.,
736 SCRA 489).
4. Under the Rules of Court, "the original of a document
is one the contents of which are the subject of inquiry'' (Sec.
4[a], Rule 130, Rules of Court). Thus, when the rule speaks of
an "original," it obviously does not refer to the original of an
object evidence but an original of a documentary evidence. In
a documentary evidence, its contents are the subjects of the
inquiry. It is not, therefore, legally accurate to speak of the
original of a gun.
5. A signed carbon copy or duplicate of a document
executed at the same time as the original is known as a
duplicate original and maybe introduced in evidence without
accounting for the non-production of the original. When a
document is in two or more copies executed at or about the
same time, with identical contents, all such copies are equally
regarded as originals (Skunac v. Sylianteng, G.R. No. 205879,
April23, 2014).
6. In a suit against the telegraph company for failure to
transmit a message, the original is the message submitted to
the company for transmission (Jones on Evidence, §21 0 citing
Conyers v. Postal Cable Co., 92 Ga. 619, 19 S.E. 253 Am. St.
Rep. 100). If the suit is for damages by the sender against
the telegraph company because of delay in transmission, the
original would be the message as received by the recipient
(Jones on Evidence, §210 citing Collins v. Western Union Tel.
Co., 145 Ala. 412 41 So. 160, 8 ann. Cas. 268).
CHAPTER IV - OBJECT AND DOCUMENTARY EVIDENCE 149
C. Best Evidence Rule
Originals under the Rules on Electronic Evidence (Bar 2003)
1. Under Sec. 1, Rule 4 of the Rules on Electronic Evi-
dence, the original of the electronic document is its printout
or output readable by sight or other means, provided it is
shown to reflect the data accurately (Sec. 1, Rule 4, Rules on
Electronic Evidence; MCC Industrial Sales Corporation v.
Ssangyong Corporation, 536 SCRA 408).
"SECTION 1. Original of an electronic document.
- An electronic document shall be regarded as the
equivalent of an original document under the Best Evi-
dence Rule if it is a printout or output readable by sight
or other means, shown to reflect the data accurately."
2. The copies of the printout or output readable by
sight referred to in the immediately preceding paragraph are
also deemed originals where the copies were executed at or
about the same time with identical contents, or is a counterpart
produced by the same impression as the original or from
the same matrix, or by other means and which accurately
reproduces the original (Sec. 2, Rule 4, Rules on Electronic
Evidence).
"SEC. 2. Copies as equivalent of the originals. -
When a document is in two or more copies executed
at or about the same time with identical contents, or is
a counterpart produced by the same impression as the
original, or from the same matrix, or by mechanical or
electronic re-recording, or by chemical reproduction,
or by other equivalent techniques which accurately
reproduces the original, such copies or duplicates shall
be regarded as the equivalent of the original."
3. For the court not to consider the copies mentioned
in the immediately preceding paragraph- as having the same
effect as originals, a genuine question as to the authenticity of
the original must be raised, or that the circumstances would
make it unjust or inequitable to admit the copy in lieu of the
original (Sec. 2, Rule 4, Rules on Electronic Evidence). The
applicable rule provides:
 150 EVIDENCE
(The Bar Lectures Series)
"SEC. 2. Copies as equivalent of the originals. -
XXX
Notwithstanding the foregoing, copies or dupli-
cates shall not be admissible to the same extent as the
original if:
(a) a genuine question is raised as to the authen-
ticity of the original; or
(b) In the circumstances it would be unjust or
Inequitable to admit a copy in lieu of the original."
Original printout of facsimile transmissions {Bar 2012)
1. Is a printout of a facsimile transmission an electro-
nic data message or electronic document?
This question was answered by the Supreme Court in
MCC Industrial Sales Corporation v. Ssangyong Corporation
(536 SCRA 408).
The Court, in this case, concluded that the terms "elec-
tronic data message" and "electronic document," as defined
under the Electronic Commerce Act of 2000, do not include a
facsimile transmission and cannot be considered as electronic
evidence. It is not the functional equivalent of an original un-
I 2. A contract is a "meeting of the minds" between two
der the Best Evidence Rule and is not admissible as electronic
evidence.
Accordingly, the congressional deliberations on the Elec-
tronic Commerce Act show that when Congress formulated
the term "electronic data message," it intended the same
meaning as the term "electronic record" in the Canada law
which excludes telexes or faxes, except computer-generated
faxes from the term, "electronic data message."
The Court explained that since a· facsimile transmission
is not an "electronic data message" or an "electronic docu-
ment," and cannot be considered as electronic evidence by the
Court, with greater reason is a photocopy of such fax trans-
mission not electronic evidence.
2. In Garvida v. Sales, Jr. (271 SCRA. 767), the Court
explained the unacceptability of filing pleadings through fax
machines. In so doing, the Court ruled:
CHAPTER IV - OBJECT AND DOCUMENTARY EVIDENCE 151
D. Parol Evidence Rule (Rule 130)
A facsimile is not a genuine and authentic
pleading. It is. at best. an exact copy preserving all the
marks of an original. Without the original. there is no way
of determining on its face whether the facsimile pleading
is genuine and authentic and was originally signed by the
party and his counsel. It may, in fact, be a sham pleading"
(Underscoring supplied).
D. Parol Evidence Rule
(Rule 130)
Contracts and the parol evidence rule
1. Among the various evidentiary rules, it is the
parol evidence rule that has direct application to the law on
contracts. The rule, however, applies only to contracts which
the parties have decided to set forth in writing, i.e., as Sec.
9 of Rule 130 provides: "When the terms of an agreement
have been reduced to writing." Hence, when the agreement is
merely oral, the parol evidence rule should not be applied.
or more persons. This is how a contract is described under
Art. 1305 of the Civil Code. The Civil Code does not define a
contract as a document, a deed, or an instrument. The docu-
ment, deed, or instrument is merely the tangible evidence of
a contract. It is the meeting of the minds between the parties
that constitutes the contract.
3. Before executing a written agreement, the parties
normally engage in preliminary oral negotiations. They may
even exchange letters or notes constituting offers and counter-
offers which, of course, are not intended to be contracts in
themselves but are merely parts of the negotiation process.
When the minds of the parties finally agree on the object and
cause or consideration, a contract is born. In legal parlance,
a contract is perfected. The perfected contract may be oral
or written, or partly oral and partly written. The form of
the contract, as a rule, does not matter. As long as there
is a "meeting of the minds," there is a perfected contract.
Even a purely oral agreement does not negate the existence
of a contract because under this jurisdiction, even an oral
152 EVIDENCE
(The Bar Lectures Series)
agreement gives rise to a contract. There is a contract because
there is a meeting of the minds (See Arts. 1305 and 1315, Civil
Code of the Philippines).
4. The decision of the parties to reduce the agreement
in written form is critical to the application of the parol
evidence rule. When they execute a written contract, the parol
evidence rule ipso facto comes into play. Under Sec. 9 of Rule
130, "When the terms of an agreement have been reduced to
writing, it is considered as containing all the terms agreed upon
and there can be, between the parties and their successors in
interest, no evidence of such terms other than the contents of
the written agreement (See Sec. 9, Rule 130, Rules of Court;
Carganillo v. People, G.R. No. 182424, September 22, 2014).
Application of the parol evidence rule (Bar 1978; 1.981; 1983;
2012)
1. The "parol evidence rule" is embodied in Sec. 9, Rule
130 of the Rules of Court which provides:
"SEC. 9. Evidence of written agreements. - When
the terms of an agreement have been reduced to writing,
it is considered as containing all the terms agreed
upon and there can be, between the parties and their
successors in interest, no evidence of such terms other
than the contents of the written agreement.
However, a party may present evidence to modify,
explain or add to the terms ofthe written agreement if he
puts in issue in his pleading:
(a) An intrinsic ambiguity, mistake or imperfec-
tion in the written agreement;
(b) The failure of the written agreementto 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.
The term "agreement" includes wills."
CHAPTER IV - OBJECT AND DOCUMENTARY EVIDENCE 153
D. Parol Evidence Rule (Rule 130)
2. The term "parol" evidence means something "oral"
or verbal but, with reference to contracts, it means extraneous
evidence or evidence aliunde (Black's Law Dictionary, 5th Ed.,
pp. 1005, 1006).
As used in the Rules of Court, the term refers not only
to oral but also to written evidence which are outside of or
extraneous to the written contract between the parties.
3. The parol evidence rule becomes operative when the
issues in the litigation are the terms of a written agreement.
In clear-cut language, the basic question that would bring
the parol evidence rule into play is: "What have the parties
agreed upon?" The appropriate answer would be: "Look into
the written agreement and not elsewhere because only the
contents of the written agreement are admissible in evidence."
There is no need to look into any other source because such
sources are barred by the rule. They are barred because, as
Sec. 9 of Rule 130 provides, the writing "... is considered as
containing all the terms agreed upon ... "
4. The provisions of Sec. 9 of Rule 130 consider the
written agreement as the embodiment of all the terms
agreed upon by the parties, i.e., a total integration of said
agreement. Because the writing is considered as containing
all the terms of said agreement, the traditional distinction
between partial and total integration observed in traditional
f.
I American jurisprudence appears irrelevant to the application
!
r.i of the parol evidence rule in a Philippine setting. In American
:
II':( jurisprudence (29A Am Jur 2d §§1116-1120), when a writing
,· is on its face incomplete, said writing is only a partial
integration of the agreement of the parties; hence, parol
evidence is not barred to prove matters not covered by the
writing. Parol evidence is, however, barred when the writing
is a total integration of the agreement. ··.
Under the Rules of Court, the written agreement is
already "considered to contain all the things agreed upon."
If this be so, the written agreement already represents the
II final expression of the agreement of the parties on the subject.
 154 EVIDENCE
(The Bar Lectures Series)
Being the final agreement, any extraneous or "parol" evidence
is inadmissible for any of the following purposes: (a) modify,
(b) explain, or (c) add to the terms of the written agreement.
5. The parol evidence rule, therefore, forbids any
addition to, or contradiction of, the terms of a written
agreement by testimony or other evidence purporting to
show that different terms were agreed upon by the parties,
varying the purport of the written contract (SeaOil Petroleum
Corporation v. Autocorp Group, 569 SCRA 387). Whatever is
not found in the writing is understood to have been waived
and abandoned (Edrada v. Ramos, 468 SCRA 597).
6. In general, the parol evidence rule is designed to
give certainty to written transactions, preserve the reliability
and protect the sanctity of written agreements.
The rationale behind the foregoing rule was explained in
Ortaiiez v. Court of Appeals (266 SCRA 561), thus:
"Spoken words could be notoriously undesirable
unlike a written contract which speaks of a uniform
language. Thus, under the general rule in Section 9 of
Rule 130 of the Rules of Court, when the terms of an
agreement were reduced to writing, as in this case, it
is deemed to contain all the terms agreed upon and no
evidence of such terms can be admitted other than the
contents thereof' (See also Spouses Paras v. Kimwa
Construction and Development Corporation, G.R. No.
171601, AprilB, 2015).
7. Be it noted again that the parol evidence rule does
not apply to oral agreements. For the said rule to apply, there
must be a writing. Not all writings, however, will trigger the
application of the parol evidence rule. That writing must
embody an agreement. The tenor of Sec. 9 clearly uses the
following words: "When the terms of an agreement have been
reduced to writing ... "
There is only one writing which, although not legally an
agreement, is considered to be one for purposes of the appli-
cation of the parol evidence rule. This writing is a will. The
CHAPTER IV - OBJECT AND DOCUMENTARY EVIDENCE 155
D. Parol Evidence Rule (Rule 130)
last paragraph of Sec. 9 of Rule 130 confirms this observation,
thus: "The term 'agreement' includes wills" (Italics supplied).
8. Should the "writing" that embodies the agreement of
the parties be in a particular form? Note that Sec. 9 of Rule
130 only makes reference to a "writing," not a public writing
or a private writing.
One case particularly well illustrates the answer to the
question. In this case, the petitioner contends that since the
promissory note is not a public instrument with the formali-
ties prescribed by law but a mere commercial paper, parol evi-
dence may "overcome" the contents of the promissory note.
The Supreme Court did not view the argument with
merit and held that the rule does not specifY that the written
agreement be a public document. The Court stated in the
case:
"What is required is that the agreement be in
writing as the rule is in fact founded on 'long experience
that written evidence is so much more certain and
accurate than that which rests in fleeting memory only,
i
:i_ that it would be unsafe, when parties have expressed
the terms of their contract in writing, to admit weaker
evidence to control and vary the stronger and to show
that the parties intended a different contract from that
expressed in the writing signed by them.' Thus, for the
parol evidence rule to apply, a written contract need not
be in any particular form, or be signed by both parties.
As a general rule, bills, notes and other instruments of a
similar nature are not subject to be varied or contradicted
by parol or extrinsic evidence" (lnciong, Jr. v. Court of
Appeals, G.R. No. 96405, June 26, 1996, 247 SCRA 578).
Application of the rule only to parties and their successors-
in-interest --.
1. The parol evidence rule does not apply to persons
who are not parties to a deed and do not base their claim on it
(Eagleridge Development Corporation v. Cameron Granville 3
Asset Management, Inc., 741 SCRA 557).
156 EVIDENCE
(The Bar Lectures Series)
2. Only the parties and successors-in-interest are
bound by the parol evidence rule. The rule that the terms
of an agreement are to be proven only by the contents of
the writing itself refers to suits between "parties and their
successors in interest" (Sec. 9, Rule 130, Rules of Court). The
rule does not bind suits involving strangers to the contract. It
applies only to the parties to a written agreement and those
who are privy to a party or successors-in-interest (29A Am
Jur, Evidence, §1096). Thus, a total stranger to the writing is
not bound by its terms and is allowed to introduce extrinsic or
parol evidence against the efficacy of the writing (Lechugas v.
Court of Appeals, 22 Phil. 310, August 6, 1986, citing Horn v.
Hansen, 57 N. W. 315).
Application of the rule to wills
1. The parol evidence rule applies to contractual obli-
gations. However, by the explicit provision of Sec. 9 of Rule
130, the term "agreement" includes wills. There can, there-
fore, be no evidence of the terms of the will other than the
contents of the will itself.
2. While the parol evidence rule applies to wills, an
express trust concerning an immovable or any interest therein
may not be proved by parol evidence (Art. 1443, Civil Code of
the Philippines).
illustration:
Mr. Seller and Mr. Buyer entered into a written
contract for the sale of a house and lot. The deed of sale
mentions a purchase price ofP25 million, a down payment
of seventy percent (70%), and the balance payable
within one (1) year from the tender of the downpayment
although the actual period agreed upon orally was two (2)
years. The oral agreement between them also considered
the air conditioners inside each room of the house as part
of the purchase price, but this fact was inadvertently not
mentioned in the written agreement.
Under the parol evidence rule, _Mr. Buyer would
not be allowed to show that the purchase price included
CHAPTER IV- OBJECT AND DOCUMENTARY EVIDENCE 157
D. Parol Evidence Rule (Rule 130)
the air conditioners and that the payment period for the
jJ balance was two (2) years. He would not be allowed to
do so because of the rule that the only evidence of the
terms of the agreement between the parties shall be the
contents of the written agreement itself. Any extrinsic
evidence therefore, that would modify, explain or add
to the writing would be deemed "parol" evidence and
hence, barred. Parol evidence is inadmissible to establish
stipulations other than those contained in the writing.
Thus, all other evidence of the contents ofthe writing are
to be ignored. This is the general rule.
When and how to introduce parol evidence
'
.L
1. The rule prohibiting parol evidence is not absolute.
fi
j
' A party may present evidence when he desires to modify,
explain or add to the terms of the written agreement
(Carganillo v. People, G.R. No. 182424, September 22, 2014)
by putting in issue in the pleadings any of the following:
(a) An intrinsic ambiguity, mistake or imperfection
i
;.;
'-~ in the written agreement;
(b) The failure of the written agreement to express
the true intent and agreement of the parties thereto
(Saberola v. Suarez, 558 SCRA 135);
(c) The validity ofthe written agreement; or
(d) The existence of other terms agreed to by the
parties or their successors-in-interest after the execu-
tion of the written agreement (Sec. 9, Rule 130, Rules of
Court).
2. Introducing parol evidence means offering extrinsic
or extraneous evidence that would modify, explain or add to
the terms of the written agreement, buf·parol evidence may
only be allowed if, any of the matters mentioned above (from
"a" to "d") is put in issue in the pleadings (Carganillo v. People,
G.R. No. 182424, September 22, 2014). Without complying
with this requirement, i.e., putting in issue in the pleadings,
parol evidence cannot be introduced.
158 EVIDENCE
(The Bar Lectures Series)
Example: Seller sues Buyer for P300,000.00, an amount
representing the unpaid balance of the price of a car bought
by and duly delivered to the latter. Although the deed of sale
stipulated a contract price of P700,000.00, the actual oral
agreement was only for Buyer to pay a price of P400,000.00,
an amount already paid. The amount as written in the deed -
of sale was actually a result of mere inadvertence. If Buyer
wants to prove during the trial that the true price as agreed
by the parties is P400,000.00, Buyer must allege in his answer
to the complaint that there was a mistake in the writing and
it does not reflect the true agreement of the parties. Such
allegations would put such matters in issue in the pleading,
opening the door to the introduction of parol evidence.
3. To reiterate, the parol evidence rule does not per se
bar the introduction of parol evidence as long as the pleader
puts in issue in the pleading any of the matters set forth in
the rule such as the mistake or imperfection of the writing,
its failure to express the true agreement of the parties or
the existence of subsequent agreements. The key words are
"putting in issue" in the pleading. Unless duly pleaded, a
party will be barred from offering extrinsic evidence over the
objection of the adverse party.
Thus, it was clearly declared: "Provided that a party puts
in issue in its pleading any of the four (4) items enumerated
in the second paragraph of Sec. 9, Rule 130, a party may
present evidence to modify, explain or add to the terms of
the agreement (Spouses Paras v. Kimwa Construction and
Development Corporation, G.R. No. 171601, AprilS, 2015).
4. In an action to recover from an insurance policy, the
plaintiff wanted to put forth a witness who would testify as
to the actual terms of the contract of insurance as allegedly
agreed upon despite contrary provisions in said policy. The
testimony was not allowed. The Supreme Court sustained
both the trial court and the Court of Appeals on the basis of
Sec. 9 of Rule 130.
The Court ruled that Sec. 9, Rule 130 of the Revised
Rules of Court expressly requires that for parol evidence to
CHAPTER IV - OBJECT AND DOCUMENTARY EVIDENCE 159
D. Parol Evidence Rule (Rule 130)
be admissible to vary the terms of the written agreement,
the mistake or imperfection thereof or its failure to express
the true agreement of the parties should be put in issue in
the pleadings. As correctly noted by the appellate court, the
plaintiff failed to raise the issue of an intrinsic ambiguity,
mistake or imperfection in the terms of the insurance policy,
or the failure of said contract to express the true intent and
agreement of the parties thereto in its complaint. There was,
therefore, no error on the part of the appellate court when it
affirmed the RTC's order disallowing the witness to testify as
to the alleged terms of the contract (Pilipinas Bank v. Court of
Appeals, 341 SCRA 527).
Prior, contemporaneous, and subsequent agreements
1. The traditional rules limit the inadmissibility of
parol evidence or extrinsic evidence to prior or contempora-
neous stipulations. Hence, if a written agreement was executed
by the parties on December 22, 2015, agreements before
(prior) that date or even on the same date (contemporaneous)
which modify, alter, or contradict the stipulations written
into the December 22 agreement are not admissible since
these constitute parol evidence. But assuming that the
same parties entered into another agreement on January 5,
2016 which modifies some of the terms of the December 22
agreement, would the January 5 agreement be admissible
without violating the parol evidence rule? Under traditional
rules, the agreement would be admissible because subsequent
agreements are not barred by the parol evidence rule.
Citing American sources, the eminent authority, Moran,
writes: "The parties to a written agreement may show by parol
evidence that, subsequent to the execution of such written
agreement, they have entered into an o.ral contract tending
to waive, dissolve, or annul the former agreement, or in any
manner to add to, or subtract from or vary or qualify the terms
thereof' (Moran, Comments on the Rules of Court 1980, 112).
2. The rule forbidding the admission of evidence
aliunde or extrinsic evidence did not prohibit proof of an
160 EVIDENCE
(The Bar Lectures Series)
agreement entered into after the written instrument was
executed, notwithstanding that such agreement may have
the effect of adding to, changing or modifying the written
agreement of the parties (Canuto v. Mariano, 37 Phil. 840).
This is in fact the rule in American jurisprudence (Jones on
Evidence, 6th Ed., Vol. 3, §16.1 0). Parol evidence on subsequent
agreements may be admitted (29a Am Jur, Evidence, §1133).
This means that the existence of another agreement after the
execution of the original written agreement may be introduced
without first complying with the requirement of putting the
subsequent agreement in issue.
3. In contrast to the 1964 Rules on Evidence, the
amendments to the rules, effective July 1, 1989, added
"subsequent agreements" as among those matters that need
to be put in issue. This signifies that before evidence may be
introduced that the parties entered into another agreement
after the execution of the written agreement, such subsequent
agreement has first to be put in issue in the pleadings. The
phraseology of the rule leads one to conclude that, unlike
traditional jurisprudence, such a subsequent agreement could
be invoked only if its existence is put in issue in the pleading.
Intrinsic ambiguity in the writing
1. An instance when evidence aliunde or parol evidence
may be allowed to modify, explain or even add to the written
agreement is when an intrinsic ambiguity exists in the
written agreement. It must be emphasized, however, that the
mere existence of an intrinsic ambiguity will not authorize
the admission of parol evidence. It is very important that the
intrinsic ambiguity be put in issue in the party's pleading. It is
the raising of the issue of intrinsic ambiguity in the pleading
which will authorize the introduction of parol evidence.
2. 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
CHAPTER IV - OBJECT AND DOCUMENTARY EVIDENCE 161
D. Parol Evidence Rule (Rule 130)
but a single meaning, but some matter extraneous to the
writing creates the ambiguity (Black's Law Dictionary, 5th
Ed., p. 73 citing Logue v. Von Almen, 379 Ill. 208, 40 N.E.2d
73, 82).
In this type of ambiguity, the document is clear on its
face but matters outside the agreement create the ambiguity.
Illustration: The testator's will bequeaths to Jose
N avidad, his only grandson, a parcel of grazing land with
an area of ten thousand square meters, located in a town
called Magdiwang. It was discovered, after his death, that the
testator owns two parcels of land in the same place which are
of exactly the same area and description. There is here an
intrinsic ambiguity in the writing.
Similarly, if the testator owns only one parcel of land
and bequeaths that land to his grandson, described in the will
as Jose Navidad, but it was discovered later that he has two
grandsons with the same name, there also exists an intrinsic
or latent ambiguity. Parol evidence may be introduced to
prove the grandson intended in the will provided that the
will's intrinsic ambiguity is put in issue.
3. Note that the rule allowing parol evidence particu-
larly refers only to an intrinsic ambiguity in the writing. The
obvious implication is that where the ambiguity is patent or
extrinsic, parol evidence will not be admitted even if the same
is put in issue in the pleading.
A patent or extrinsic ambiguity is that which appears on
the very face of the instrument, and arises from the defective,
obscure, or insensible language used (Black's Law Dictionary,
5th Ed., p. 73). Parol evidence is not admissible to explain the
ambiguity; otherwise, the court would be creating, instead of
construing a contract. ._
For example, a donor writes in the deed of donation that
he is donating to his only son, Jose, one of his cars. Without
describing the specific car, there is a patent ambiguity. The
ambiguity which is apparent on the very face of the document
cannot be clarified or explained by parol evidence.
 162 EVIDENCE
(The Bar Lectures Series)
4. To reiterate, as long as the latent or intrinsic
ambiguity is raised as an issue in the pleadings, the court will
allow evidence aliunde to explain the ambiguity to give effect
to the intention of a party or the parties. However, even if a
pleader raises as an issue the extrinsic or patent ambiguity
in a contract or will, the court will not allow parol evidence
to explain the ambiguity or supply the deficiency. The rule
only allows parol evidence in the case of an intrinsic or latent
ambiguity.
Mistake or imperfection in the writing and failure to express
the true agreement of the parties (Bar 2001)
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.
The pleading does not need to specifically state words
and phrases such as "mistake", "imperfection" or "failure to
express the true intent of the parties." When the other party
responds to the allegations by making the proper denial, such
matters have already been put in issue (See Spouses Paras v.
Kimwa Construction and Development Corporation, G.R. No.
171601, AprilS, 2015).
2. The failure of the writing to express the true agree-
ment of the parties is another ground for admitting parol evi-
dence as long as the issue is raised in the pleadings. In fact,
mistake or imperfection of the writing may be a reason for the
failure of the instrument or writing to embody the intention of
the parties. This does not mean, however, that the mistake or
imperfection prevented the meeting of the minds between or
among the parties. This only means that, despite the meeting
of the minds, the true agreement of the parties is not reflected
in the instrument.
Aside from mistake, there are some other reasons enu-
merated in substantive law for the failure of-the instrument to
express the true intention of the parties like fraud, inequitable
CHAPTER IV - OBJECT AND DOCUMENTARY EVIDENCE 163
D. Parol Evidence Rule (Rule 130)
conduct or accident (Art. 1359, Civil Code of the Philippines),
ignorance, lack of skill, negligence or bad faith on the part of
the person drafting the instrument (Art. 1364, ibid.).
3. If the document appears to be a sale, parol evidence
may be resorted to if the same does not express the true
intent of the parties because it is actually a loan. The owner
of the property may prove that the contract is really a loan
with mortgage by raising as an issue in the pleading the fact
that the document is not really a sale (Madrigal v. Court of
Appeals, 456 SCRA 247).
4. When there is a meeting of the minds between
the parties, but their true intention is not expressed in the
instrument by any of the aforementioned causes, one of the
parties may ask for the reformation of the instrument (Art.
1359, Civil Code of the Philippines).
In an action for reformation of the instrument under
Art. 1359 of the Civil Code, the plaintiff may introduce parol
evidence to show the real intention of the parties. An action
for reformation presupposes that a meeting of the minds
exists between the parties, i.e., there is a contract between
., ~
them although the instrument that evidences the contract
does not reflect the true agreement of the parties by reason of,
for instance, fraud or mistake.
5. If there is no meeting of the minds between the par-
ties because of mistake, fraud, inequitable conduct or accident,
the proper remedy is not reformation of the instrument but an
action for annulment (Art. 1359, Civil Code of the Philippines)
I because the contract is rendered voidable by the vitiation of
the consent of one of the parties (Art. 1390, ibid.).
Examples:
(a) The parties have agreed on the area of the land
subject of the sale. By an act of fraud of the seller, who
i
i prepared the deed of sale, a smaller area is indicated in
~: the deed. There is nothing defective in the contract which
It
.1! is the meeting of the minds. The defect is in the deed of
! sale, which is the instrument. If an action for reformation
 164 EVIDENCE
(The Bar Lectures Series)
is brought, the action must be for the purpose of reforming
the instrument, not for reforming the contract.
(b) An instrument may be reformed if it does not
express the true intention of the parties because of lack
of skill of the person drafting the instrument (Art. 1364,
Civil Code of the Philippines).
(c) If the parties agree upon the mortgage or pledge
· of property, but the instrument states that the property is
sold absolutely or with a right of repurchase, reformation
of the instrument is proper (Art. 1365, Civil Code of the
Philippines).
6. Reformation of the instrument cannot be brought to
reform any of the following:
(a) Simple donations inter vivos wherein no condi-
tion is imposed;
(b) Wills; or
(c) When the real agreement is void (Art. 1366,
ibid.).
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
(Santiago v. Court of Appeals, 278 SCRA 98; Policarpio v.
Court ofAppeals, 194 SCRA 729). Failure to object to the parol
evidence presented by the adverse party operates as a waiver
of the protection of the parol evidence rule (Willex Plastic
Industries Corporation v. Court of Appeals; 256 SCRA 478).
Probative value
Even if parol evidence is admitted, such admission would
not mean that the court would give probative value to the
parol evidence. Admissibility is not the equivalent of probative
value or credibility.
CHAPTER IV - OBJECT AND DOCUMENTARY EVIDENCE 165
E. Authentication and Proof of Documents (Rule 132)
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 document itself for the purpose of varying the terms of the
writing.
3. The best evidence rule can be invoked by any litigant
to ari 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.
I
4. The best evidence rule applies to all forms of writing.
I The parol evidence rule applies to written agreements
(contracts) and "wills."
il
Note: lfthe subjects ofinquiry are the terms ofthe written
li agreement between the parties, one must read the agreement
itself and not seek guidance on sources outside the writing.
Sources outside such writing are considered "parol" evidence
I and, as a rule, are inadmissible. This is the "parol evidence"
rule. However, one should not look into any writing. He must
II
look at the original writing. This is the "best evidence" rule.
i!
E. Authentication and Proof of Documents
'I (Rule 132)
l Meaning of authentication (Bar 2012)
1. The concept of "authentication" occupies a vital
place in the presentation of evidence. Not only objects but also
documents introduced in evidence need to be authenticated.
 166 EVIDENCE
(The Bar Lectures Series)
It is the preliminary step in showing the adniissibility of an
evidence.
For example, a weapon, let us say, a .38 revolver, is
found in the crime scene. To be admissible in evidence, it
must be authenticated. This means that it must be shown
to the satisfaction of the court that the weapon is the very
same weapon found in the crime scene. To convince the court,
the proponent of the evidence must call someone to identify
the weapon and affirm: "This is the weapon I found in the
crime scene." This someone could be the police investigator or
someone else who handled the evidence. When he affirms it is
the same weapon, then the evidence is authenticated.
2. Litigation always involves the authentication of
either object or documentary evidence. Unless a document
is considered self-authenticating, it will not be admitted in
evidence without a prior authentication. The requirement for
authentication of evidence discloses the existence, in the legal
system, of a legal presumption that is not, however, directly
written in statutes or procedural rules but is necessarily
implied therein. This presumption is: That objects and
documents presented in evidence are, as a rule, counterfeit.
In short, an evidence presented in court is not presumed
authentic. It is, therefore, incumbent upon the proponent of
the evidence to prove its authenticity.
3. Authentication of a private document does not
require a seal. There shall be no difference between sealed
and unsealed private documents insofar as their admissibi-
lity as evidence is concerned (Sec. 32, Rule 132, Rules of Court).
Concept of a document
The Philippine Supreme Court has defined a document
as a "deed, instrument or other duly authorized paper by
which something is proved, evidenced or set forth" (Bermejo
v. Barrios, 31 SCRA 764; People v. Camacho, 44 Phil. 484;
U.S. v. Orera, 11 Phil. 596). However, for documents to be
considered as documentary evidence, it must be "offered as
proof of their contents" (Sec. 2, Rule 130, Rules of Court). If
CHAPTER IV - OBJECT AND DOCUMENTARY EVIDENCE 167
E. Authentication and Proof of Documents (Rule 132)
the document is not offered for that purpose, the document is
a mere object evidence as when the purpose is merely to prove
its existence. Hence, not every document is to be received as a
documentary evidence.
Public and private documents
1. Documents may either be public or private. This
classification is for the purpose of their presentation in
evidence.
2. Sec. 19 of Rule 132 enumerates the public docu-
t
~ ments, thus:
i
i
f "SI::C.19. C/assesofdocuments.-Forthe purpose
I ~
of their presentation in evidence, documents are either
public or private.
f
Public documents are:
(a) The written official acts, or records of the
official acts of the sovereign authority, official bodies
and tribunals, and public officers, whether of the Philip-
pines, or of a foreign country;
(b) Documents acknowledged before a notary
,,r:!i, public except last wills and testaments; and
it: (c) Public records, kept in the Philippines, of
'I private documents required by law to be entered therein.
I
All other writings are private."
I' I
I.! 3. The written official acts and records of the official
acts of the sovereign authority do not refer only to those of the
Philippines. They also refer to those of a foreign country.
Documents acknowledged before a notary public are
public documents except last wills and·testaments which are
private documents even if notarized (Sec. 19[b], Rule 132,
Rules of Court). Assumed to be included in this class of public
documents are those acknowledged before an officer, other
than a notary public, authorized to administer oaths. In the
case of a public record of a private document required by law
 168 EVIDENCE
(The Bar Lectures Series)
to be entered in a public record, the public document does not
refer to the private document itself but the public record of
that private document (Bar 2011).
4. The rule does not give a specific definition of a pri-
vate document except by providing that "... All other writings
are private" (Sec. 19, Rule 132, Rules of Court). Private docu-
ments are those that do not fall under any of the enumera-
tions in Sec. 19, Rule 132 of the Rules of Court (Franco v.
People, G.R. No. 191185, February 1, 2016).
Proof of a private document
1. Sec. 20 of Rule 132 provides:
"SEC. 20. Proof of private document. - Before
any private document offered as authentic Is received
in evidence, its due execution and authenticity must be
proved either:
(a) By anyone who saw the document executed
or written; or
(b) By evidence of the genuineness of the
signature or handwriting of the maker.
Any other private document need only be Identified
as that which it is claimed to be."
When authentication of a private document is required
1. Where the private document.is offered in evidence
as authentic, there is a need to prove its due execution and
authenticity. If the document or writing is not offered as
authentic, it only needs to be identified as that· which it is
claimed to be (Sec. 20, Rule 132, Rules of Court; Franco v.
People, G.R. No. 191185, February 1, 2016).
2. Sec. 20 recognizes two ways of proving the due
execution and genuineness of a private instrument. One way
is to rely on the personal knowledge of a witness. Here, the
witness attests to the genuineness of the document because
it was executed or signed in his presence, i~e., he personally
witnessed the execution or writing of the document. The
CHAPTER IV- OBJECT AND DOCUMENTARY EVIDENCE 169
E. Authentication and Proof of Documents (Rule 132)
second mode does not require that the document be executed
in the presence of the witness. Here, the witness testifies or
shows evidence that the signature or handwriting of the maker
is genuine (Sec. 20, Rule 132, Rules of Court; Ong v. People,
342SCRA 372; See also Bangayan v. RCBC, 647 SCRA 8, 26,
April4, 2011; See also Tan Shuy v. Maulawin, 665 SCRA 604,
612, February 8, 2012; See also Cercado-Siga v. Cercado, Jr.,
G.R. No. 185374, March 11, 2015).
The manner of authenticating a document, required by
Sec. 20 of Rule 132, applies only when a private document
is offered as authentic as when it is offered to prove that the
document was truly executed by the person purported to have
made the same. Where the document is offered in evidence not
If
as authentic, its genuineness and due execution need not be
proven as when the only purpose is for the offeror to show that
a certain piece of document exists. When a witness says: "/
found this document in the drawer of my table," the document
only needs identification and not authentication. But when
I
the witness wants to show that the deed was indeed executed
i by his brother, the process of authentication required by
Sec. 20 must be complied with.
I Authentication of both the original and a photocopy of the
li original
i
I While it is a basic. rule of evidence that the original copy
prevails over a mere photocopy, there is no harm if in a case,
both the original and a photocopy thereof are authenticated,
identified and offered in evidence by the party proponent
(Santos v. Alcazar, G.R. No. 183034, March 12, 2014).
When authentication of private documents is not required
The requirement of authentication Qf a private document
is excused in some instances, specifically:
(a) when the document is an ancient one within the
context of Sec. 21, Rule 132 ofthe Rules ofCourt;
(b) when the genuineness and authenticity of an
actionable document have not been specifically denied
170 EVIDENCE
(The Bar Lectures Series)
under oath by the adverse party under Sec. 8 of Rule 8 of
the Rules of Court;
(c) when the genuineness and authenticity of the
document have been admitted under Sec. 4 of Rule 129;
or
(d) when the document is not being offered as
authentic as implied from Sec. 20, Rule 132 of the Rules
of Court, which requires authentication only when the
document is offered as 'authentic' (See Patula v. People,
669 SCRA 135, 157, Aprilll, 2012).
Ancient documents (Bar 1990)
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 (Sec. 21, Rule
132, Rules of Court; Cercado-Siga v. Cercado, Jr., G.R. No.
185374, March 11, 2015). (Bar 2011).
When a document is ancient pursuant to the descriptions
in Sec. 21 of Rule 132, evidence of its authenticity need not
be given, i.e., there is no need to prove its genuineness and
due execution. This means that there is no necessity for
observance of the authentication process under Sec. 20 such
as the testimony of a person who saw the document executed
or by one who will show evidence of the genuineness of the
handwriting of the maker ofthe document. It must, however,
be established first that the document is ancient and that it
has the characteristics of a document so provided under Sec.
21. When all these are complied with, no other evidence of its
authenticity need be given.
Sec. 21 of Rule 132 is clear on this point. To quote:
"SEC. 21. When evidence of authenticity of private
document not necessary. - Where a private document
is more than thirty years old, is produced from a custody
CHAPTER IV - OBJECT AND DOCUMENTARY EVIDENCE 171
E. Authentication and Proof of Documents (Rule 132)
in which it would naturally be found if genuine, and is
unblemished by any alterations or circumstances of
suspicion, no other evidence of its authenticity need be
given."
How to prove genuineness of a handwriting
1. Sec. 22 of Rule 132 enumerates how the genuine-
ness of a handwriting may be proved:
"SEC. 22. How genuineness of handwriting
proved. - The handwriting of a person may be proved
by any witness who believes it to be the handwriting
of such person because he has seen the person write,
or has seen writing purporting to be his upon which
the witness has acted or been charged, and has thus
acquired knowledge of the handwriting of such person.
Evidence respecting the handwriting may also be given
by a comparison, made by the witness or the court, with
writings admitted or treated as genuine by the party
against whom the evidence is offered, or proved to be
genuine to the satisfaction of the judge."
i 2. Sec. 22 of Rule 132 does not require expert testimony
I
I to prove the handwriting of a person.
i
I It may be proven by any witness who believes it to be the
handwriting of a person because: (1) he has seen the person
I
I
write; or (2) he has seen writing purporting to be his upon
I which the witness has acted or been charged, and has thus
!
acquired knowledge of the handwriting of such person; or
(3) by a comparison made by the witness or the court, with
I; writings admitted or treated as genuine by the party against
II whom the document is offered, or proved to be genuine to the
;
satisfaction of the judge (Heirs of Amado Celestial v. Heirs of
! Editha G. Celestial, 408 SCRA 291).
i Importance of knowing whether a document is public or
11
private; proof of notarial documents
!l
I
1. The nature of documents as either public or private
determines how they may be presented as evidence in court.
i
II
 172 EVIDENCE
(The Bar Lectures Series)
A public document is admissible in court without further
proof of its due execution and authenticity (Kummer v. People,
G.R. No. 174461, September 11, 2013). In contrast, a private
document, because it lacks the official or sovereign character
of a public document, or the solemnities prescribed by law,
requires authentication in the manner allowed by law or
the Rules of Court before its acceptance as evidence in court
(Patula v. People, 669 SCRA 135, 156, April11, 2012; See also
Spouses Lehner v. Chua, G.R. No. 174240, March 20, 2013).
Thus, the chemistry report of a public officer, showing a
positive result of a paraffin test, is a public document. As a
public document, the rule on authentication does not apply.
It is admissible in evidence without further proof of its due
execution and genuineness. The person who made the report,
need not be presented in court to identify, describe and testify
how the report was conducted. Moreover) documents consist-
ing of entries in public records made in the performance of a
duty by a public officer are prima facie evidence of the facts
stated therein (Kummer v. People, G.R. No. 174461, Septem-
ber 11, 2013).
Also, the picture seat plan, prepared by officers of the
Civil Service Commission in implementing a government
examinatimi, is a public document. The presentation of the
room examiners is not necessary to establish the authenticity
and due execution of the said seat plan. Documents consisting
of entries in public records made in the performance of a duty
by a public officer are prima facie evidence of the facts stated
therein (Civil Service Commission v. Vergel de Dios, G.R. No.
203536, February 4, 2015).
2. Before the admission of a private document in evi-
dence that is offered as authentic, its due execution and au-
thenticity must be proved (Sec. 20, Rule 132, Rules of Court).
This requirement does not apply to a public document which
is admissible without further proof of its due execution and
genuineness.
For example, under Sec. 30 of Rule 132·, every document
I!
duly notarized may be presented in evidence without further
1l
H
CHAPTER IV - OBJECT AND DOCUMENTARY EVIDENCE 173
E. Authentication and Proof of Documents (Rule 132)
proof, the certificate of acknowledgment being prima facie
evidence of the execution of the instrument or document
involved.
The notarial seal converts a document from a private to
a public document (A. C. No. 8637, September 15, 2014; Sistual
v. Ogena, A.C. No. 9807, February 2, 2016). A notarized docu-
ment is entitled to full faith and credit upon its face. Courts,
administrative agencies and the public at large must be able
to rely upon the acknowledgment executed by a notary public
(Fabay u. Resuena, A.C. No. 8723, January 26, 2016).
3. Sec. 30 of Rule 132 affirms the above principles,
thus:
"SEC. 30. Proof of notarial documents. - Every
i instrument duly acknowledged or proved and certified
rl as provided by law, may be presented in evidence with-
out further proof, the certificate of acknowledgement
rl being prima facie evidence of the execution of the
I instrument or document involved."
I The above rule presupposes that the document was
notarized by a person duly authorized to perform notarial
functions. Without such authority, the private document does
not become a public document.
Public documents as evidence
Under Sec. 23 of Rule 132, when a public officer, in the
performance of his duty, makes an entry in the public record,
the document of such entry is deemed prima facie evidence
of the fact stated in the entry. However, in the case of other
public documents, the facts stated therein only consti-
tute evidence of the fact that gave rise to the execution of
such documents and of the date of the .{;!xecution of the same.
Sec. 23, as quoted, declares:
"SEC. 23. Public documents as evidence.- Docu-
ments consisting of entries in public records made in
the performance of a duty by a public officer are prima
facie evidence of the facts therein stated. All other public
;,
 174 EVIDENCE
(The Bar Lectures Series)
documents are evidence, even against a third person, of
the fact which gave rise to their execution and of the
date of the latter."
In Kummer v. People, G.R. No. 174461, September 11,
2013, for example, the Court considered the entries made by
a government forensic chemist in a chemistry report as prima
facie evidence of the facts stated therein.
Proof of official record; attestation of a copy
1. While a public document does not require the
authentication imposed upon a private document, there is
a necessity for showing to the court that indeed a record of
the official acts of official bodies, tribunals or of public officers
exists. How is this effected? Sec. 24 of Rule 132 supplies the
answer. The record of a public document may be evidenced by:
(a) An official publication thereof; or
(b) A copy of the document attested by the officer
having legal custody of the record or by the attestation
of his deputy; if the record is not kept in the Philippines,
the attestation must be accompanied with a certificate
that such officer has the custody; if the office in which
the record is kept is in a foreign country, the certificate
may be made by a secretary of the embassy or legation,
consul-general, consul, vice-consul, or consular agent or
by any officer in the foreign service of the Philippines
stationed in the foreign country in which the record is
kept, and authenticated by the seal of his office.
2. The attestation referred to in the preceding number
must "state, in substance, that the copy is a correct copy of
the original, or a specific part thereof, as the case may be.
The attestation must be under the official seal of the attesting
officer, if there be any, or if he be the clerk of a court having a
seal, under the seal of such court" (Sec. 25, Rule 132, Rules of
Court).
3. The certificate and attestation are required because
of the general rule on the "irremovability of public records"
embodied in Sec. 26 of Rule 132, thus:
CHAPTER IV - OBJECT AND DOCUMENTARY EVIDENCE 175
E. Authentication and Proof of Documents (Rule 132)
"SEC. 26. Irremovability of public record. - Any
public record, an official copy of which is admissible
in evidence, must not be removed from the office in
which it is kept, except upon order of a court where
the inspection of the record is essential to the just
determination of a pending case."
Proof of foreign laws; doctrine of processual presumption
(presumed-identity)
To prove a foreign law, the party invoking it must pres-
ent a copy thereof and comply with Sees. 24 and 25 of Rule 132
as mentioned in the preceding topic. Where a foreign law is
not pleaded or, even if pleaded, is not proven, the presumption
is that the foreign law is the same .as Philippine law (Orion
Savings Bank, G.R. No. 205487, November 12, 2014), in accor-
dance with the doctrine of processual presumption.
Special power of attorney executed abroad (Bar 2011)
In one case, a special power of attorney was executed
and acknowledged before a notary public of the state of
Washington, USA, authorizing the son of the principal to file
in the Philippines a suit against certain persons. The power
of attorney did not contain a certificate of authentication
by a secretary of the Philippine embassy or legation, consul
general, consul, vice-consul or consular agent or by any officer
in the foreign service of the Philippines stationed in the foreign
country.
The Court held that a notary public in a foreign country
is not one of those who can issue the certificate mentioned
in Sec. 24 of Rule 132 of the Rules of Court. The Court ruled
that non-compliance with said provision will render the
special power of attorney inadmissible in evidence. Not being
duly established in evidence, the special power of attorney
cannot be used by the son to file a suit in representation of
his father. The case filed then is considered as one not filed
by a real party in interest. Not being a real party in interest
and without the authority to pursue the case, the son could
not have validly commenced the case. The argument that the
 176 EVIDENCE
(The Bar Lectures Series)
lack of consular authentication is a mere techiricality that can
be brushed aside in order to uphold substantial justice was
also considered as untenable. The failure to have the special
power of attorney authenticated, according to the Court, is not
a mere technicality but a question of jurisdiction. Citing the
previous case of Lopez v. Court of Appeals (156 SCRA 838),
it was held that jurisdiction over the real party in interest
was never acquired by the courts. AB a result, all proceedings
in the lower courts are declared null and void and, thus, set
aside (Heirs of Medina v. Natividad, 572 SCRA 227).
Public record of a private document
A public record of a private document may be proved by
any of the following:
(a) By the original record; or
(b) By a copy thereof, attested by the legal custo-
dian of the record, with an appropriate certificate that
such officer has the custody (Sec. 27, Rule 132, Rules of
Court).
Proof of lack of record
A litigation does not always involve evidence of the
existence of a record. Sometimes, the issue centers on the
absence of an official record. How then may the absence of a
record be proven?
Proof oflack of record of a document consists of a written
statement signed by the officer having custody of an official
record or by his deputy. The written statement must contain
the following matters:
(a) there has been a diligent search of the record;
(b) that despite the diligent search, no record of
entry of a specified tenor is found to exist in the records
of his office.
The written statement must be accompanied by a
certificate that such officer has the custody of official records
(Sec. 28, Rule 132, Rules of Court).
CHAPTER IV - OBJECT AND DOCUMENTARY EVIDENCE 177
E. Authentication and Proof of Documents (Rule 132)
Last wills and testaments
Last wills and testaments must undergo an authenti-
cation process even if they are notarized as required by Art.
806 of the Civil Code of the Philippines. The Rules of Court
(Sec. 19[b}, Rule 132), while declaring that the term "public
document" includes one acknowledged before a notary public,
nevertheless, expressly excludes last wills and testaments.
Besides, substantive law provides that no will shall pass
either real or personal property unless proved and allowed in
the proper court (Art. 838, Civil Code of the Philippines). The
same substantive rule is echoed in Sec. 1 of Rule 75 which
provides:
"SECTION 1. Allowance necessary. Conclusive as
to execution.- No will shall pass either real or personal
estate unless it is proved and allowed in the proper
court. S•Jbject to the right of appeal, such allowance
of the will shall be conclusive as to its due execution"
(Underscoring supplied).
Explaining 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 with-
out 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 ·
(d) 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 (Sec. 31, Rule 132, Rules of Court).
178 EVIDENCE
(The Bar Lectures Series)
Proof of documents in an unofficial language
Because the rule provides that a document written in
an unofficial language shall not be admitted as evidence, it
must be accompanied by a translation into English or Fili-
pino. To avoid interruption of court proceedings, attorneys
are required to have such translation prepared before trial
(Sec. 33, Rule 132, Rules of Court).
Impeachment of judicial record
1. A judicial record refers to the record of judicial
proceedings (Black's Law Dictionary, 5th Ed., p. 762). It does
not only include official entries or files or the official acts of a
judicial officer (Wharton's Criminal Evidence, 11th Ed., §805),
but also the judgment of the court (Black's Law Dictionary,
p. 762).
2. Sec. 29 of Rule 132 authorizes the impeachment of
any judicial record if there be evidence of the existence of any
of the following grounds: (a) lack of jurisdiction in the court or
judicial officer; (b) collusion between the parties; or (c) fraud
in the party offering the record, in respect to the proceedings.
I
Registration of contracts
1. Where a contract is required by law to be registered,
I As early as in the case of U.S. v. Evangelista, 29 Phil. 215,
the same must be, as a rule, in a public instrument. For
example, for purposes of registration and convenience,
acts and contracts which have for their object the creation,
transmission, modification or extinguishment of real rights
over immovable property must appear in a public instrument
(Art. 1358, Civil Code of the Philippines).
2. Certain contracts must be in writing or in a public
instrument in order to be valid. Examples: (a) A donation of
an immovable (Art. 749, Civil Code of the Philippines); (b) A
donation of a movable with a value exceeding five thousand
pesos (Art. 748, ibid.); (c) A partnership where immovable
property or real rights are contributed (Art. 1771, ibid.).
.:.O:t.
CHA..DTER IV - OBJECT AND DOCUMENTARY EVIDENCE 179
E. Authentication and Proof of Documents (Rule 132)
Foreign judgments; divorces
Before a foreign judgment is given presumptive evi-
dentiary value, the document must first be presented and
admitted in evidence. A divorce obtained abroad is proven
by the divorce decree itself. Indeed, the best evidence of a
judgment is the judgment itself. The decree purports to be a
written act or record of an act of an official body or tribunal of
a foreign country.
Under Sees. 24 and 25 of Rule 132, on the other hand, a
writing or document may be proven as a public or official re-
cord of a foreign country by either (1) an official publication or
(2) a copy thereof attested by the officer having legal custody
of the document. If the record is not kept in the Philippines,
such copy must be (a) accompanied by a certificate issued by
the proper diplomatic or consular officer in the Philippine
foreign service stationed in the foreign country in which the
record is kept, and (b) authenticated by the seal of his office
(Vda. de Catalan v. Catalan-Lee, 665 SCRA 487, 495, Febru-
ary 8, 2012).
Church registries
it has been settled that church registries of births, marriages,
and deaths made subsequent to the promulgation of General
Orders No. 68, promulgated on December 18, 1889, and the
passage of Act No. 190, enacted on August 7, 1901, are no longer
public writings, nor are they kept by duly authorized public
officials. They are private writings and their authenticity
must, therefore, be proved, as are all other private writings
in accordance with the Rules of Evidence (Llemos v. Llemos,
513 SCRA 128; See also Cercado-Siga v. Cercado, Jr., G.R. No.
185374, March 11, 2015). (Bar 2011).
- oOo-

ChapterV
TESTIMONIAL EVIDENCE
A. Qualifications of Witnesses
Nature of testimonial or oral evidence
1. Testimonial or oral evidence is evidence elicited
from the mouth of a witness as distinguished from real and
documentary evidence (Black's Law Dictionary, 5th Ed.,
p. 1323). It is sometimes called viva voce evidence which
literally means "living voice" or by word of mouth. In this kind
of evidence, a human being is called to the stand, is asked
questions, and answers the questions asked of him. The
person who gives the testimony is called a "witness."
2. Recall that competent evidence means evidence that
is not excluded by the law or rules. It, therefore, means the
eligibility of an evidence to be admitted by the court. When
applied to a witness, competence means that the witness is
qualified to take the stand and testify. It means that he is
fit or eligible to testify on a particular matter in a judicial
proceeding.
If a witness-cannot perceive or even ifhe can perceive but
he cannot remember what he has perceived, he is incompe-
tent to testify. If he has no personal knowledge of an event
the truth of which he wants to prove, he is also incompetent
to testify. 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. Experience and plain observation will tell us that
the presentation and introduction of every kind of evidence,
180
CHAPTER V - TESTIMONIAL EVIDENCE 181
A Qualifications of Witnesses
whether it be object, demonstrative or documentary evidence,
need the intervention of a witness. The admission of any
evidence requires its identification by a witness. It is a legal
truth that identification precedes authentication. Without
a witness, no evidence can ever be authenticated. Even the
so-called "self-authenticating documents" need a witness to
identify the document. The reason is simple. Being inanimate,
a document or an object cannot speak for itself.
Presumption in favor of competence of a witness
r As a general rule, a person who takes the stand as a
witness is presumed to be qualified to testify. A party who
desires to question the competence of a witness must do so
by making an objection as soon as the facts tending to show
incompetency are apparent (Jones on Evidence, Vol. 3, §796).
Qualifications of a witness
1. As to the qualifications of a witness, Sec. 20, Rule
130 of the Rules of Court provides:
"SEC. 20. Witnesses; their qualifications.- Except
as provided in the next succeeding section, all persons
who can perceive, and perceiving, can make known
their perception to others, may be witnesses.
Religious or political belief, interest in the outcome
of the case, or conviction of a crime unless otherwise
provided by law, shall not be a ground for disqualifica-
tion."
2. The above provision supplies the basic qualifica-
tions of a witness, namely:
(a) He can perceive; and
(b) He can make known his perception to others.
To these, we may add the following:
(a) He must take either an oath or an affirmation
(Sec. 1, Rule 132, Rules of Court); and
182 EVIDENCE
(The Bar Lectures Series)
(b) He must not possess any of the disqualifications
imposed by law or the rules.
Oath or affirmation
1. While the taking of an oath or of an affirmation
is either rarely mentioned and merely glossed over by
commentators in discussing the qualifications of a witness to
take the stand, the rule clearly requires that the examination
of a witness in a trial or hearing shall be done x x x under
oath or affirmation (Sec. 1, Rule 132, Rules of Court). 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 refuses to
swear or make an affirmation.
2. A person is not qualified to be a witness if he is
incapable of understanding the duty to tell the truth. An oath
or affirmation is necessary for the witness to recognize the
duty to tell the truth. The oath of a witness signifies that he
is swearing to the Creator "to tell the truth and nothing but
the truth" and that if he does not, he will later on answer for
all the lies he is guilty of. Of course, in the early stages of
legal history, this was concededly the underlying reason for
requiring an oath before a witness testifies. In modern times,
this reason may have been obscured by a universal shift in
moral values but the oath is, nevertheless, required, as a
rule, even if, t~ many, the oath appears merely to be a pious
incantation or 'a meaningless ritual which must simply be
done to be allowed to testify.
3. The issue which a judge must resolve before a wit-
ness is allowed to take the stand is whether the witness un-
derstands the nature of an oath, realizes the moral duty to tell
the truth, and understands the prospects of being punished
for a falsehood. This understanding is not necessarily inferred
from the age of the witness. One American case (People v.
Berry [1968], 260 CA2d 649, 67 CR 312) ruled that it is not
required that the understanding of the importance of an oath
be a detailed one. It is enough that the witness understands
and believes that some earthly evil will occur to him for lying.
CHAPTER V - TESTIMONIAL EVIDENCE 183
A. Qualifications of Witnesses
4. Not all may want to take an oath for reasons of
religion or the lack of it. Thus, the rule in this jurisdiction
affords the courts the flexibility to deal with those who refuse
to being sworn by requiring the witness to make an affirmation
instead. Consider this hypothetical:
Suppose that the prosecution calls a witness
and offers his testimony to prove that it was indeed
the accused who ran over the victim with a car.
Here goes the brief exchange between the bailiff
or appropriate court personnel and the supposed
witness:
"Sir, please raise your right hand."
The supposed witness retorts: "For what?"
The bailiff snaps: ''You are going to be sworn
before you testify, Sir."
I
I "No! I will not!"
"Do you instead want to make an affirmation?"
I
"I won't do that either!"
,.j
The next most probable scenario is of the court dismissing
I
the proposed witness. Most likely, that person will not be
allowed to testify. This is because he failed to meet the oath or
II
affirmation requirement.
Ability to perceive
A witness must be able to perceive an event. Thus, it
would be absurd to ask a blind man what he saw, or a deaf
person what he heard. Corollary to this capacity to perceive
is the requirement that the witness must have personal
knowledge of the facts surrounding t4e subject matter of
his testimony. Sec. 36 of Rule 130 explicitly requires that a
witness can testify only to those facts which he knows of his
personal knowledge, i.e., those which are derived from his own
perception. When the witness takes an oath or an affirmation
to tell the truth, he cannot llve up to thatoath or affirmation
without his ability to show that his testimony is based on his
 184 EVIDENCE
(The Bar Lectures Series)
personal knowledge. Without this personal knowledge, the
witness lacks the competence to testify. To illustrate:
A witness is called to testify in a defamation suit for
alleged defamatory acts committed against the offended
party on March 27, 2015 in the corner of XYZ and ABC
Sts. in Manila. He willingly took the oath.
Q: Sir, where were you on the 27th of March 2015
at around 7:30 in the evening?
A: I was in Israel, Sir, for a pilgrimage.
Obviously, the witness will be dismissed from the stand.
The court has no use of him. He is incompetent for the purpose
for which he was called. While taking the oath enabled him
to meet the first requirement for competency, he miserably
failed the next test. He did not perceive anything about the
incident and could offer no facts about the incident based on
his personal knowledge.
Ability to make known the perception to others
1. The ability of the witness to make known his
perception to the court involves two factors: (a) ability
to remember what has been perceived; and (b) ability to
communicate the remembered perception. Consider a witness
who has taken the oath and has personal knowledge of the
event on which he is going to testify. Imagine the exchange
that follows in the courtroom:
Q:
A:
What incident, if any, occurred ... etc ... etc ....
Sorry, sir. I... can't recall... I don't remember.
It is of common reason to realize that a witness is pre-
sented to testify on a matter he has perceived. If he cannot
remember what he perceived, he cannot be a competent
witness.
2. Deaf-mutes are not necessarily incompetent as wit-
nesses. They are competent where they can: (1) understand
and appreciate the sanctity of an oath; (2) comprehend facts
CHAPTER V - TESTIMONIAL EVIDENCE 185
A. Qualifications of Witnesses
they are going to testify to; and (3) communicate their ideas
through a qualified interpreter (People v. Tuangco, 345 SCRA
429).
Competency and credibility (Bar 2004)
1. Competence is a matter oflaw or, in this jurisdiction,
also a matter of rule. Credibility of a witness has nothing
to do with the law or the rules. It refers to the weight and
trustworthiness or reliability of the testimony. In deciding the
competence of a witness, the court will not inquire into the
trustworthiness of a witness.
2. Accordingly, a prevaricating witness or one who has
given contradicting testimonies is still a competent witness
(U.S. v. Cook, 949 F2d 289 [lOth Cir. 1991]). 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. Competency of a witness has reference to the
basic qualifications of a witness as his capacity to perceive
and communicate his perception to others. It also includes
the absence of any of the disqualifications imposed upon a
i'
witness (Sees. 20-24, Rule 130, Rules of Court). Credibility
of a witness refers to the believability of a witness and has
il nothing to do with the law or the rules. It refers to the weight
~
and trustworthiness or reliability of the testimony.
In deciding the competence of a witness, the court will
I not inquire into the trustworthiness of a witness. As earlier
mentioned, a witness who has given contradicting testimonies
is still a competent witness (U.S. v. Cook, 949 F2d 289 [lOth
Cir. 1991}). Bias is not even a basis for declaring a witness
incompetent to testify (U.S. v. Cervantes-Pacheco, 826 F2d
310 {5th Cir. 1987]).
4. Under the Rules of Court, persons covered by the
Survivorship Disqualification Rule (Dead Man's Statute)
cannot testify as to any matter of fact occurring before the
death or insanity of the adverse party(Sec. 23, Rule 130, Rules
 186 EVIDENCE
(The Bar Lectures Series)
of Court). This rule is directed to the issue of competency of a
witness, not to his credibility.
5. Drug abuse will not render a person incompetent to
testify (U.S. v. Behrens, 689 F.2d 154 [lOth Cir. 1982]) (Bar
2011). Drug abuse becomes relevant only if the witness was
under the influence of drugs at the time he is testifying or at
the time the events in question were observed (U.S. v. Novo
Sampol, 636 F.2d 621 [D.C. Cir. 1980]). While bias and drug
abuse may not be grounds for barring a witness from testify-
ing, they may serve as grounds for attacking the credibility of
a witness.
6. 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 (Llanto v. Alzona, 450 SCRA 288). The Supreme
Court generally defers to the trial court's assessment because
it has the singular opportunity to observe the demeanor of
witnesses and their manner oftestifying(People v. Bustamante,
533 SCRA 179; People v. Salina, G.R. No. 196784, January 13,
2016).
7. Findings of the trial court, its calibration of the
testimony of the witnesses, and its assessment of the probative
weight thereof, as well as its conclusions anchored on said
findings are accorded respect if not conclusive effect (Ricalde
v. People, G.R. No. 211002, January 21, 2015).
Findings of the lower courts with respect to the credibility
of a rape victim, for example, are conclusive (People v.
Dayapdapan, G.R. No. 209040, December 9, 2015).
Factors that do not affect the competency of a witness (Bar
2011)
1. Under Sec. 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;
CHAPTER V - TESTIMONIAL EVIDENCE 187
B. Disqualifications ofWitnesses
(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). (Art.
821[2], Civil Code of the Philippines) (Bar 2011). As
a consequence, these persons may not also testify as
witnesses in the probate of a will where the subject of the
testimony is the very fact of execution of the will in their
presence.
2. The relationship of a witness with a party does
not ipso facto render him a biased witness in criminal cases
where the quantum of evidence is proof beyond reasonable
doubt. There is no reason why the same principle should not
apply to a civil case where the quantum of evidence is only
preponderance of evidence (Northwest Airlines, Inc. v. Chiang,
543 SCRA 308). (Bar 1994)
B. Disqualifications of Witnesses
Disqualification by reason of mental incapacity
1. In relation to a disqualification by reason of mental
incapacity, Sec. 21(a) of Rule 130 declares:
"SEC. 21. Disqualification by reason of mental
incapacity x x x. - The following persons cannot be
witnesses:
(a) Those whose mental condition, at the time of
their production for examination, is such that they are
incapable of intelligently making known their perception
to others;
(b) X X X"
2. To be disqualified as a witness by reason of mental
incapacity, the following must concur:
(a) the person must be incapable of intelligently
making known his perception to others; and
188 EVIDENCE
(The Bar Lectures Series)
(b) his incapability must exist at the time of his
production for examination.
Sec. 21(a) of Rule 130 establishes the rule that the
mental incapacity of a witness at the time of his perception
of the events subject of the testimony does not affect his
competency as long as he is competent at the time he is
produced for examination to make known his perception to
others. His incapacity at the time of perception, although
without legal effect on his competency to testify, would,
however, concededly, affect his credibility.
3. The test supplied by the Rules of Court is simple: Is
the mental condition of the proposed witness at the time he
is called to testify is such that he is incapable ofintelligently
making known his perception to others? (Sec. 21[a], Rule 130,
Rules of Court). The answer to this question will determine
whether or not a person is a mentally-competent witness.
Disqualification by reason of immaturity
1. Sec. 21(b) of Rule 130 provides:
"SEC. 21. Disqualification by reason of x x x
immaturity. - The following persons cannot be
witnesses:
(a) XXX
(b) Children whose mental maturity is such as to
render them incapable of perceiving the facts respect-
ing which they are examined and of relating them truth-
fully."
2. To be disqualified as a witness by reason of immatu-
rity, the following must concur:
(a) the mental maturity of the witness must render
him incapable of perceiving the facts respecting which he
is examined; and
(b) he is incapable of relating his perception
truthfully (Sec. 21[b], Rule 130, Rules of Court).
CHAPTER V - TESTIMONIAL EVIDENCE 189
B. Disqualifications of Witnesses
3. Note that, in a disqualification by reason of mental
incapacity under Sec. 21(a) of Rule 130, the incompetence of
the witness must exist, not at the time of his perception of
the facts, but at the time he is produced for examination, and
consists in his inability to intelligently make known what he
has perceived. In disqualification by reason of immaturity,
the incompetence of the witness must occur at the time he
perceives the event including his incapability to relate his
perceptions truthfully.
The rule on disqualification by reason of immaturity
must, however, be construed in relation to the Rule on
Examination of a Child Witness (A.M. 004-07-SC, December
15, 2000).
Child witness; meaning (Bar 2012)
1. A "child witness" is any person who, at the time of
giving testimony, is below the age of eighteen (18) years (Sec.
4[a], Rule on Examination of a Child Witness, A.M. 004-07-
SC).
I 2. May a person over eighteen (18) years old be some-
times considered as a child? Yes, he may. In child abuse cases,
j a child includes one over eighteen (18) years but is found by
·i'l
l
the court as unable to fully take care of himself or protect him-
self from abuse, neglect, cruelty, exploitation, or discrimina-
tion because of a physical or mental disability or condition
(Sec. 4[a], Rule on Examination of a Child Witness, A.M. 004-
01-SC).
Competency of a child witness; presumption; competency
examination
1. Every child is presumed qualified to be a witness.
This is the presumption established by the Rule on Examina-
tion of a Child Witness (Sec. 6, A.M. 004--07-SC) and to rebut
the presumption of competence enjoyed by a child, the bur-
den of proof lies on the party challenging his competence (Sec.
6[b], Rule on Examination of a Child Witness).
2. When the court finds that substantial doubt exists
regarding the ability of the child to perceive, remember,
 190 EVIDENCE
(The Bar Lectures Series)
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
proprio or on motion of a party (Sec. 6, Rule on Examination of
a Child Witness).
A party who seeks a competency examination must
present proof of necessity of a competency examination.
Proof of such necessity must be grounded on reasons other
than the age of the child because such age, in itself, is not a
sufficient basis for a competency examination (Sec. 6[a], Rule
on Examination of a Child Witness).
3. The competency examination of a child witness is
not open to the public. Only the following are allowed to attend
the examination:
(a) The judge and necessary court personnel;
(b) The counsel for the parties;
(c) The guardian ad litem;
(d) One or more support persons for the child; and
(e) The defendant, unless the court determines
that competence can be fully evaluated in his absence
(Sec. 6[c], Rule on Examination of a Child Witness).
4. The competency examination of the child shall be
conducted only by the judge. If the counsels of the parties
desire to ask questions, they cannot do so directly. Instead,
they are allowed to submit questions to the judge which he may
ask the child in his discretion (Sec. 6[d], Rule on Examination
of a Child Witness).
5. 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,
communicate, distinguish between truth and falsehood and
appreciate the duty to testify truthfully (Sec. 6[e], Rule on
Examination of a Child Witness).
CHAPTER V - TESTIMONIAL EVIDENCE 191
B. Disqualifications of Witnesses
6. The assessment of the competency of the child is
designed to be a continuing one. The court has the duty of
continuously assessing the competence of the child through-
out his testimony (Sec. 6[/], Rule on Examination of a Child
Witness).
7. The court may order that the testimony of the
child be taken by live-link television if there is a substantial
likelihood that the child would suffer trauma from testifying
in the presence of the accused, his counsel or the prosecutor as
the case may be. The trauma must be of a kind which would
impair the c::>mpleteness or truthfulness of the testimony of
the child (Sec. 25[fl, Rule on Examination of a Child Witness).
(Bar 2005)
Survivorship disqualification rule or the dead man's statute
(Bar 2001)
1. The survivorship disqualification rule (dead man's
statute) is detailed in Sec. 23 of Rule 130 which provides:
"SEC. 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."
2. This rule "applies only to a. civil case or a special
proceeding over the estate of a deceased or insane person"
(Regalado, Remedial Law Compendium, Vol. II, 2008 Ed.,
p. 743).
The following are the elements for the application of this
rule:
(a) The suit is upon a claim by the plaintiff against
the estate of said deceased or person of unsound mind;
192 EVIDENCE
(The Bar Lectures Series)
(b) The defendant in the case is the executor or
administrator or a representative of the deceased or the
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 (Sec. 23,
Rule 130, Rules of Court).
3. A simple hypothetical may help us understand the
rule:
Mr. D approaches Mr. C, one rainy Sunday morning,
to borrow PlOO,OOO.OO to be paid exactly a year after.
Without hesitation, Mr. C gives Mr. D the amount
requested. Mr. C does not require Mr. D to execute a
promissory note. They have been very good friends for
as long as they can remember. Years ago, when Mr. C's
small business was on the verge of bankruptcy, it was
the generosity of the then wealthy Mr. D that bailed him
out. Exactly a day before the agreed date for payment,
Mr. D peacefully joins his Creator without paying the
debt. What does Mr. C do? Well, he does what every
creditor would do under the circumstances. He goes to
the executor of what remains of the estate of Mr. D, and
tells him of the debt of Mr. D. He says:
"Today is supposed to be the due date of his debt. I
cannot demand payment from him because he is dead.
You are the executor and you are very much alive. I am
asking you to pay his debt."
The executor retorts:
"Look Sir! I am not sure if you are telling the truth.
Don't get me wrong! I am not calling you a liar but I cannot
verify the truth of your claim. Mr. D is- dead. He cannot
speak. His lips are forever sealed. I would be doing an act
CHAPTER V - TESTIMONIAL EVIDENCE 193
B. Disqualifications of Witnesses
unfair to the memory of Mr. D if I were to listen to you. I
am sorry, I cannot pay."
What is the effect of the death of Mr. D in relation to
Sec. 23 of Rule 130? 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. He did not survive. Worse, he cannot answer back.
He cannot disprove the claim of Mr. C. To level the playing
field between the lucky survivor and the poor deceased, our
remedial law ancestors devised a rule that would seal the
lips of the survivor by declaring him incompetent to testify
on the transaction between him and the deceased. 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 ofthe guy who died. Hence, the name,
Dead Man's Statute.
4. The Supreme Court had repeatedly held, in not a
few cases, that the object of the rule is to guard against the
temptation to give false testimony in regard to the transaction
on the part of the surviving party and thereby put the parties
upon equal terms. Its purpose is to close the lips of the plaintiff
when death has closed the lips of the defendant, in order to
remove from the plaintiff the temptation to do falsehood and
the possibility of fictitious claims against the deceased (Tan u.
Court of Appeals, 295 SCRA 247; See also Garcia u. Vda. de
Caparas, G.R. No. 180843, April17, 2013).
It is obvious that the rule, by its terms, intends to protect
the representatives of the deceased person when sued in such
capacity or a person of unsound mind o:n a claim against the
estate of the decedent or a claim against the insane person.
How to apply the rule
1. For a clearer understanding of the rule, the initial
point of inquiry would be in regard to the parties involved.
194 EVIDENCE
(The Bar Lectures Series)
In order to determine whether or not the survivorship
disqualification rule will apply to a particular situation, we
should know who the plaintiff is. We should also know who
the defendant is.
The plaintiff is the person who has a claim against the
estate of the decedent or the person of unsound mind. He is
the survivor. The defendant is the representative (executor or
administrator) of the deceased or the person of unsound mind.
Therefore, the persons 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.
Conversely, 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. So
if the executor of the estate of Mr. C sues Mr. D to collect an
unpaid debt incurred in favor of Mr. C before the latter's death,
Mr. D, although a survivor, is not precluded from testifying as
to the transaction he previously had with Mr. C because the
case is not upon a claim against the estate of Mr. C but a claim
by his estate against Mr. D.
2. As declared 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. A
defendant, who opposes the suit filed by the administrator
to recover alleged shares of stock belonging to the deceased,
is not barred from testifying as to his transaction with the
deceased with respect to the shares (Razon v. Intermediate
Appellate Court, 207 SCRA 234).
Also, when a counterclaim is set up by the administrator
of the estate, the case is removed from the operation of the
"dead man's statute." The plaintiff may testify to occurrences
before the death of the deceased to defeat the counterclaim
which is not brought against the representative of the estate
but by the said representative (Sunga-Chan v. Chua, 363
SCRA249).
CHAPTER V - TESTIMONIAL EVIDENCE 195
B. Disqualifications of Witnesses
3. The next essential point to consider is the nature of
the case. What is the case about? Sec. 23 of Rule 130 clearly
specifies that the case be "upon a claim or demand against
the estate of the deceased person or a person of unsound
mind." The rule does not apply when the action brought is not
"against" the estate, or not upon a claim or demand "against"
the estate. This claim, from the tenor of the rule is, by its
nature, civil, not criminal, because the estate itself cannot be
criminally liable.
4. The parties and the nature of the action having
been determined, the inquiry should now shift to the persons
prohibited to testify and the subject matter of their testimony.
The provisions of Sec. 23 of Rule 130 describe them as the
"parties or assignors of parties to a case, or persons in whose
behalf a case is prosecuted."
The rule is obviously intended to be exclusive and does
not prohibit a testimony by a mere witness to the transaction
between the plaintiff and the deceased and who has no interest
in such transaction. Thus, offering the testimony of a so-called
"disinteresteci witness" is not a transgression ofthe rule since
the prohibition extends only to the party or his assignor or the
person in whose behalf the case is prosecuted.
Consider the following illustration:
The case is an action for a sum of money against the
decedent's estate. The decedent is Mr. D, the debtor. The
plaintiff is Mr. C, the creditor. Mr. C claims that Mr. D
borrowed P200,000.00 from him and that the debt has
been due even before the death of Mr. D, who despite
demand upon him, failed to pay. Mr. C calls his secretary
to testify about the transaction that occurred in her
presence.
Q: What did Mr. D say to Mr. C on that day and
time you mentioned earlie.r?
Adverse counsel: "Objection, Your Honor. I
invoke the dead man's statute."
Counsel for Mr. C: "May I be heard, Your
Honor, before ruling on the objection?"
 196 EVIDENCE
(The Bar Lectures Series)
Court: ''You may."
Counsel for Mr. C: "The ground for the
objection does not apply, Your Honor. The
witness is not a plaintiff or an assignor of
the plaintiff or one on whose behalf the claim
against the estate is prosecuted."
Court: "Objection is overruled." (The reason for the
ruling is obvious. The witness is not one of those
prohibited to testifY.)
5. The incompetency imposed upon the witness is to
testifY "on any matter of fact occurring before the death of
such deceased person or before such person became of unsound
mind." Hence, 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. He is merely precluded from testifYing on
particular topics. Thus, a testimony favorable to the estate or
to the insane person is not barred since the rule is designed
to protect the interest of the estate of the deceased or insane
person. In one old case, an oral testimony to prove a lesser
claim than what might be warranted by the evidence was
allowed (/card v. Masigan, 40 O.G., 13th Suppl., 215; 71 Phil.
419).
Also, witnesses who testifY on the basis of their know-
ledge 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 tl).e deceased person,
or communication made by the deceased_ to the witness"
(Bordalba v. Court of Appeals, 374 SCRA 555).
CHAPTER V - TESTIMONIAL EVIDENCE 197
B. Disqualifications of Witnesses
6. The survivorship disqualification rule is intended
to benefit the estate of the deceased or the insane person;
hence, this protection may be waived by (a) failing to object
to the testimony, or (b) cross-examining the witness on the
prohibited testimony (Santos v. Santos, 366 SCRA 395), or by
(c) offering evidence to rebut the testimony. (Bar 2007)
Marital disqualification rule (Spousal immunity) (Bar 2000;
2010)
1. The marital disqualification rule is provided for in
Sec. 22 of Rule 130, viz.:
"SEC. 22. Disqualification by reason of marriage.
- During their marriage, neither the husband nor the
wife may testify for or against the other without the
consent of the affected spouse, except in a civil case by
one against the other, or in a criminal case for a crime
committed by one against the other or the latter's direct
descendants or ascendants."
2. The rule prohibiting testimony by one spouse
against the other is based on society's intent to preserve the
marriage relations and promote domestic peace. A spouse
testifYing against the other creates an ugly sight inimical to
society's interests. The rule prohibiting a testimony in favor
of the spouse is intended to discourage the commission of
perjury.
The case of Alvarez u. 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 confidences of private life, even at the risk of an
occasional failure of justice, and to prevent domestic
disunion and unhappiness; and
 198 EVIDENCE
(The Bar Lectures Series)
(d) Where there is want of domestic tranquility,
there is danger of punishing one spouse through the
hostile testimony of the other.
3. The marital disqualification rule, under Sec. 22 of
Rule 130, forbids the husband or the wife to testify for or
against the other without the consent of the affected spouse
except in those cases authorized by the rule. The prohibition
extends not only to a testimony adverse to the spouse but also
to a testimony in favor of the spouse. It also extends to both
criminal and civil cases because the rule does not distinguish.
If 4. In order that the husband or wife may claim the
privilege, it is essential that they be validly married. If they
are not, there is no privilege (Moran, Comments on the Rules of
Court, Vol. 5, p. 176, citing State v. Hancock, 28 Nev. 300, 32,
Pac. 95). The rule, therefore, does not cover illicit cohabitation.
Sec. 22 of Rule 130 requires not only a valid marriage
but the existence of that valid marriage at the moment the
witness-spouse gives the testimony.
5. The rule applies whether or not the witness-spouse
is a party to the case but the other spouse must be a party.
That the other spouse must be a party is evident from the
phrase "... neither the husband nor the wife may testify for or
against the other... "
6. The prohibited testimony is one that is given or of-
fered during the existence of the marriage. Sec. 22 explicitly
refers to a testimony "During their marriage ... " Hence, the
rule does not prohibit a testimony for or against the other af-
ter the marriage is dissolved. When the marriage is dissolved
on the grounds provided for by law like annulment or decla-
ration ofnullity, the rule can no longer be invoked. One may
now testify for or against the other despite an objection inter-
posed by the latter because there is no more marriage to speak
of.
7. If the testimony for or against the other spouse
is offered during the existence of the marriage, it does not
matter if the facts subject of the testimony occurred or came
;r,
CHAPTER V - TESTIMONIAL EVIDENCE 199
B. Disqualifications of Witnesses
to the knowledge of the witness-spouse before the marriage.
The affected spouse may still invoke the rule by objecting to
the testimony as long as it is offered during the marriage.
Nothing in the tenor of the rule allows a contrary view.
To illustrate: Before the marriage of W to H, she
witnessed the murder of X by H but she never reported what
she witnessed to the authorities. A year after the murder,
H and W married. Barely six months after the marriage, W
became a battered wife and to get even with H, she decided to
report the murder to the police. (a) May she testify against H
over the latter's objection even if the murder took place before
the marriage? Answer: She cannot testify over the objection
of H. The situation is covered by the marital disqualification
rule. (b) Suppose a year after the marriage, the marriage
is annulled, may W now testify despite the objection of H?
Answer: She can now testify after the marriage is annulled.
The prohibition no longer applies since the testimony is to be
offered after, not during the marriage.
8. Be it noted that the testimony is prohibited only
over the objection of the affected spouse or the spouse against
whom the testimony is offered. It is the latter spouse who has
the right to object to the competency of the spouse-witness. 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
may be waived and it may be done so impliedly or expressly.
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 (Sec. 22, Rule 130, Rules of Court).
2. The phrase "or the latter's direct descendants or
ascendants" did not appear in the old rules. Sec. 19(c) of the
then Rule 130 only mentioned two exceptions: (a) in a civil
200 EVIDENCE
(The Bar Lectures Series)
case by one against the other; or (b) in a criminal case for a
crime committed by one against the other.
The current rule has been harmonized with the Supreme
Court ruling in Ordofio v. Daquigan (62 SCRA 270) allowing
the wife to testify against her husband who was accused of
raping his daughter. Here, the Court concluded that a rape
perpetrated by the father against his daughter is a crime
committed by him against his wife.
In Ordofio, the Court ruled that the correct rule is the one
laid down in Cargill v. State (35 ALR 133, 220 Pac 64, 25 Okl.
314) which held that:
"The rule that the injury must amount to a physical
wrong upon the person is too narrow x x x. The better rule
is that, when an offense directly attacks or directly and
vitally impairs the conjugal relations, it comes within the
exception to the statute ..."
3. If the wife sues the husband for fraudulently
embezzling the paraphernal funds of the former, the reason
for the prohibition in the rule ceases. The wife can now testify
against the husband. Also, if the wife 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." This contemplates a situation where one
spouse is a plaintiff or petitioner and the other spouse is a
defendant or respondent. 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 spouse against the other but between a spouse and the
parent of the other.
CHAPTER V - TESTIMONIAL EVIDENCE 201
B. Disqualifications of Witnesses
5. The rule is different in a criminal case. In a criminal
case, the privilege of one to testi(y against the other is not con-
fined to crimes committed by one against the other, but covers
crimes committed by one against the direct descendants or
ascendants of the latter like the latter's children or parents.
However, crimes committed by the spouse 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
May a spouse testify in a trial where the other spouse is
a co-accused? Consider the following:
Illustration:
Accused-appellant and his brothers were jointly
accused with parricide for the alleged killing of their own
father. One of the witnesses presented by the prosecution
against all the accused was the wife of accused-appellant.
May the wife testify in the proceedings against all the
accused?
In People v. Quidato, Jr. (297 SCRA 1), the Court
ruled in the affirmative but, likewise, held that the
testimony of the wife in reference to her husband must
be disregarded since the husband timely objected thereto
under the marital disqualification rule. The Court
explained that the disqualification is between husband
and wife, but the rule does not preclude the wife from
testifying when it involves other parties or accused.
Hence, the wife could testify in the murder case against
the brothers who were jointly tried with her husband. The
Court also stressed, however, that the testimony cannot
be used against accused-appellant directly or through the
guise of taking judicial notice of the proceedings in the
murder case without violating the marital disqualification
rule. "What cannot be done directly cannot be done
indirectly."
202 EVIDENCE
(The Bar Lectures Series)
Testimony by the estranged spouse (Bar 2006)
of Esperanza Alvarez, the Court explained:
1. Sec. 22 of Rule 130 prohibits a testimony by one
spouse against the other without the consent of the latter
"during their marriage." Literally, this prohibition would cover
a testimony by the estranged spouse because a separation
"de facto" does not sever the marriage bonds and the spouses
remain legally married to each other. A testimony under such
a situation would still technically be a testimony "during their
marriage." This literal construction of the rule has, however,
been rejected by the Supreme Court.
2. Whether or not the estranged spouse may testify
against the other is illustrated by the following facts:
Susan Ramirez, the respondent, is the complaining
witness in a criminal case for arson of her house against
the accused Maximo Alvarez, the petitioner, who is the
estranged husband of Esperanza Alvarez, the sister of
the respondent and who also lives in the house allegedly
burned.
During the trial of the case, the private prosecutor
called Esperanza Alvarez to the witness stand as the first
witness against her husband. Petitioner and his counsel
initially raised no objection.
Subsequently, before the continuation of the testi-
mony of his estranged wife, petitioner, through counsel,
filed a motion to disqualify Esperanza Alvarez from tes-
tifying against him. The trial court issued an order dis-
qualifying Esperanza Alvarez from further testifying and
deleting her testimony from the records. The prosecution
filed a motion for reconsideration but was denied.
The denial prompted respondent Susan Ramirez,
the complaining witness, to file with the Court of Appeals
a petition for certiorari with application for preliminary
injunction and temporary restraining order. The Court
of Appeals rendered a decision nullifying and setting
aside the assailed orders issued by the trial court. In a
subsequent petition for review on certiorari, the issue
sought to be resolved by the Supreme Court was whether
Esperanza Alvarez can testify against her estranged
husband.
CHAPTER V - TESTIMONIAL EVIDENCE 203
B. Disqualifications of Witnesses
In sustaining the Court of Appeals allowing the testimony
"x x x like all other general rules, the marital
disqualification rule has its own exceptions, both in civil
actions between the spouses and in criminal cases for
offenses committed by one against the other. Like the
rule itself, the exceptions are backed by sound reasons
which, in the excepted cases, outweigh those in support
of the general rule. For instance, where the marital and
domestic relations are so strained that there is no more
harmony to be preserved nor peace and tranquility which
may be disturbed, the reason based upon such harmony
and tranquility fails. In such a case, identity of interests
disappears and the consequent danger of pe:tjury based
on that identity is non-existent. Likewise, in such a
situation, the security and confidences of private life,
which the law aims at protecting, will be nothing but
ideals, which through their absence, merely leave a void
in the unhappy home" (Underscoring supplied).
Obviously, the offense of arson attributed to peti-
tioner directly impairs the conjugal relation between him
and his wife Esperanza. His act, as embodied in the In-
formation for arson filed against him, eradicates all the
major aspects of marital life such as trust, confidence, res-
pect and love by which virtues the conjugal relationship
survives and flourishes.
As correctly observed by the Court of Appeals:
"The act of private respondent in setting fire to the
house of his sister-in-law Susan Ramirez, knowing fully
well that his wife was there, and in fact with the alleged
intent of injuring the latter, is an act totally alien to the
harmony and confidences of marital relation which the
disqualification primarily seeks to protect. The criminal
act complained of had the effect of directly and vitally
impairing the conjugal relation. It underscored the fact
that the marital and domestic relations between her and
the accused-husband have become so strained that there
is no more harmony, peace or tranquility to be preserved.
204 EVIDENCE
(The Bar Lectures Series)
"x x x in such a case, identity is non-existent. In such
a situation, the security and confidences of private life
which the law aims to protect are nothing but ideals which
through their absence, merely leave a void in the unhappy
home" (Alvarez v. Ramirez, 473 SCRA 72; Underscoring
supplied). Thus, there is no longer any reason to apply the
marital disqualification rule.
"It should be stressed that as shown by the records,
prior to the commission of the offense, the relationship
between petitioner and his wife was already strained.
In fact, they were separated de facto almost six months
before the incident. Indeed, the evidence and facts
presented reveal that the preservation of the marriage
between petitioner and Esperanza is no longer an interest
the State aims to protect" (Alvarez v. Ramirez, supra).
Marital privileged communications {Bar 1995; 2004; 2010)
1. There are two independent codal provisions which
cover marital disqualifications. The first is Sec. 22 of Rule
130 (Disqualification by reason of marriage) and the second is
Sec. 24(a) ofRule 130 (Disqualification by reason of privileged
communication).
2. Under Sec. 24 of Rule 130 of the Rules of Court,
there are certain persons who cannot testify as to matters
learned in confidence. Among those subject to the rule are
legitimate spouses. The provision states as follows:
"SEC. 24 Disqualification by reason of privileged
communication.- The following persons cannot testify
as to matters learned in confidence in the following
cases:
(a) The husband or the wife, during or after the
marriage, cannot be examined without the consent of the
other as to any communication received in confidence
by one from the other during the marriage except in a
civil case by one against the other, or in a criminal case
for a crime committed by one against the other or the
latter's direct descendants or ascendants; x x x"
CHAPTER V - TESTIMONIAL EVIDENCE 205
B. Disqualifications of Witnesses
3. Under the provisions of Sec. 24(a) of Rule 130, the
husband or the wife cannot be examined without the consent
of the other as to any communication received in confidence by
one from the other during the marriage.
The application of the rule requires the presence of the
following elements:
(a) there must be a valid marriage between the
husband and wife;
(b) there is a communication received in confidence
by one from the other; and
(c) the confidential communication was received
during the marriage.
4. "The law insures absolute freedom of communica-
tion between the spouses by making it privileged x x x.
Neither may be examined without the consent of the other
as to any communication received in confidence by one from
the other during the marriage, save for specified exceptions.
But one thing is freedom of communication; quite another
is a compulsion for each one to share what one knows with
the other and this has nothing to do with the duty of fidelity
that each owes to the other" (Zulueta v. Court of Appeals, 253
SCRA 699).
5. Since the application of the rule requires a confiden-
tial information received by one spouse from the other dur-
ing the marriage, information acquired by a spouse before the
marriage, even if received confidentially, will not fall squarely
with the provisions of Sec. 24(a) ofRule 130. However, divulg-
ing the same may be objected to under Sec. 22 of Rule 130
upon proper objection as long as the information is sought to
be revealed during the marriage through a testimony for or
against the affected spouse. The tenor of Sec..22 of Rule 130
does not distinguish as to when the information subject of the
testimony was acquired and, thus, may cover matters which
occurred or to adverse information acquired prior to the mar-
riage. It is sufficient that the witness-spouse testifies during
206 EVIDENCE
(The Bar Lectures Series)
the marriage. It is unlike Sec. 24(a) which explicitly requires
that the confidential information be received during the mar-
riage.
Note that Sec. 24(a) of Rule 130 also requires that the
information received in confidence during the marriage be
"by one from the other." The implication is clear: confidential
information received from a third person is not covered by the
privilege.
6. For the information to be confidential, it must be
made during and by reason of the marital relations and is
intended not to be shared with others. Without such inten-
tion, common reason suggests that the information is not
confidential. Thus, in U.S. v. Antipolo (37 Phil. 726), the wife
was allowed, in a prosecution for murder, to testify as to her
husband's dying declaration regarding the identity of the as-
sailant 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 further-
ance of justice.
7. The marital privilege rule, being a rule of evidence,
may be waived by failure of the claimant to object timely to
its presentation or by any conduct that may be construed as
implied consent (Lacurom v. Jacoba, 484 SCRA 206).
Explanation of distinctions between the marital disqualifica-
tion rule and the marital privileged communication rule
1. Sec. 24(a) of Rule 130 has reference to confidential
communications received by one spouse from the other dur-
ing the marriage. The marital disqualification rule under Sec.
22 of Rule 130 does not refer to confidential communications
between the spouses. It will not come into play when the fact
pattern in a problem makes reference to confidential com-
munications between husband and wife during the marriage.
Sec. 24(a) of Rule 130 will, instead, apply.
However, communications that are not intended to be
confidential because they were uttered in the presence of third
CHAPTER V - TESTIMONIAL EVIDENCE 207
B. Disqualifications of Witnesses
parties are not deemed confidential even when made during
the marriage, but Sec. 22 could apply, instead of Sec. 24(a),
when used as parts of a testimony for or against the party-
spouse.
The marital privileged communication rule in Sec. 24(a)
applies only to testimonies of a confidential nature received by
one spouse from the other during the marriage and obviously
does not include acts merely observed by the spouse unless
such acts are intended as a means of conveying confidential
communication by one to the other.
2. Sec. 22 of Rule 130 includes facts, occurrences or
information even prior to the marriage unlike Sec. 24(a) which
applies only to confidential information received during the
marriage. In this sense, Sec. 22 is broader because it prevents
testimony for or against the spouse on any fact and not merely
a disclosure of confidential information.
3. When the marital privileged communication rule
under Sec. 24(a) applies, the spouse affected by the disclosure
of the information or testimony may object even after the
dissolution of the marriage. The privilege does not cease just
because the marriage has ended. The marital disqualification
rule under Sec. 22, on the other hand, can no longer be invoked
once the marriage is dissolved. It may be asserted only during
the marriage. In this sense, Sec. 24(a) is broader.
4. The marital disqualification rule in Sec. 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 Sec. 24(a) which applies
regardless of whether the spouses are parties or not.
Note: In the marital disqualification rule in Sec. 22, the
prohibition is a testimony for or against the other. In Sec.
24(a), what is prohibited is the examination of a spouse as to
matters received in confidence by one from the other during
the marriage.
208 EVIDENCE
(The Bar Lectures Series)
Attorney-client privilege (Bar 2008)
1. The following is the applicable provision under Rule
130 involving privileged communications between an attorney
and his client:
"SEC. 24. Disqualification by reason of privileged
communication. -The following persons cannot testify
as to matters learned in confidence in the following
cases:
(a) X XX
(b) An attorney cannot, without the consent of
his client, be examined as to any communication made
by the client to him, or his advice given thereon in the
course of, or with a view to, professional employment,
nor can an attorney's secretary, stenographer, or clerk
be examined, without the consent of the client and his
employer, concerning any fact the knowledge of which
has been acquired in such capacity."
2. The following requisites must be present for the
privilege to arise:
(a) There must be a communication made by the
client to the attorney, or an advice given by the attorney
to his client;
(b) The communication or advice must be given in
confidence; and
(c) The communication or advice must be given
either in the course of the professional employment or
with a view to professional employment.
3. The present rules do not require a perfected attor-
ney-client relationship for the privilege to exist. The commu-
nications between the attorney and the client no longer need
to be in the course of an actual professional employment. It
is enough that the communication or advice be "with a view
to" professional employment (Sec. 24[b], Rule 130, Rules of
Court).
CHAPTER V - TESTIMONIAL EVIDENCE 209
B. Disqualifications of Witnesses
Hence, the privilege is extended to communications
made for the purpose of securing the services of counsel even
if the counsel later refuses the professional relationship. The
insertion of the clause "with a view to" includes preliminary
negotiations within the privilege. Without the clause, it would
seem extremely risky to consult an attorney for the first time
and communicate to him certain sensitive information without
the protection of confidentiality.
4. Accordingly, the privilege is not confined to commu-
nications regarding actual pending cases. The communica-
tions may refer to anticipated litigations or may not refer to
any litigation at all. It is sufficient that the statements be
made in the course of legitimate professional relationship be-
tween the attorney and the client (Jones on Evidence, Vol. 3,
§749).
The communication may be oral or written but is
deemed to extend to other forms of conduct, like physical
demonstration, as long as they are intended to be confidential.
It is, likewise, submitted that the communication between a
client and his lawyer is not deemed lacking in confidentiality
solely because the communication is transmitted by facsimile,
cellular telephone, or other electronic means.
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 (8 Wigmore,
Evidence, §§2298, 2299 [McNaughton Reev. 1961]; Gardner,
The Crime of Fraud Exception to the Attorney-Client Privilege,
47 A.B.A.J. 708), or for the purpose of committing a crime or a
tort(U.S. v. Wilson, 798 F.2d 509 [1st Cir.l986]), or those made
in furtherance of illicit activity (U.S. v. Aucoin, 964 F.2d 1492
[5th Cir. 1992]). Accordingly, although communications made
when used to further crimes are not privileged, the discussion
of the communications in confidence with the lawyer after
the crime has been committed may still be privileged even
though the earlier ones were not (In re Federal Grand Jury
Proceedings 89-10 [MIA], 938 F.2d 1578 [11th Cir. 1991]).
6. The statements of the client need not be made to the
attorney in person. Those made to the attorney's secretary,
210 EVIDENCE
(The Bar Lectures Series)
clerk, or stenographer for transmission to the attorney for 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 (Sec. 24[b], Rule 130, Rules of Court).
7. A lawyer is bound to comply with Canon 21 of the
Code of Professional Responsibility which states that, "a
lawyer shall preserve the confidences and secrets of his client
even after the attorney-client relation is terminated." 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 (Samala u.
Valencia, 512 SCRA 1; Mercado u. Vitriolo, 459 SCRA 1).
Physician-patient privilege (Bar 1998)
1. The privileged communication between a physician
and his patient is stated as follows in Sec. 24 of Rule 130:
"SEC. 24. Disqualification by reason of privileged
communication.- The following persons cannot testify
as to matters learned in confidence in the following
cases:
(a) XXX
(b) XXX
(c) A person authorized to practice medicine,
surgery or obstetrics cannot in a civil case, without the
consent of the patient, be examined as to any advice
or treatment given by him or any information which
he may have acquired in attending such patient in a
professional capacity, which information was necessary
to enable him to act in that capacity, and which would
blacken the reputation of the patient; x x x"
CHAPTER V - TESTIMONIAL EVIDENCE 211
B. Disqualifications of Witnesses
2. This privilege, embodied in Sec. 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.
3. Accordingly, this privilege protects the interest
of the patient. It is designed to promote health, not truth.
It encourages free disclosure in the sickroom by preventing
disclosure in the courtroom. The patient is the person to be
encouraged and he is the holder of the privilege (Metropolitan
Life and Insurance Co. u. Kaufman, 104 Colo. 13, 87 P.2d 758
in McCormick, Evidence, §1 02).
4. The person against whom the privilege is claimed
is a person duly authorized to practice medicine, surgery, or
obstetrics.
The information which cannot be disclosed refers to:
(a) any advice given to the client;
(b) any treatment given to the client;
(c) any information acquired in attending such
patient provided that the advice, treatment or information
was made or acquired in a professional capacity and was
necessary to enable him to act in that capacity; and
(d) the information sought to be disclosed would
tend to blacken the reputation of the patient (Sec. 24{c],
Rule 130, Rules of Court). The word "reputation" is used
instead of the previous word, "character."
5. Also, it is opined that the rule does not require that
the relationship between the physician ·and the patient be a
result of a contractual relationship. It could be the result of a
quasi-contractual relationship as when the patient is seriously
ill and the physician treats him even if he is not in a condition
to give his consent as in the "Situation described in Art. 2167 of
the Civil Code of the Philippines.
 212 EVIDENCE
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6. The privilege does not apply to shield the commis-
sion of a crime or when the purpose is an unlawful one as to
obtain narcotics or prohibited drugs in violation oflaw because
there is no treatment involved. 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.
7. The privilege survives the death of the patient.
Death does not permit the living to impair the deceased's
name by disclosing communications held confidential by law.
Thus, in Gonzales u. Court ofAppeals (298 SCRA 322), the
Supreme Court, prevented the disclosure of medical findings
that would tend to blacken the reputation of the patient even
after his death.
8. The privilege may be waived by the patient. The
waiver may be made expressly or impliedly. The waiver
may be by a contract as in medical or life insurance. When
there is disclosure by the patient of the information, there is
necessarily, a waiver. When the patient answers questions on
matters which are supposedly privileged on cross-examination,
the waiver also exists.
There could also be a waiver by operation of law or the
rules. Under Rule 28 of the Rules of Court, the court in which
the action is pending may, in its discretion, order a party to
submit to a physical or mental examination (Sec. 1, Rule 28,
Rules of Court). This happens when the mental or physical
condition of a party is in dispute. The party examined may
request a report of the examination. By doing so, he waives
any privilege he may have in that action regarding the
testimony of every other person who has examined him in
respect of the same examination (Sec. 4, Rule 28, Rules of
Court).
CHAPTER V - TESTIMONIAL EVIDENCE 213
B. Disqualifications of Witnesses
Priest/minister-penitent privilege
1. Another privileged communication under the Rules
is as follows:
"SEC. 24. Disqualification by reason of privileged
communication.- The following persons cannot testify
as to matters learned in confidence in the following
cases:
XXX
(d) A minister or priest cannot, without the con-
sent of the person making the confession, be examined
as to any confession made to or any advice given by him
in his professional character in the course of discipline
enjoined by the church to which the priest or minister or
priest belongs;
X X X"
2. The person making the confession holds the privi-
lege, and the priest or minister hearing the confession in his
professional capacity is prohibited from making a disclosure
of the confession without the consent of the person confessing.
The privilege also extends not only to a confession made
by the penitent but also to any advice given by the minister or
priest. The confession and the advice must be made or given
pursuant to the course of discipline of the denomination or
sect to which the minister or priest belongs (Sec. 24[d], Rule
130, Rules of Court). Thus, the minister or priest must be duly
ordained or consecrated by his sect.
3. Not every communication made to a minister
or priest is privileged. The communication must be made
pursuant to confessions of sins (Wigmore on Evidence, §848).
As clearly provided in the rule, the advice--given as a result of
the confession must be made in the minister's "professional
character" (Sec. 24[d], Rule 130, Rules of Court), or in his
"spiritual" capacity. Accordingly, where the penitent discussed
business arrangements with the priest, the privilege does not
apply (U.S. u. Gordon, 493 F. Supp. 822 [7th Cir. 1987]).
214 EVIDENCE
(The Bar Lectures Series)
Privileged communications to public officers
1. As to privileged communications to public officers,
the relevant rule declares:
"SEC. 24. Disqualification by reason of privileged
communication.- The following persons cannot testify
as to matters learned in confidence in the following
cases:
XXX
(e) A public officer cannot be examined during
his term of office or afterwards, as to communications
made to him in official confidence, when the court finds
that the public interest would suffer by the disclosure."
2. Under the above rule, communications made to a
public officer in official confidence are privileged when the
court finds that the disclosure would adversely affect the
public interest. It is the interest of the public that is sought
to be protected by the rule. Hence, the disclosure or non-
disclosure is not dependent on the will of the officer but on
the determination by a competent court. The privilege may be
invoked not only during the term of office of the public officer
but also afterwards (Sec. 24[e], Rule 130, Rules of Court).
3. National security matters and State secrets are, of
course, confidential and a court will most likely uphold the
privilege. A society may not always be able to conduct its
business with total openness and matters affecting national
interest must not be divulged (Guong v. U.S., 860 F.2d 1063
[Fed. Cir 1988]).
Executive privilege; Presidential communications privilege
1. The concept of "executive privilege" and its origins
were elucidated in sufficient detail in Senate of the Philip-
pines v. Ermita (488 SCRA 1). In relation to its American
origins, the privilege has been described as "the power of
the government to withhold information from the public, the
courts, and the Congress."
CHAPTER V - TESTIMONIAL EVIDENCE 215
B. Disqualifications of Witnesses
2. The doctrine of executive privilege found recognition
in the 1995 case of Almonte v. Vasquez (244 SCRA 286).
Here, the Court acknowledged that there are certain types
of information which the government may withhold from the
public like military, diplomatic and national security secrets.
Alluding to foreign jurisprudence, it was ruled that the
President and those who assist him must be free to explore
alternatives in the process of shaping policies and making
decisions and to do so in a way many would be unwilling to
express except privately.
3. Chavez v. PCGG (299 SCRA 744) ruled that there
is a privilege against disclosure on certain matters involving
state secrets regarding the following:
(a) military;
(b) diplomatic; and
(c) other national security matters.
Again, in Chavez v. Public Estates Authority (384 SCRA
152), it was similarly held that secrets involving military,
diplomatic, and national security matters, and information on
investigations of crimes by law enforcement agencies before
the prosecution of the accused were exempted from the right to
information. The right to information does not also extend to
presidential conversations, correspondences, and discussions
in closed-door cabinet meetings.
4. The Constitution of the Philippines recognizes the
right ofthe people to information on matters of public concern
and guarantees access to official records, documents, and
papers pertaining to official acts, transactions, or deCisions, as
well as to government research data used as basis for policy
development, subject to such limitations as may be provided
by law (Sec. 7, Art. III [Bill of Rights], .Constitution of the
Philippines). -
What matters may be disclosed in relation to the right to
information on matters ofpublic concern?
This was actually one ofthe issues sought to be resolved
in AKBAYAN v. Aquino (558 SCRA 468). The petitioners in
 216 EVIDENCE
(The Bar Lectures Series)
the case, a tapestry of various personalities like citizens, tax-
payers, congressmen including non-government organiza-
tions, sought via a petition for mandamus and prohibition to
obtain from respondents in the persons of various government
functionaries, the full text of the Japan-Philippines Economic
Partnership Agreement (JPEPA), information which the gov-
ernment previously refused to disclose. The petitioners assert
among others, that the refusal of the government to disclose
the documents bearing on the JPEPA violates their right to in-
formation on matters of public concern, and contravenes other
constitutional provisions on transparency, such as the policy
of full disclosure of all transactions involving public interest.
They likewise posit that non-disclosure of the documents un-
dermines their right to effective and reasonable participation
in all levels of social, political and economic decision-making.
Respondents do not dispute that the JPEPA, as an
international trade agreement, is a matter of public concern
but they claim that a full disclosure of matters would involve
disclosure of diplomatic negotiations which were then in
progress. They assert that diplomatic negotiations are covered
by the doctrine of executive privilege, thus constituting an
exception to the right to information and the policy of full
public disclosure.
In resolving the conflicting claims of the parties, the
Court first affirmed what it termed "the well-established
jurisprudence that neither the right to information nor the
policy offull disclosure is absolute, there being matters which,
albeit of matters of public concern or public interest, are
recognized as privileged in nature."
The Court reiterated what it held in previous cases
that the information on inter-government exchanges prior
to the conclusion of treaties and executive agreements may
be subject to reasonable safeguards for the sake of national
interest. The Court held that while the final text of the
JPEPA may not be left perpetually confidential since there
is a need to discuss the same before it is approved, the offers
exchanged by the parties during the negotiations continue to
be privileged, even after the JPEPA is published. Disclosing
CHAPTER V - TESTIMONIAL EVIDENCE 217
B. Disqualifications of Witnesses
these exchanges could impair the ability of the Philippines to
deal not only with Japan but with other foreign governments
in future negotiations. Reminding the parties of what it had
declared in Chavez v. PCGG (299 SCRA 744), that while
the constitutional right to information includes official
information on ongoing negotiations before a final contract,
such information does not cover recognized exceptions like
privileged information, military and diplomatic secrets and
similar matters affecting national interest. The matters
falling under these exceptions, according to the Court, cannot
be disclosed even if they constitute definite propositions. Since
diplomatic negotiations enjoy a presumptive privilege against
disclosure, petitioners need to sufficiently show the existence
of a public interest sufficient to overcome the privilege. The
court concluded with a finding that the petitioners have failed
to present a "sufficient showing of need" in their arguments.
5. An earlier case, Neri v. Senate Committees on
Accountability of Public Officers and Investigations (435
SCRA 110, 148), similarly demonstrates the extent of the
right to information on matters alleged to be of public concern.
Romulo Neri, the petitioner in this case, as then director of
the NEDA, was accordingly said to have discussed with
the President of the Philippines regarding the ZTE-NBN
deal. The petitioner, upon invitation of the respondents
(Senate Committee on Accountability of Public Officers and
Investigations, Senate Committee on Trade and Commerce,
and Senate Committee on National Defense and Security),
testified on the ZTE-NBN contract and the bribe offers in
connection with the deal. When asked on the details of the
matters he discussed with the President after he divulged to
the latter the bribe offers, petitioner declined to disclose the
details of their conversation invoking the privileged nature of
the conversation on specifically the folloVtring matters:
(a) Whether the President followed up the NBN
project;
(b) Whether Neri was dictated upon to follow up
the project; and
218 EVIDENCE
(The Bar Lectures Series)
(c) Whether the President said to go ahead and
approve the project after being told of the alleged bribe.
The Court, in deciding the case, started with the premise
recognizing the power of Congress to conduct inquiries in aid
of legislation, a power which extends even to public officials.
The only way for them to be exempted from the compulsory
process of Congressional subpoena is through a valid claim
of executive privilege. The Court declared it was convinced
that the communications elicited by the three (3) questions
are covered by the presidential communication privilege.
The Neri case emphasized the rule that for the claim
of executive privilege to be invoked, there must be a formal
claim of the privilege, lodged by the head of the department
which has control of the matter, and that a formal and proper
claim of the privilege requires a "precise and certain reason"
for preserving confidentiality, but Congress must not require
the executive to state the reasons for the claim with such
particularity as to compel the disclosure of the information
which the privilege is meant to protect. This is a matter of
respect for a coordinate and co-equal department. It was ruled
that the letter of Secretary Ermita to the respondents satisfies
the requirement.
Privileged communications under the Rules on Electronic
Evidence
Privileged communications apply even to electronic
evidence. Under Sec. 3, Rule 3 of the Rules on Electronic
Evidence, the confidential character of a privileged commu-
nication is not lost solely on the ground that it is in the form
of an electronic document.
Parental and filial privilege (Bar 1998)
1. Two privileges are embodied in Sec. 25 of Rule
130, namely: (a) the parental privilege nile; and (b) the filial
privilege rule.
Under the parental privilege rule, a parent cannot be com-
pelled to testify against his child or other direct descendants.
CHAPTER V - TESTIMONIAL EVIDENCE 219
B. Disqualifications of Witnesses
Under the filial privilege rule, a child may not be compelled to
testify against his parents or other direct ascendants.
2. A person, however, may testify against his parents
or children voluntarily but if he refuses to do so, the rule
protects him from any compulsion. Said rule applies to both
criminal and civil cases since the rule makes no distinction
(Sec. 25, Rule 130, Rules of Court). The rule states:
"SEC. 25. Parental and filial privilege. - No
person may be compelled to testify against his parents,
other. direct ascendants, children or other direct
descendants."
3. In criminal cases, the Family Code of the Philippines
lays down, as a general rule, a policy substantially similar to
Sec. 25, Rule 130 ofthe Rules of Court. Under the Family Code,
no descendant shall be compelled, in a criminal case, to testify
against his parents and grandparents. The Code, however,
specifically provides for an exception. The descendant may be
compelled to give his testimony in the following instances:
(a) when such testimony is indispensable in a
crime committed against said descendant, or
(b) in a crime committed by one parent against the
other (Art. 215, Family Code of the Philippines).
The relevant article provides:
"Art. 215. No descendant shall be compelled, in a
criminal case, to testify against his parents and grand-
parents, except when such testimony is indispensable
in a crime, against the descendant or by one parent
against the other."
Other privileged communications not found in the Rules of
Court
1. Sec. 24 of Rule 130 deals with the types of dis-
qualifications by reason of privileged communication, to wit:
(a) communication between husband and wife; (b) communica-
tion between attorney and client; (c) communication between
 220 EVIDENCE
(The Bar Lectures Series)
physician and patient; (d) communication between priest and
penitent; and (e) public officers and public interest.
2. There are, however, other privileged matters that
are not mentioned under Rule 130. Among them are the
following: (a) editors may not be compelled to disclose the
source of published news; (b) voters may not be compelled to
disclose for whom they voted; (c) trade secrets; (d) information
contained in tax census returns; and (e) bank deposits (Air
Philippines v. Pennswell, Inc., 540 SCRA 215).
3. Under Art. 233 of the Labor Code of the Philippines,
information and statements made at conciliation proceedings
shall be treated as confidential.
4. Under Sec. 6 of R.A. 9194, amending Sec. 9 of R.A.
9160 (Anti- Money Laundering Act of200 1), institutions covered
by the law and its officers and employees who communicate a
suspicious transaction to the Anti-Money Laundering Council,
are barred from disclosing the fact of such report, that such
report was made and other related information.
C. Examination of Witnesses
Open court examination; exceptions
1. Sec. 1 of Rule 132 provides for the examination of
the witness in open court and, unless the question calls for a
different mode, the answer ofthe witness shall be given orally.
This method allows the court the opportunity to observe the
demeanor of the witness and also allows the adverse party to
cross-examine the witness.
2. There are, however, testimonies which need not
be given orally in open court. Under the Rule on Summary
Procedure, in criminal cases, the affidavits of the parties shall
constitute the direct testimonies of the witnesses who executed
the same (Sec. 15, Rule on Summary Procedure). In civil cases,
the parties are merely required to submit the affidavits of their
witnesses and other pieces of evidence on the factual issues,
together with their position papers, settin~ forth the law and
the facts relied upon (Sec. 9, Rule on Summary Procedure).
CHAPTER V - TESTIMONIAL EVIDENCE 221
C. Exammation of Witnesses
3. Likewise, depositions need not be taken in open
court. They may be taken before a notary public (Sec. 10,
Rule 23, Rules of Court) or before any person authorized to
administer oaths (Sec. 14, Rule 23, Rules of Court).
4. In a criminal case, either party may utilize the
testimony of a witness who is deceased, out of the country,
unavailable or unable to testify despite the exercise of due
diligence, even if the testimony was one used in another case
or proceeding, judicial or administrative, provided the said
proceeding involved the same parties and subject matter and
the adverse party had the opportunity to cross-examine the
witness (Sec. l[f], Rule 115, Rules of Court).
5. Under the Judicial Mfidavit Rule, the judicial
affidavit shall take the place of direct testimonies of witnesses
(Sec. 2, Judicial Affidavit Rule).
Oath or affirmation
1. The witness must take either an oath or an affirma-
tion (Sec. 1, Rule 132, Rules of Court) but the option to do so is
given to the witness and not to the court.
2. An oath is an outward pledge made under an
immediate sense of responsibility to God or a solemn appeal
to the Supreme Being in attestation of the truth of some
statement (Black's Law Dictionary, 5th Ed., p. 966). An
affirmation is a substitute for an oath, and is a solemn and
formal declaration that the witness will tell the truth (Ibid.,
55).
3. Where the witness refuses to take an oath or give
any affirmation, the testimony may be barred (U.S. v. Fowler,
605 F.2d 181 [5th Cir. 1979}).
Examination of witnesses and record of proceedings (Bar
1978)
1. The examination of witnesses presented in a trial
or hearing shall be done in· open court and under oath or
affirmation. The answers of the witness shall be given orally
 222 EVIDENCE
(The Bar Lectures Series)
except if: (a) the witness is incapacitated to speak, or (b) the
question calls for a different mode of answer (Sec. 1, Rule 132,
Rules of Court).
2. The questions propounded to a witness and his
answers thereto shall be recorded. Also to be recorded are
the statements made by the judge, any of the parties or any
of the counsels. In fact, the entire proceedings of the trial or
hearing must be recorded. The recording may be by short-
hand, stenotype or any means of recording found suitable by
the court (See Sec. 2, Rule 132, Rules of Court).
3. The official stenographer, stenotypist or recorder
shall make a transcript of the record of the proceedings and
shall be certified by him as correct. The transcript so prepared
and certified shall be deemed prima facie a correct statement
of such proceedings (Sec. 2, Rule 132, Rules of Court).
Rights and obligations of a witness (Bar 1998; 2004; 2005)
1. As a rule, a witness has an obligation to answer
questions, although his answer may tend to establish a claim
against him (Sec. 3, Rule 132, Rules of Court).
Of course, there are questions which he is not bound to an-
swer. This is because a witness has certain rights like: (a) Not
to give an answer which will tend to subject him to a penalty
for an offense; (b) To be protected from irrelevant, improper,
or insulting questions, and from harsh or insulting demeanor;
(c) Not to be examined except only as to matters pertinent to
the issue; (d) Not to be detained longer than the interest of
justice requires; and (e) Not to give an answer which will tend
to degrade his reputation, unless it be the very fact at issue or
to a fact from which the fact in issue would be presumed (Sec.
3, Rule 132, Rules of Court).
2. Foremost among the rights of a witness is the right
not to give an answer that will subject him to a penalty,
unless otherwise provided by law (Sec. 3[4], Rule 132, Rules of
Court). This provision in the Rules of Court gives meaning to
the right of a person against self-incrimination (Sec. 17, Art.
III, Constitution of the Philippines).
CHAPTER V - TESTIMONIAL EVIDENCE 223
C. Examination of Witnesses
Note, however, that under R.A. 6981 (Witness Protection,
Security and Benefit Act), a witness admitted into the witness
protection program cannot refuse to testifY or give evidence or
produce books, documents, records or writings necessary for
the prosecution of the offense or offenses for which he has been
admitted on the ground ofthe right against self-incrimination
(Sec. 14, R.A. 6981).
3. Aside from the right against self-incrimination, a
witness likewise has the right not to give an answer that will
tend to degrade his reputation. However, even if the answer
tends to degrade his reputation, he must answer the question
if the degrading answer: (a) is the very fact in issue; or (b)
refers to a fact from which the fact in issue would be presumed
(Sec. 3[5}, Rule 132, Rules of Court).
But a witness must answer to the fact of his previous
final conviction for an offense (Ibid.).
4. If the witness is the accused, he may totally refuse
to take the stand. A mere witness cannot altogether refuse to
take the stand. Before he refuses to answer, he must wait for
the incriminating question (Bagadiong v. Gonzales, 94 SCRA
906).
5. Counsel must always come to the aid of his wit-
ness being subjected to intimidation, harassment and embar-
rassment. Such acts are objectionable and a timely objection
should be raised.
Examination of a child witness; live-link television (Bar 2006)
1. The examination of a child witness presented in a
hearing or any proceeding shall be done in open court. The
answer of the witness shall be given orally, unless the witness
is incapacitated to speak, or the question calls for a different
mode of answer (Sec. 8, Rule on Examination of a Child
Witness).
The examination in this provision does not refer to the
competency examination of the child pursuant to Sec. 6 of
the same rule, but to a situation where the child is already
 224 EVIDENCE
(The Bar Lectures Series)
testifying in court. Under Sec. 6(c), only specified persons are
allowed to attend the competency examination of the child
and is obviously not an open court examination.
When the child is testifying, the court may exclude the
public and persons who do not have a direct interest in the
case, including members of the press. The order shall be made
if the court determines on the record that to testify in open
court would cause psychological harm to him, hinder the
ascertainment of truth, or result in his inability to effectively
communicate due to embarrassment, fear or timidity. The
court may also motu proprio exclude the public from the
courtroom if the evidence to be produced during trial is of
such character as to be offensive to decency or public morals.
The court may also, on motion of the accused, exclude the
public from trial, except court personnel and the counsel of
the parties (Sec. 23, ibid.).
The court may also order that persons attending the trial
shall not enter or leave the courtroom during the testimony of
the child (Sec. 24, ibid.).
2. When a child does not understand the English
or Filipino language or is unable to communicate in said
languages due to his developmental level, fear, shyness,
disability, or other similar reason, an interpreter whom the
child can understand and who can understand the child may
be appointed by the court, motu proprio or upon motion, to
interpret for the child (Sec. 9[a], ibid.). Being another witness
in the same case or a member of the family of the child is ·
not in itself a disqualification. Such a person may be an
interpreter if he is the only one who can serve as interpreter.
If the interpreter is also a witness, he shall testify ahead of
the child (Sec. 9[b], ibid.).
3. If the court determines that the child is unable to
understand or respond to questions asked, the court may,
motu proprio or upon motion, appoint a facilitator. The
facilitator may be a child psychologist, psychiatrist, social
worker, guidance counselor, teacher, religious leader, parent,
or relative (Sec. 10, ibid.).
CHAPTER V - TESTIMONIAL EVIDENCE 225
C. Examination of Witnesses
4. A child testifying at a judicial proceeding or making
a deposition shall have the right to be accompanied by one
or two persons of his own choosing to provide him emotional
support. Said support persons shall remain within the view of
the child during his testimony. One of the support persons may
even accompany the child to the witness stand and the court
may also allow the support person to hold the hands of the
child or to take other appropriate steps to provide emotional
support to the child in the course of the proceedings but the
court shall instruct the support persons not to prompt, sway,
or influence the child during his testimony (Sec. 11, ibid.).
The support person may be another witness but the
court shall disqualify him if it could be sufficiently estab-
lished that the attendance of such support person would pose
a substantial risk of influencing or affecting the content of
the testimony of the child. If the support person who is also a
witness is allowed by the court, he shall testify ahead of the
child (Sec. ll[b][c], ibid.).
5. An application may be made for the testimony of
the child to be taken in a room outside the courtroom and
be televised to the courtroom by live-link television. The
application may be made by the prosecutor, counsel or
guardian ad litem at least five (5) days before the trial date
(Sec. 25[a], ibid.).
The court may order that the testimony of the child be
taken by live-link television if there is a substantial likeli-
hood that the child would suffer trauma from testifying in the
presence of the accused, his counsel or the prosecutor as the
case may be. The trauma should be of a kind which would
impair the completeness or truthfulness of the testimony of
the child (Sec. 25[fj, ibid.) (Bar 2006).
If the child is testifying by live-link television and it is
necessary to identify the accused at trial, the court may allow
the child to enter the courtroom for the limited purpose of
identifying the accused, or the court may allow the child to
identify the accused by observing his image on a television
monitor (Sec. 25[g][3], ibid.).
 226 EVIDENCE
(The Bar Lectures Series)
6. The testimony of the child shall be preserved on
videotape, digital disc, or other similar devices which shall be
made part of the court record and be subject to a protective
order (Sec. 25[h], ibid.).
7. To shield the child from the accused, the court may
allow the child to testify in such a manner that the child
cannot see the accused by testifying through one-way mirrors,
and other devices (Sec. 26, ibid.).
8. Records regarding a child shall be confidential and
kept under seal. Except upon written request and order of the
court, a record shall only be released to the following:
(1) Members of the court staff for administrative
use;
(2) The prosecuting attorney;
(3) Defense counsel;
(4) The guardian ad litem;
(5) Agents of investigating law enforcement agen-
cies; and
(6) Other persons as determined by the court (Sec.
31[a], ibid.).
9. Whoever publishes or causes to be published in
any format the name, address, telephone number, school, or
other identifying information of a child who is or is alleged to
be a victim or accused of a crime or a witness thereof, or an
immediate family of the child shall be liable to the contempt
power of the court (Sec. 31[d], ibid.).
10. Where a youthful offender has been charged before
any city, or provincial prosecutor or any municipal judge and
the charges have been dropped, all the records of the case shall
be considered as privileged and may not be disclosed directly
or indirectly to anyone for any purpose whatsoever. If he is
charged and acquitted or the case is dismissed, the records are
also privileged, as a rule (Sec. 31[g], ibid.).
11. The youthful offender, who fails- to acknowledge
the case against him or to recite any fact related thereto in
CHAPTER V - TESTIMONIAL EVIDENCE 227
C. Examination of Witnesses
response to any inquiry made to him for any purpose, shall
not be held under any provision of law to be guilty of perjury
or of concealment or misrepresentation (Sec. 31[g], ibid.).
Kinds of examinations
1. Direct examination - This is the examination-in-
chief of a witness by the party presenting him on the facts
relevant to the issue (Sec. 5, Rule 132, Rules of Court). It is
actually a procedure for obtaining information from one's own
witness in an orderly fashion. It is information which counsel
wants the court to hear. The purpose is to elicit facts about
the client's cause of action or defense. This examination is
now subject to the Judicial Affidavit Rule which took effect
on January 1, 2013. The Rule is discussed at the end of this
chapter.
2. Cross-examination -This is the examination of the
witness by the adverse party after said witness has given his
testimony on direct examination. As a rule, the scope of the
cross-examination is not confined to the matters stated by the
witness in the direct examination. Thus, under the Rules of
Court, an objection that the question in the cross-examination
is on a matter not touched upon by the witness in his testimony
will seldom be sustained provided the question covers matters
allowed to be asked by way of cross-examination. This is
because the rule allows questions designed to test the accuracy
and truthfulness of the witness, his freedom from interest or
bias, or the reverse, and to elicit all important facts bearing
upon the issue (Sec. 6, ibid.).
Although Sec. 6 of Rule 132 allows the cross-examiner a
wide latitude in asking his questions, this provision merely
states a general rule. Where the witness is an unwilling or a
hostile witness as so declared by the court, he may be cross-
examined only as to the subject matter of his examination-
in-chief (Sec. 12, ibid.). The same limited scope of a cross-
examination is imposed upon the cross-examiner where the
witness examined is an accused because he is subject to cross-
examination on matters covered by the direct examination
(Sec. 1[d}, Rule 115, Rules of Court).
 228 EVIDENCE
(The Bar Lectures Series)
Cross-examination has two basic purposes, namely: (a)
To bring out facts favorable to counsel's client not established
by the direct testimony, and (b) To enable counsel to impeach
or to impair the credibility of the witness.
3. Re-direct examination - This examination is con-
ducted after the cross-examination of the witness. The party
who called the witness on direct examination may re-examine
the same witness to explain or supplement his answers given
during the cross-examination. It is the examination of a
witness by the counsel who conducted the direct examination
after the cross-examination. In re-direct examination the
counsel may elicit testimony to correct or repel any wrong
impression or inferences that may have been created in
the cross-examination. It may also be an opportunity to
rehabilitate a witness whose credibility has been damaged. In
its discretion, the court may even allow questions on matters
not touched in the cross-examination (Sec. 7, Rule 132, Rules
of Court).
4. Re-cross examination - This is the examination
conducted upon the conclusion of the re-direct examination.
Here, the adverse party may question the witness on matters
stated in his re-direct examination and also on such matters
as may be allowed by the court in its discretion (Sec. 8, ibid.).
Death or absence of a witness
1. If the witness dies before his cross-examination
is over, his testimony on the direct may be stricken out
only with respect to the testimony not covered by the cross-
examination. The absence of the witness is not enough to
warrant striking out his testimony for failure to appear for
further cross-examination where the witness has already
been sufficiently cross-examined, and the matter on which the
cross-examination is sought is not in controversy (People v.
Seiieris, 99 SCRA 92).
2. If the witness was not cross-examined because
of causes attributable to the cross-examining party and
the witness had always made himself available for cross-
CHAPTER V - TESTIMONIAL EVIDENCE 229
C. Examination of Witnesses
examination, the direct testimony of the witness shall remain
in the record and cannot be ordered stricken off because the
cross-examiner is deemed to have waived the right to cross-
examine the witness (De la Paz v. Intermediate Appellate
Court, 154 SCRA 65).
Recalling a witness
If a witness has been examined by both sides, the witness
cannot be recalled without leave of court. Recalling a witness
is a matter of judicial discretion. In the exercise of its discre-
tion, the court shall be guided by the interests of justice (Sec.
9, Rule 132, Rules of Court).
Leading questions
1. A leading question is one that is framed in such a
way that the question indicates to the witness the answer
desired by the party asking the question. In the words of Sec.
10 of Rule 132, it is a question "which suggests to the witness
the answer which the examining party desires."
2. Leading questions are not appropriate in direct
and re-direct examinations particularly when the witness is
asked to testify about a major element of the cause of action
or defense. Leading questions are allowed in cross and re-
cross examinations. In fact, leading questions are the types
of questions that should be employed in a cross-examination.
Such questions enable the counsel to get the witness to
agree with his client's version of the facts. Most lawyers will
agree that a "why" question should not be asked in cross-
examination. This kind of question allows a witness to explain
his or her position, emphasize key points ofharmful testimony
and control the pace and scope of the examination. It invites
the witness to deliver an unwanted "lecture" in the courtroom.
Short and leading questions will help control the witness.
3. Leading questions are, however, allowed in a direct
exa!llination in the following instances: (a) on preliminary
matters; (b) when the witness is ignorant, or a child of
tender years, or is feeble-minded or a deaf-mute and there
230 EVIDENCE
(The Bar Lectures Series)
is difficulty in getting direct and intelligible answers from
such witness; (c) when the witness is a hostile witness; or (d)
when the witness is an adverse party, or an officer, director, or
managing agent of a corporation, partnership or association
which is an adverse party (Sec. 10, Rule 132, Rules of Court).
Leading questions to a child witness
As to a child witness, Sec. 10, Rule 132 of the Rules of
Court should be deemed modified by Sec. 20 of the Rule on
Examination of a Child Witness. Under the said rule, the
court may allow leading questions in all stages of examination
of a child under the condition that the same will further
the interest of justice. Under the Rules of Court, a leading
question may be asked of a child only if there is difficulty of
eliciting from said child a direct and intelligible answer (Sec.
10[c], Rule 132, Rules of Court).
Illustrations:
The following examples of leading questions in a
direct examination may be illuminating:
Illustration No. 1:
The case is a collection case. The defendant contends
that the debt has been paid. He calls a witness to testify
to the fact of payment.
Q: While the plaintiff and the defendant were
engaged in a conversation on the date and
time you mentioned, did you see the defendant
deliver P50,000.00 to the plaintiff?
The question is objectionable on the ground that it is
leading. Here, the examiner obviously wants the witness
to directly testify that money was delivered by the
defendant to the plaintiff in his presence. The question
could have been properly framed in this manner: "What
have you observed, if any, while the -plaintiff and the
defendant were engaged in a conversation?"
CHAPTER V - TESTIMONIAL EVIDENCE 231
D. Impeachment of a Witness
Illustration No. 2:
The fact situation is a robbery case. The accused
claims innocence and that a couple of hours after the
alleged robbery, he is arrested by the police while in the
park with his children. The defense counsel calls the
accused to the stand.
Q: What were you doing in the park?
A: I was taking a stroll with my two adolescent
children.
Q: While you were in the park with your children,
the police officers arrived to arrest you, is that
true?
The question is leading. It suggests the next event
which the witness should testify to. The attorney could
convert the question into a non-leading one by taking
the suggestive element out of the question. Thus, ''What
happened, if any, while you and your children were in the
park?"
Misleading questions
1. A misleading question is one which assumes as true
a fact not yet testified to by the witness, or contrary to that
which he has previously stated. It is not allowed (Sec. 10, Rule
132, Rules of Court) in any type of examination.
2. Consider this illustration:
Counsel: "You testified that you and the accused were in
a car bound for Baguio City. How fast were you driving?"
This question is objectionable as misleading where there
was no previous testimony from the witness that he was driv-
ing the car. The question assumes a fact_ not yet in evidence.
D. Impeachment of a Witness
1. Impeachment is basically a technique employed
usually as part of the cross-examination to discredit a witness
by attacking his credibility. Destroying credibility is vital
232 EVIDENCE
(The Bar Lectures Series)
because it is linked with a witness' ability and willingness to
tell the truth.
2. The rules enumerate certain guideposts in impeach-
ing a witness:
(a) The impeachment of a witness is to be done by
the party against whom the witness is called (Sec. 11,
Rule 132, Rules of Court).
(b) Subject to certain exceptions, the party produc-
ing the witness is barred from impeaching his own wit-
ness (Sec. 12, ibid.). Thus, if D calls W as his witness, D
is not allowed to impeach the credibility of W. It is the
adverse party, P, against whom W was called, who is ac-
corded the privilege of impeaching W.
(c) By way of exception to the immediately pre-
ceding rule, if the witness is unwilling or ·hostile, the
party calling him may be allowed by the court to impeach
the witness. But it is not for the party calling the witness
to make a determination that the witness is unwilling or
hostile. Whether or not a witness is hostile is addressed
to judicial evaluation and the declaration shall be made
only if the court is satisfied that the witness possesses
an interest adverse to the party calling him or there is
adequate showing that the reluctance of the witness is
unjustified, or that he misled the party into calling him
as a witness (Sec. 12, ibid.).
A party may also be allowed to impeach his own
witness when said witness is an adverse party or is an
officer, director, or managing agent of a corporation,
partnership or association which is an adverse party
(Sec. 12, ibid.).
(d) It is also improper for the party calling the
witness to present evidence of the good character of his
own witness. The same is allowed only if the character
of the witness has been impeached (Sec. 14, ibid.). Thus,
evidence of the good character of the witness is allowed
only to rebut the evidence offered to impeach the witness'
CHAPTER V - TESTIMONIAL EVIDENCE 233
D. Impeachment of a Witness
character. If he has been impeached, then he can be
rehabilitated by evidence of his good character.
How to impeach a witness
1. Sec. 11 of Rule 132 specifies the manner of impeach-
ing the witness of the adverse party. It declares:
"SEC. 11. Impeachment of adverse party's witness.
- A witness may be impeached by the party against
whom he was called, by contradictory evidence, by
evidence that his general reputation for truth, honesty,
or integrity is bad, or by evidence that he has made at
other times statements inconsistent with his present
testimony, but not by evidence of particular wrongful
acts, except that it may be shown by the examination of
the witness, or the record of the judgment, that he has
been convicted of an offense."
2. Under the above rule, a witness may be impeached
through the following modes:
(a) By contradictory evidence;
(b) By evidence that his general reputation for
truth, honesty or integrity is bad; or
(c) By evidence that he has made at other times
statements inconsistent with his present testimony (Sec.
11, Rule 132, Rules of Court).
3. A witness cannot be impeached by evidence of
particular wrongful acts except evidence of his conviction of
an offense as disclosed by his examination or the record of the
judgment (Sec. 11, ibid.).
4. An unwilling or hostile witness so declared by
the court or the witness who is an adyerse party cannot be
impeached by evidence of his bad character (Sec. 12, ibid.).
Impeachment by contradictory evidence
Every ethical trial lawyer will tell us that one basic
rule in impeaching a witness by contradictory evidence
 234 EVIDENCE
(The Bar Lectures Series)
is the observance of fairness. Fairness demands that the
impeaching matter be raised in the cross-examination of the
witness sought to be impeached by allowing him to admit or
deny a matter to be used as the basis for impeachment by
contradictory evidence.
Normally, the basis of this mode of impeachment is a
declaration made by the witness in his direct testimony. The
cross-examiner's intention is to show to the court that there
were allegations made by the witness that do not correspond
to the real facts of the case.
This mode of impeachment may also be used to contra-
dict conclusions made by expert witnesses during their tes-
timonies. Usually, the adverse party may also call another
expert to testify to a contrary conclusion.
Illustration:
Witness A testifies on direct examination that he
was barely five meters away from where the accused,
D shot the victim, V. The defense counsel has reliable
information that, at the time the shooting took place,
Witness A was standing as a witness in a wedding of his
friend, Witness B, in a place a hundred miles away. The
defense counsel now asks:
Q: You testified that you were present when D
shot V, is that right?
A: Perfectly right, Sir!
Q: Isn't it true that, at the time of the alleged
shooting of V by D, you were in a wedding of
your friend miles and miles away?
A: That isn't true. Sir. Absolutely not.
Because Witness A denied his being in a friend's wedding
at the time of the incident, the defense counsel now has the
chance to prove the contrary by a contradictory evidence. He
can do so by calling Witness B or any other witness to testify
on the whereabouts of Witness A on the relevant date and
time.
CHAPTER V - TESTIMONIAL EVIDENCE 235
D. Impeachment of a Witness
Impeachment by prior inconsistent statements
1. Prior inconsistent statements are statements
made by a witness on an earlier occasion which contradict
the statements he later made during the trial. In the words
of Sec. 13 of Rule 132, they are "that he has made at other
times statements inconsistent with his present testimony."
These inconsistent statements are admissible to impeach
the credibility of the witness making them. Impeachment by
a prior inconsistent statement is the most commonly used
method because of its simplicity and the impact it makes
when properly used. The relevant rule provides:
"SEC. 13. How witness impeached by evidence of
inconsistent statements. - Before a witness can be im-
peached by evidence that he has made at other times
statements inconsistent with his present testimony, the
statements must be related to him, with the circumstanc-
es of the times and places and the persons present, and
he must be asked whether he made such statements,
and if so, allowed to explain them. If the statements be
in writing they must be shown to the witness before any
question is put to him concerning them."
2. Effectively impeaching a witness by prior incon-
sistent statements requires laying the proper foundation for
the impeachment. Laying the foundation, commonly referred
to as "laying the predicate," is a preliminary requirement
before the impeachment process prospers. The elements of
this foundation are clearly spelled out in Sec. 13 of Rule 132.
These are:
(a) The alleged statements must be related to the
witness including the circumstances of the times and
places and the persons present. If the statements are in
writing, they must be shown to him; and
-.
(b) He must be asked whether he made such
statements and also to explain them ifhe admits making
those statements.
3. The mere presentation of the prior declarations of
the witness without the same having been read to him while
236 EVIDENCE
(The Bar Lectures Series)
testifying in court is insufficient for the desired impeachment
of his testimony, if he was not given the ample opportunity
to explain the supposed discrepancy. This rule is founded,
not only upon common sense, but is essential to protect the
character of the witness (People v. De Guzman, 288 SCRA
346, 354).
4. To achieve a dramatic effect, the first step in setting
up the prior inconsistent statement would actually be to ask
the witness to repeat or reaffirm his· most recent statement.
The second step would be to relate to the witness his prior
inconsistent statement and, at the same time, ''building up"
or highlighting the contradictory utterance by relating to the
witness the circumstances oftimes, persons and places. Then,
the witness is asked whether or not the statements were made
(See Sec. 13, Rule 132, Rules of Court).
The underlying purpose for laying the predicate is to
allow the witness to admit or deny the prior statement and
afford him an opportunity to explain the same. Non-compliance
with the foundational elements for this mode of impeachment
will be a ground for an objection based on "improper impeach-
ment." Over a timely objection, extrinsic evidence of a prior
inconsistent statement without the required foundation is not
admissible.
Illustration No. 1:
The case is a robbery case. The accused has oriental
features and is five feet and three inches tall. The
prosecution witness is one who allegedly saw the culprit
come out of the crime scene.
Q: Mr. A, you testified on direct examination that
the man you saw come out of the burglarized
store had oriental features and was a little over
five feet .tall. Is that correct?
A: Yes, Sir.
Q: Are you cert::1.in of your description of the man?
A: Very certain, Sir.
CHAPTER V - TESTIMONIAL EVIDENCE 237
D. Impeachment of a Witness
Q: And when was this?
A: On February 15, 2015, around 9:30 in the
evening. That was the date and time of the
burglary.
Q: Do you recall having seen SP04 Morales
outside the burglarized store at around 10:00 of
the same day and night?
A: I do, Sir. He spoke to me that night and asked
me what I saw.
Q: And that was only thirty minutes from the time
you saw the man. Is that correct?
A: That is correct, Sir.
Q: And at that time, everything was still fresh in
your mind. Right?
A: You're absolutely right, Sir.
Q: Do you recall telling SP04 Morales that you
cannot give an accurate description of the man
who came out of the burglarized store because
he was wearing a bonnet over his face, had a
pair of gloves on and was wearing dark long
sleeves?
At this point, the witness gets boxed in, and his credibility
starts crumbling no matter how he responds to the question
asking him to affirm or deny the prior inconsistent statement.
If the witness admits the prior inconsistent statement, the
rule requires that he be allowed to explain them. Often, it is
difficult to explain inconsistent statements and would require
a lot of effort. If the witness denies making the statement,
it is imperative for the impeaching P.~rty to be prepared to
present another witness who would contradict the witness
being impeached.
It happens sometimes that the prior inconsistent state-
ment is in writing. The process of laying the predicate is
fundamentally the same as when the prior statement is oral,
238 EVIDENCE CHAPTER V - TESTIMONIAL EVIDENCE 239
(The Bar Lectures Series) D. Impeachment of a Witness

but if the statement be in writing, it must be shown to the Q: I am showing you a three-page statement
witness before any question is put to him concerning it (Sec. entitled "Sinumpaang Salaysay ." Is this the
13, Rule 132, Rules of Court). statement you signed before Detective Rosales?
A: It is, sir.
Dlustration No. 2:
Q: At the end of the last page is a name and
The case is one for murder. The witness was inter- signature over the name. Is that your name and
viewed by the police ten minutes after the incident. In signature?
her signed statement, she claimed that she did not actu-
ally see the accused fire the shot that killed the victim, A: They are, Sir.
but in her direct examination, she testified that she saw
him fire once at the victim. Counsel will now ask that the statement be marked
as an exhibit including the name and signature of wit-
Q: Did you earlier testify that you saw the accused ness. Then counsel will call the attention of the witness
fire at the victim? to the relevant paragraph of her signed statement. The
A: I did, sir. reading of the prior inconsistent statement must be ver-
batim, not a mere summary, as: In paragraph 13 of this
Q: Are you certain of that? "Sinumpaang Salaysay," you stated, and I quote ... "
A- Yes, Sir.
Q: Do you recall having made a statement to the Impeachment by showing bad reputation
police ten minutes after the incident? 1. When a witness testifies, he puts his credibility at
A: Yes, Sir. I made it before Detective Rosales. issue because the weight of his testimony depends upon his
credibility. One way to impair his credibility is by showing a
Q: Your statement was reduced to writing, is that not so pleasing reputation. Hence, the prevailing rule allows
right? his impeachment by evidence that he has a bad general
A: Right, Sir. reputation.
Q: After your statement was typed, it was shown 2. Not every aspect of a person's reputation may be the
to you, right? subject of impeachment. Evidence of bad reputation for the
purpose of impeachment should refer only to the following
A: Yes, sir. specific aspects: (a) for truth; (b) for honesty; or (c) for
Q: He asked you to read the statement very integrity (Sec. 11, Rule 132, Rules of Court). These are aspects
carefully before you signed it. Am I correct? of a person's reputation that are relevant to his credibility.
A: Yes, sir. He cannot be impeached for his reputati9n on other grounds.
Thus, it would be improper for a witness to be impeached
Q: After making sure that the contents of the because of his reputation for being troublesome and abrasive.
written statement were correct, you signed the
Example: Mr. W is called by the prosecution to testify
statement. Is that correct?
that it was indeed the accused who picked the pocket of the
A: That is correct, Sir. victim when the latter accidentally tripped by the sidewalk.
 240 EVIDENCE
(The Bar Lectures Series)
The defense later presents Mr. D, a neighbor of Mr. W for
thirty (30) years, who testifies that Mr. Whas a reputation
in the community for telling lies. The testimony of Mr. D is
an impeaching testimony to discredit Mr. W. Mr. D, who has
testified on the reputation of Mr. W, may be cross-examined
like any witness. He may be asked on cross-examination about
the extent of his familiarity with the witness who is being
impeached, together with any prejudice and biases he may
have against the witness or his stake and interest in the case.
No impeachment by evidence of bad character but by bad
reputation
1. It should be noted that Sec. 11 does not allow im-
peachment by evidence of bad character but by bad reputa-
tion.
2. "Character" is made up of the things an individual
actually is and does, whereas "reputation" is what people
think an individual is and what they say about him (Mcnaulty
v. State, 138 Tex.Cr.R. 317. 135 S.W.2d 987, 989; James v.
state ex rel. Loser, 24 Tenn. App. 453, 145 S.W.2d 1026, 1033
cited in Black's Law Dictionary, p. 1172). Hence, a person's
reputation is not necessarily his character and vice versa.
Evidence of good character of the witness
1. Be it noted, too, that the party calling a witness
cannot initiate proof of his good character. Thus, if the plain-
tiff in a civil case presents Mr. W to testify on a vehicular
collision, the counsel is not allowed to ask questions tending
to show the good character or reputation of the witness. Any
question to that effect can be validly objected to as "improper
character evidence." Because a witness is presumed to be
truthful and of good character, the party presenting him does
not have to prove he is good because he is presumed to be one.
It is only after his character has been attacked can he prove his
being good. He must first be discredited before his reputation
or character can be bolstered. This basic procedural rule is
supported by the provisions of Sec. 14 of Rule 132:
CHAPTER V - TESTIMONIAL EVIDENCE 241
D. Impeachment of a Witness
"SEC. 14. Evidence of good character of witness.
- Evidence of the good character of a witness is not
admissible until such character has been impeached."
2. The rule that bars evidence of the good character of
the witness, who has not yet been impeached, has reference
only to a mere witness. It does not refer to an accused in a
criminal case. In a criminal case, the accused may prove his
good moral character relevant to the offense charged even
before his character is attacked (Sec. 51[a][l], Rule 130, Rules
of Court). However, the prosecution cannot initiate proof of
the bad character of the accused. It can only do so by way of
rebuttal (Sec. 51[a][2], ibid.). This means that the prosecution
can prove the bad character of the accused only if the latter
had first presented evidence of his good character.
No impeachment by evidence of particular wrongful acts
1. Consider this example: The case is a criminal prose-
cution for robbery. The defense is presenting its evidence-
in-chief and calls its first witness to impeach the primary
witness of the prosecution. The defense counsel asks a series
of questions to show specific instances of misconduct of the
prosecution witness.
Q: Do you know the prosecution witness?
A: I do, Sir.
Q: How did you come to know him?
A: Two years ago, he robbed me of my wallet at
gun point.
Q: Was that incident the first time you came to
know the prosecution witness?
A: No Sir.
Q: Why do you say so?
A: Prior to my being robbed by him, he stole the
carabao of my neighbor.
242 EVIDENCE
(The Bar Lectures Series)
Is this line of questioning objectionable? Certainly, it
is. A witness cannot be impeached by evidence of particular
wrongful acts (Sec. 11, Rule 132, Rules of Court).
He can, nevertheless, be impeached as to his bad reputa-
tion for truth, honesty or integrity. Thus: .
Q: How long have you known the prosecution
witness?
A: Since childhood, Sir.
Q: How well do you know him?
A: Very well, Sir.
Q: Why do you say so?
A: We studied in the same school since nursery
school until we both graduated from college. We
were also neighbors since childhood.
Q: What can you say about his reputation?
A: Terrible, Sir. He is reputed to be dishonest and
untruthful.
This line of questioning does not violate the rules on
impeachment. This is not an impeachment by evidence of
specific wrongful conduct which is barred, but an impeach-
ment by evidence of bad reputation.
2. As earlier mentioned, Sec. 11 of Rule 132 disallows
the impeachment of a witness by evidence of his particular
wrongful acts.
There is, however, a particular wrongful act that is ad-
missible in evidence under the same section - his prior con-
viction of an offense. This prior conviction of the witness is
shown through either of two ways: (a) by his examination, i.e.,
by cross-examining him, or (b) by presenting the record of his
prior conviction.
Examining another witness to elicit from his lips the pri-
or conviction of another witness is not the correct procedure,
unless the witness is one who is competent (like an official
CHAPTER V - TESTIMONIAL EVIDENCE 243
E. Admissions, Confessions and the Res Inter Alios Acta Rule (Rule 130)
custodian of records) to present in court the record of convic-
tion. The rule is clear on this. It should be by "the examination
of the witness." This witness is obviously the one whose prior
conviction is the subject of inquiry.
Exclusion and separation of witnesses
1. The judge may exclude a witness who, at the time of
exclusion, is not under examination so that he may not hear
the testimony of other witnesses (Sec. 15, Rule 132, Rules of
Court).
2. The judge may cause the witnesses to be kept
separate and be prevented from conversing with one another
until all shall have been examined (Ibid.).
When the witness may refer to a memorandum
1. During his testimony, in order to refresh his memory,
a witness may refer to a memorandum or to anything written
or recorded by himself, or written or recorded by someone
acting under his direction. Such memorandum should be
written at the time the fact occurred or immediately thereafter
or at any time when the event or fact was fresh in his memory.
It is necessary too that the witness affirm that the fact was
correctly written or recorded. Also, the memorandum must be
produced and may be inspected by the adverse party (Sec. 16,
Rule 132, Rules of Court).
2. The witness may testify from the memorandum,
writing or record, although he has no more recollection of the
facts written therein as long as he swears that the memoran-
dum, writing or record correctly stated the fact or transaction
when the recording was made. This type of evidence must,
however, be received with caution (Ibid.).
E. Admissions, Confessions and the
Res Inter Alios Acta Rule
(Rule 130)
"SEC. 26. Admissions of a party. - The act,
declaration or omission· of a party as to a relevant fact
may be given in evidence against him.
244 EVIDENCE
(The Bar Lectures Series)
SEC. 27. Offer of compromise not admissible. - 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 {criminal negligence) or those allowed by law
to be compromised, an offer of compromise by the
accused may be received in evidence as an implied
admission of guilt.
A plea of guilty later withdrawn, or an unaccepted
offer of a plea of guilty to a lesser offense, is not
admissible in evidence against the accused who made
the plea or offer.
An offer to pay or the payment of medical, hospital
or other expenses occasioned by an injury is not
admissible in evidence as proof of civil or criminal
liability for the injury.
SEC. 28. Admission by third-party. -The rights of
a party cannot be prejudiced by an act, declaration, or
omission of another, except as hereinafter provided.
SEC. 29. Admission by co-partner or agent. - The
act or declaration of a partner or agent of the party within
the scope of his authority and during the existence of
the partnership or agency, may be given in evidence
against such party after the partnership or agency is
shown by evidence other than such act or declaration.
The same rule applies to the act or declaration of a joint
owner, joint debtor, or other person jointly interested
with the party.
SEC. 30. Admission by conspirator. - The act or
declaration of a conspirator relating to the conspiracy
and during its existence, may be given in evidence
against the co-conspirator after the conspiracy is shown
by evidence other than such act or declaration.
SEC. 31. Admission by privies.- Where one derives
title to property from another, the act, declaration, or
omission of the latter, while holding the title, in relation
to the property, is evidence against the former.
::~r
•'!
CHAPTER V - TESTIMONIAL EVIDENCE 245
E. Admissions, Confessions and the Res Inter Alios Acta Rule (Rule 130)
SEC. 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 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.
SEC. 33. Confession. - The declaration of an ac-
cused acknowledging his guilt of the offense charged,
or of any offense necessarily included therein, may be
given in evidence against him.
SEC. 34. Similar acts as evidence.- Evidence that
one did or did not do a certain thing at one time is not
admissible to prove that he did or did not do the same
or a similar thing at another time; but it may be received
to prove a specific intent or knowledge, identity, plan
system, scheme, habit, custom or usage, and the like.
SEC. 35. Unaccepted offer. - An offer in writing
to pay a particular sum of money or to deliver a written
instrument or specific personal property is, if rejected
without valid cause, equivalent to the actual production
and tender of the money, instrument, or property."
Concept of admissions and confessions
1. An admission is an act, declaration or omission of a
party as to a relevant fact (Sec. 26, Rule 130, Rules of Court).
It is a voluntary acknowledgment made by a party of the
existence of the truth of certain facts which are inconsistent
with his claims in an action (Black's Law Dictionary, 5th Ed.,
p. 44).
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 the criminal intent
to commit the offense with which one is-charged (Ladiana v.
People, 393 SCRA 419).
2. A confession is the declaration of an accused
acknowledging his guilt of the offense charged, or of any
offense necessarily included· therein (Sec. 33, Rule 130, Rules
of Court; Tracy's Handbook, 62 Ed., 242). It is a statement
 246 EVIDENCE
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by the accused that he engaged in conduct which constitutes
a crime (29A Am Jur 2d, Evidence, §708). Hence, when a
person declares in his counter-affidavit that he performed an
act like shooting the victim but denies that he did so with
criminal intent because the shooting was done in self-defense,
the declaration is merely an admission and not a confes-
sion (Ladiana v. People, 393 SCRA 419).
3. An admission, in a general sense, includes confes-
sions, the former being a broader term because, accordingly,
a confession is also an "admission ... by the accused of the fact
charged against him or of some fact essential to the charge" (4
Wigmore, Sec. 1050). A confession is a specific type of admis-
sion which refers only to an acknowledgment of guilt. As used,
the term admission refers to acknowledgment 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 acknowledgment of guilt because Sec. 33 of Rule
130 describes a confession as a "declaration" unlike an admis-
sion which is described not only as a "declaration" but also as
an "act" or "omission" (Sec. 26, Rule 130, Rules of Court).
Effects of admissions
Under Sec. 26, Rule 130, the act, declaration or omis-
sion 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
(Republic v. Bautista, 532 SCRA 598, 606).
Classification of admissions and confessions
1. An admission may be express or implied. An express
admission is a positive statement or act. An implied admis-
sion is one which may be inferred from the declarations or
acts of a person.
A confession cannot be implied. It must be a positive ac-
knowledgment of guilt and cannot be inferred. Sec. 33 of Rule
CHAPTER V- TESTIMONIAL EVIDENCE 247
E. Admissions, Confessions and the Res Inter Alios Acta Rule (Rule 130)
I 130 refers to a confession as a "declaration" which connotes an
I affirmative statement from the person making the confession.
'i
2. An admission may be judicial or extrajudicial. An
admission is judicial when made in the course of a judicial
proceeding. An admission is extrajudicial when made out of
court or even in a proceeding other than the one under con-
sideration (Perry v. Simpson, Conn. 313). A confession may
be also judicial or extrajudicial for the same reasons (29A Am
Jur 2d, §711).
3. An admission may also be adoptive. This admission
occurs when a person manifests his assent to the statements
of another person. The admission may be received in evidence
if it can be shown that a party adopted the statements as his
own (Fed. Evid. R. 801[d][2][B}; Black's Law Dictionary, 5th
Ed.,p. 44).
A party may, by his words or conduct, voluntarily adopt
or ratify another's statement. Where it appears that a party
clearly and unambiguously assented to or adopted the state-
ments of another, evidence of those statements is admissible
against him. This is the essence of the principle of adoptive
admission.
An adoptive admission is a party's reaction to a state-
ment or action by another person when it is reasonable to
treat the party's reaction as an admission of something stated
or implied by the other person. By adoptive admission, a
third person's statement becomes the admission of the party
embracing or espousing it. Adoptive admission may occur
when a party:
(a) expressly agrees to or concurs in an oral state-
ment made by another;
(b) hears a statement and later on essentially re-
peats it;
(c) utters an acceptance or builds upon the asser-
tion of another;
(d) replies by way of rebuttal to some specific points
raised by another but ignores further points which he or
she has heard the other make; or
 248 EVIDENCE
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(e) reads and subsequently signs a written state-
ment made by another (Republic v. Kenrick l)evelopment
Corporation, 498 SCRA 220, 231).
Examples of adoptive admissions are the alleged admis-
sions made by President Estrada when his options dwindled
when, according to the Angara Diary, the armed forces with-
drew its support from him as President and Commander-in-
Chief. Thus, Executive Secretary Angara had to allegedly ask
Senate President Pimentel to advise petitioner to consider the
option of "dignified exit or resignation." President Estrada did
not object to the suggested option but simply said he could
never leave the country. According to the Court, his silence on
this and other related suggestions can be taken as adoptive
admissions by him (Estrada v. Desierto, 356 SCRA 108).
Besides, he had several opportunities, according to the
Court, to object to the admissibility of the diary, but did not
do so seasonably. It is too late in the day to raise his objections
in an omnibus motion. The Angara Diary also contains direct
statements of the President which could be categorized as
admissions of a party like: (a) his proposal for a snap election
in which he would not participate; (b) his statement that he
would leave by Monday if the second envelope would be opened
by Monday; and (c) statements like: "Pagod na pagod na ako.
Ayoko na, masyado nang masakit. Pagod na ako sa red tape,
bureaucracy, intriga. I just want to clear my name, then I will
go." (Estrada v. Desierto, 356 SCRA 108). These words were
taken by the Court as admissions indicative of his resignation
from office.
To rebut the argument that the diary of Angara is not
the diary of the former president and, thus could not be ad-
missible against him, the Court declared:
"... The argument overlooks the doctrine of adoptive
admission. An adoptive admission is a party's reaction
to a statement or action by another person when it is
reasonable to treat the party's reaction as an admission of
something stated or implied by the other person" (Estrada
v. Desierto, ibid.).
CHAPTER V - TESTIMONIAL EVIDENCE 249
E. Admissions, Confessions and the Res Inter Alios Acta Rule (Rule 130)
Effect of extrajudicial confession of guilt; corpus delicti
1. While a judicial confession may sustain a conviction,
an extrajudicial confession is not sufficient for conviction. The
rule requires that the confession be corroborated by evidence
of corpus delicti (Sec. 3, Rule 133, Rules of Court).
2. Corpus delicti is the "body of the crime" or the
offense (People v. Strook, 347 Ill. 460, 170 N.E. 821). Strictly
speaking, it means the actual commission of the crime and
someone criminally responsible therefor (People v. Stoll,
84 Cal App. 99, 257 Pac. 583 cited by Underhill, Criminal
Evidence, §34). It is the substance of the crime; the fact that a
crime has actually been committed (Zabala v. People, G.R. No.
210760, January 26, 2015).
Corpus delicti has two elements: (1) proof of the occurrence
of a certain event - for example, that a man has died or a
building has been burned; and (2) some person's criminal
responsibility for the act (People v. Boca, 309 SCRA 42; People
v. Base, 329 SCRA 158).
3. Corpus delicti, and all the elements thereof, may
be proved by circumstantial evidence but such proof must
be convincing and compatible with the nature of the case
(Underhill, Criminal Evidence, §37).
4. While an extrajudicial confession will not be suffi-
cient for conviction unless corroborated by evidence of corpus
delicti (Sec. 3, Rule 133, Rules of Court), a judicial confession
will support conviction without proof of corpus delicti
independent of the judicial confession (State v. Dena, 28 N.
Mexico, 479, 214, Pac. 583).
5. In prosecutions involving narcotics, the narcotic
substance itself constitutes the corpus 'delicti of the offense
and its existence is vital to sustain a judgment of conviction
beyond reasonable doubt. Proof beyond reasonable doubt
demands that unwavering exactitude be observed in estab-
lishing the corpus delicti. The chain of custody performs this
function as it ensures that unnecessary doubts concerning
250 EVIDENCE
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the identity of the evidence are removed. The rule seeks to
settle definitively whether the object evidence subjected to
laboratory examination and presented in court is the same
object allegedly seized from the accused (Fajardo v. People,
677 SCRA 541, 549, July 25, 2012).
For an accused to be convicted of illegal possession
of drugs, it is necessary that the following elements be
established:
(a) the accused is in possession of an item or object
which is identified to be a prohibited drug;
(b) such possession is not authorized by law;
(c) the accused freely and consciously possessed the
said drug (People v. Gustafsson, 677 SCRA 612, 621, July
30, 2012; For further readings, see People v. Domingo,
G.R. No. 211672, June 1, 2016).
6. In theft, corpus delicti has two elements, namely: (1)
that the property was lost by the owner, and (2) that it was lost
by felonious taking. The fact of the commission of the offense
or the corpus delicti may be proven by testimonial evidence
and whatever documentary evidence is on record (Zapanta v.
People, G.R. No. 170863, March 20, 2013; Zabala v. People,
G.R. No. 210760, January 26, 2015).
7. The corpus delicti in the crime of illegal possession
of firearms is the accused's lack of license or permit to possess
or carry the firearm, as possession itself is not prohibited by
law (Sayco v. People, 547 SCRA 368).
8. The accused, in one case, argues that, inasmuch as
there is no conclusive evidence of the death of the deceased
because his body was never found, neither was the place
where he is supposed to have been buried indicated; hence,
corpus delicti was not established.
The Court ruled that it is not necessary to recover the
body or show where it can be found in a case of murder or
homicide. There are cases like death at sea, where the finding
CHAPTER V - TESTIMONIAL EVIDENCE 251
E. Admissions, Confessions and the Res Inter Alios Acta Rule (Rule 130)
or recovery of the body is impossible. It is enough that the
death and the criminal agency causing it be proven. Quoting
WhartononCriminalEvidence, Vol. 2, Sec. 871,pp.1505-1506,
the Supreme Court also held that by the weight of authority,
it is a rule now established that the element of death in the
corpus delicti may be established by circumstantial evidence.
To establish the corpus delicti by circumstantial evidence,
facts are admissible to show the impossibility of rescue, as
at sea, the existence and extent of wounds, and deceased's
condition of health; and that the wound was sufficient to
cause death and that the party was reported dead. Death is
sufficiently shown by the testimony of a witness that he saw
the flash and heard the report, and that the deceased fell to
the ground, declaring that he was shot and that the accused
shot him (People v. Sasota, 91 Phil. 111; People v. Agsunod,
.Jr., 306 SCRA 612).
In People v. Ansang (93 Phil. 44), the appellant, while
riding on a uinta, ignited home-made bombs and threw them
at the victims in another boat. While the parts of the boat
were later found, the passengers were never seen again. Hold-
ing that the corpus delicti was shown by the facts and that
the victims died, the Court convicted the appellant of multiple
murder.
9. A mere recent pronouncement by the Court confirms
the rule that corpus delicti refers to the fact of the commission
of the crime charged or to the body or substance of the crime.
In its legal sense, it does not refer to the ransom money in the
crime of kidnapping for ransom or to the body of the person
murdered or, to the stolen items in theft. "Since the corpus
delicti is the fact of the commission of the crime, the Court has
ruled that even a single witness' uncorroborated testimony, if
credible, may suffice to prove the corpus delicti and warrant a
conviction for the offense charged. Corpus delicti may even be
established by circumstantial evidence" (Zapanta v. People,
G.R. No. 170863, March 20, 2013).
10. The rule on extrajudicial confession in the Rules
of Court must be considered together with applicable
 EVIDENCE
252
(The Bar Lectures Series)
constitutional and substantive laws which must be complied
with for the confession to be admissible. For instance, Sec. 2(d)
of R.A. 7438 (Act Defining Certain Rights of Persons, Arrested,
Detained or Under Custodial Investigation) provides:
"Any extrajudicial confession made by a person
arrested, detained, or under custodial investigation shall
be in writing and signed by such person in the presence
of his counsel or in the latter's absence, upon a valid
waiver, and in the presence of any of the parents, older
brothers and sisters, his spouse, the municipal mayor, the
municipal judge, district school supervisor, or priest or
minister of the gospel as chosen by him; otherwise, such
extrajudicial confession shall be inadmissible as evidence
in any proceeding." (Bar 2006; 2008)
11. The above rights refer to an extrajudicial confession
of a person arrested, detained or is under .custodial investiga-
tion because a confession made by the accused before he is
placed under custodial investigation need not comply with the
above.
If the accused talks to a person in a private meeting
with, for instance, a municipal mayor spontaneously, fully
and voluntarily confessing to his commission of a crime, the
constitutipnal requirements in a custodial investigation do not
apply. When the accused talked to the mayor as a confidant and
not as a law enforcement officer, the uncounselled confession
did not violate his constitutional rights. Constitutional
procedures on custodial investigation do not apply to spon-
taneous statements, not elicited through questioning . by
authorities, but given in an ordinary manner whereby the
accused orally admitted having committed the crime. Hence,
such confession is admissible in evidence against him, even
when he did so without the assistance of counsel (People v.
Cabiles, 284 SCRA 199).
12. Custodial investigation has been described as one
which involves any questioning initiated by law enforcement
CHAPTER V - TESTIMONIAL EVIDENCE 253
E. Admissions, Confessions and the Res Inter Alios Acta Rule (Rule 130)
officers after a person has been taken into custody or other-
wise deprived of his freedom of action in any significant way.
It is only after the investigation ceases to be a general inquiry
into an unsolved crime and begins to focus on a particular
suspect, the suspect is taken into custody, and the police
carries out a process of interrogations that lend itself to
eliciting incriminating statements, that the rule begins to
operate (Aquino v. Paiste, 555 SCRA 255).
Note that R.A. 7438 (Sec. 2[fj) has extended the meaning
of'custodial investigation' to include the practice ofissuing an
invitation to a person who is investigated in connection with
an offense he is suspected to have committed.
13. Voluntary admissions made by the accused such as
his possession of a firearm used in the commission of a crime
and the subsequent surrender of the firearm at a time when he
was already under custodial investigation are not admissible
against the accused. At the time the admissions were made,
the police had already begun to focus on the accused and were
carrying out the process of interrogations that was lending
itself to eliciting incriminating statements and evidence. The
investigation was, thus, no longer a general inquiry into an
unsolved crime as the accused was already being held as a
suspect for the alleged killing of the victims. Consequently,
the rights of a person under custodial investigation, including
the right to counsel, have already attached in his favor. Any
waiver of these rights should be in writing and undertaken
with the assistance of counsel. Admissions under custodial
investigation without the assistance of counsel are barred as
evidence. The records do not disclose any indication that the
accused had waived his right to counsel; hence, his admissions
are inadmissible against him. A suspect's confession, whether
verbal or non-verbal, when taken without the assistance of
counsel or without a valid waiver of such assistance regardless
of the absence of such coercion, or the fact that it had been
voluntarily given, is inadmissible in evidence, even if such
confession were gospel truth (People v. Ador, 432 SCRA 1).
 254 EVIDENCE
(The Bar Lectures Series)
Admission by silence
1. Admission by silence, as expressed in Sec. 32 of Rule
130 of the Rules of Court, provides:
"SEC. 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 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. Admission by silence has been traditionally received,
even in common law, as admissible evidence. The usual pat-
tern for its admissibility involves a statement by a person in
the presence of a party to the action, criminal or civil. The
statement contains assertions against the party which, if un-
true, would be sufficient cause for the party to make a denial.
His failure to speak against the statement is admissible as an
admission.
Suppose, upon seeing a policeman, a bystander, in the
presence of other people, points to a man and accuses him
as the killer of another man found dead the night before.
The man pointed to does not respond. He does not deny the
accusation. His failure to respond may be given in evidence
against him. The idea of the rule on admission by silence is
that if an accusation is made, and a reasonable person would
have denied the same if it were false, the failure to deny the
accusation by the person accused may be construed as an
implied admission of the truth of the accusation and may be
given in evidence against him.
3. 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 (Sec.
2[b], R.A. 7438).
4. For silence to be deemed an admission, it is neces-
sary that: (a) he heard and understood the statement; (b) he
CHAPTER V - TESTIMONIAL EVIDENCE 255
E. Admissions, Confessions and the Res Inter Alios Acta Rule (Rule 130)
was at liberty to make a denial; (c) the statement was about a
matter affecting his rights or in which he was interested and
which naturally calls for a response; (d) the facts were within
his knowledge; and (e) the fact admitted froin his silence is
material to the issue (People v. Paragsa, 84 SCRA 105).
Thus, in one case, despite the many opportunities given
to the respondent, he refused to comment and present his
side. The gravity of the charges and weight of the evidence
against him would have prompted an innocent man to come
out and clear his name. However, he opted to maintain his
silence. His silence can easily be interpreted as an admission
of guilt (Ortiz v. De Guzman, 451 SCRA 393; Office of the Court
Administrator v. Bernardino, 450 SCRA 88).
Res inter alios acta; branches
1. The expression if fully expressed reads: res inter
alios acta alteri nocere non debet which literally means that
"things done between strangers ought not to injure those who
are not parties to them" (Black's Law Dictionary, 5th Ed.,
p. 1178; Dynamic Signmaker Outdoor Advertising Services,
Inc. v. Potongan, 461 SCRA 328).
2. The res inter alios acta rule has two branches,
namely:
(a) The rule that the rights of a party cannot be
prejudiced by an act, declaration, or omission of another
(Sec. 28, Rule 130, Rules of Court).
(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 (Sec.
34, Rule 132, Rules of Court).
3. The provisions on res inter alios acta under Rule 130
read:
"SEC. 28. Admission by third party. - The rights
of a party cannot be prejudiced by an act, declaration or
omission of another, except as hereinafter provided."
256 EVIDENCE
(The Bar Lectures Series)
"SEC. 34. Similar acts as evidence.- Evidence that
one did or did not do a certain thing at one time is not
admissible to prove that he did or did not do the same
or a similar thing at another time; but it may be received
to prove a specific intent or knowledge, identity, plan,
system, scheme, habit, custom or usage, and the like."
4. The first branch is a very simple and logical rule
which holds that whatever one says or does or omits to do
should only affect him but should not affect or prejudice
others. In other words, both common reason and fairness
demand that a man's actions and declarations should affect
him alone and should not affect others.
Thus, if X makes a statement before the media admitting
his participation in a previous murder, his statement is
admissible against him under Sec. 26 of Rule 130. The rest
of his statement pointing to Y and Z as co-participants in
the murder are not admissible against Y and Z under the
first branch of the res inter alios acta rule in Sec. 28 of Rule
130. Under this rule, the statement of X should not affect or
prejudice Y and Z.
5. 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.
Distinctions between extrajudicial and judicial admissions
1. A distinction must be made between extrajudicial
and judicial confessions. "An extrajudicial confession may be
given in evidence against the confessant but not against his
co-accused as they are deprived of the opportunity to cross-
examine him. A judicial confession is admissible against the
declarant's co-accused since the latter are afforded opportunity
to cross-examine the former. Sec. 30 of Rule 130 of the Rules
of Court applies only to extrajudicial acts or admissions and
not to testimony at trial where the party adversely affected
has the opportunity to cross-examine the declarant" (People v.
Janjalani, G.R. No. 188314, January 10, 2011).
CHAPTER V - TESTIMONIAL EVIDENCE 257
E. Admissions, Confessions and the Res Inter Alios Acta Rule (Rule 130)
2. An extrajudicial confession or admission of one
accused is admissible only against said accused, but is inad-
missible against the other accused. But if the declarant
or admitter repeats in court his extrajudicial admission,
and the other accused is accorded the opportunity to cross-
examine the admitter, the admission is admissible against
both accused because then, it is transposed into a judicial
admission (Yapyuco v. Sandiganbayan, 674 SCRA 420, 451,
June 25, 2012). (Bar 2003)
Exceptions to the res inter alios acta rule (first branch)
1. The first branch of the rule admits of certain
exceptions, to wit:
(a) admission by a co-partner or agent (Sec. 29,
Rule 130);
(b) admission by a co-conspirator (Sec. 30, Rule
130); and
(c) admission by privies (Sec. 31, Rule 130).
2. The basis for admitting the above admissions is
that the person making the statement is under the same
circumstances as the person against whom it is offered. Such
circumstances give him substantially the same interest and
the same motive to make a statement about certain matters
(4 Wigmore, Sec. 1080a, 140).
Admissions by a co-partner or agent
1. An agent performs some service in representation
of or on behalf of his principal (Art. 1868, Civil Code of the
Philippines). The agent, therefore, is in legal contemplation, a
mere extension of the personality of the principal and unless
the agent acts in his own name, the principal must comply
with all the obligations which the agent may have contracted
within the scope of his authority (Art. 1883; Art. 1910, Civil
Code of the Philippines).
Hence, whatever is said by an agent to a third person, dur-
ing the course of the agency and within the scope of his actual
258 EVIDENCE
(The Bar Lectures Series)
or apparent authority, relative to the business contemplated
by the agency is, for legal purposes, also the statement of the
principal and is, therefore, admissible against said principal
(29AAm Jur 29, Evidence, §815 citing Hitchman Coal & Coke
Co. v. Mitchell, 245 U.S. 229, 62 LEd 260, 38 S Ct 65).
2. 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 or agent
must have been made or done within the scope of his
authority;
(b) The declaration or act of the partner or 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 or agent (Sec. 29, Rule 130, Rules of Court).
3. Any declaration made before the partnership or
agency existed, or those made after, are not admissible against
the other partners or the principal but remains admissible
against the partner or agent making the declaration. It is also
necessary for the application of the exception that the proof of
the agency or partnership be from a source independent ofthe
declaration made by the partner or agent.
Thus, if after the partnership is dissolved and liquidated,
AA, a former partner in ABC Partnership, admits before a
police investigator that he and his partners were engaged
in smuggling highly dutiable imported cigarettes while
the partnership was operating a buy and sell business, the
extrajudicial declarations of AA are not admissible against
BB and CC, his former partners. His declarations are,
nevertheless, admissible against him.
4. The above rules also apply to the declarations or
acts of a joint owner, joint debtor, or other persons jointly
interested with the party (Sec. 29, Rule 130, Rules of Court).
CHAPTER V - TESTIMONIAL EVIDENCE 259
E. Admissions, Confessions and the Res Inter Alios Acta Rule (Rule 130)
Admissions by a co-conspirator
1. A conspiracy exists when two or more persons
come to an agreement concerning the commission of a felony
and decide to commit it (Art. 8, Revised Penal Code). Once
the conspiracy is proven, the act of one is the act of all. The
statement, therefore, of one may be admitted against the
other co-conspirators as an exception to the rule on res inter
alios acta.
2. 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
(Sec. 26, Rule 130, Rules of Court) but not as to B and C (Sec.
28, Rule 130, Rules of Court). (Bar 1991)
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 such declaration or act (Sec. 30, Rule 130,
Rules of Court).
Observe that the declaration of A was made long after
the conspiracy was over. It was then no longer made during
the existence of the conspiracy. In fact, at the time of the
declaration, A was no longer a co-conspirator. Even assuming
that the cor1spiracy can be proven by independent evidence
and even if his statement was related to the conspiracy, the
declaration is not admissible as an exception to the rule of res
inter alios acta.
Incriminating declarations of co-conspirators made in
the absence of or without the knowledge of the others after
 260 EVIDENCE
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the conspiracy has come to an end is inadmissible (U.S. v.
Nerlinger [CA2 NY] 862 F2d 967, 27 Fed Rules Evidence Serv
271; 29A Am Jur, Evidence, §838).
The arrest of the declarant is often found to terminate
the declarant's participation in the conspiracy so that the
declarant's post arrest statements do not qualify as admissible
co-conspirator statements (29A Am Jur, Evidence, §840). An
extrajudicial confession is binding only upon the confessant
and is not admissible against his co-accused (People v. Raquel,
265 SCRA 248). As against the latter, the confession is hearsay
(People v. Camat, 256 SCRA 52).
3. The rule of res inter alios acta 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 also 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.
4. Jurisprudence holds that the general rule is that
the extrajudicial confession or admission of one accused is
admissible only against the said accused but 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 transposed
into judicial admissions (People v. Buntag, 427 SCRA 180).
5. The Supreme Court also held in one case that
a distinction must be made between an extrajudicial and
judicial confession. An extrajudicial confession may be given
in evidence against the confessant but not against his co-
accused since the latter are not afforded the opportunity to
cross-examine him. Ajudicial confession is admissible against
CHAPTER V - TESTIMONIAL EVIDENCE 261
E. Admissions, Confessions and the Res Inter Alios Acta Rule (Rule 130)
the declarant's co-accused since the latter is afforded the
opportunity to cross-examine the former. Sec. 30 of Rule 130
applies only to extrajudicial admissions and not to testimonies
at trial where the party adversely affected has the opportunity
to cross-examine the declarant (People v. Palijon, 343 SCRA
486).
When the extrajudicial admission of a conspirator is
confirmed at the trial, it ceases to be hearsay. It becomes,
instead, a judicial admission, being a testimony of an eye-
witness admissible in evidence against those he implicates.
Here, the extrajudicial confession was affirmed by him in open
court during the trial. Thus, such confession already partook
of judicial admission (Abay, Jr. v. People, 566 SCRA 34).
6. Also assuming that the statement relating to the
conspiracy was made by a conspirator during the existence
of the conspiracy, for the statement to be admitted, the extra-
judicial statements of the co-conspirator must be proven by
evidence other than such admission (Sec. 30, Rule 130, Rules
of Court; U.S. v. Arias-Villanueva [CA9 Or]998 F2d 1491; 29A
Am Jur 2d, §847). If the only evidence ofthe conspiracy is the
extrajudicial declaration of the declarant, the statements are
not admissible against the others.
In indicting accused-appellant, the prosecution relied
heavily on the affidavits executed by the two other accused.
The Solicitor General, in advocating the admissibility of the
sworn statements of the brothers, cited Sec. 30, Rule 130 ofthe
Rules of Court which provides that, "[t]he act or declaration
of a conspirator relating to the conspiracy and during its
existence, may be given in evidence against the co-conspirator
after the conspiracy is shown by evidence other than such act
or declaration."
The Court ruled that the inapplic~bility of the provision
relied upon was clearly apparent. The confessions were made
after the conspiracy had ended and after the consummation
of the crime. Hence, it cannot be said that the execution of
the affidavits were acts or declarations made during the
conspiracy's existence (People v. Quidato, Jr., 297 SCRA 1).
 262 EVIDENCE
(The Bar Lectures Series)
7. The res inter alios acta rule provides that the rights
of a party cannot be prejudiced by an act, declaration, or
omission of another. Consequently, an extrajudicial confession
is binding only upon the confessant and is not admissible
against his co-accused. The reason for the rule is that, on a
principle of good faith and mutual convenience, a man's own
acts are binding upon himself and are evidence against him.
So are his conduct and declarations. Yet, it would not only be
rightly inconvenient, but also manifestly unjust, that a man
should be bound by the acts of mere unauthorized strangers;
and if a party ought not to be bound by the acts of strangers,
neither ought their acts or conduct be used as evidence against
him.
The rule on admissions made by a conspirator is an
exception to the foregoing rule but in order for such admission
to be admissible against a co-accused, Sec. 30, Rule 130
of the Rules of Court requires, among- others, that there
must be independent evidence aside from the extrajudicial
confession to prove conspiracy. If apart from the extrajudicial
confession of the confessant, no other evidence of the alleged
participation of the accused in the conspiracy was presented
by the prosecution, the culpability of the accused could not be
sufficiently established (People v. Guittap, 403 SCRA 167).
Admission by privies
1. "Privies" are persons who are partakers or have
an interest in any action or thing, or any relation to another
(Black's Law Dictionary, 5th Ed., p. 1077). Examples: (a) A
lessor and his lessee, a grantor and a grantee; an assignor
and an assignee are privies in an estate or a contract; (b) An
executor or an administrator and the estate of the deceased
are privies in representation; or (c) An heir and his ascendant
are privies in blood or succession.
2. Z inherited a house and lot from his father, X.
Assume that X, father of Z, while the former was alive, sold
the property and, thereafter, openly told his acquaintances
that the same lot where his house stood had already been sold
toY. Is this declaration by X necessarily admissible against Z?
CHAPTER V - TESTIMONIAL EVIDENCE 263
E. Admissions, Confessions and the Res Inter Alios Acta Rule (Rule 130)
It is not because the statement was made after X held
his title to the land. 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 omission
by a predecessor-in-interest;
(b) The act, declaration, or omission of the pre-
decessor must have occurred while he was holding (not
after) the title to the property; and
(c) The act, declaration, or omission must be in
relation to the property (Sec. 31, Rule 130, Rules ofCourt).
3. 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.
What applies is the general rule that the rights of a party
cannot be prejudiced by an act, declaration, or omission of
another (Gevero v. Intermediate Appellate Court, 189 SCRA
201).
Offer of compromise in civil cases
In civil cases, an offer of compromise is not an admission
of any liability, and is not admissible in evidence against the
off8ror (Sec. 27, Rule 130. Rules of Court).
Offer of compromise in criminal cases (Bar 1989; 2008)
1. An offer of compromise by the accused may be
received in evidence as an implied admission of guilt (Sec. 27,
Rule 130, Rules of Court). Example: Although the marriage
of the accused in a rape case extinguishes the penal action
(Alonte v. Savellano, Jr., 287 SCRA 245), an offer of marriage
is, generally speaking, an admission of.guilt (People v. Bulos,
359 SCRA 621).
2. There is no implied admission of guilt if the offer
of compromise is in relation to: (a) quasi-offenses (criminal
negligence); or (b) cases allowed by law to be compromised
(Sec. 27, Rule 130, Rules of Court).
264 EVIDENCE
(The Bar Lectures Series)
Plea of guilty later withdrawn
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 (Sec. 27, Rule 130, Rules of
Court).
Unaccepted plea of guilty to a lesser offense
If the plea of guilty to a lesser offense is not accepted,
the rule does not provide for an adverse consequence of the
unaccepted plea. On the contrary, the rule provides that an
unaccepted plea of guilty to a lesser offense is not admissible
in evidence against the accused who made the plea or offer
(Sec. 27, Rule 130, Rules of Court).
Offer to pay or the payment of medical, hospital or other
expenses
An offer to pay or the payment of medical, hospital or
other expenses occasioned by an injury is not admissible in
evidence as proof of civil or criminal liability for the injury
(Sec. 27, Rule 130, Rules of Court). In other jurisdictions, 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.
Subsequent remedial measures
Assume that PP, while negotiating the stairs from the
lobby of a hotel to his third floor room, slipped and fell from
the stairs and sustained head injuries. The hotel owner, upon
learning of the accident, immediately ordered the mainte-
nance department of the hotel to install a non-slippery mate-
rial on every step of the stairway. In an action for damages
against the hotel owner by PP, may the latter introduce evi-
dence of the subsequent remedial measures taken to prove an
admission by the defendant of the hazardous condition of the
stairway at the time of the incident?
No direct legal provision in this jurisdiction addresses
the question as it is. It is, however, interesting to observe
CHAPTER V - TESTIMONIAL EVIDENCE 265
E. Admissions, Confessions and the Res Inter Alios Acta Rule (Rule 130)
that the U.S. Federal Rules of Evidence (FRE), in Rule 407
thereof, prohibits the admission of evidence of subsequent
remedial measures when offered to prove the negligence of
the defendant. Evidence of such measures may, however, be
admissible to prove some other purpose like the fact that the
defendant had ownership of the hotel or control over the same
and all the fixtures therein.
Accordingly, the rule is based on the policy of encouraging
potential defendants to remedy hazardous conditions with-
out fear that their actions will be used as evidence against
them (Pau v. Yosemite Park [CA9 Cal] 928 F2d, 880). To adopt
the contrary rule would discourage owners from improving
the condition causing the injury because of their fear of the
evidential use of such improvement to their disadvantage
(Werner v. Upjohn Co. [CA4 MD] 628 F2d, 848; 29 Am Jur 2d
§463-464).
The rule (FRE 407) provides that:
"When after an event, measures are taken which,
if taken previously, would have made the event less
likely to occur, evidence of the subsequent measures is
not admissible to prove negligence or culpable conduct
in connection with the event. This rule does not require
the exclusion of evidence of subsequent measures when
offered for another purpose, such as proving ownership,
control, or feasibility of precautionary measures, if contro-
verted, or impeachment."
Evidence of similar conduct (Bar 2011)
1. The general rule is that the law will not consider
evidence that a person has done a certain act at a particular
time as probative of a contention that he has done a similar act
at another time. This is the rule of res inter alios acta found in
Sec. 34, Rule 130 of the Rules of Court,.as amended. A similar
conduct which does not even sufficiently establish a plan or
scheme is not admissible (Enriquez v. People, 331 SCRA 538;
Espinosa v. Sandiganbayan, 331 SCRA 538).
2. Assume that Mr~ X is accused of physical injuries.
Is evidence that, in the past, he committed several acts
266 EVIDENCE
(The Bar Lectures Series)
constituting physical injuries admissible to prove his
propensity for committing such acts or that he acted in
conformity with his past acts? Answer: The evidence is not
admissible for the purpose for which it is offered. Sec. 34 of
Rule 130 clearly provides:
"SEC. 34. Similar acts as evidence.- Evidence that
one did or did not do a certain thing at one time is not
admissible to prove that he did or did not do the same
or a similar thing at another time; but it may be received
to prove a specific intent or knowledge, identity, plan,
system, scheme, habit, custom or usage, and the like."
3. The above provision constitutes the second branch of
the res inter alios acta rule as previously mentioned.
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.
4. Evidence of similar acts or occurrences compels the
defendant to meet allegations that are not mentioned in the
complaint, confuses him in his defense, raises a variety of
relevant issues, and diverts the attention of the court from
the issues immediately before it. Hence, the evidentiary rule
guards the practical inconvenience of trying collateral issues
and protracting the trial and prevents surprise or other
mischief prejudicial to litigants (Cruz v. Court of Appeals, 293
SCRA239).
Under Sec. 34 of Rule 130, although the accused has
previously been charged with and convicted of similar
offenses, the trial court commits an error if it considers such
circumstance for the purpose of showing that he was likely
to commit the crimes charged in the indictment. Evidence
of collateral offenses must not be received as substantive
evidence of the offenses on trial (People v. Santos, 536 SCRA
489).
5. Under the same rule, in an action to collect a sum
of money, evidence that the debtor had contracted debts with
CHAPTER V -- TESTIMONIAL EVIDENCE 267
E. Admissions, Confessions and the Res Inter Alios Acta Rule (Rule 130)
various persons in the past and had not paid such debts,
despite demand, is not admissible to show that the debtor did
not pay his obligation to the plaintiff in the present case. In
a similar vein, evidence that Jose was cleared of a previous
charge of robbery or that he was never involved in any robbery
in the past is not admissible to prove that he could not have
committed the robbery for which he is presently charged. The
rule enunciated in Sec. 34 of Rule 130 is also founded on plain
common sense. To argue that a person did or did not commit
an act because he did or did not commit a similar thing in the
past is certainly non sequitur.
When evidence of similar acts or previous conduct is
admissible
1. Evidence of similar acts is admissible for any of the
following purposes:
(a) specific intent;
(b) knowledge;
(c) identity;
(d) plan;
(e) system;
(D scheme;
(g) habit;
(h) custom;
(i) usage; and
(j) the like (Sec. 34, Rule 130, Rules of Court).
2. Evidence of similar acts may frequently become
relevant, especially in actions based on fraud and deceit,
because it sheds light on the state of mind or knowledge of a
person, his motive or intent, or they may uncover a scheme,
design or plan (Cruz v. Court of Appeals, 293 SCRA 239).
3. The admissibility of similar acts or previous conduct
would depend on the purposes for which such acts or conduct
are offered.
268 EVIDENCE
(The Bar Lectures Series)
For example, evidence of the other similar crimes, acts or
wrongs previously committed by the accused are admissible
to show that the offense for which he is currently charged and
his prior similar acts show the "signature" or "handiwork" of
the accused, or because of identical modus operandi. In other
words, the similar acts may be offered to show that they share
distinctive features as the offense for which the accused is
currently charged with, but the evidence cannot be offered to
show that the accused is likely to be guilty of the charge for
having committed the same or similar acts before his present
indictment. The rule .is: The past acts of the accused are
inadmissible to prove that he acted in conformity with such
previous acts.
F. Judicial Affidavit Rule (A.M. 12-8-8-SC)
Rationale for the Judicial Affidavit Rule
1. The most basic reason for the adoption of the Rule
is to decongest the courts of cases and to reduce delays in the
disposition of cases.
Due to these delays, the Supreme Court declares in the
"whereas clause" of the Rule, that "few foreign businessmen
make long-term investments in the Philippines because its
courts are unable to provide ample and speedy protection to
their investments, keeping its people poor."
The 'whereas clause' of the Judicial Affidavit Rule, like-
wise, affirms that "case congestion and delays plague most
courts in cities, given the huge volume of cases filed each
year and the slow cumbersome adversarial system that the
judiciary has in place." The Rule also recognizes that "about
40% of criminal .cases. are dismissed annually owing to the
fact that complainants sl.mply give up coming to court after
repeated postponements."
2. The same 'whereas clause' reports that after the
evaluation of a pilot project in Quezon City requiring the
compulsory use ofjudicial affidavits, "such piloting has quickly
resulted in reducing by about two-thirds the time used for
CHAPTER V - TESTIMONIAL EVIDENCE 269
F. Judicial Aindavit Rule (A.M. 12-8-8-SC)
presenting the testimonies of witnesses, thus speeding up the
hearing and adjudication of cases."
Thus, in order "to replicate nationwide the success of
the Quezon City experience in the use of judicial affidavits,"
the Supreme Court en bane approved the recommendation
of the Committee on Revision of the Rules of Court, headed
by Senior Associate Justice Antonio T. Carpio and the Sub-
Committee on the Revision of the Rules on Civil Procedure,
headed by Associate Justice Roberto A. Abad, to adopt the
Judicial Affidavit Rule.
Effectivity of the Judicial Affidavit Rule
By the terms of the Rule, the Judicial Affidavit Rule
took effect on January 1, 2013 following its publication in two
newspapers of general circulation not later than September
15, 2012 (Sec. 12, Judicial Affidavit Rule).
Significance of the use of a judicial affidavit; exhibits
1. The judicial affidavit shall take the place of the
direct testimonies of witnesses (Sec. 2 [a][l], Judicial Affidavit
Rule). The rule, therefore, modifies the existing practice
in the conduct of a trial and reception of evidence by doing
away with the usual oral examination of a witness in a direct
examination.
2. To be attached to the judicial affidavit are the
documentary or object evidence of the parties which shall
be marked as Exhibits A, B, C, and so on in the case of the
complainant or plaintiff. In the case of the respondent or the
defendant, the evidence shall be marked as Exhibits 1, 2, 3
and so on (Sec. 2[a][2], Judicial Affidavit Rule).
3. The original document or object evidence need not
be attached to the judicial affidavit. The party or witness may
keep the same in his possession after the exhibit has been
identified, marked as an exhibit and authenticated. He must,
however, warrant in his judicial affidavit that the copy or
reproductio11 attached is a faithful copy or reproduction of the
original (Sec. 2[b], Judicial Affidavit Rule).
 270 EVIDENCE
(The Bar Lectures Series)
Aside from the above requirement, the party or witness is
required to bring the original document or object evidence for
comparison with the attached copy, reproduction or pictures,
during the preliminary conference. In case of failure to bring
the originals for comparison, the attached copy, reproduction
or pictures shall not be admitted (Sec. 2[b], Judicial Affidavit
Rule).
Scope of the Judicial Affidavit Rule
1. The Rule shall apply to all (a) actions, (b) proceedings,
or (c) incidents requiring the reception of evidence (Sec. 1,
Judicial Affidavit Rule).
2. The Rule, in effect, applies to all courts, other than
the Supreme Court. It also applies to certain non-judicial
bodies. The Rule specifies the following courts and bodies:
(a) Metropolitan Trial Courts, Municipal Trial
Courts in Cities, Municipal Trial Courts, Municipal
Circuit Trial Courts and the Shari'a Circuit Courts but
shall not, however, apply to small claims cases;
(b) Regional Trial Courts and Shari'a District
Courts;
(c) · Sandiganbayan, Court ofTax Appeals, Court of
Appeals and Shari'a Appellate Courts;
(d) Investigating officers and bodies authorized
by the Supreme Court to receive evidence, including the
Integrated Bar of the Philippines; and
(e) Special courts and quasi-judicial bodies, whose
rules of procedure are subject to disapproval of the
Supreme Court (Sec. 1, Judicial Affidavit Rule).
Applicability of the Judicial Affidavit Rule to criminal cases
1. The Judicial Affidavit Rule shall apply to criminal
cases (Sec. 9, Judicial Affidavit Rule).
The reason for the above rule is not difficult to appre-
ciate. Criminal cases are actions which require the reception
CHAPTER V - TESTIMONIAL EVIDENCE 271
F. Judicial Affidavit Rule (A.M. 12·8-8-SC)
of evidence. Remember that the Judicial Affidavit Rule, in Sec.
1 thereof, requires its application to all actions, proceedings
and incidents requiring the reception of evidence.
2. Note, however, that the Judicial Affidavit Rule
applies to criminal cases where "the maximum of the imposable
penalty does not exceed six years" (Sec. 9[1), Judicial Affidavit
Rule). In other cases, the use of judicial affidavits will now
depend on the accused. The Rule will apply, irrespective of
the penalty involved, where the accused agrees to the use of
judicial affidavits (Sec. 9[2], Judicial Affidavit Rule).
With respect to the civil aspect of the criminal action,
the Judicial Mfidavit Rule shall apply, irrespective of the
penalty involved (Sec. 9[3}, Judicial Affidavit Rule). Hence,
with respect to the civil aspect, the penalty for the offense is
not to be considered.
It is understood that the civil aspect of the criminal action
refers to the action to recover civil liability "arising from the
offense charged" and which is deemed instituted with the
criminal action as provided in Sec. 1 of Rule 111 of the Rules
of Court.
Contents of the judicial affidavit
1. A judicial affidavit shall be prepared in the language
known to the witness. If the affidavit is not in English or
Filipino, it shall be accompanied by a translation in either
language (Sec. 3, Judicial Affidavit Rule).
2. The judicial affidavit shall contain the name, age,
residence or business address, and occupation of the witness
(Sec. 3[a], Judicial Affidavit Rule).
There must also be a statement in the affidavit that
the witness is answering the questions asked of him, fully
conscious that he does so under oath, and that he may face
criminal liability for false testimony or pe:rjury (Sec. 3[c),
Judicial Affidavit Rule).
3. The judicial affidavit shall also contain the name
and address of the lawyer. This is because the examination
 272 EVIDENCE
(The Bar Lectures Series)
of the witness shall be conducted and supervised by a lawyer
(Sec. 3[b], Judicial Affidavit Rule).
4. The judicial affidavit shall also indicate the place
where the examination is being held (Sec. 3[b], Judicial
Affidavit Rule).
5. The judicial affidavit shall contain the questions
asked of the witness and his answers to the questions, all
consecutively numbered. The questions and answers shall:
(a) show the circumstances under which the
witness acquired the facts upon which he testifies;
(b) elicit from him those facts which are relevant to
the issues that the case presents; and
(c) identify the attached documentary and object
evidence and establish their authenticity (Sec. 3[d),
Judicial Affidavit Rule).
It is evident that the questions to be asked will determine
whether or not the witness has personal knowledge of the facts
upon which he testifies, and thus, prevent the introduction
into the record of mere hearsay testimonies. The matters
testified to should also be on matters relevant to the issues
of the case. The affidavit also requires that the witness not
merely identify the exhibits but also authenticate the same
for evidentiary purposes.
Under the Rules of Court, proof of the due execution and
authenticity of a private document shall be made in case the
document is offered as authentic. If not offered as authentic,
the private document need only be identified as that which it
is claimed to be (Sec. 20, Rule 132, Rules of Court). Nothing
in the provisions of the Judicial Affidavit Rule dispenses with
the application of this principle.
6. The judicial affidavit shall be signed by the witness
over his printed name (Sec. 3[e], Judicial Affidavit Rule).
7. The judicial affidavit shall contain a jurat, with the
signature of the notary public who administers the oath or
\'
('
Cfu\..PTER V - TESTIMONIAL EVIDENCE 273
F. Judicial Affidavit Rule (AM. 12-8-8-SC)
an officer who is authorized to administer the same (Sec. 3[f],
Judicial Affidavit Rule).
Effect of non-compliance with the content requirements of
Sec. 3 of the Judicial Affidavit Rule
A judicial affidavit which does not conform to the content
requirements of Sec. 3 of the Judicial Mfidavit Rule shall
not be admitted by the court in evidence (Sec. JO[c], Judicial
Affidavit Rule).
The relevant provision, however, does not absolutely bar
the submission of a compliant replacement judicial affidavit
as long as the replacement shall be submitted before the hear-
ing or trial and provided further that the following requisites
are met:
1. The submission shall be allowed only once;
2. The delay is for a valid reason;
3. The delay would not unduly prejudice the
opposing party; and
4. The public or private counsel responsible for the
preparation and submission of the affidavit pays a fine
of not less than Pl,OOO.OO nor more than P5,000.00, at
the discretion of the court (Sec. lO[c], Judicial Affidavit
Rule).
Sworn attestation of the lawyer
The judicial affidavit, aside from the content require-
ments of Sec. 3 of the Judicial affidavit Rule, shall also contain
a sworn attestation at the end, executed by the lawyer who
conducted and supervised the examination, to the effect that
there was a faithful recording of the questions and answers
in the judicial affidavit and that there was no coaching of the
witness on what to answer. Specifically, the sworn attestation
shall attest to the following:
(a) That he faithfully recorded or caused to be
recorded the questions he asked and the corresponding
answers that the witness gave; and
 274 EVIDENCE
(The Bar Lectures Series)
(b) That neither he nor any other person present or
assisting him coached the witness regarding the latter's
answers (Sec. 4[a}, Judicial Affidavit Rule).
Effect of a false attestation by the lawyer
A false attestation shall subject the lawyer to discip-
linary action, including disbarment (Sec. 4[b} Judicial
Affidavit Rule).
I However, under the Judicial Mfidavit Rule, the filing of
Effect of non-compliance with the attestation requirement
A judicial affidavit which does not conform to the attes-
tation requirement of Sec. 4 of the Judicial Affidavit Rule
shall not be admitted by the court in evidence (Sec. 1O[c},
Judicial Affidavit Rule). The court may, however, allow the
submission of a compliant replacement judicial affidavit as
long as the replacement shall be submitted before the hearing
or trial and provided further that the following requisites are
met:
1. The submission shall be allowed only once;
2. The delay is for a valid reason;
3. The delay would not unduly prejudice the
opposing party; and
4. The public or private counsel responsible for the
preparation and submission of the affidavit pays a fine
of not less than Pl,OOO.OO nor more than P5,000.00, at
the discretion of the court (Sec. 10[c}, Judicial Affidavit
Rule).
Filing and service of the judicial affidavit and exhibits;
modes of service
1. The judicial affidavits of the witnesses and the
documentary or object evidence shall be filed by the parties
with the court and served on the adverse party, not later than
five days before the pre-trial or preliminary conference or the
I
CHAPTER V - TESTIMONIAL EVIDENCE 275
F. Judicial Affidavit Rule (A.M. 12-8-8-SC)
scheduled hearing, with respect to motions and incidents (Sec.
2[a}, Judicial Affidavit Rule).
2. Under traditional rules, service of papers shall be
made either personally or by mail (Sec. 5, Rule 13, Rules of
Court), and if service cannot be made through such modes,
service shall be done basically through substituted service by
delivering a copy of the paper to be served with the clerk of
court (Sec. 8, Rule 13, Rules of Court).
the judicial affidavit and its attached exhibits shall be done,
not only personally, but also by licensed courier service (Sec.
2[a}, Judicial Affidavit Rule). Service by mail is not mentioned
in the Rule.
3. In criminal cases, the prosecution shall submit the
judicial affidavits of its witnesses not later than five days before
the pre-trial. Copies of the judicial affidavits shall be served
upon the accused. To be attached to the judicial affidavits are
such documentary or object evidence as the prosecution may
have, marking them as Exhibits A, B, and C and so on (Sec.
9[b}, Judicial Affidavit Rule).
In criminal cases, no further judicial affidavit, docu-
mentary or object evidence shall be admitted at the trial (Sec.
9[b}, Judicial Affidavit Rule). This means that even before
the trial, the prosecution has to lay down on the table, all its
evidence - testimonial, documentary and object.
4. Since the accused is already aware ofthe evidence of
the prosecution, he has the options to submit or not to submit
his judicial affidavits. Ifthe accused desires to be heard on his
defense after receiving the judicial affidavits of the prosecu-
tion, the accused may submit his judicial affidavit as well as
those of his witnesses, including his documentary and object
evidences marking them as Exhibits 1, 2, 3, and so on. The
submission shall be done within ten days from receipt of the
affidavits of the prosecution with service upon the public and
private prosecutor (Sec. 9[c}, Judicial Affidavit Rule).
276 EVIDENCE
(The Bar Lectures Series)
Effects of failure to submit the judicial affidavits and exhibits
on time
1. A party who fails to submit the required judicial
affidavits and exhibits on.time shall be deemed to have waived
their submission (Sec. JO[a], Judicial Affidavit Rule).
2. The waiver would mean that a party who failed to
submit the judicial affidavit of a particular witness would have
no direct testimony for that witness and the documentary or
object evidence integrated with such affidavit could not be
identified, marked as a.n exhibit, and authenticated. In effect,
the exhibit could not be offered in evidence.
If the waiver extends to the required affidavits of all the
witnesses of a party because all the judicial affidavits were
not filed and served, then said party is deemed to have not
presented his evidence-in-chief for his case.
Remedy in case of late submission
1. The failure of a party to submit a judicial affidavit
on time does not mean a permanent waiver to submit the
same. He is given another chance to do so. The remedy is to
move that the late submission of the judicial affidavit and its
exhibits be allowed.
2. The court may allow the late submission of the
judicial affidavit and exhibits provided the following requisites
concur:
(a) A late submission shall be allowed only once;
(b) The delay is for a valid reason;
(c) The late submission will not unduly prejudice
the opposing party; and
(d) The defaulting party pays a fine of not less than
P1,000.00 nor more than P5,000.00, at the discretion of
the court (Sec.-lO[a], Judicial Affidavit Rule).
CHAPTER V - TESTIMONIAL EVIDENCE 277
F. Judicial Affidavit Rule (A.M. 12-8-8-SC)
Offer of testimony in the judicial affidavit
Instead of offering the oral testimony of the witness, the
party using the judicial affidavit of his witness in place of a
direct testimony, shall present such affidavit and state the
purpose of the testimony contained therein at the start of the
presentation of the witness (Sec. 6, Judicial Affidavit Rule).
Objections to testimony in the judicial affidavit; ruling of the
court
1. The presentation of the judicial affidavit and the
statement of the purpose of the testimony contained therein
will give the adverse party the opportunity to object to the
testimony.
The adverse party may, on the ground of inadmissibility,
move to (a) disqualify the witness, (b) strike out his affidavit,
or (c) strike out any of the answers found in the judicial
affidavit (Sec. 6, Judicial Affidavit Rule).
2. The court is required to promptly rule on the motion
of the adverse party. If it grants the motion, any excluded
answer shall be marked by placing the same in brackets under
the initials of an authorized court personnel. The other party
may, however, make a tender of excluded evidence under Sec.
40 of Rule 132 of the Rules of Court (Sec. 6, Judicial Affidavit
Rule).
3. The provisions of Sec. 6 of the Judicial Affidavit Rule
require the court to promptly rule on the motion of the adverse
party.
The term "promptly," it is submitted, should be taken
in its literal context and akin to the word, "immediately," as
used in Sec. 38 of Rule 132 of the Rules of Court. Under the
said provision, the ruling of the court 1n case of an objection,
must be given immediately. The mandate on the giving of an
immediate ruling is, however, qualified by the phrase, "unless
the court desires to take a reasonable time to inform itself
on the question presented.'' It is significant to note that such
qualification is not found in the Judicial Mfidavit Rule.
 278 EVIDENCE
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Appearance of the witness at the scheduled hearing
1. The submission of the judicial affidavit ofthe witness
and the attached exhibits does not exempt the witness from
appearing at the scheduled hearing. The rule still requires his
appearance (Sec. 1 O[b], Judicial Affidavit Rule).
2. The appearance of the witness is necessary because
the adverse party has the right to cross-examine him. The
cross-examination shall be on his judicial affidavit and on
the attached exhibits. Mter the cross-examination, the party
presenting the witness may also examine him as on re-direct
(Sec. 7, Judicial Affidavit Rule).
A postponement of the cross-examination would be
contrary to the spirit of the rule because the judicial affidavits
have been filed and served even before the scheduled hearing.
3. The court, under the Judicial Affidavit Rule, is not
a mere passive entity that merely receives evidence from the
parties. The Rule integrates an element of the inquisitorial
system which allows the court to have an active role in the
proceedings. The Rule clearly mandates the court to take
active part in examining the witness to (a) determine the
(i) credibility of the witness and (ii) truth of his testimony;
and (b) elicit the answers that it needs in resolving the case
(Sec. 7, Judicial Affidavit Rule). The questions of the court
shall not, therefore, be confined to mere clarificatory questions.
Effect of failure of a witness to appear at the scheduled
hearing; failure of counsel to appear
1. The court shall not consider the affidavit of any
witness who does not appear in the scheduled hearing of the
case as required (Sec. lO[b], Judicial Affidavit Rule). If the
affidavit is not considered, it is as if no judicial affidavit has
been executed by the absent witness. Such witness, hence,
shall be deemed as not having given a direct testimony in the
trial.
2. It is the duty of counsel to appear at the scheduled
hearing because of the adverse effect of his failure to do so on
a basic right of his client.
CHAPTER V - TESTIMONIAL EVIDENCE 279
F. Judicial Affidavit Rule (A.M. 12-8-8-SC)
A counsel who fails to appear without a valid cause
despite notice shall be deemed to have waived his client's
right to confront by cross-examination, the witnesses present
(Sec. lO[b}, Judicial Affidavit Rule).
When there is a need for the issuance of a subpoena
1. A requesting party may avail himself of the issuance
of a subpoena ad testificandum or duces tecum under Rule 21
of the Rules of Court if a witness unjustifiably declines to (a)
execute a judicial affidavit, or (b) refuses without just cause
to make the relevant books, documents, or other things under
his control available for copying, authentication, and eventual
production in court (Sec. 5, Judicial Affidavit Rule).
The witness referred to is a government employee or
official, or a requested witness, who is neither the witness
of the adverse party nor a hostile witness (Sec. 5, Judicial
Affidavit Rule).
2. The rules governing the issuance of a subpoena to
the witness shall be the same as when taking his deposition
except that the taking of a judicial affidavit shall be understood
to be ex parte (Sec. 5, Judicial Affidavit Rule).
Oral offer and objections to exhibits
1. A party shall immediately make an oral offer of
evidence of his documentary or object exhibits, piece by piece,
in their chronological order, stating the purpose or purposes
for which he offers the particular exhibit. The offer shall be
made upon the termination of the testimony ofhis last witness
(Sec. 8[a}, Judicial Affidavit Rule).
It is not necessary to describe each exhibit in the offer of
evidence. It is sufficient that such exhibits are simply cited
by their markings during the offers, the objections, and the
rulings, dispensing with the description of each exhibit since
the documentary or object exhibits form part of the judicial
affidavits that describe and authenticate them (Sec. 8[c},
Judicial Affidavit Rule).
280 EVIDENCE
(The Bar Lectures Series)
After each piece of exhibit is offered, the adverse party
shall state the legal ground for his objection, if any, to its
admission, and the court shall immediately make its ruling
respecting that exhibit (Sec. B[b], Judicial Affidavit Rule).
2. Under Sec. 35 of Rule 132 of the Rules of Court,
documentary and object evidence shall be offered after the
presentation of a party's testimonial evidence. Such offer
shall, as a rule, be done orally. The Judicial Affidavit Rule
likewise echoes the same principle, requiring that the offer of
a party's documentary or object exhibits shall be made upon
the termination of the testimony of his last witness. Be it
noted, however, that while Sec. 35 of Rule 132 of the Rules
of Court allows the offer to be made in writing, Sec. 8 of the
Judicial Mfidavit Rule requires that the offer be made only
orally.
- oOo-
Chapter VI
HEARSAY EVIDENCE, OPINION EVIDENCE
AND CHARACTER EVIDENCE
A Preliminaries
Hearsay evidence (Bar 2004; 2007; 2011)
The Philippine version of the hearsay rule is embodied in
Sec. 36 of Rule 130. It provides:
"SEC. 36. Testimony generally confined to person-
al knowledge; hearsay excluded. - A witness can tes-
tify only to those facts which he knows of his personal
knowledge; that is, which are derived from his own per-
ception, except as otherwise provided in these rules."
Hearsay may be oral or written
Hearsay is not limited to oral testimony or statements.
The rule that excludes hearsay evidence applies to both
written and oral statement (D.M. Consunji, Inc. v. Court of
Appeals, 357 SCRA 249, cited in Malayan Insurance Co. v.
Alberto, 664 SCRA 791, 799, February 1, 2012).
Basis for excluding hearsay evidence
1. The rule excluding hearsay testimony rests mainly
on the ground that there is no opportunity to cross-examine
the person to whom statements or writings are attributed
(Marina Port Services, Inc. v. American Home Assurance
Corporation, G.R. No. 201822, August_ 12, 2015). Moreover,
the court is without the opportunity to test the credibility of
hearsay statements by observing the demeanor of the person
who made them (People v. Padit, G.R. No. 202978, February 1,
2016).
281
282 EVIDENCE
(The Bar Lectures Series)
Thus, for instance, the person who makes a private survey
report, must be presented in court to testify on the same. Being
a private document, it cannot be accorded probative value if
the party against whom it is presented is deprived ofthe right
to cross-examine such person (Marina Port Services, Inc. v.
American Home Assurance Corporation, G.R. No. 201822,
August 12, 2015).
· 2. An affidavit is merely hearsay evidence where its
affiant/maker did not take the witness stand (Rosit v. Davao
Doctors Hospital, G.R. No. 210445, December 7, 2015). While
affidavits that have been notarized are public documents if
they are acknowledged before a notary public, these are still
considered hearsay unless the affiants themselves are placed
in the witness stand to testify thereon. The reason for ~his
rule is that, generally, they are not prepared by the affiants,
but by another one who uses his own language in writing
the statements, parts of which may be either omitted or
misunderstood by the one writing them. Moreover, the adverse
party is deprived of cross-examining the affiants (Republic v.
Marcos-Manotoc, 665 SCRA 367, 388, February 8, 2012; See
also Dantis v. Maghinang, G.R. No. 191696, April10, 2013;
Atienza v. People, G.R. No. 188694, February 12, 2014).
When evidence is hearsay
1. Although hearsay evidence presupposes lack of
personal knowledge of the truth of the fact asserted by a
witness, the purpose for which the evidence is offered is a vital
element of hearsay evidence. It is the purpose for which the
evidence is offered which would determine whether the same
is hearsay or not.
2. The element of "purpose" had long been recognized
in this jurisdiction, as was done in the early case of Robles
v. Lizarraga Hermanos (42 Phil. 584; also cited by Moran,
Comments on the Rules of Court, Vol. 5, p. 289).
Here, the Supreme Court admitted unsigned statement
of accounts not to prove the truth of its entries but for the pur-
pose of showing the possessor's good faith in making improve-
CHAPTER VI- HEARSAY EVIDENCE, OPINION EVIDENCE 283
AND CHARACTER EVIDENCE
A. Preliminaries
ments on the property, and to show that such improvements
were made pursuant to a verbal contract that the leased prop-
erty will eventually be sold to her.
The importance of purpose was also recognized by the
Supreme Court in a much earlier case. In U.S. v. Enriquez,
1 Phil. 241, testimony was admitted as to the statements made
by another for the purpose of showing his state of mind, his
physical and mental condition, knowledge, belief, intention,
and other emotions. In the same case, documents and letters
were also admitted as circumstantial evidence of a person's
physical and mental state.
In a very much later case, the Supreme Court acknowl-
edged that the ban on hearsay does not include statements
which are relevant independently of whether they are true
or not, like statements of a person to show, among others, his
state of mind, mental condition, knowledge, belief, intention,
ill-will and other emotions (Estrada v. Desierto, 356 SCRA
108).
3. Sec. 36, as written, incompletely describes the
essence of the hearsay rule because of its failure to embody
the element of "purpose." It appears more to be a definition of
the "first-hand knowledge rule" which, although similar to the
hearsay rule, is traditionally distinct from it. Writing about
the rule requiring firsthand knowledge, the eminent authority
on evidence, Dean McCormick, writes:
"There is a rule, more ancient than the hearsay
rule, and having some kinship in policy, which is to be
distinguished from it. This is the rule that a witness is
qualified to testifY to a fact susceptible of observation,
only if it appears that he had a reasonable opportunity to
observe the fact" (McCormick, Evidence, 3rd Ed., p. 731).
4. A much clearer definition of "hearsay" is found in
the Federal Rules of Evidence (Rule 801[c]) where 'hearsay' is
defined as:
"... a statement,. other than the one made by the
declarant while testifYing at the trial or hearing, offered
in evidence to prove the truth of the matter asserted."
 284 EVIDENCE
(The Bar Lectures Series)
This definition considers "hearsay" as a statement.
But what is a 'statement'? In Rule 801(a), Federal Rules of
Evidence, a statement is either an oral or written assertion or
a nonverbal conduct intended by the person as an assertion.
To constitute hearsay, therefore, there must be:
(1) an out-of-court statement, oral, written or
nonverbal conduct, made by one other than the one made
by the declarant or witness testifying at the trial; and
(2) the out-of-court statement must be offered to
prove the truth of the matter asserted in the out-of-court
statement (29 Am Jur 2d, 2nd Ed., pp. 704-705; FRE,
BOl[c]).
Authorities have defined hearsay evidence substantially
in the same manner. Some definitions call hearsay a "state-
ment or assertive conduct which was made or occurred out of
court to prove the truth of the facts asserted" or a "testimony
in court, or written evidence, of a statement made out of court,
such evidence being offered as an assertion to show the truth
of the matters asserted therein, and which thus, rests for its
value upon the credibility of the out-of-court asserter" (Dean
Ladd and Dean McCormick respectively, cited in Kaplan, Evi-
dence, 6th Ed., p. 87).
A shorter definition but complete definition of the term
is found in People v. DeMarco (195 N.E. 2d, 213, 216, 44 Ill.
App. 2d 459), where hearsay is defined "as an out of court
statement offered for the truth of the matter asserted" (cited in
Words and Phrases, Permanent Ed., 1970, 269; See for further
readings, Dantis v. Maghinang, G.R. No. 191696, April 10,
2013).
Specific elements of hearsay evidence
1. There is a common thread running through all the
cited definitions. There is agreement that the following are
the specific elements of hearsay evidence:
(a) First, there must be an out-orcourt statement.
It does not really matter what the form of the statement
CHAPTER VI- HEARSAY EVIDENCE, OPINION EVIDENCE
285
AND CHARACTER EVIDENCE
A. Preliminaries
is. It may be oral. It may be written. It may even be a
conduct, as long as that conduct is intended by the actor
as an assertion. What matters is that the statement was
not made by the declarant in the hearing or trial.
(b) Second, that the statement made out of court is
repeated and offered by the witness in court to prove the
truth of the matters asserted by the statement.
2. A more recent pronouncement which clearly
embodies the element of "purpose" holds: "To be hearsay,
the testimony of a witness, regarding a statement made by
another person, is given for the purpose of establishing the
truth of the fact asserted in the statement" (Espineli u. People,
G.R. No. 179535, June 9, 2014).
Anecdotal illustration:
Let us have Jose, a witness testifying in court as to what
his friend, Juan, wrote him. In a letter dated August 5, his
friend wrote Jose that it was a street bum who shot the cop,
not Jose's uncle. Jose's friend, Juan, the eyewitness, is not in
court. It is Jose who is in court but we hear Jose presenting a
statement that is not his own. It is a statement made outside
the court by his friend, Juan. His friend's statement is an
out-of-court statement because when it was made, the friend
who made it was in Cebu and he is not the witness in court.
We clearly have an out-of-court statement from Jose's friend
whom we shall call an outside declarant. We have the first
part of our formula: An out-of-court statement from an out-of-
court declarant.
Is Jose's testimony, therefore, hearsay? Answer: We still
do not know. We do not know because we do not know the
purpose of the testimony. Is it offered ·to prove that it was
indeed a bum who shot the cop? Or is it offered to prove
something else? We are not sure. If we are not sure, then we
do not know if it is hearsay. How can we be sure then? To be
sure, we must know what it is the proponent wants to prove.
Mter knowing what he wants to prove, then we ask whether
 286 EVIDENCE
(The Bar Lectures Series)
or not the matter he wants to prove is relevant to an issue
in the case. This is basic, a matter of logic, and no rules of
evidence need tell us this. · complete. Jose's testimony is hearsay. It is hearsay because
Suppose the judge asks: "Counsel, what is the purpose of
Jose's testimony that his friend wrote him that 'it was a street
bum who shot the cop and not Jose's uncle?"' Comes the quick
reply: "To prove, Your Honor, that Jose's friend was alive on
August 5 and not to prove that it was a bum who shot the cop.
Had he been dead on that day, he would not have been able to
write Jose."
Is the testimony of Jose hearsay? Now let us go back to
our formula. Do we have an out-of-court statement? Yes, we
do. The friend's statement is out-of-court and you know the
reason for this. We have our first element, an out-of-court
statement. To be hearsay, we must have the second. Do we
have it this time? Let us repeat what counsel says his purpose
is. He says, "To prove, Your Honor, that Jose's friend was alive
on August 5 ... etc." There you are. We do not have the second
part of our formula. We do not have the second part because
we are told the statement is offered to prove that "Jose's
friend was alive on August 5." It is not to prove that it was
"a street bum who shot the cop." The declaration of Juan is
not, therefore, to prove the truth of the matter asserted in the
statement of Juan. We have the first component but we don't
have the second. What, then, would the judge rule? Clearly, it
would be, "Objection, overruled. Not hearsay!"
Will Jose's testimony then be admissible? It would be
admissible as long as the fact that Jose's friend was alive on
August 5 is relevant to an issue of the ca:se. If the evidence is
not allowed, it is not because of the hearsay rule but because
it did not meet the standards of relevance.
Let us repeat the question of the judge: "Counsel, what
is the purpose of Jose's testimony that his friend wrote him
that 'it was a street bum who shot the cop and not Jose's
uncle?'" This time counsel emphatically declares: "To prove,
Your Honor, that it was not Jose's uncle who shot the cop but
a bum!"
CHAPTER VI- HEARSAY EVIDENCE, OPINION EVIDENCE 287
AND CHARACTER EVIDENCE
A. Preliminaries
Should the judge sustain a hearsay objection? This time,
the judge should sustain the objection. The formula is now
the out-of-court statement of Jose's friend that "it was a street
bum who shot the cop and not Jose's uncle" is offered to prove
the very matter asserted in the statement: that "it was a street
bum who shot the cop ... etc ... etc ... etc ..." The first response is
different. It is not hearsay because it was not offered to prove
the truth of the assertion in the letter of Jose's friend. It was
offered to prove a different purpose.
3. Problems are rarely encountered as to the first
component. It is easy to know whether or not a statement
offered is out of court. When a witness testifies: "A policeman
told me that a car was stolen in Pedro's driveway," we
immediately can tell that the policeman's statement was
made out of court. It is the witness who is in court, not the
policeman.
Implied from an out-of-court statement is the fact that
the witness has no personal knowledge of the matter testified
to. It is someone outside the court and who, at the same time,
is not in the stand who has personal knowledge of the facts.
That someone outside the court cannot be questioned. His
perception cannot be tested. His capacity to remember what
he perceived cannot be accurately determined. Neither can his
capacity to communicate his remembered perceptions. Why?
Because he is not in court and, if he is not in court, he cannot
be cross-examined. If he cannot be cross-examined, who, in
his right mind, is willing to take his words at their face value?
Who can you find willing to believe his statements repeated
by the witness inside the courtroom?. Remember Sec. 36, Rule
130 of the Rules of Court? Let us have a piece of it once more:
"A witness can testify only to those fact_s which he knows of his
personal knowledge ... " And what do the rules say as to what
"personal knowledge" is? Those "which are derived from his
own perception ... "
4. Why must a witness testify only to matters of his per-
sonal knowledge? The answer is clear. The witness' credibility,
 288 EVIDENCE
(The Bar Lectures Series)
accuracy of perception and recollection, can be tested before
the court through cross-examination. Those of the out-of-court
declarant cannot. The latter's statements are, therefore, un-
reliable. In the high fallutin terminology of the academe, his
statements lack the "indicia" of trustworthiness. It is this lack
of reliability which is the reason for the time-honored rule ex-
cluding hearsay testimony.
· 5. The issue often centers on the second component
of the hearsay formula and it is this second one which the
reader must set his sights on. In most hearsay problems,
the first component is always present. It is this part which
the mind easily grasps. Not the second. Sometimes, this
component approximates the abstract hiding itself from the
eyes of common mortals like us. It is concededly the more
controversial part of our supposedly practical rule. When this
part is absent, i.e., the out-of-court statement is not offered
to prove the truth of the matter asserted, it is said that the
statement is offered for a non-hearsay purpose. If it is offered
to prove the truth of the statement, it is hearsay because it
is offered to prove a hearsay purpose. Where a statement is
not offered for the truth of the matter asserted but is offered
for an evidentiary purpose, not dependent on the truth of the
matters asserted, the statement is non-hearsay.
6. In a case, the only evidence the petitioners presented
to prove that the price of a round trip ticket between
Manila and Los Angeles at that time was only $856.00 is a
newspaper advertisement for another airline company. The
Court considered the advertisement inadmissible for being
"hearsay evidence, twice removed." It categorically ruled that
newspaper clippings are hearsay if they were offered for the
purpose of proving the truth of the matter alleged.
Quoting Feria v. Court of Appeals, 325 SCRA 525, the
Court explained:
"[N]ewspaper articles amount to 'hearsay evidence,
twice removed' and are therefore not only inadmissible
but without any probative value at all whether objected to
CHAPTER VI - HEARSAY EVIDENCE, OPINION EVIDENCE 289
AND CHARACTER EVIDENCE
A. Preliminaries
or not, unless offered for a purpose other than proving the
truth of the matter asserted. In this case, the news article
is admissible only as evidence that such publication does
exist wi.th the tenor of the news therein stated" (citations
omitted).
Examples of non-hearsay evidence
(a) A "statement having probative worth simply by
virtue o{ the fact that it was uttered, if relevant to a material
fact in issue, is not hearsay and is generally admissible ...
Where a statement is not offered for the truth of the contents
of the conversation, but only to show that it was made, then
the statement is not hearsay. For example, a statement
that is offered to show its patent falsity, so as to suggest the
defendant's consciousness of guilt, is not hearsay" (29 Am Jur
2d, 708).
(b) There are other kinds of out-of-court statements that
have been considered admissible because they were offered
for a non-hearsay purpose like statements relating to the state
of mind of the declarant and statements relating to the state
ofmind ofthe listener. Words uttered, in this regard, merely
constitute circumstantial evidence of an assertion and where
the making of the statement is the significant fact because it
either gives rise to the inference about the declarant's state
of mind or indicates its effect on the hearer. The truth of
the statement is not in issue here. A statement by an out-of-
court declarant may be offered not for the veracity of what is
asserted but merely to impeach the declarant's credibility. A
threat against a witness may be offered in evidence to show
its impact on the witness and where the reasonableness of a
person's conduct is an issue, an out-of-court declaration may
be offered to explain the person's reactions to the declaration
(U.S. u. Canieso, 470 F2d 1224 2d Cir:·-1972; U.S. v. Monroe,
943 F 2d 1007, 9th Cir. 1991; U.S. u. Baird, 29 F.3d 647,
D.C. Cir. 1994; cited in Charles Wagner, FRE Case Law
Commentary, 533-535).
290 EVIDENCE
(The Bar Lectures Series)
Out-of-court statements offered to prove mental state of the
declarant
1. As long as an out-of-court statement is offered for a
non-hearsay purpose (a purpose other than to prove the truth
of the matter asserted), the statement is admissible if it has
relevance to the matter in issue.
A popular example of an out-of-court statement offered
for a non-hearsay purpose is one which demonstrates by
inference from the tenor of the statement the state of mind
of the speaker or the declarant. Here, the significance of the
statement is not whether its assertion is true or false. Its
significance rests on the mere fact that it was uttered and, by
extension, on the conclusion which may reasonably be drawn
from the statement.
2. Let us assume we have a special proceeding in court.
Let us say, it is the probate of a testator's-will. Some heirs who
felt aggrieved by the dispositions in the will raised the issue
of the testator's sanity. The will was purportedly executed on
January 3 of the previous year. A witness for the oppositors is
on the stand to testify on the testator's alleged incapacity.
Q: How long have you known the testator?
A: For twenty (20) years by the time he died, Sir.
Q: How did you come to know him?
A: I was her nurse for twenty (20) years, Sir.
Q: On January 3, 2015, what did you hear the
testator say, if any?
Objection, Your Honor! Hearsay! (Opposing
counsel objects.)
Court: Not so fast, Pafiero. Witness may
answer!
A: In the morning of January 3, he said, "I am
Joseph Stalin." At around twelve high noon,
he told me, "I am Theodore Roosevelt." Right
after the subscribing witnesses to his will left,
he brushed me aside and said. "They had no
CHAPTER VI- HEARSAY EVIDENCE, OPINION EVIDENCE 291
AND CHARACTER EVIDENCE
A. Preliminaries
idea I am Saddam Hussein." When I served
him supper, he said, "Those fools! They didn't
realize they just met Alexander the Great!"
Court: Objection, overruled!
Are the statements of the testator offered to prove the
truth of the assertions therein? Certainly not. Obviously, the
out-of-court statements of the testator are not offered to prove
that he is Joseph Stalin, Theodore Roosevelt, Saddam Hussein
and Alexander the Great rolled into one. They are offered for
a non-hearsay purpose, i.e., to prove by inference through the
statement that the testator, on the day the will was executed,
was incapacitated by reason of a mental condition.
From experience, we know that a person's state of mind
may be revealed by his actions or statements. The declarant's
words or conduct constitute circumstantial evidence of his
state of mind. In this case, it is not the truth or falsity of
the conduct or words which matter. It is the fact that the
statement was made which is relevant. A testimony by the
hearer that such statement was made is not hearsay. Why?
The hearer will be testifying as to his personal knowledge
that the statement was uttered. He may, therefore, be cross-
examined as to what he heard, when it was heard, how it
was said, and the circumstances surrounding the making of
the statement. The hearer's veracity and sincerity can well
be tested under a cross-examination because he will not be
testifying as to the veracity of the assertion or its falsity which
are totally irrelevant.
3. Statements relating to the state of mind of the
declarant is one of those admissible out-of-court statements if
offered for non-hearsay purposes (29 Am Jur 2d, 708, 709).
Out-of-court statement offered to prove its effect on the
listener/hearer
1. An out-of-court statement may be offered not only
to prove the state of mind of the declarant. It may also be
used to show the state of mind of the hearer or listener. This
state of mind of the listener is oftentimes described in terms of
292 EVIDENCE
(The Bar Lectures Series)
the effect of the declarant's statement on the hearer and why
the listener acted in a particular manner. As in our previous
illustration, the statement here, although out of court, is
presented not to prove the truth of the statement and, hence,
non-hearsay.
When the statement is not offered for the truth of the
matter asserted but is offered to show the mental effect of the
statement on the hearer, the statement is not hearsay (U.S. v.
Norwood, 798 F.2d 1094 [7th Cir. 1960]).
2. The next example is a prosecution for arbitrary
detention. The accused is a police officer who chanced upon
the crime scene and arrested the complainant after he was
fingered by a witness to the felony. He is on the stand to
testify on the circumstances surrounding the arrest. Let us
see whether or not a hearsay objection can be sustained.
Q: Sir, what were you doing on such and such
place?
A: I was on a routine patrol.
Q: What happened on such and such date and on
such and such time?
A: I saw people milling around something in the
corner of ABC and XYZ Sts.
Q: What, if any, did you do?
A: I got out of my patrol car to see what was
happening.
Q: What, if any, did you see?
A· I saw a man lying face downward on the side of
the street with blood all over his back.
Q: What happened next?
A: A man whispered to me, "This happened barely
two minutes ago and that guy sitting there
pretending to be an onlooker is the culprit."
Counsel: Objection, Your Honor, hearsay!
Court: Objection overruled!
CHAPTER VI- HEARSAY EVIDENCE, OPINION EVIDENCE 293
AND CHARACTER EVIDENCE
A. Preliminaries
The testimony, "This happened barely two minutes ago
and that guy sitting there pretending to be an onlooker is the
culprit," is not offered to prove that (a) the incident occurred
two minutes ago, or (b) that the guy sitting and pretending
to be an onlooker was the culprit. The testimony is to prove
that an arrest was made as a consequence of the out-of-court
statement's effect on the hearer. This effect was the reason for
the arrest. This effect is relevant to justify the apprehension
of the complaining witness.
"Words offered to prove the effect on the hearer are
admissible when they are offered to show their effect on one
whose conduct is at issue" (State v. Hernandez [App} 170
Arizona 301; 29 Am Jur 29, 710).
This is an important category of non-hearsay evidence
worth remembering. The statement offered in evidence is
not hearsay because it is the hearer's reaction to the state-
ment which is sought to be proved. It is his reaction to the
statement that is relevant, not the truth of the assertion in
the statement. Since the hearer is present in court, he can
be cross-examined on whether or not he heard the statement
accurately, believed the statement to be true, and whether or
not he really acted in conformity with his belief.
Out-of-court statement offered to prove that the statement
was made (Bar 2012)
1. Where the statement is not offered for the truth of
the matter asserted, but merely to show what was said, the
statement is not hearsay (Ries Biological, Inc. v. The Bank of
Santa Fe, 780 F .2d 888 [10th Cir. 1986]).
2. Here is another example. This time, it is a prosecution
for oral defamation where the following exchange took place
between the prosecutor and his witness:
Prosecutor: What did you hear the accused say?
Defense: Objection, Your Honor. Question calls for
hearsay testimony!
Court: Not so fast! Witness may answer.
 294 EVIDENCE
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Witness: The accused said while pointing to the
victim: ''You are a thief! You stole my money!
You are a liar!"
Court: Objection overruled!
Is the testimony of the witness excludable as hearsay?
It is not. The testimony is not hearsay. It is not offered to
prove that the complaining witness is a "thief' or a ''liar." It
is offered to prove the tenor of the statement, i.e., that the
statement was made. What is significant is the making of the
statement. Beyond the mere fact that the words were uttered,
the statement proves nothing as to its averments because
the out-of-court declaration's relevance is independent of the
truth of its assertions. In a prosecution for defamation, an
important issue is whether or not the words constituting the
offense were uttered. There is no other inference required.
Once there is proof that the words were uttered, then the legal
consequences of the mere making of the statement will follow.
The only question remaining which is a subject matter best
for another story is: Does the accused have a defense?
3. "If an extrajudicial utterance is offered, not as an
assertion to prove the matter asserted but without reference
to the truth of the matter asserted, the hearsay rule does not
apply. For example, in a slander case, if a prosecution witness
testifies that he heard the accused say that the complainant
was a thief, this testimony is admissible not to prove that the
complainant was really a thief, but merely to show that the
accused uttered those words." (Patula v. People, 669 SCRA
135, 153, Aprilll, 2012).
Independently relevant statements (Bar 2003; 2009; 2011)
1. It is doctrinal that a declarant's statement may
have relevance to an issue in a case from the mere fact that
the words were spoken or written, irrespective of the truth or
falsity of the assertion. This category of a non-hearsay out-
of-court statement, together with the previously discussed
categories, is commonly known in this jurisdiction under the
general term, "independently relevant statements." They are
called as such because the statements are admissible for some
CHAPTER VI- HEARSAY EVIDENCE, OPINION EVIDENCE 295
AND CHARACTER EVIDENCE
A. Preliminaries
relevant reason independent of their truth or falsity. They are
relevant because the statement itself is either the very fact
in issue or a circumstantial evidence of a fact in issue. Some
authorities call independent relevant statements as the 'op-
erative acts' which give rise to legal consequences (29 Am Jur
2d, 709).
2. An independently relevant statement is not hearsay
and is, therefore, not banned under the hearsay evidence rule.
Hence, a witness may be asked questions concerning what
the accused told him that other persons were involved in the
conspiracy if the purpose of the testimony is not to prove that
such persons were really involved in the conspiracy but only
to prove what the accused had mentioned (People v. Cusi, Jr.,
14 SCRA 944). If the purpose of the testimony is merely to
establish the fact that the statement was made, the hearsay
rule does not apply. Evidence as to the making of the statement
is a primary evidence where it is relevant to the existence of a
fact (See Espineli v. People, G.R. No. 179585, June 9, 2014).
Newspaper accounts of an incident are hearsay if offered
to prove the truth of the accounts but are not hearsay if offered
for a purpose other than the truth of the matter asserted. The
newspaper account is admissible only to prove that there was
a publication and merely the tenor of the news, but not its
truth (Feria v. Court of Appeals, 325 SCRA 525).
3. Independently relevant statements actually come in
various shapes and shades because of the different reasons
for which such statements are offered. They, however, have
a unifying element. That element is: Their relevance to the
matter in issue is not dependent on their truth or falsity.
Their relevance lies in the fact that they were said.
4. An out-of-court statement introduced in court to
impeach a previous witness is another form of independently
relevant statement, and an example of how an out-of-court
declaration may be used for a non-hearsay purpose.
A hypothetical will illustrate the point. Let us say, a
prosecution witness in the stand testified: "I saw with my
own eyes when the accused drew a pistol from his waist and
296 EVIDENCE
(The Bar Lectures Series)
aimed it at the victim. I was there when he fired. I was there
when the victim fell to the ground. I was there when blood
flowed out of his blasted chest. I was there when the victim
gasped his last breath! I was there. I saw it all!" The witness,
whom we shall call Mr. A, is testifying not on the basis of what
another person saw. He is testifying on facts which he knows
of his own knowledge just what the Rules of Court says he
should. This is not hearsay and an objection on that ground
will have to be overruled.
However, without the witness knowing it, someone he
did not expect to be in the audience heard everything he said.
That someone could not believe what he just heard straight
from the witness' mouth! Let us call him Mr. B. Tugging at
the shirt of the guy next to him, he exclaimed, "I know the
witness. He is a homegrown kid like me. We grew up together
in the same block. What he just told the court was not what he
told me a day after the killing!"
Our next scene is of Mr. B now sitting on the witness
stand. In the previous cross-examination of Mr. A, he denied
ever talking to Mr. B, who takes his oath, and after all those
predicates for the questions were laid, come the questions
from the defense counsel:
"Did you hear what Mr. A told this court about
what he said he saw on the day the victim was
killed?"
''Yes, sir," comes the confident reply.
"What can you say about his testimony?"
"The things he said in court were not what he
told me about the incident!"
''What did he tell you?"
"Objection. Hearsay," barks the prosecutor.
If the judge is awake, and judges are always
awake even if sometimes you think they are not, he
will ask before ruling on the objection, "What is the
purpose of your question, counsel?"
CHAPTER VI - HEARSAY EVIDENCE, OPINION EVIDENCE 297
AND CHARACTER EVIDENCE
A. Preliminaries
"To show that Mr. A's testimony is inconsistent
with what he told Mr. Bone day after the incident,
Your Honor."
"Objection overruled. Witness may answer."
"Sir, he told me: I did not see with my own eyes
when the accused drew a pistol from his waist and
aimed it at the victim. I was not there when he fired.
I was not there when the victim fell to the ground. I
was not there ... I was not there. I was somewhere."
Of course, Mr. A's supposedly eyewitness account is im-
portant in the lawsuit. But there is something more important
than the credibility of the testimony. It is the credibility of
the witness himself. From the moment the witness takes his
oath on the stand, even before he utters his first words on the
stand, his credibility is automatically put in issue. That the
credibility of a witness is always an issue in every litigation
is a given. It is basic. Of course, a testimony that attacks the
credibility of the witness is equally relevant especially when
that witness claims to have personal knowledge of the facts
testified to. Prior out-of-court declarations of that same wit-
ness inconsistent with his testimony on the stand are admis-
sible not to prove the truth of what was said.
In the example, the testimony of Mr. Bon the declarations
of Mr. A was not introduced to prove that Mr. A did not indeed
witness the killing of the victim by the accused. Whether
or not the statement of Mr. A is true is irrelevant. What is
important is that the statements were uttered. Because they
were uttered, Mr. A had made inconsistent statements and
because he did, it is not now easy to believe Mr. A's testimony.
He may have witnessed the incident. He may have not. We do
not know. We know one thing for sure:_ Mr. A's credibility has
been impaired. In the language of the rules, Mr. A has been
"impeached."
5. The ban on hearsay evidence does not cover inde-
pendently relevant statements, i.e., those statements which
are relevant independently of whether they are true or not.
298 EVIDENCE
(The Bar Lectures Series)
The case of Estrada v. Desierto (356 SCRA 108) classifies in-
dependently relevant statements into two:
The first class includes the following:
(a) statements which are the very facts in issue;
and
(b) statements which are circumstantial evidence
· of the fact in issue.
The second class includes the following:
(a) statements of a person showing his state of
mind; that is, his mental condition, knowledge, belief,
intention, ill-will and other emotions;
(b) statements of a person which show his physical
condition, as illness and the like;
(c) statements of a person from which an inference
may be made as to the state of mind of another; that is
knowledge, belief, motive, good or bad faith, etc. of the
latter;
(d) statements which may identify the date, place,
and person in question; and
(e) statements showing the lack of credibility of a
witness.
B. Exceptions to the Hearsay Rule
1. The Rules of Court enumerates the following excep-
tions to the hearsay rule:
(a) Dying declarations (Sec. 37, Rule 130);
(b) Declaration against interest (Sec. 38, Rule 130);
(c) Act or declaration about pedigree (Sec. 39, Rule
130);
(d) Family reputation or tradition regarding pedi-
gree (Sec. 40, Rule 130);
(e) Common reputation (Sec. 41, Rule 130);
(f) Part of the res gestae (Sec. 42, Rule 130);
CHAPTER VI- HEARSAY EVIDENCE, OPINION EVIDENCE 299
AND CHARACTER EVIDENCE
B. Exceptions to the Hearsay Rule
(g) Entries in the course of business (Sec. 43, Rule
130);
(h) Entries in official records (Sec.44, Rule 130);
(i) Commercial lists and the like (Sec. 45, Rule
130);
(j) Learned treatises (Sec. 46, Rule 130);
(k) Testimony or deposition at a former proceeding
(Sec. 47, Rule 130).
2. It is not correct to assert that the exceptions to the
hearsay rule are not hearsay. They are hearsay evidence
but they are deemed admissible hearsay for certain reasons.
Under appropriate circumstances, a hearsay statement
may possess circumstantial guarantees of trustworthiness
sufficient to justify non-production ofthe declarant in person
(Advisory Committee Notes to Federal Rules of Evidence cited
in 29 Am Jur 29, 726). Another justification may be simply
dictated by the necessity to admit an out-of-court statement
(29A Am Jur 214). Declaration against interest, act or
declaration about pedigree, entries in the course of business,
entries in official records, commercial lists, and learned
treatises are examples of hearsay evidence where there exist a
diminished risk of untrustworthiness because the motivation
to lie is less. Some statements may be admissible where no
other or better evidence is available to prove an act, such that
their admissibility is predicated on a compelling necessity. A
dying declaration is admissible largely under this rationale.
Dying declaration (Bar 2007; 201 0)
1. A famous exception to the hearsay evidence rule
called "dying declaration" is described in Sec. 37 of Rule 130,
as follows:
"SEC. 37. Dying declaration. - The declaration of
a dying person, made under the consciousness of an
impending death, may be received in any case wherein
his death is the subject of inquiry, as evidence of the
cause and surrounding circumstances of such death."
 300 EVIDENCE
(The Bar Lectures Series)
2. "A dying declaration is an evidence of the highest
order; it is entitled to the utmost credence on the premise
that no x x x person who knows of his impending death would
make a careless and false accusation. At the brink of death,
all thoughts on concocting lies disappear" (People v. Cabtalan,
666 SCRA 174, 194-195, February 15, 2012).
3. The reasons for its admissibility is necessity and
trustworthiness. Necessity, because the declarant's death
renders it impossible his taking the witness stand, and it
often happens that there is no other equally satisfactory
proof of the crime; allowing it, therefore, prevents a failure of
justice. And trustworthiness, because the declaration is made
in extremity, when the party is at the point of death, when
every motive to falsehood is silenced and the mind is induced
by the most powerful considerations to speak the truth. The
law considers the point of death as a situation so solemn and
awful as creating an obligation equal to that which is imposed
by an oath administered in court (People v. Cerilla, 539 SCRA
251).
Why dying declarations are admissible, is explained in
People v. Villariez (G.R. No. 211160, September 2, 2015):
"Statements identifying the assailant, if uttered by
a victim on the verge of death, are entitled to the highest
degree of credence and respect. Persons aware of an im-
pending death have been known to be genuinely truthful
in their words and extremely scrupulous in their accusa-
tions. The dying declaration is given on the premise that
no one who knows of one's impending death will make a
careless and false accusation x x x."
4. As originally conceived, dying declarations were
admissible only in criminal cases, particularly homicide cases.
Courts, in the early days, anchored much of their support
for the dying declaration exception on the need to uphold
justice. Courts, at early common law, reasoned out that the
culprit would go free if the victim's dying declarations were
excluded and it is in homicide cases where the necessity for
admission of a dying declaration is clear and pressing. Thus,
CHAPTER VI - HEARSAY EVIDENCE, OPINION EVIDENCE 301
AND CHARACTER EVIDENCE
B. Exceptions to the Hearsay Rule
it is not difficult to understand why at common law, the dying
declaration exception was made available only in homicide
cases, a generic term which of course includes murder and
parricide. Nearly all courts, based upon the theory of necessity,
refused to recognize a dying declaration in civil cases, or even
in those criminal cases where homicide is not an integral
part of an offense (Ross v. Cooper, 38 N.D. 173, 164 N. W. 679;
Winfrey v. State, 174Ark. 729,296 S.W.; Cited in McCormick,
Evidence, 831). Thus, the dying declaration exception was not
available in rape, abortion, kidnapping, burglary cases or any
civil case.
The Federal Rules, however, did not adhere to the com-
mon law limitation on homicide cases. If the declarant is un-
available as a witness, the statement made under a conscious-
ness of an impending death was admissible also in a civil case
where there is an issue concerning the cause or circumstances
of such death (FRE, 804b).
5. A similar rule, confining admissibility to criminal
cases, prevailed in our jurisdiction until the changes in our
Rules on Evidence in 1989 allowed the use of dying declara-
tions even in non-criminal cases. The former rule (Sec. 31,
Rule 130, Rules of Court) limited the admissibility of dying
declarations to a criminal case, thus:
"Sec. 31. Dying Declaration - The declaration of a
dying person, made under a consciousness of an impending
death, may be received in a criminal case wherein his
death is the subject of inquiry, as evidence of the cause
and circumstances of his death" (Italics supplied).
As presently worded, Sec. 37 ofRule 130 provides that the
declaration of a dying person, made under the consciousness
of an impending death, may be receiv:ed in any case wherein
his death is the subject of inquiry, as evidence of the cause and
surrounding circumstances of such death (See also Remedial
Law Compendium, Volume II, Regalado, 2008 Ed., p. 781).
In doing so, the Rules of Court. no longer places any
limitation on the type of action in which a dying declaration
 302 EVIDENCE
(The Bar Lectures Series)
may be introduced. As long as the relevance is clear, a dying
declaration may now be introduced in a criminal or a civil
action and the requirement of relevance is satisfied where the
subject of inquiry is the death of the declarant himself.
6. Any objection to a dying declaration may be pre-
mised on any of the requisites for its admissibility embodied
in Sec. 37 of Rule 130. Thus, counsel who wants a dying decla-
ration excluded must have to deal with the primary question
of whether or not the evidentiary foundations for the introduc-
tion of a dying declaration were met.
The basic objection to a dying declaration is expressed
in the words, "Objection, Your Honor. There is no foundation
for the declaration." Some would prefer, "Objection, no basis."
Others would say, "Objection, predicate not laid." Whatever
the lawyer's preference is, the message is the same: The
proponent has not established the essential elements of a
dying declaration; hence, the objection. The objecting counsel
must, however, specify the reason for the lack of a founda-
tion requirement. Thus, counsel would say, "Objection. No
foundation. Declarant was not under the consciousness of an
impending death."
7. When the prosecutor attempts to introduce a dying
declaration, the very first question that the defense should
ask is whether or not the declarant, at the time the statement
was made, knew or believed that he was going to die. When?
Not next week. Not next month. Not next year. But very soon
or now! This constitutes the objector's first line of defense. Sec.
37 of Rule 130 has an eye-catching name for this knowledge or
belief. It calls it, "consciousness of an impending death."
Under the rules, it is evident that a mere consciousness
of death is not enough because everyone of us, at one time
or another, has become conscious of death. The kind of death
which the declarant should be conscious of is a death that
is impending. The declarant must be conscious that death
is near and certain, that "death is near at hand, and what
is said must have been spoken in the hush of its impending
presence."
CHAPTER VI- HEARSAY EVIDENCE, OPINION EVIDENCE 303
AND CHARACTER EVIDENCE
B. Exceptions to the Hearsay Rule
To admit a dying declaration in evidence, it must be
shown that the declarant believed, at the time the statement
waa made, that he was in a dying condition and had given up
the hope of surviving (People v. Brioso, 37 SCRA 336; People
v. De Garcia, 18 SCRA 197).
8. A central question that is frequently asked is one
concerning the kind of facts which would lead to an inference
that the declarant was conscious of his impending death.
Do we arrive at this inference solely from the words of the
declarant himself? May it be established by other means?
Authorities are in agreement that, apart from the
statements of the declarant, consciousness of an impending
death may be established by other circumstances, such as the
nature of the injury and the conduct of the declarant. In any
event, it is conceded that the attendant circumstances should
be carefully weighed in determining the consciousness of the
impending death and the sincerity of such belief (29A Am
Jur 2d 219, 220). The declarant's belief that he is going to
die soon may be shown circumstantially by the obvious fatal
quality of the wound, by the statements made to the victim by
the physician that his condition is hopeless, or by some other
circumstances (People v. Silang Cruz, 53 Phil. 636; People v.
Chan Lin Watt, 50 Phil. 182).
A witness, for example, testifies:
"When I arrived at the scene, I saw the victim ly-
ing on his back in the sidewalk. He was lying in a pool
of his own blood. I rushed to pick him up. I told him that
I am calling an ambulance to take him to the hospital.
He asked me to call a priest. "I need ... Fr. Pio ... need ...
extreme unction," he said in heavily, labored breath-
ing. Then, with one last breath, he said, "Chito ... Chito ...
stabbed me!" He expired."
The example speaks clearly of the declarant's knowledge
of his impending death. The need for a priest to administer
the last rites of a particular religion allows us to infer that
 304 EVIDENCE
(The Bar Lectures Series)
the declarant believed his end is near. Thus, the declarant's
belief that death is impending may be deduced from all the
surrounding circumstances such as his physical condition,
conduct and statements, and it is not necessary for the
admission of a dying declaration to prove that the declarant
should state that he is giving up the hope of life. It is enough
if, from the circumstances, it can be inferred with certainty
that such must have been his state of mind (People v. Chan
Lin Watt, 50 Phil. 182).
9. The following hypothetical of a testimony by a doctor
responding to a 911 call by the victim himself may indicate a
consciousness that death is certain to come soon:
"I hurriedly went up the stairs. I kicked the door
open. I saw the victim in a dreadful condition. Blood was
all over his chest and stomach area. He was clutching
with his right hand what seemed at first to me were
his intestines. I looked closely and they were! Blood
was gushing too from his forehead, from his ears, from
his nostrils and from his mouth. He was losingblood as
quickly as a drum of water blasted by a grenade and a
dozen shotguns. What a horrible sight! Then, from his
bloody lips came the words as I knelt down to help him,
'Chito ... he shot... me... he shot me!' A few seconds after,
he died."
10. Now, let us assume that the declaration of the
deceased was made under the consciousness of an impending
death. Let us also assume that the witness died immediately
after uttering his last words and these words were: "I do
not know ... I do not know ... the one who stabbed me." The
declarant then expired. May these words be admitted to favor
the accused? Such words may be admitted. There is nothing in
the rules which prohibits the admission of a dying declaration
that is favorable to the accused.
Certainly, the interest of the State in convicting an
accused is as strong as its interest in acquitting a man falsely
and erroneously charged. The Supreme Court had long
I
CHAPTER VI- HEARSAY EVIDENCE, OPINION EVIDENCE 305
AND CHARACTER EVIDENCE
B. Exceptions to the Hearsay Rule
recognized the rule that dying declarations, which exculpate
or exonerate an accused, may be introduced by him and are
admissible in his favor.
The early case of U.S. v. Antipolo (37 Phil. 726) affirms
that dying declarations are admissible in favor of the accused
as well as against him (Citing Mattox v. U.S., 146 U.S. 140).
Thus, a dying declaration which avers that the firearm that
injured the declarant was not discharged on purpose but only
accidentally, is admissible to prove the innocence of the ac-
cused (U.S. v. Clemente, 22 Phil. 277). All facts relating to the
cause of death are admissible whether the same are in favor
of or against the accused (Regalado, Remedial Law Compen-
dium, Vol. II, 2004 Ed., p. 741).
Another case which illustrates this principle particularly
well is People v. Martinez (42 Phil. 85). In this case, two of
the suspects were presented to the declarant before the latter
expired. In the presence ofthejustice ofthe peace, the mortally
wounded man declared that they were not the perpetrators
and authors of his wound. When, however, the third suspect
was presented to him, he pointed to the accused and said:
"This is the man who wounded me." The declaration was held
admissible and considered in favor of the first two suspects.
It has been ruled that it would be unfair to restrict the
use of dying declarations by the prosecution. It is well-settled
that it will also be received on behalf of the defendant (Mattox
u. U.S., 146 U.S. 140, 151).
11. The requirement that a dying declaration must
relate to the cause and the circumstances surrounding the
declarant's death may be a source· for counsel's objection
to the a.dmission of the declaration. This requirement is
an essential part of the evidentiary foundation for a dying
declaration and where the statement sought to be introduced
by the prosecution is on a matter other than the cause of death
of the declarant, the required foundation for its admissibility
cannot be laid. An objection timely interposed will most likely
be sustained.
 306 EVIDENCE
(The Bar Lectures Series)
Suppose that a man collapses on your front door, blood
oozing from his back where a knife is prominently planted.
You rush to help him and you notice the poor, hapless guy is
your next-door neighbor, Candido. You have long wanted to
ask him whether or not he had something to do with the death
of Calixto, another neighbor, six months ago. As he lay dying
in your arms, you ask him the question and, in a weak voice,
he whispers: "It was not me ... it was Frank Santos." In a couple
of seconds, he dies. Is the decedent's statement admissible as
a dying declaration in a prosecution against Frank Santos for
the death of another neighbor? Of course, the answer should
be 'No.' It should be 'no' because the declaration was neither
about the cause nor the circumstances of the declarant's
death. It is not admissible because the subject of the inquiry
is the death of someone else.
12. Let us take a similar, but slightly different, example
using the same characters. Let us say that before expiring,
Candido declares: "Joaquin stabbed me ... !" Haltingly and
between gasps, he states he and Joaquin had been robbing
tourists in the area for the past twelve months, that a couple
of hours ago they robbed a tourist of his money worth $5,000,
that there was an argument between them while dividing the
loot, and that, as a consequence, Joaquin stabbed him in the
back. Despite his weakened state, he also states that he and
Joaquin were also responsible for robbing the convenience
store at the street corner the day before.
Would the other declarations aside from "Joaquin
stabbed me ... !" be admissible as a dying declaration? While the
declaration that he was stabbed because of an argument while
dividing the loot may be argued to be part of the circumstances
surrounding the declarant's death, other portions of the
declaration, like the admission that he and Joaquin had been
robbing tourists in the past and that they recently robbed
a convenience store, do not come within the purview of the
exception. They are distinct matters not related to the killing
of the declarant.
CHAPTER VI - HEARSAY EVIDENCE, OPINION EVIDENCE 307
AND CHARACTER EVIDENCE
B. Exceptions to the Hearsay Rule
Elements of a dying declaration (Bar 1985; 1991)
1. The Court in People v. Gatarin, G.R. No. 198022,
April 7, 2014), accurately enumerates the elements of a dying
declaration, thus:
"A dying declaration, although generally inadmis-
sible as evidence due to its hearsay character, may, none-
theless, be admitted when the following requisites con-
cur, namely:
(a) the declaration concerns the cause and the
surrounding circumstances of the declarants' death;
(b) it is made when death appears to be imminent
and the declarant is under a consciousness of an impend-
ing death;
(c) the declarant would have been competent to
testify had he or she survived; and
(d) the dying declaration is offered in a case in
which the subject of inquiry involves the declarant's
death."
2. In a prosecution for murder, the records show that
the deceased communicated his ante-mortem statement
to another, identifying the accused as the person who had
stabbed him. At the time of his statement, the deceased
was conscious of his impending death, having sustained a
stab wound in the chest and experiencing great difficulty in
breathing. The deceased succumbed in the hospital emergency
room a few minutes from admission, which occurred under
three hours after the stabbing. The Court held that there is
ample authority for the view that the declarant's belief in
the imminence of his death can be shown by the declarant's
own statements or from circumstantial evidence, such as the
nature of his wounds, statements made in his presence, or by
the opinion of his physician. Besides, the deceased would have
been competent to testify on the subject of the declaration
had he survived (People v. Salafranca, 666 SCRA 501, 512,
February 22, 2012).
 308 EVIDENCE
(The Bar Lectures Series)
If the deceased made declarations before his demise, "It
is the belief in impending death and not the rapid succession
of death in point of fact that renders a dying declaration
admissible. The test is whether the declarant has abandoned
all hopes of survival and looked on death as certainly" (People
v. Gatarin, G.R. No. 198022, April 7, 2014).
However, even if the utterances of the victim could
not be appreciated as a dying declaration, his statements
may still be appreciated as part of the res gestae (People v.
Gatarin, G.R. No. 198022, April 7, 2014), which refers to
spontaneous statements made immediately prior to, while a
startling occurrence is taking place or immediately after such
occurrence. Since the statements are contemporaneous with
the startling event, deliberation and fabrication are ruled out
and, thus, deemed reliable.
Assailing a dying declaration
1. Although jurisprudentially considered as evidence
of the highest order, it is submitted that the admissibility of
a dying declaration, like any admissible evidence, does not
create a conclusive presumption of credibility of the admitted
declaration. No evidentiary rule grants a dying declaration
a favored status in the hierarchy of evidence. Like any other
evidence, the declaration may be attacked in the same manner
as one would do to a testimony in open court. The declarant
himself may be impeached through the normal methods
provided for under the rules. For instance, the objector may
show that prior to the admitted declaration, the declarant had
previously made a statement inconsistent with his supposedly
'dying declaration.'
When the declarant, for example, stated that he was
attacked while he was lying on the bed but, on another
occasion, declared that he was attacked while lying on the
bench, a disturbing conflict exists between the two statements
specially when the alleged dying declarations are not in
accordance with the actual physical facts (People v. Bingaan,
48 Phil. 926).
CHAPTER VI - HEARSAY EVIDENCE, OPINION EVIDENCE 309
AND CHARACTER EVIDENCE
B. Exceptions to the Hearsay Rule
The objecting counsel may also demonstrate that the
declarant has no personal knowledge of the identity of the
assailant. Hence, a declarant's statement that another person
told him who hacked him in the back with a bolo would not
qualify for the dying declaration exception. It would not
qualify because the statement is plain and simple hearsay.
It may also be pointed out that the declarant would not
have been a competent witness even if he had survived. This
competence is vital to the admissibility of a dying declaration.
Competence is affected where the declarant had no opportu-
nity to see the assailant. The declaration must identify the
assailant; otherwise, it loses its significance (People v. Ador,
432 SCRA 1; Geraldo v. People, 571 SCRA 420).
2. The ways by which the credibility of the declaration
and the declarant may be assailed are as varied as the
particular circumstances of the case. Knowing them is largely
a matter of logic and not necessarily of law.
Counsel may, for example, demonstrate that the decla-
rant, at the time of his declaration, was in an irrational state
because he was under the influence oflarge doses of sedatives
administered in the hospital. While there are judges who are
influenced by the theory that when a person is at the point of
death, one is induced to speak the truth, these same judges
may be swayed by evidence to the contrary. So where the
objector succeeds in showing that there are incontrovertible
facts that tend to prove that the declarant could not have been
influenced by the desire to tell the truth, such as when his
words show that his motive was vengeance or revenge, the
declaration loses weight.
Courts have to apply to dying declarations the same rules
applied in testing the credibility of testimony of a witness in
court. No law allows them to use a different criterion. One
may even question the competency of the declarant himself
who, like any other witness, may also be impeached. If the
declarant is incompetent under the rules if he were to appear
in court and in person, he would also be incompetent as a dying
declarant. Thus, if a court would adjudge him incompetent
 310 EVIDENCE
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because of his insanity if he were alive, there is no reason
to consider him sane as a dying declarant. It is a matter of
common sense to know that one who is insane does not become
sane because of an utterance made under consciousness of
an impending death. A dying declaration, as an exception to
the hearsay rule, is not meant to confer competency on an
otherwise incompetent witness. Thus, where the declarant
is publicly known to be untruthful in his words and conduct,
the· credibility of his declaration at the point of death may
adversely be affected and he does not, by a sudden twist of
circumstance, become immaculate because of his having made
a dying declaration.
The credibility or trustworthiness of those who have al-
legedly heard or taken down the dying declaration and the
form and manner by which the declaration was taken are vital
points to be considered by an objector who desires to water
down the effects of a dying declaration. Where it is shown that
the persons from the prosecution were the ones who squeezed
out the dying declaration from the lips of a weakened de-
clarant through questions calculated to bring out a desired
response, a conscientious counsel may bring this matter up
in court.
Parts of the res gestae (Bar 2007)
1. The term res gestae is an old word which literally
means, things done, and was originally used by the courts in
the other side of the world in the early 1800's to create hearsay
exceptions whenever it was difficult to justify the admission of
a piece of hearsay evidence at a time when the hearsay theory
was far from being a developed concept in the law of evidence.
2. The term res gestae has been defined as "those cir-
cumstances which are the undesigned incidents of a particu-
lar litigated act and which are admissible when illustrative
of such act. In a general way, res gestae refers to the circum-
stances, facts, and declarations that grow out of the main fact
and serve to illustrate its character and are so spontaneous
and contemporaneous with the main fact as to exclude the
idea of deliberation and fabrication. The rule on res gestae en-
CHAPTER VI - HEARSAY EVIDENCE, OPINION EVIDENCE 311
AND CHARACTER EVIDENCE
B. Exceptions to the Hearsay Rule
compasses the exclamations and statements made by either
the participants, victims, or spectators to a crime immediate-
ly before, during, or immediately after the commission of the
crime when the circumstances are such that the statements
were made as a spontaneous reaction or utterance inspired by
the excitement of the occasion and there was no opportunity
for the declarant to deliberate and fabricate a false statement.
The test of admissibility of evidence as a part of the res gestae
is, therefore, whether the act, declaration, exclamation is so
intimately interwoven or connected with the principal fact or
event that it characterizes as to be regarded as a part of the
transaction itself, and also whether it clearly negatives any
premeditation or purpose to manufacture testimony" (People
v. Villarico, Sr., 647 SCRA 43, 58, April 4, 2011; People v.
Salafranca, 666 SCRA 501, 514, February 22, 2012; People v.
Lupac, G.R. No. 182230, September 19, 2012; Citations of the
Court omitted; People u. Gatarin, G.R. No. 198022, April 7,
2014).
3. Suppose, a guy casually strolling in a park was
suddenly clubbed by a man from behind. The hapless guy's
head was split open by the blow. He died almost instantly. He
didn't have the chance to speak. An elderly lady, the witness
to the event, let out a high-pitched shriek and while pointing
at a man in a white shirt, screamed, "He did it ... he did it ...
he hit himl" Let us assume that the elderly lady is nowhere to
be found but someone heard her utter those words, her state-
ment may, nevertheless, be admissible under the res gestae
doctrine as a description of the event itself speaking through
the words of the lady.
4. The concept of res gestae is still recognized in the
laws on evidence of many states but the term itself is no
longer used in many jurisdictions (29A Am Jur 29 278, 279).
The use of the term has fallen out of favor and acts, formerly
called parts of the res gestae, are now designated by specific
names. The Federal Rules of Evidence, for instance, makes
no reference to res gestae but recognizes as exceptions to the
hearsay rule in Rule 803 thereof, certain evidentiary rules like
'excited utterances,' 'present sense impression,' 'statements
312 EVIDENCE
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of then existing· mental or emotional physical condition,'
and 'statements made for purposes of medical diagnosis
or treatment.' The Evidence Code of the State of California
makes no mention either of the term and uses, instead,
phrases like 'spontaneous statements' and 'contemporaneous
statements' (Sees. 1240-1241). All these are concepts derived
from the original res gestae doctrine. These concepts now have
their own designated names and are recognized as distinct
exceptions with identities of their own.
Res gestae under the Rules of Court
1. The res gestae doctrine in our jurisdiction is em-
bodied in Sec. 42, Rule 130 of the Rules of Court:
"SEC. 42. Part of the res gestae. - Statements
made by a person while a startling occurrence is taking
place or immediately prior or subsequent thereto with
respect to the circumstances thereof, may be given in
evidence as part of the res gestae. So, also, statements
accompanying an equivocal act material to the issue,
and giving it a legal significance, may be received as
part of the res gestae."
2. It can be observed that the use of res gestae in
the Philippines is limited to two matters: (1) spontaneous
statements and (2) verbal acts. While the term remains in
the rules, its application is restrictive and no other statement,
act or evidence may qualify as part of the res gestae.
It has been held that in spontaneous exclamations or
statements, the res gestae is the startling occurrence, whereas
in verbal acts, the res gestae are the statements accompanying
the equivocal act (Talidano u. Falcom Maritime & Allied
Services, Inc., 558 SCRA 279).
A. Spontaneous statements
1. Spontaneous statements (spontaneous exclamations
or excited utterances), to be admitted in evidence, must have
the following characteristics:
CHAPTER VI - HEAR.SAY EVIDENCE, OPINION EVIDENCE 313
AND CHARACTER EVIDENCE
B. Exceptions to the Hearsay Rule
(a) There is a startling event or occurrence taking
place;
(b) A statement was made while the event is taking
place, or immediately prior to, or subsequent thereto;
(c) The statement was made before the declarant
had the time to contrive or devise a falsehood (Talidano
v. Falcom Maritime & Allied Services, Inc., ibid.); and
(d) The statement relates to the circumstances
of the startling event or occurrence (Sec. 42, Rule 130,
Rules of Court), or that the statements must concern
the occurrence in question and its immediate attending
circumstances (Talidano v. Falcom Maritime & Allied
Services, Inc., supra; People v. Salafranca, 666 SCRA
501, 513, February 22, 2012; People v. Lupac, G.R.
No. 182230, September 19, 2012; citations of the Court
omitted).
When all these conditions are met, we have a sponta-
neous statement constituting an exception to the rule barring
hearsay statements. Even if the declarant is unavailable and,
thus, cannot be cross-examined, the evidence may be received
in evidence.
The requisites were met in one case where the victim
went to her aunt's house immediately after escaping from
the crime scene and spontaneously, unhesitatingly and
immediately declared to her that the accused had sexually
abused her. Such manner of denunciation of him as her rapist
was confirmed by the aunt's testimony about the victim's
panic-stricken demeanor and her use of words sufficiently
indicating her being raped (People v. Lupac, G.R. No. 182230,
September 19, 2012; Citations of the Court omitted).
In another case, the requisites for admissibility of a
declaration as part of the res gestae were said to be met. When
the deceased gave the identity of his assailant to another, he
was referring to a startling occurrence, i.e., his stabbing by
the accused. The victim was then on board the taxicab that
would bring him to the hospital and, thus, had no time to
 314 EVIDENCE
(The Bar Lectures Series)
contrive his identification of the accused as the assailant. His
utterance about the accused having stabbed him was made in
spontaneity and only in reaction to the startling occurrence.
The statement was relevant because it identified the accused
as the perpetrator (People v. Salafranca, 666 SCRA 501, 513,
February 22, 2012).
Basis of admissibility
1. The admissibility of a spontaneous statement is
anchored on the theory that the statement was uttered under
circumstances where the opportunity to fabricate is absent.
The statement is a reflex action rather than a deliberate act,
instinctive rather than deliberate. Thus, the declaration was
made under conditions suggestive of the truth. Accordingly,
the basis for the excited utterance exception to the hearsay
rule is that the perceived event produces nervous excitement,
making fabrications about that event unlikely (Morgan v.
Foretich, Ca 4 Va, 846 F2d 941, cited in 29 Am Jur 29 865).
2. The justification for the excited utterance exception
is that a spontaneous declaration of an individual who has
recently suffered an overpowering and shocking experience
is likely to be truthful (Commonwealth v. Blackwell, 343 Pa
Super 201).
The earlier example of the elderly lady who screamed
while pointing at the man who clubbed the guy in the park
from behind, illustrates a spontaneous statement clearly
well. First, the clubbing of the guy from behind by the culprit
would obviously qualify as a startling event or occurrence.
Second, a statement was made immediately before, during or
immediately subsequent to the startling event or occurrence.
In fact, the lady made a screaming statement at the time
the guy was being clubbed. Third, the statement made must
refer to the circumstances of the event. The lady's cry, as she
pointed to the culprit, fits this element squarely.
3. In the "spontaneous statement" part of the res
gestae, common reason suggests that the statement and
the event cannot be taken separately. The statement alone,
CHAPTER VI- HEARSAY EVIDENCE, OPINION EVIDENCE 315
AND CHARACTER EVIDENCE
B. Exceptions to the Hearsay Rule
without the event, will not qualify for admission because the
circumstances surrounding the making of the statement make
said statement admissible. The res gestae is the startling event
or occurrence and the statement is a part of that res gestae.
The circumstances stamp on the statement a character of
reliability on the theory that it is almost impossible to lie in an
excited state. It has, thus, been said that the spontaneity of the
utterance is the guaranty of its trustworthiness. The principle
rests upon common experience that utterances made under
such circumstances are devoid of self-interest and are in the
same category as exclamations. The probability offalsehood is
too remote as to be negligible (People v. Ricaplaza, 23 SCRA
374; People v. Ner, 28 SCRA 1151; People v. Gondayao, 30
SCRA226).
Objections to admissibility
1. A counsel, who intends to object to the presentation
of a spontaneous statement as evidence, needs to analyze
the evidence sought to be admitted by strictly weighing
it according to the standards set by Sec. 42 of Rule 130.
Remember that the proponent of the evidence must sustain
the burden of proving the preliminary facts that would support
the foundational elements for the admissibility of the alleged
spontaneous statement. It is the duty of counsel to subject
each foundational element to a very rigid scrutiny.
For instance, one initial point which counsel needs to
consider is whether or not the event or occurrence is indeed
a startling one. This is because the res gestae is the startling
event of which the spontaneous statement is only a part of.
Since the declarant is supposed to have made a statement
under the influence of the occurrence, the event must be of
such a nature as to cause an excited ;_reaction in an average
individual. If the event in itself is not sufficient to disturb the
emotional and mental equilibrium of the average, reasonable
person, then raise this issue with the court as soon as it
becomes apparent that the event is not as startling as that
required by the rules.
 316 EVIDENCE
(The Bar Lectures Series)
But, suppose the court rules that the event can qualify
as startling? Simple. Back off and proceed to the next element
of the foundation. If the excited utterance was made imme-
diately before or while the startling event was taking place,
you may have a tough time in your hands. It is likely that the
statement will be ruled as admissible.
2. There are times though that a declaration is not
made simultaneously with the event but made sometime
after. This is a break for opposing counsel who must zero in
on the time interval between the event and the making of the
statement. We have to concede that there has been no clear
standard formulated so far as to when a statement made after
the event is one made under the influence of that event. There
is no mathematical formula for this. Everything hinges on
the unique and particular circumstances of each case. Hence;
the determination as to the spontaneity of the utterance is
a matter of judicial discretion. It is, however, this matter of
judicial discretion which presents a window of opportunity to
an analytical, opposing counsel. For example, he may argue
and show that the facts disclose that the statement was made
without the declarant exhibiting any sign of excitement or
spontaneity, that the statement was made in a cool, relaxed
manner coupled with a calm facial expression. If so, then the
guarantee of the statement's reliability is lost. The statement
may no longer be admissible.
3. What if the court, however, rules the statement to
have been made while under the influence of the startling
event? What if, after the occurrence, the evidence shows the
declarant to be obviously still in a state of excitement and
perhaps, shock? When this happens, the fight would no longer
be on the ground of admissibility of the declaration. The
battle though has not yet been lost. The battleground has just
shifted. To where? Answer: The matter of credibility! The court
of course knows, as everyone does, that one does not have to
be a psychiatrist or a psychologist to know that perceptions,
observations and statements are clouded by strong emotions.
Argue that there is a reason to distrust a_ statement made
under emotional stress. There may have been no desire to lie on
CHAPTER VI - HEARSAY EVIDENCE, OPINION EVIDENCE 317
AND CHARACTER EVIDENCE
B. Exceptions to the Hearsay Rule
the declarant's part but does the statement accurately reflect
what truly and actually happened? What if the excitement
of the declarant impaired his power of observation? Let the
judge rule. Let him weigh the merits of your opposition but do
not surrender an inch of ground without a fight!
4. New, let us go back to the issue of admissibility
of the statement. So the court ruled there was a startling
occurrence or event, let us say, a car collision. It also declared
that the statement was made simultaneously with the event
and such statement was made spontaneously. The declarant
made the statement at that precise moment when the accident
happened. She was very excited and evidently under the spell
of the event. What then? Is the statement now admissible
as an exception to the hearsay rule? Not yet. But why?
The statement is not yet admissible because we still do not
know the tenor and the content of the statement! Not every
statement made under the influence of the startling event
is admissible even if it be spontaneous. This is the rule. It
is a rule that cannot be overlooked by any objecting counsel.
The only spontaneous statement made under stress of excite-
ment of the startling event that qualifies for admissibility is
one that relates to the circumstances of the event. In short-
cut lingo, the statement must describe the event perceived.
Suppose the declarant was said to have uttered when the
collision occurred: "My Lord, that one looks like my son's car!"
The statement is not a description of the event. If it is not,
it does not qualify as part of the res gestae. If it does not, it
is not admissible as exception to the hearsay rule. Sec. 42 of
Rule 130 requires that the statement be with respect to the
circumstances of the startling occurrence. (Bar 2005)
5. A declaration by a deceased person concerning the
circumstances of his death may not be considered a dying
declaration if it cannot be established that he uttered his
statement while conscious of his impending death but the
utterance of the victim made immediately after sustaining
injuries may be considered the 'incident' speaking through the
victim. While it may not qualify as a dying declaration, it may,
nonetheless, be admitted in evidence as part of the res gestae.
318 EVIDENCE
(The Bar Lectures Series)
A declaration made spontaneously after a startling occurrence
is deemed as part of the res gestae when: (1) the principal act,
the res gestae, is a startling occurrence; (2) the statements
were made before the declarant had time to contrive or devise
a falsehood; and (3) the statements concern the occurrence in
question and its immediately attending circumstances (See
People v. Peiia, 376 SCRA 639).
6. If there is no showing in the records that the victim
was under a consciousness of an impending death at the time
of his declaration that the accused was the one who shot him,
the same is not admissible as a dying declaration but, because
it was made shortly after a startling occurrence and under the
influence thereof, it is, nonetheless, admissible as part of the
res gestae (People v. Espina, 361 SCRA 701).
B. Verbal acts (Bar 2011)
1. The last sentence of Sec. 42 of Rule 130 defines a
verbal act as "statements accompanying an equivocal act ma-
terial to the issue, and giving it a legal significance." A verbal
act presupposes a conduct that is equivocal or ambiguous, one
which, in itself, does not signify anything when taken sepa-
rately. It only acquires a meaning, specifically what the rules
call a legal significance, only because of the statements that
accompany the act. It is the statement contemporaneous with
the act that identifies or indicates the character, purpose or
motive of the act.
To be admissible under this category, the following
requisites must be present:
(a) the principal act to be characterized must be
equivocal;
(b) the equivocal act must be material to the issue;
(c) the statement must accompany the equivocal
act; and
(d) the statement gives a legal significance to the
equivocal act (Talidano v. Falcom Maritime & Allied
Services, Inc., 558 SCRA 279).
CHAPTER VI- HEARSAY EVIDENCE, OPINION EVIDENCE 319
AND CHARACTER EVIDENCE
B. Exceptions to the Hearsay Rule
Suppose that a witness testifies on the stand for the
plaintiff in a collection case where defendant denies having
borrowed PlO,OOO from the plaintiff. The debt is not evidenced
by a promissory note because plaintiff claims that defendant
had orally borrowed money from him in the past and had
always paid. This time, he refuses to pay. The witness
testifies that one year ago, he saw the plaintiff give money
to the defendant. There is no hearsay problem at this point
because the witness is testifying to what he actually saw. He
has a personal knowledge of the transaction, i.e., the act of
the plaintiff handing money to the defendant. The act of the
plaintiff, however, taken in itself, has no legal significance
because it is an equivocal act. It is ambiguous. Is the money
intended as a bribe? Is it a payment for a debt? Is it a gift? Or
is it a loan extended by the plaintiff to the defendant? We do
not know. We still do not know what to make of that money
delivered by the plaintiff to the defendant so the attorney asks
the witness:
Illustration:
Q: Mr. Witness, did you testify that you saw the
plaintiff give money to the defendant?
A: I did, Sir.
Q: What, if any, did anybody say at the time the
money was handed over by the plaintiff to the
defendant?
As the plaintiff handed the money, he said to the
defendant: "This is the PlO,OOO you told me you
were borrowing from me."
Q: What did the defendant say, if any?
A: The defendant said, "Thank you. I'll pay you
after a year."
Forget what the defendant said. Focus on what the plaintiff
said instead. What he said is an out-of-court statement. There
is no doubt about that. The statement is offered to explain
320 EVIDENCE
(The Bar Lectures Series)
the conduct of the plaintiff. With his statement, the act of
the. plaintiff acquires a legal significance .. The money is not
intended as a bribe, a gift or a payment of a debt. It is a loan
by the plaintiff to the defendant.
Now, focus this time on the statement of the defendant.
The act of receiving money in itself has no definite meaning or
significance. When, however, the defendant answered: "Thank
you.· I'll pay you after a year," the act of receiving the money
now acquires a legal significance. A contract of loan has just
been perfected. It is now evident, therefore, that the defendant
is the debtor of the plaintifffor PlO,OOO. He is a debtor because
this is what the acts of the plaintiff and defendant point to,
as explained by the utterances contemporaneous to such acts.
Now, the witness is testifying to that out-of-court statement
and it is offered to prove the truth of that statement, that the
money handed over is a loan to the defendant. It is hearsay,
but it is an admissible hearsay as part of the res gestae.
2. Objections to the admissibility of verbal acts depend
upon whether or not the proponent has established the
foundations for admissibility. The objector has to consider the
following questions:
(a) Is there an act that is equivocal or ambiguous?
If the act is clear, it needs no explanation and so there is
no res gestae to speak of. The act of swinging a baseball
bat at the victim in a physical injuries case is not
equivocal and need not be explained by any statement to
understand the nature of the act. The bat was swung to
cause injuries to the victim.
(b) Will the statement accompanying the ambi-
guous or equivocal act explain the act or give legal
significance to it? If it will not, then the statement is
not admissible. Thus, the statement, "I will hit you with
this" as he swung the bat at the victim, does not explain
the act in the physical injuries case. Because of the
nature of the case, the accompanying words will not add
a new meaning to it. However, where the indictment is
attempted homicide where intent to kill is an element,
CHAPTER VI- HEARSAY EVIDENCE, OPINION EVIDENCE 321
AND CHARACTER EVIDENCE
B. Exceptions to the Hearsay Rule
the swinging of the bat may be ambiguous as to whether
or not it was swung with or without the intent to kill. The
utterance accompanying the act may explain the nature
of the act. Thus, if the accused, while swinging at the
victim, said ''Adios Amigo! See you in hell," the statement
may help explain the purpose ofthe act of the accused.
(c) Is the equivocal act material to the issue? Mate-
riality is necessary for relevance. As earlier mentioned in
a previous chapter, it is matter of logic and is absolutely
necessary for the admissibility of evidence and the refer-
ence to it in the rules is a redundancy.
(d) Does the statement accompany the equivocal
act? The requirement that the statement accompany
the act is explicit in Sec. 42 of Rule 130. This element
is one distinction between a spontaneous statement and
a verbal act. A spontaneous statement may be prior to,
simultaneous with, or subsequent to the startling event
or occurrence. This is not so in a verbal act. The statement
in the latter must 'accompany' the equivocal act which
evidently means that it must be contemporaneous with
the act.
Entries in the course of business (Business Records Rule)
1. This hearsay exception states:
"SEC. 43. Entries in the course of business. -
Entries made at, or near the time of the transactions to
which they refer, by a person deceased, or unable to
testify, who was in a position to know the facts therein
stated, may be received as prima facie evidence, if such
person made the entries in his professional capacity or
in the performance of duty and in the ordinary or regular
course of business or duty."
2. The exception is commonly encountered in breach of
contract suits and suits for collection of a sum of money.
The plaintiff, let us say, is Technics Corporation. The
complaint alleges that it delivered 100 television sets to MS
322 EVIDENCE
(The Bar Lectures Series)
Tronics Store, the defendant, and that the latter failed to pay
for the sets delivered. Assume that the defendant filed an
answer denying the plaintiffs allegations. The plaintiff now
wants to introduce a delivery receipt signed by the manager
of the defendant acknowledging the receipt of the sets de-
livered. The plaintiff also wants to introduce the company's
accounting records prepared by a clerk who personally knows
of the fact of delivery. The witnesses are the delivery man and
the clerk, all employees of the plaintiff. The witnesses would
be testifying on the basis of their first-hand knowledge of the
events that transpired. Since their perception and memory of
the events may be tested by cross-examination, our fact situ-
ation would not require an exception to the hearsay rule. But
if the delivery man and the clerk are now dead and all that
the plaintiff has are the delivery receipt and the accounting
records showing defendant's debt, the problem starts. This
exception allows the presentation of the delivery receipt and
accounting records even if the delivery man and the clerk are
no longer available to testify.
3. In our version of the exception, the necessity for the
admissibility of such evidence arises from the absence of the
person who has personal knowledge of the facts. He is absent
because he is dead, outside of the jurisdiction of the court or
otherwise, unable to testify.
4. Before entries in the course of business could
be excepted from the hearsay rule, the concurrence of the
following requisites must be shown:
(a) The person who made the entry must be dead or
unable to testify;
(b) The entries were made at or near the time of
the transactions to which they refer; ·
(c) The entrant was in a position to know the facts
stated in the entries;
(d) The entries were made in his professional
capacity or in the performance of a duty, whether legal,
contractual, moral, or religious; and
CHAPTER VI- HEARSAY EVIDENCE, OPINION EVIDENCE 323
AND CHARACTER EVIDENCE
B. Exceptions to the Hearsay Rule
(e) The entries were made in the ordinary or
regular course of business or duty (Patula v. People, 669
SCRA 135, 171, Aprilll, 2012).
5. It has been held that entries in the payroll, being
entries in the ordinary course of business, enjoy the presump-
tion of regularity under Sec. 43 of Rule 130 of the Rules of
Court (Sapia v. Undaloc Construction, 554 SCRA 148).
6. The Rules on Electronic Evidence expressly exempt
business records from the application of the hearsay rule
provided the mechanics of record-keeping of such records are
shown by the testimony of the custodian or other qualified
witnesses. The reliability of business records is, therefore,
presumed (See Sec. 1, Rule 8, Rules on Electronic Evidence).
The presumption, however, may be overcome by evidence
of the untrustworthiness of the source of information or the
method or circumstances of the preparation, transmission or
storage thereof (Sec. 2, Rule 8, Rules on Electronic Evidence).
Declarations against interest
1. The rule on declaration against interest provides:
"SEC. 38. Declaration against interest. - The
declaration made by a person deceased or unable
to testify, against the interest of the declarant, if the
fact asserted in the declaration was at the time it was
made so far contrary to declarant's own interest, that
a reasonable man in his position would not have made
the declaration unless he believed it to be true, may be
received in evidence against himself or his successors
in interest and against third persons."
2. This is a well-established exception which finds con-
firmation in human nature and expe:rJence. People normally
speak freely and even with untruth when the statement is
in their interest, but are usually unwilling to speak falsely
against their interest.
Wigmore considers a declaration against interest as
also founded on necessity on account of the impossibility of
 324 EVIDENCE
(The Bar Lectures Series)
obtaining other evidence from the same source, the declarant
being unavailable in person to testify on the stand on account
of death, absence from the jurisdiction or serious illness (5
Wigmore on Evidence, Sec. 1456).
3. This exception refers to a declaration made by a per-
son who, at the time his declaration is presented in evidence,
is already dead or unable to testify. This declaration must be
one which, when made, was known to the declarant himself to
be against his interest, pecuniary or moral, and which would
not have been made unless he believed it to be true. It is clear
from the rule that it is not enough that a declaration against
interest was made. It is necessary that the declarant knew
that the statement was against his interest and which he
would not have made had it not been true.
4. A statement by the debtor before he died that he owes
the creditor a sum of money, or an oral acknowledgment by
the principal that he received the money previously entrusted
to his agent, are clear declarations against the interest of the
person making the statement.
5. This exception will not apply where the declarant
is available as a witness. The declarant must be dead or is
unable to testify. Death is easy to explain. But what kind
of unavailability, aside from death, is a sufficient reason to
justify the application of the exception? Being outside the
territorial jurisdiction of the country may be a good reason for
unavailability if his exact whereabouts abroad are unknown.
If known, his deposition may be taken and the exception will
not apply. Serious physical or mental impairments may be
grounds for considering a person "unavailable."
6. The declaration contemplated under Sec. 38 of Rule
130 is a declaration against interest. If the declaration is
favorable to the interest of the declarant, it is a mere self-
serving statement and does not fall as an exception to the
hearsay rule.
7. As a rule, the interest against which the declaration
may have been made should be either a pecuniary or moral
CHAPTER VI - HEARSAY EVIDENCE, OPINION EVIDENCE 325
AND CHARACTER EVIDENCE
B. Exceptions to the Hearsay Rule
interest but, in our jurisdiction, the declaration could possibly
be against one's penal interest because if one admits to a
crime, he is also civilly liable, a liability that is pecuniary (See
for further readings, People v. Toledo, 51 Phil. 826).
8. Note that the declaration against interest made by
the deceased, or by one unable to testify, is admissible even
against the declarant's successors-in-interest or even against
third persons (Sec. 38, Rule 130, Rules of Court).
Declaration about pedigree
1. The exception as provided in Sec. 39 of Rule 130
states:
"SEC. 39. Act or declaration about pedigree. -
The act or declaration of a person deceased, or unable
to testify, in respect to the pedigree of another person
related to him by birth or marriage, may be received
in evidence where it occurred before the controversy,
and the relationship between the two persons is
shown by evidence other than such act or declaration.
The word "pedigree" includes relationship, family
genealogy, birth, marriage, death, the dates when and
the places where these facts occurred, and the names
of the relatives. It embraces also facts of family history
intimately connected with pedigree."
2. To be admissible as an exception to the hearsay rule,
it must be shown that:
(a) The declarant is dead, or unable to testify;
(b) The declarant is related by birth or marriage to
the person whose pedigree is in issue;
(c) The declaration was made before the controver-
sy; and
(d) The relationship between the two persons is
shown by evidence other than such act or declaration
(Sec. 39, Rule 130, Rules of Court).
 326 EVIDENCE
(The Bar Lectures Series)
3. The declaration of Jose, already dead, prior to his
death and prior to any controversy, that Juan is his illegiti-
mate son, is a declaration about pedigree. Similarly, a state-
ment from a mother while living, that her daughters, Maria
and Petra, were sired by the same father is admissible.
4. Be it noted that the declaration about pedigree may
be received in evidence if the relationship is shown by evi-
dence other than the declaration (Sec. 39, Rule 130, Rules of
Court).
5. The word "pedigree" includes relationship, family
genealogy, birth, marriage, death, the dates when and the
places where these facts occurred, and the names of the
relatives. It also embraces facts of family history intimately
connected with pedigree (Sec. 39, Rule 130, Rules of Court).
Family reputation or tradition regarding pedigree
1. The exception provides:
"SEC. 40. Family reputation or tradition regarding
pedigree. - The reputation or tradition existing in a
family previous to the controversy, in respect to the
pedigree of any one of its members, may be received
in evidence if the witness testifying thereon be also a
member of the family, either by consanguinity or affinity.
Entries in family bibles or other family books or charts,
engraving on rings, family portraits and the like, may be
received as evidence of pedigree."
2. This exception involves: (a) a statement by a mem-
ber of the family either by consanguinity or affinity; (b) the
statement is about the reputation or tradition of the family
in respect to the pedigree of any member of the family; and
(c) the reputation or tradition is one existing previous to the
controversy (Sec. 40, Rule 130, Rules of Court).
3. Entries in family bibles or other family books or
charts, engravings on rings, family portraits and the like, may
be received as evidence of pedigree aside from family tradition
or reputation (Sec. 40, Rule 130, Rules of Court).
CHAPTER VI - HEARSAY EVIDENCE, OPINION EVIDENCE 327
AND CHARACTER EVIDENCE
B. Exceptions to the Hearsay Rule
Common reputation
1. The exception, as quoted, declares:
"SEC. 41. Common reputation.- Common repu-
tation existing previous to the controversy, respecting
facts of public or general interest more than thirty years
old, or respecting marriage or moral character, may
be given in evidence. Monuments and inscriptions in
public places may be received as evidence of common
reputation."
2. Common reputation is admissible in evidence where
the reputation refers to a matter of public or general interest,
or respecting marriage or moral character and said matter
is more than thirty (30) years old. The common reputation
must likewise be one existing prior to the controversy. This
common reputation may, on the other hand, be established
by monuments and inscriptions (Sec. 41, Rule 130, Rules of
Court).
3. Common reputation is hearsay, like any other
exception to the hearsay rule, but is admissible because of
trustworthiness (Reg. v. Bedforshire, 4 E. & B. 535, 82 E.C.L.
535, 542).
4. While common reputation in the community may
establish a matter of public or general interest, marriage
or moral character, it cannot establish pedigree. This is
established by reputation in the family and not in the
community (See Sees. 40 and 41, Rule 130, Rules of Court).
Entries in official records
1. The exception, as stated, follows:
"SEC. 44. Entries in official records. - Entries in
official records made in the performance of his duty by
a public officer of the Philippines, or by a person in the
performance of a duty specially enjoined by law, are
prima facie evidence of the facts therein stated."
 328 EVIDENCE
(The Bar Lectures Series)
2. The requisites for the admissibility iii evidence of
entries in official records, as an exception to the hearsay rule,
are:
(a) The entry was made by a public officer or by
another person specially enjoined by law to do so;
(b) It was made by the public officer, or by such
other person in the performance of a duty specially
enjoined by law; and
(c) The public officer or other person had sufficient
knowledge of the facts by him or her stated, which must
have been acquired by the public officer or other person
personally or through official information (Alvarez v. PI-
COP Resources, 606 SCRA 444, as cited in Malayan In-
surance Co., Inc. v. Alberto, 664 SCRA 791, 799, February
1, 2012; Sabili v. Commission on Elections, 670 SCRA
664, 670, April24, 2012).
3. In a case, petitioner denies receiving the assessment
notice sent by respondent BIR. The respondent presented the
BIR record book where the name of the taxpayer, the kind
of tax assessed, the registry receipt number and the date of
mailing were noted. The BIR records custodian also testified
that she made the entries therein. Respondent offered the
entry in the BIR record book and the testimony of its record
custodian as entries in official records in accordance with Sec.
44, Rule 130 of the Rules of Court.
In this case, it was not stated in the transcript of
stenographic notes how and from whom the witness obtained
the pertinent information. Moreover, the witness did not
attest to the fact that the report was acquired from persons
under a legal duty to submit the same. Hence, Sec. 44 of Rule
130 finds no application in the present case. The evidence
offered by respondent does not qualify as an exception to the
rule against hearsay evidence (Barcelon Roxas Security, Inc.
v. Commissioner of Internal Revenue, 498 SCRA 126).
CHAPTER VI- HEARSAY EVIDENCE, OPINION EVIDENCE 329
AND CHARACTER EVIDENCE
B. Exceptions to the Hearsay Rule
Commercial lists and the like
1. The exception declares:
"SEC. 45. Commercia/lists and the like.- Evidence
of statements of matters of interest to persons engaged
in an occupation contained in a list, register, periodical,
or other published compilation is admissible as tending
to prove the truth of any relevant matter so stated if that
compilation is published for use by persons engaged in
that occupation and is generally used and relied upon
by them therein."
2. Certain commercial lists and reports of matters of
interest to persons engaged in a particular occupation are
admissible in evidence as exceptions to the hearsay rule,
provided, they are made by persons engaged in that occupa-
tion and are generally used and relied upon by them and those
lists and reports are published (Sec. 45, Rule 130, Rules of
Court).
Learned treatises
1. This self-explanatory and common exception states:
"SEC. 46. Learned treatises. - A published
treatise, periodical or pamphlet on a subject of history,
law, science, or art is admissible as tending to prove the
truth of a matter stated therein if the court takes judicial
notice, or a witness expert in the subject testifies, that
the writer of the statement in the treatise, periodical or
pamphlet is recognized in his profession or calling as
expert in the subject."
2. History books and published findings of scientists
fall within this exception provided that an expert on the
subject testifies to the expertise of the writer or the court
takes judicial notice of such fact.
Testimony or deposition at a former proceeding
1. The exception provides:
"SEC. 47. Testimony or deposition at a former
proceeding. -The testimony or deposition of a witness
 330 EVIDENCE
(The Bar Lectures Series)
deceased or unable to testify, given in a former case
or proceeding, judicial or administrative, involving
the same parties and subject matter, may be given
in evidence against the adverse party who had the
opportunity to cross-examine him."
2. The testimony contemplated is one given in a former
case or proceeding, judicial or administrative, involving the
same parties and subject matter. The testimony is given by
one who is now deceased or unable to testify. Said testimony
may be given in evidence against the adverse party provided
the latter had the opportunity to cross-examine the witness
who gave the previous testimony (Sec. 47, Rule 130, Rules of
Court; See also Samalio v. Court of Appeals, 454 SCRA 462,
March 31, 2005).
3. For Sec. 47 of Rule 130 to apply, the following
requisites must be satisfied: (a) the witness is dead or unable
to testify; (b) his testimony or deposition was given in a former
case or proceeding, judicial or administrative, between the
same parties or those representing the same interests; (c) the
former case involved the same subject as that in the present
case, although on different causes of action; (d) the issue
testified to by the witness in the former trial is the same issue
involved in the present case; and (e) the adverse party had an
opportunity to cross-examine the witness in the former case
(Manliclic v. Calaunan, 512 SCRA 642).
Exception to the hearsay rule in child abuse cases
1. Under Sec. 28 of the Rule on Examination of a Child
Witness, a hearsay statement of a child which under the
Rules of Court, is not admissible for being hearsay because
the facts testified to are not within his personal knowledge,
may be admitted in evidence in any criminal or non-criminal
proceeding.
2. The testimony is admissible provided the same
be offered in child abuse cases and the statement made by
the child is one describing any act or attempted act of child
abuse.
CHAPTER VI - HEARSAY EVIDENCE, OPINION EVIDENCE 331
AND CHARACTER EVIDENCE
C. Opinion Evidence
Aside from the above requirements, the following must
likewise be complied with:
(a) The proponent shall make known to the
adverse party the intention to offer such statement and
its particulars to provide him a fair opportunity to object
before the hearsay statement may be admitted.
(b) If the child is available, the court shall, upon
motion of the adverse party, require the child to be
present at the presentation of the hearsay statement for
cross-examination by the adverse party; and
(c) When the child is unavailable (as when the
child is deceased, suffers from physical infirmity, mental
illness, loss of memory, or because the child will be
exposed to severe psychological injury), the fact of such
circumstance must be proved by the proponent and the
hearsay testimony shall be admitted only if corroborated
by other admissible evidence (Sec. 28[a], Rule on
Examination of a Child Witness).
3. In ruling on the admissibility of the hearsay state-
ment, the court shall consider the (a) time, (b) content, and
(c) circumstances surrounding the making of the statement
which would provide sufficient indicia of reliability (Sec. 28[b],
Rule on Examination of a Child Witness).
Certain factors are also to be considered by the court
before deciding to admit the statement like the motive to lie,
the general character of the declarant child, the number of per-
sons who heard the statement, the spontaneity of the making
of the statement, the timing of the making of the statement,
the relationship between the declarant child and the witness,
the remoteness of the possibility of a faulty recollection and
other circumstances surrounding the statement (Sec. 28[b],
Rule on Examination of a Child Witness).
C. Opinion Evidence
The rules on opinion evidence provide:
"SEC. 48. General rule.- The opinion of a witness
is not admissible, except as indicated in the following
sectio11s.
332 EVIDENCE
(The Bar Lectures Series)
SEC. 49. Opinion of expert witness. -The opinion
of a witness on a matter requiring special knowledge,
skill, experience or training which he is shown to
possess, may be received in evidence.
SEC. 50. Opinion of ordinary witnesses. - The
opinion of a witness for which proper basis is given,
may be received in evidence regarding -
(a) The identity of a person about whom he has
adequate knowledge;
(b) A handwriting with which he has sufficient
familiarity; and
(c) The mental sanity of a person with whom he
is sufficiently acquainted.
The witness may also testify on his impressions
of the emotion, behavior, condition or appearance of a
person."
Admissibility of opinion evidence (Bar 2011)
As a rule, the opinion of a witness is inadmissible (Sec.
48, Rule 130, Rules of Court). This is because when a witness
testifies, a witness does so only with respect to facts personally
observed by him and it is for the court to draw conclusions
from the facts testified to.
When opinion evidence is admissible; expert testimony (Bar
2011)
1. When the opinion is that of an expert, i.e., the opin-
ion of a witness requiring special knowledge, skill, experience
or training which he is shown to possess, it maybe received in
evidence (Sec. 49, Rule 130, Rules of Court).
2. The court is not, however, bound by the opinion
of an expert such as a handwriting expert. Expert opinion
evidence is to be considered or weighed by the court, like any
other testimony, in the light of its own general knowledge and
experience upon the subject of inquiry. The probative force of
the testimony of an expert does not lie in a mere statement of
his theory or opinion, but rather in the aid that he can render
CHAPTER VI- HEARSAY EVIDENCE, OPINION EVIDENCE 333
AND CHARACTER EVIDENCE
C. Opinion Evidence
to the courts in showing the facts which serve as a basis for his
criterion and the reasons upon which the logic ofhis conclusion
is founded (Dizon v. Tuazon, 557 SCRA 487).
Expert opinions are not ordinarily conclusive. When
faced with conflicting expert opinions, courts give weight
and credence to that which is more complete, thorough and
scientific (Bacalso v. Padigos, 552 SCRA 185).
3. For instance, in examining forged documents, the
testimonies of handwriting experts are concededly useful.
However, resort to these experts is not mandatory or indis-
pensable because a finding offorgery does not depend entirely
on their testimonies. Judges must also exercise independent
judgment in determining the authenticity or genuineness of
the signature in question, and not rely merely on the testimo-
nies of handwriting experts (Mendez v. Court of Appeals, 672
SCRA 200, 209, June 13, 2012).
A handwriting expert is not indispensable to prove that
a signature was indeed a forgery. The opinion of handwriting
experts are not necessarily binding upon the court, the
expert's function being to place before the court data upon
which the court can form its own opinion. While these experts
are helpful in the examination of forged documents because of
the technical procedure involved in analyzing them, resort to
them is not mandatory or indispensable to the examination or
comparison ofhandwriting (Lorzano v. Tabayag, 665 SCRA
38, 47, February 6, 2012).
Opinion of an ordinary witness; when admissible (Bar 2005)
1. When the opinion is that of a witness who is not an
expert (ordinary witness), his testimony may be admitted in
evidence provided that the proper basis of the opinion is given
and the subject of the opinion is any of the following matters:
(a) The identity of a person about whom the witness
has adequate knowledge;
(b) The handwriting of a person with which the
witness has sufficient familiarity;
 334 EVIDENCE
(The Bar Lectures Series)
(c) The mental sanity of a person with whom he is
sufficiently acquainted; and
(d) The impressions of the witness of the emotion,
behavior, condition or appearance of a person (Sec. 50,
Rule 130, Rules of Court).
2. In any of the above, the opinion of an ordinary
witness is admissible.
D. Character Evidence
Inadmissibility of character evidence
1. Character is the aggregate of the moral qualities
which belong to and distinguish an individual person; the
general results of one's distinguishing attributes. It refers to
what a man is and depends on the attributes he possesses.
It is not the same as a man's reputation because the latter
depends on attributes which others believe one to possess.
Character signifies reality while reputation signifies what
is accepted to be reality at present (Black's Law Dictionary_.
5th Ed., p. 211). In other words, while character is what the
person really is, reputation is what he is supposed to be in
accordance with what people say he is, and is dependent on
how people perceive him to be.
2. Character evidence is, as a rule, not admissible
(Sec. 51, Rule 130, Rules of Court). Character is generally
irrelevant in determining a controversy because the evidence
of a person's character or trait is not admissible to prove that
a person acted in conformity with such character or trait in a
particular occasion (29 Am Jur 2d, Evidence, §363).
The rule is that the character or reputation of a party is
regarded as legally irrelevant in determining a controversy,
so that evidence relating thereto is not admissible. Ordinarily,
if the issues in the case were allowed to be influenced by
evidence of the character or reputation of the parties, the trial
would be apt to have the aspects of a popularity contest rather
than a factual inquiry into the merits of the c:ase. Mter all, the
business of the court is to try the case, and not the man; and a
CHAPTER VI- HEARSAY EVIDENCE, OPINION EVIDENCE 335
AND CHARACTER EVIDENCE
D. Character Evidence
very bad man may have a righteous cause (People v. Lee, 382
SCRA 596).
Evidence of bad moral character of the accused (Bar 2010)
1. In a criminal case, the prosecution cannot prove the
bad moral character of the accused in its evidence-in-chief.
It can only do so in rebuttal (Sec. 51[a)[2], Rule 130, Rules
of Court). This means that the prosecution may not offer
evidence of the character of the accused unless the accused
himself has offered evidence of his good moral character. The
prosecution, therefore, must wait until the accused puts his
character in issue during the proceedings. Where the accused
proves his good moral character pertinent to the moral trait
involved in the offense charged (Sec. 51[a][1], Rule 130, Rules
of Court), he opens the door to the prosecution to prove that
his moral character is, in fact, bad. Then and only then may
the prosecution prove the bad moral character of the accused.
The relevant provision provides:
"SEC. 51. Character evidence not generally admis-
sible; exceptions. -
(a) In Criminal Cases:
(1) X X X
(2) Unless in rebuttal, the prosecution
may not prove his bad moral character which is
pertinent to the moral trait involved in the offense
charged" (Italics supplied).
2. As mentioned, the prosecution is forbidden by Sec.
51(a)(2) of Rule 130 to initiate evidence of the bad moral
character of the accused. It prevents the government from
opening the doors towards the introduction of character
evidence of the accused. The rule that confines the right of
the prosecution to prove the bad moral character of the
accused only by way of rebuttal is a logical one. It prevents a
pronouncement of guilt on account of his being a "bad" man
and instead anchors a conviction on the basis of the sufficiency
 336 EVIDENCE
(The Bar Lectures Series)
of evidence of his guilt. The rule also prevents the inference
that, being a bad person, the accused is more likely to commit
a crime. The rule likewise discourages the presentation of the
so-called "propensity evidence," i.e., evidence that one acts in
accordance with one's character.
3. The offering of evidence of good moral character is
a privilege of the accused and the prosecution cannot even
comment on his failure to produce such evidence. But once he
raises the issue of his good character, the prosecution may,
in rebuttal, offer evidence of the defendant's bad character
(People u. Lee, 382 SCRA 596).
Evidence of good moral character of the accused (Bar 201 0;
2011)
1. The accused may prove his good moral character
when pertinent to the moral trait involved in the offense
charged(Sec. 51[a][I], Rule 130, Rules ofCourt). The applicable
provision states:
"SEC. 51. Character evidence not generally admis-
sible; exceptions. - x x x
(a) In Criminal Cases:
(1) The accused may prove his good moral
character which is pertinent to the moral trait
involved in the offense charged."
2. While the prosecution is forbidden to present
evidence of the bad moral character of the accused unless in
rebuttal, the general rule against "propensity evidence" does
not apply to the accused who is allowed to offer evidence of his
good character. Not all aspects, however, of the character of
the accused may be proven. Only those moral traits involved
in the offense charged are provable. In doing so, an accused
may advance more than one character trait as evidence so
long as each trait is germane to some issue in the case. This
theory is plain from a reading of Sec. 51(a) of Rule 130.
3. The accused may prove his good moral character
which is pertinent to the moral trait involved in the offense
CHAPTER VI - HEARSAY EVIDENCE, OPINION EVIDENCE 337
AND CHARACTER EVIDENCE
D. Character Evidence
charged. When the accused presents proof of his good moral
character, this strengthens the presumption of innocence
and, where good character and reputation are established, an
inference arises that the accused did not commit the crime
charged. This view proceeds from the theory that a person
of good character and high reputation is not likely to have
committed the act charged against him.
In contrast, the prosecution may not prove the bad mor-
al character of the accused except only in rebuttal and when
such evidence is pertinent to the moral trait involved in the
offense charged. This is intended to avoid unfair prejudice to
the accused who might otherwise be convicted not because he
is guilty but because he is a person of bad character. The of-
fering of character evidence on his behalf is a privilege of the
accused, and the prosecution cannot comment on the failure of
the accused to produce such evidence. Once the accused raises
the issue of his good character, the prosecution may, in re-
buttal, offer evidence of his bad character (People u. Lee, 382
SCRA 596).
Evidence of character of the offended party
1. The good or bad moral character of the offended
party may be proved by the accused if it tends to establish in
any reasonable degree the probability or improbability of the
offense charged (Sec. 51[a][3], Rule 130, Rules of Court). Sec.
51(a)(3)ofRule 130 provides:
"SEC. 51. XXX
(a) In Criminal Cases:
(1) X X X
(2) XXX
(3) The good or bad moral character of
the offended party may be proved if it tends to
establish in any reasonable degree the probability
or improbability of the offense charged."
 338 EVIDENCE CHAPTER VI- HEARSAY EVIDENCE, OPINION EVIDENCE 339
(The Bar Lectures Series) AND CHARACTER EVIDENCE
D. Character Evidence

2. It will be readily observed that the above provision (Sec. 14, Rule 132 and Sec. 51[c], Rule 130, Rules of Court). It
pertains only to criminal cases. Also, not every good or bad is error for counsel to offer evidence of the good character of
moral character of the offended party may be proved under his witness who is presented in court for the first time since he
this provision but only those which would establish the could not have been previously impeached.
probability or improbability of the offense charged. This means
that the character evidence must be limited to the traits and
characteristics involved in the type of offense charged. - oOo-
In one rape case, where it was established that the alleged
victim was morally loose and apparently uncaring about her
chastity, the Court found the conviction of the accused doubt-
ful (Civil Service Commission v. Belagan, 440 SCRA 578).

Sexual abuse shield rule in child sexual abuse cases

The following evidence, however, is not admissible in
any criminal proceeding involving alleged child sexual abuse
under the "sexual abuse shield" rule:
(a) Evidence to prove that the alleged victim
engaged in other sexual behavior; and
(b) Evidence offered to prove the sexual predisposi-
tion of the alleged victim (See Sec. 30, Rule on Examina-
tion of a Child Witness [A.M. No. 004-07-SC]).
Under this rule, the accused is not allowed to prove the
bad moral character of the offended party. However, evidence
of any of the above is admissible to prove that a person other
than the accused was the source of semen, injury or other
physical evidence.

Character evidence in civil cases

In civil cases, evidence of the moral character of a party
is admissible only when pertinent to the issue of character
involved in the case (Sec. 51[b], Rule 130, Rules of Court).
Thus, evidence of a party's intemperance may be admitted
when such is pertinent to the issues involved.

Evidence of good character of a witness

Evidence of the good character of a. witness is not
admissible until such character has been impeached

Chapter VII
OFFER OF EVIDENCE AND
TRIAL OBJECTIONS
(Rule 132)
The provisions relevant to this chapter are reproduced
as follows:
"SEC. 34. Offer of evidence. - The court shall
consider no evidence which has not been formally
offered. The purpose for which the evidence is offered
must be specified.
SEC. 35. When to make offer. - As regards the
testimony of a witness, the offer must be made at the
time the witness is called to testify.
Documentary and object evidence shall be offered
after the presentation of a party's testimonial evidence.
Such offer shall be done orally unless allowed by the
court to be done in writing.
SEC. 36. Objection. - Objection to evidence
offered orally must be made immediately after the offer
is made.
Objection to a question propounded in the course
of the oral examination of a witness shall be made as
soon as the grounds therefor shall become reasonably
apparent.
An offer of evidence in writing shall be objected
to within three (3) days after notice of the offer unless a
different period is allowed by the court.
In any case, the grounds for the objections must
be specified.
SEC. 37. When repetition of objection unnecessary.
- When it becomes reasonably apparent in the course
340
CHAPTER VII - OFFER OF EVIDENCE AND TRIAL OBJECTIONS 341
(RULE 132)
of the examination of a witness that the questions being
propounded are of the same class as those to which
objection has been made, whether such objection was
sustained or overruled, it shall not be necessary to
repeat the objection, it being sufficient for the adverse
party to record his continuing objection to such class of
questions.
SEC. 38. Ruling. -The ruling of the court must be
given immediately after the objection is made, unless
the court desires to take a reasonable time to inform
itself on the question presented; but the ruling shall
always be made during the trial and at such time as will
give the party against whom it is made an opportunity to
meet the situation presented by the ruling.
The reason for sustaining or overruling an
objection need not be stated. However, if the objection
is based on two or more grounds, a ruling sustaining
the objection on one or some of them must specify the
ground or grounds relied upon.
SEC. 39. Striking out an answer. - Should a
witness answer the question before the adverse party
had the opportunity to voice fully its objection to the
same, and such objection is found to be meritorious, the
court shall sustain the objection and order the answer
given to be stricken off the record.
On proper motion, the court may also order
the striking out of answers which are incompetent,
irrelevant, or otherwise improper.
SEC. 40. Tender of excluded evidence. - If docu-
ments or things offered in evidence are excluded by
the court, the offeror may have the same attached to
or made part of the record. If the evidence excluded is
oral, the offeror may state for the record the name and
other personal circumstances of the witness and the
substance of the proposed testimon:t:"
Importance of offer of evidence (Bar 2003; 2012)
1. An evidence must be formally offered. Under the
Rules of Court, the court shall consider no evidence which has
not been formally offered (Sec. 34, Rule 132, Rules of Court).
 342 EVIDENCE
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2. The offer of evidence is necessary because it is the
duty ofthe court to rest its findings of fact and judgment only
and strictly upon the evidence offered by the parties (Aludos
v. Suerte, 673 SCRA 413, 425, June 18, 2012).
Thus, in Dizon v. Court of Tax Appeals, 553 SCRA 111, it
was ruled that no evidentiary value can be given the pieces of
evidence submitted by the BIR, since they were not formally
offered. This is the rule under Sec. 34 of Rule 132 of the Rules
of Court.
3. In Spouses Tan v. Republic, 573 SCRA 89, the Court
sustained the Court of Appeals which refused to consider a
document submitted for the first time by the petitioners when
the same was attached to their motion for reconsideration
of the decision of the Court of Appeals. In sustaining the
appellate court, the Supreme Court reiterated the rule in
Sec. 34 of Rule 132 that "the court shall consider no evidence
which has not been formally offered." The document should
have been offered during the trial in the Regional Trial Court.
Marking of a document; not a formal offer
1. A document, or any article for that matter, is ·not
evidence when it is simply marked for identification; it
must be formally offered, and the opposing counsel given an
opportunity to object to it or cross-examine the witness called
upon to prove or identify it. A formal offer is necessary since
judges are required to base their findings of fact and judgment
only, and strictly, upon the evidence offered by the parties at
the trial. The appellate court will have difficulty reviewing
documents not previously scrutinized by the court below. The
pertinent provisions of the Revised Rules of Court, on the
inclusion on appeal of documentary evidence or exhibits in the
records, cannot be stretched as to include such pleadings or
documents not offered at the hearing of the case (Candido v.
Court of Appeals, 253 SCRA 78).
2. There is a distinction between identification of a
documentary evidence and its formal offer as an exhibit. The
first is done in the course of the trial and is accompanied by
CHAPTER VII - OFFER OF EVIDENCE AND TRIAL OBJECTIONS 343
(RULE 132)
the marking of the evidence as an exhibit, while the second
is done only when the party rests its case (Dizon v. Court of
Tax Appeals, 553 SCRA 111 citing Vda. de Onate v. Court
of Appeals, 250 SCRA 283, and Interpacific Transit, Inc. v.
Aviles, 186 SCRA 385).
When formal offer of evidence is not required
1. A formal offer of evidence is not required in certain
cases, thus:
(a) In a summary proceeding, because it is a pro-
ceeding where there is no full-blown trial;
(b) Documents judicially admitted or taken judicial
notice of;
(c) Documents, affidavits and depositions used in
rendering a summary judgment;
(d) Documents or affidavits used in deciding quasi-
judicial or administrative cases (Bantolino v. Coca-Cola
Bottlers, Inc., 403 SCRA 699); or
(e) Lost objects previously marked, identified,
described in the record, and testified to by witnesses who
had been subjects of cross-examination in respect to said
objects (Tabuena v. Court of Appeals, 196 SCRA 650;
People v. Napat-a, 179 SCRA 403). (Bar 2012)
2. There were instances, however, when the Court
allowed the admission of evidence not formally offered as in
People v. Napat-a, supra, citing People v. Mate, 103 SCRA 484,
where evidence not formally offered was held to be allowable
provided certain requirements are present:
(a) The evidence must have been duly identified by
testimony duly recorded; and
(b) The same must have been incorporated in the
records of the case (See also Medina v. People, G.R. No.
182648, June 17, 2015).
3. In People v. Libnao, 395 SCRA 407, evidence of the
prosecution in a crime involving a violation of the Dangerous
 344 EVIDENCE
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Drugs Act were considered by the Court even without their
having been formally offered because the evidence were prop-
erly identified by testimony duly recorded and incorporated in
the records of the case. The counsel for the accused also cross-
examined the witnesses testifying on the evidence.
When evidence is offered by petitioner but not by respondent
In one case, certain delivery receipts and sales invoices
did not form part of respondent's formal offer of evidence but
the same formed part of petitioner's formal offer of evidence.
Petitioner insisted that since the said documents did not form
part of the evidence formally offered by respondent, the trial
court and the Court of Appeals had no legal basis to award
interest and damages in his favor. The Supreme Court held
that no error could be ascribed to the lower courts because
the delivery receipts and sales invoices were, nevertheless,
formally offered by petitioner in evidence. Hence, the
documents may be considered by the courts below (Titan
Construction Company v. Uni-Field Enterprises, Inc., 517
SCRA 180).
When evidence is to be offered
1. As to when the offer of evidence is made depends
upon the nature of the evidence.
(a) As regards the testimony of the witness, the
offer is to be made at the time the witness is called to
testify (Sec. 35, Rule 132, Rules of Court).
(b) As regards documentary and object evidence,
they are to be offered after the presentation of a party's
testimonial evidence. The offer is orally made unless
allowed by the court to be in writing (Sec. 35, Rule 132,
Rules of Court).
2. The provisions of the Rules of Court, as stated above,
give a simple rule as to when an evidence is to be offered.
Hence, the presentation of a documentary or object evidence
for marking and identification during the c-ourse of the trial
is not the offer contemplated in the Rules. Failure to object to
CHAPTER VII - OFFER OF EVIDENCE AND TRIAL OBJECTIONS 345
(RULE 132)
the evidence at this time should not be construed as a waiver
of the objection to the evidence.
3. A relatively well-known criminal case, Macasiray v.
People, 291 SCRA 154, is instructive as to when an objection
to a documentary evidence need be made. It, once and for all,
reinforces what has already been made clear by the Rules of
Court - that objections to a documentary evidence shall be
made after it is offered and the offer of such evidence shall be
made after the presentation of a party's testimonial evidence.
The case involves a certain Macasiray and two others
who were accused of murder. During the course of the trial,
the prosecution introduced, among others, two documents.
One was an extrajudicial confession by one of the accused
admitting his participation in the crime and implicating the
others. The other document was the transcript of stenographic
notes taken during the preliminary investigation of the case.
At the time the documents were introduced for marking and
identification, the accused interposed no objection to the
evidence. When they were, however, offered at the close of the
prosecution's presentation of evidence, the accused objected
to the admissibility of the documents on the ground that the
documents were made without the assistance of counsel.
The trial court sustained the objections and declared the
documents inadmissible.
However, the Court of Appeals declared the two docu-
ments admissible and ordered their admission by the trial
court. In so holding, the Court of Appeals considered the fail-
ure of the defense to object to the documents when they were
introduced for marking and identification as a waiver of their
objection.
In reversing the Court of Appeal-s and reinstating the
order of the trial court excluding the documents, the Supreme
Court ruled that a party is not deemed to have waived objection
to admissibility of documents by his failure to object to the
same when they were marked, identified and then introduced
during the trial. This is because objection to documentary
 346 EVIDENCE
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evidence must be made at the time it is formally offered and
not earlier.
4. Cases prior to Macasiray had similarly held that
an objection to evidence must be made after the evidence is
formally offered and that a documentary evidence is offered
after all the witnesses of the party making the offer have
testified.
"Contrary to the ruling of the appellate court, petitioners
did not waive objection to admissibility of the said documents
by their failure to object when these were marked, identified
and then introduced during the trial. That was not the proper
time to make the objection x x x. A document or any article
for that matter, is not evidence when it is simply marked for
identification - it must be formally offered" (Candido v. Court
ofAppeals, 253 SCRA 78; People v. Santito, Jr., 201 SCRA 87).
It is when the accused fails to objectto the admissibility
of certain items during their formal offer, that he is deemed
to have waived his right against their admissibility (People v.
Diaz, 271 SCRA 504).
How an offer of evidence is made
1. When a party makes a formal offer of his evidence,
he must state the nature or substance of the evidence, and
the specific purpose for which the evidence is offered (Sec. 34,
Rule 132, Rules of Court). (Bar 1983)
2. The court shall consider the evidence solely for the
purpose for which it is offered, not for any other purpose
(Spouses Ragudo v. Fabella Estate Tenants Association, Inc.,
466 SCRA 136).
Objections; purposes of objections (Bar 2012}
Objections may be made for any of the following purposes:
(a) To keep out inadmissible evidence that would
cause harm to a client's cause. The rules on evidence are
not self-operating and, hence, must be invoked by way of
an objection;
CHAPTER VII - OFFER OF EVIDENCE AND TRIAL OBJECTIONS 347
(RULE 132)
(b) To protect the record, i.e., to present the issue of
inadmissibility of the offered evidence in a way that if the
trial court rules erroneously, the error can be relied upon
as a ground for a future appeal;
(c) To protect a witness from being embarrassed on
the stand or from being harassed by the adverse counsel;
(d) To expose the adversary's unfair tactics like his
consistently asking obviously leading questions;
(e) To give the trial court an opportunity to correct
its own errors and, at the same time, warn the court that
a ruling adverse to the objector may supply a reason to
invoke a higher court's appellate jurisdiction; and
(f) To avoid a waiver of the inadmissibility of an
otherwise inadmissible evidence.
General and specific objections (Bar 1997)
1. An objection must point out the specific ground of
the objection and, if it does not do so, no error is committed in
overruling it (75 Am Jur 2d, 2nd Ed., §254-256).
2. The last paragraph of Sec. 36, Rule 132, provides:
"... the grounds for the obJections must be specified." The
objection, therefore, "must be specific." Hence, an objector
must be explicit as to the legal ground he invokes. He cannot
simply manifest that he is interposing an objection. He has
to precisely 3tate the exclusionary rule that would justify his
opposition to the proffered evidence.
3. The following examples are considered as general
objections:
(a) "Objection, The evidence .is incompetent!"
(b) "Objection! Inadmissible!"
(c) "Objection: Incompetent, Irrelevant, and Im-
material!"
(d) "Objection: Improper!"
 348 EVIDENCE
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They are called "general" for an obvious reason. They
do not clearly indicate to the judge the ground upon which
the objections are predicated. They assign no grounds to
the objection. A general objection, in including everything,
actually specifies nothing.
4. An objection that evidence is "incompetent," irre-
levant," or "immaterial" is ordinarily regarded in most
jurisdictions, in the absence of any statutory provision to the
contrary, as not sufficiently definite to present any question
for review (Mills v. Texas Compensation Ins. Co., 75 Am Jur
29 256, citing Mills v. Texas Compensation Ins. Co., CA 5 Tex
220 F2nd 942; People v. Wright, 26 Cal App 2d 197, 79 P2d
102), because it conveys neither to the court nor counsel any
specific point of objection (75 Am Jur 2d 256).
5. Rule 132 does not tell us how specific an objection
must be. Practical reasons, however, tell us that the objection
must be specific enough to adequately inform the court the
rule on evidence or of substantive law that authorizes the
exclusion of the evidence. Objections like, "question calls for
a hearsay answer" - "witness cannot testify on a privileged
communication" - "the question calls for a conclusion" -
"the question is beyond the scope of the direct examination"
"impeachment is improper" - are specific enough for anyone
to know the basis of the objection.
6. While an objection that the evidence is "incompe-
tent, irrelevant and immaterial" is, by common wisdom,
concededly a general objection, some writers hold that an
objection that the evidence is "irrelevant" may, at times,
not be general. This kind of objection states "a distinct and
substantial ground for exclusion" (M. Graham, Handbook of
Federal Evidence, 13 n. 16, 1981). It is submitted that the
opinion is worth considering. Necessarily, when the evidence
clearly is one which does not prove a fact in issue, with no
probative value and with no relationship to the fact in issue,
or inadmissible for any purpose and no other objection is
possible, there is no other ground for the objection except to
say that it is "irrelevant." In such a situation, this should be
deemed as substantially the equivalent of a specific objection.
CHAPTER VII - OFFER OF EVIDENCE AND TRIAL OBJECTIONS 349
(RULE 132)
7. The rule is that a specific objection is always
preferred over a general objection. This is not to say, however,
that a general objection can never be allowed. The rule on
specificity is dictated largely by the need to allow the court
to intelligently rule on the objection and give the other party
an opportunity to withdraw the evidence or correct an error
in his presentation. The rule, however, does not impose a
general or an absolute ban on general objections. There is
no compelling need to specify the ground, "if the ground for
exclusion should have been obvious to the judge or to counsel"
(Floy v. Hibbard, 227 Iowa 149,287 N. W. 829). There are cases
where the incompetency of the evidence is so palpable that a
mere general objection is deemed sufficient, and where the
portion of the evidence objected to is clearly pointed out and
its illegality is apparent on its face, then the objection must
be allowed (75 Am Jur 257 citing Scott v. Times-Mirror Co.,
181 Cal345, 184 P 672, 12 ALR 1007; Sparfv. United States,
156 US 51, 39 LEd 343, 15 S. Ct. 273).
Formal and substantive objections (Bar 1997)
1. Objections may be formal or substantive. A formal
objection is one directed against the alleged defect in the for-
mulation of the question. Examples: ambiguous questions;
leading and misleading questions; repetitious questions; mul-
tiple questions; argumentative questions.
2. A substantive objection is one made and directed
against the very nature of the evidence, i.e., it is inadmissible
either because it is irrelevant or incompetent or both.
Examples: parol; not the best evidence; hearsay; privileged
communication; not authenticated; opinion; res inter alios
acta.
Objections must be timely
1. Aside from the requirement that an objection must
state the specific ground relied upon, it is also necessary that
the objection be timely.
When a party desires. the court to reject the evidence
offered, he must so state in the form of objection. Without
350 EVIDENCE
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such objection, he cannot raise the question for the first time
on appeal (See People v. Gabuya, G.R. No. 195245, February
16, 2015; People v. Diaz, G.R. No. 197818, February 25, 2015).
2. In order to be timely, therefore, the objection must
be made at the earliest opportunity (88 C.J.S. 236). What the
earliest opportunity is depends upon the manner the evidence
is offered.
(a) If the evidence is offered orally, objection to the
evidence must be made immediately after the offer is
made (Sec. 36, par. 1, Rule 132, Rules of Court).
(b) An objection to a question propounded in
the course of the oral examination of the witness shall
be made as soon as the grounds therefor shall become
reasonably apparent (Sec. 36, par. 2, Rule 132, Rules of
Court).
(c) An offer of evidence in writing shall be objected
to within three (3) days after notice of the offer unless a
different period is allowed by the court (Sec. 36, par. 3,
Rule 132, Rules of Court).
3. The rules, therefore, make the offer of evidence the
frame of reference for a timely objection. Hence, it is to be
assumed that an objection to the evidence before it is offered
is premature and no adverse inference may be had against a
party who does not object to the evidence before it is offered.
4. Recall that the rule requires that an objection to a
question in the course of an oral examination should be made
as soon as the ground for the objection becomes apparent.
Consider this example where the question is asked to prove
the truth of the statement of an outside declarant:
Question: Mr. Santos, can you tell this court what
Mr. Cruz told you about the truth of how
the collision happened?
Counsel: Objection, Your Honor. Question calls for a
hearsay answer!
Court: Sustained.
CHAPTER VII - OFFER OF EVIDENCE AND TRIAL OBJECTIONS 351
(RULE 132)
By objecting as soon as the question was completed, coun-
sel has succeeded in preventing the witness, Mr. Santos, from
introducing a hearsay answer into the recordsofthe case. The
nature of the question manifestly required a hearsay answer,
and so the ground for the objection became apparent as soon
as the question was asked. In this situation, an objection made
after the witness has answered would come too late.
5. There are witnesses who are quick to answer even
before the question is over. Before the adverse counsel can
react and object to the question, the answer comes in rapid-
fire fashion preventing counsel from inserting himself neatly
between the question and the answer. What does counsel do in
this case? Counsel must, nevertheless, object, state his reasons,
and move to strike out the answer. This is a technique which
the lawyer avails of when he does not have the opportunity to
object before the witness responds. Should the witness persist
in giving lightning-quick responses, counsel should request
the judge to direct the witness to allow opposing counsel to
object prior to his answer.
The provisions of the Rules of Court are explicit: "Should a
witness answer the question before the adverse party had the
opportunity to voice fully its objection to the same, and such
objection is found to be meritorious, the court shall sustain
the objection and order the answer given to be stricken off the
record" (Sec. 39, Rule 132, Rules of Court).
Striking out an answer or testimony
1. A motion to strike may be availed of in the following
instances:
(a) when the answer is premature;
(b) when the answer of the .._witness is irrelevant,
incompetent or otherwise improper;
(c) when the answer is unresponsive;
(d) when the witness becomes unavailable for cross-
examination through no fault of the cross-examining
party; or
352 EVIDENCE
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(e) when the testimony was allowed conditionally
. and the condition for its admissibility was not fulfilled.
2. Sometimes, an apparently unobjectionable question
brings out an objectionable and inadmissible response. But
the infirmity of the response becomes apparent only after it
is completed. If the answer is damaging, then relief may be
obtained by a motion to strike.
3. Consider this example where the grounds for
objection are not manifested by the question. The witness is
examined by the prosecutor. The case is one for homicide and
the information says the crime was committed in Town A.
The witness is presented to testify that he knows that it was
indeed the accused who killed the victim.
Q: Do you know the victim?
A: Yes, Sir.
Q: Do you also know the accused?
A- I do, Sir.
(A few more questions are asked)
Q: Where were you on the date and time when
the killing of the victim happened? (There is no
apparent impropriety in this question.)
A: I was in Town B, Sir, (Opposing counsel does
not have to react immediately to the answer
because counsel should allow the witness' lack
of personal knowledge to have an impact on the
listener).
Q: How do you know it was the accused who killed
the victim?
A: A witness to the killing told me a day after the
incident. (The infirmity of the question is now
very apparent.)
Opposing Counsel: I object, your Honor! ·
Hearsay! I move to strike out the answer and
CHAPTER VII - OFFER OF EVIDENCE AND TRIAL OBJECTIONS 353
(RULE 132)
disqualify the witness from testifying on the
details of the incident. It is obvious that he is
incompetent for lack of personal knowledge.
4. An objection to a witness' disqualification in general
must be made as soon as he is called to the stand and before
his examination begins, provided his disqualification is then
known (Wigmore, Evidence, Vol. I, p. 323). A husband accused
of robbery, for instance, can object the moment his wife is
called by the prosecution to testify against him without his
consent on the basis of Sec. 22 or Sec. 24(a) of Rule 130.
Waiver of objections; belated objections (Bar 2004)
1. It is a rule of evidence that any objection against
the admission of any piece of evidence must be made at the
proper time, and that, if not so made, it will be understood to
have been waived. The proper time to make a protest or an
objection is when, from the question addressed to the witness,
or from the answer thereto, or from presentation of the proof,
the inadmissibility of the evidence is, or may be, inferred
(People v. Del Rosario, 642 SCRA 625, 635, February 9, 2011).
The term "waiver" implies the existence of a right, claim,
privilege or something one is entitled to. It is, by its nature, a
unilateral act. It need not, however, be a positive act. A waiver
may result from failure to perform an act. When the claim,
right, or privilege is abandoned, repudiated, renounced or not
asserted, there is a waiver.
Applied to objections, there is a waiver when there is
failure to point out some defect, irregularity or wrong in the
admission or exclusion of evidence. Such failure may take
various forms and may either be expressed or implied. "A
party may by his acts or omissions, waive or be estopped to
make objections to the admission or exclusion of the evidence.
Such waiver or estoppel may arise from failure to object ...
from acts done or omitted before the evidence is offered, as
by failure to object to previous similar evidence ... or from
some affirmative act done after the ruling on the evidence"
(88 C.J.S., 229).
 354 EVIDENCE
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2. A failure to assert an objection promptly and
specifically is a waiver (McCormick, Evidence, 3rd Ed., p. 141).
Unless a timely and sufficient objection is made to an evidence
introduced, the reviewing court will not ordinarily consider
the question of the propriety of the admission of the evidence
(75 Am Jur 2d, 3rd Ed., p. 252). It will not be considered on
appeal because there is deemed to be a waiver.
Failure to object to an offer of evidence is a waiver of the
objection. For instance, even assuming ex gratia argumenti
that certain documents are inadmissible for being hearsay, the
same may be admitted on account of failure to object thereto
(Manliclic v. Calaunan, 512 SCRA 642; People v. Martin, 543
SCRA143).
3. In one case, no objection was made to the testimony
of the adverse witness from the time the testimony was offered
and up to the time the direct examination: was conducted. Any
subsequent attempts to have the testimony of the witness
excluded for being hearsay, held the Court, have no grounds
to stand on but while the testimony is admissible, it does
not necessarily follow that the same should be given weight.
Admissibility of evidence should not be equated with weight
of evidence (Bayani v. People, 530 SCRA 84).
In another case, counsel was deemed to have waived his
objection in failing to object to a hearsay testimony which has
become admissible because of the failure to object (People v.
Martin, 543 SCRA 143).
4. Where a continuing objection had been interposed
on prohibited testimony, the objection is deemed waived where
the objecting counsel cross-examined the witness on the very
matters subject of the prohibition (Abraham v. Kasten, 114
Phil. 239).
Extent of waiver for failure to object
1. When an objection to evidence is deemed waived,
what exactly does the non-objecting party waive? Answer: He
waives objections to its admissibility (88 C.J.S. 230). In plain
language, the evidence becomes admissible but the waiver
CHAPTER VII - OFFER OF EVIDENCE AND TRIAL OBJECTIONS 355
(RULE 132)
involves no admission that the evidence possesses the weight
attributed to it by the offering party.
2. A waiver should not be construed as an admission
that the evidence is credible. It does not also mean that the
non-objecting party waives his right to present controverting
evidence. It only involves waiver of objection to two matters,
namely, the relevance and the competence of the evidence.
Why is this so? Because these are the components of
admissibility and this is what Sec. 3, Rule 128 of the Rules of
Court tells us. The pertinent provision reads:
"SEC. 3. Admissibility of evidence. - Evidence is
admissible when it is relevant to the issue and is not
excluded by the law or these rules."
For example, a failure to object would involve a waiver
of objections "that the evidence introduced is not the best
evidence, that it is hearsay, that there is a variance between
the evidence and pleadings ..." (88 C.J.S. 231), or that the
witness is disqualified by reason of marriage or filial relation.
Again, it would be helpful to nag ourselves with the reminder
that the lack of objection merely makes an incompetent
evidence admissible.
The Court once held:" ... admissibility of evidence should
not be equated with weight of evidence" (People v. Valero, 112
SCRA 661; De la Torre v. Court of Appeals, 294 SCRA 196).
3. The rule of waiver by failure to object applies also
to the admission of documentary evidence. Failure to object
waives an objection that there was an irregularity in the
taking of an affidavit or deposition, that the document is not
what it purports to be on its face, or that it is not relevant.
Introducing a note in evidence without objection dispenses
with the necessity of proving the signatures on the note, or of
its execution (88 C.J.S. 234).
4. The admissibility of the hearsay evidence, when
not objected to, should not, in any case, be confused with the
credibility or the weight of the admitted evidence. The absence
 356 EVIDENCE
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of an objection makes the hearsay evidence admissible because
it has assumed the character of an evidence but, other than
becoming evidence, no special characteristic is conferred upon
it by the waiver. Its inherent nature as wanting in the indicia
of trustworthiness required of a credible evidence remains.
Thus, on many occasions, the Supreme Court has consistently
ruled that "hearsay evidence whether objected to or not has no
probative value" (People v. Nebreja, 203 SCRA 45), unless the
proponent can show that it falls within the exception to the
hearsay rule (People v. Villaviray, 262 SCRA 13). Although
hearsay evidence may be admitted without objection by the
adverse party's counsel, it is, nonetheless, without probative
value.
Rulings on objections
1. The ruling of the court must be given immediately
after the objection is made except when the court desires
to take a reasonable time to inform itself on the question
presented. However, the court must give its ruling during the
trial and at such time as will give a party an opportunity to
meet the situation presented by the ruling (Sec. 38, Rule 132,
Rules of Court).
2. As early as Lopez v. Valdez (32 Phil. 644), the
Court has bewailed the erroneous manner by which courts
have ruled on an objection. Here, counsel for the defendant
objected to certain questions propounded by counsel for the
plaintiff. The questions were designed to elicit testimony that
would prove the contents of certain documents without laying
a proper foundation for the questions. Of course, there was
a valid ground to object because the examining counsel was
offering secondary evidence without first establishing the
existence, due execution and eventual loss or destruction of
the originals.
The trial court, in ruling on the objection merely in essence,
said that the objection "will be taken into consideration." The
court, nevertheless, allowed the witnesses to testify over the
objection ofthe counsel for the defendant. Until the termination
CHAPTER VII - OFFER OF EVIDENCE AND TRIAL OBJECTIONS 357
(RULE 132)
of the trial, no definitive ruling on the objection was made
even if several objections have been repeatedly made.
The Supreme Court, speaking through Justice More-
land, held that the words, "the objection will be taken into
consideration," is prejudicial to the interests of a litigant since
it deprives the party against whom the ruling was made an
opportunity to meet the situation presented by the ruling. The
Court considered the act of the trial court as reversible error
having resulted in serious prejudice to the substantial rights
of the objecting party.
3. If the court fails to rule on the objection, the same
should be brought to the attention of the court. Another case
that could aptly show an improper ruling, although not as
well-known but is likewise as illustrative as Lopez, is People v.
Singh (45 Phil. 676). Unlike Lopez which is a civil case, Singh
is a criminal case.
Here, Singh was alleged to have extrajudicially confessed ·
to a friend the killing of the victim. Later, that friend became
a prosecution witness and testified as to what Singh told him.
Singh moved to strike out the testimony on the ground of the
absence of evidence that the alleged confession was made
freely and voluntarily. As in Lopez, the court in Singh did
not rule on the objection and merely took the motion "under
advisement." In deciding the case against Singh, the objected
testimony was taken "into consideration." Upon Singh's
conviction, an appeal was made and one of the assigned errors
of the trial court was its failure to rule on the motion to strike.
Significantly, the Supreme Court ruled: "If as a result of the
failure of the trial court to promptly rule upon a motion to
strike a confession from the record, the accused has been
deprived of the opportunity to present evidence in rebuttal of
such confession, that fact should be brought to the attention of
the trial court through the appropriate motions."
4. Words like "submitted" or "the objections are noted"
are, by common reason, not appropriate rulings and neither
sustains or overrules the objection. There is no need to
stretch the rules of logic to deduce a ruling that the evidence
is "admitted for whatever they may be worth" or that the
 358 EVIDENCE
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"evidence is admitted subject to the objections" are not rulings
on the admissibility or inadmissibility of the evidence.
5. When a counsel asks a question and the other
objects, the court rules on the objection by either sustaining
or overruling the objection.
Let us assume the judge rules, "Sustained." What does
this ruling mean? The answer is not difficult to understand.
When an objection to a question is sustained, the judge
considers the question as improper and the witness will not
be allowed to answer the question. This means the exclusion
of a testimonial evidence.
When the objection is overruled, this means that for the
court, the question is proper and the witness will be allowed
to answer.
6. Let us suppose that our fact pattern involves an
action for breach of contract. The plaintiff wants to prove the
contents of the agreement through an offer of a photocopy of
the same. Without laying the basis for the admissibility of
the copy, counsel seeks to offer the copy in evidence. Let us
assume that the other counsel objects and that the objection
is sustained. What is the significance of the court's sustaining
of the objection? This means the court considers the document
inadmissible because it is incompetent. In our example, the
incompetence is based on the ''best evidence" rule which
requires the offer of the original document when the subject of
inquiry is the contents of a document (Sec. 3, Rule 130, Rules
of Court).
7. The ruling of the court sustaining or overruling the
objection need not be stated except if the objection is based on
two or more grounds. In such a case, a ruling sustaining the
objection must specify the ground or grounds relied upon (Sec.
38, Rule 132, Rules of Court).
Repetition of objections
It shall not be necessary to repeat an objection when
it becomes reasonably apparent, while the witness is being
CHAPTER VII - OFFER OF EVIDENCE AND TRIAL OBJECTIONS 359
(RULE 132)
examined, that he is asked questions which are of the same
class as those to which an objection has already been made,
whether such objection was sustained or overruled. Instead
of repeating the objection, it is sufficient for the objection
to be recorded as a 'continuing objection' to such class of
objectionable questions (Sec. 37, Rule 132, Rules of Court).
Thus, when questions calling for a hearsay answer are
repetitiously asked by the adverse counsel, the recording of a
continuing objection to such questions would be in order after
an initial objection had already been made.
Tender of excluded evidence (offer of proof)
1. Assume that you have called your witness to the
stand. He takes his oath and proceeds to testify. You are
certain your witness will pull through. He is sharp and
responsive. His demeanor projects sincerity. Everything is
going on as planned. Then, from the right end of the table .
screams the opposing counsel, "Objection, Your Honor!" The
objection comes unexpectedly. Before you could say a word the
judge rules, "Sustained!" The ruling feels like a laser-guided
missile aimed straight at the heart of your client's case. You
spring from your chair and move to reconsider the ruling.
"Motion denied," the judge again rules.
You did not prepare for this scenario. You thought
everything has been planned. You came to court with an
armload of copies of the latest jurisprudence on your case,
bound and carefully tabbed, to reveal to the court the gems of
wisdom you will hurl against the "enemy" seated at the other
end of the table. Your supposedly well-oiled examination is
now sputtering like a badly-tuned engine. Your witness has
been stopped right on his tracks. But you are not rattled.
Instead, you are seething with anger. You want to kick the
table in front of you. You cannot get a critical testimony heard
by the judge who just declared with finality that he refuses to
hear from your witness. You are certain the judge is in error.
You are determined to turn it around in case you cannot save
your client from the mistake of the trial court.
 360 EVIDENCE
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A situation like the one just described is not infrequent
and does occur when you least expect it. It happens to all of
us. This is not a heartbreaking episode in your legal career. It
is not a reason to throw in the towel. You do not have to feel
the horror offailing to figure out the right remedy. This is not
a problem at all. As we usually say, "This is a piece of cake.
Peanuts. Chicken feed. Child's play." Indeed it is. Calm down.
This is not panic time.
So what do you do if you are the victim of an objection
sustained by the trial court or of a motion to strike granted on
a testimony that is crucial to your cause of action or defense?
The answer: make a ''tender of excluded evidence." What do
our rules say on the matter? Clearly, they provide:
"SEC. 40. Tender of excluded evidence. - If
documents or things offered in evidence are excluded
by the court, the offeror may have the same attached to
or made part of the record. If the evidence excluded is
oral, the offeror may state for the record the name and
other personal circumstances of the witness and the
substance of the proposed testimony."
2. The foregoing rule, called "offer of proof' in other
jurisdictions, . embodies the procedure for the "tender of
excluded evidence." Why make a tender of excluded evidence?
You do it for two reasons. First, to allow the court to know
the nature of the testimony or the documentary evidence
and convince the trial judge to permit the evidence or
testimony. Second, even if he is not convinced to reverse his
earlier ruling, the tender is made to create and preserve a
record for appeal.
3. How is the tender done? The procedure depends upon
the type ofevidence excluded. Where the evidence involved is
documentary or object evidence, the tender is made by having
the document or object attached to or made part of the record
(Sec. 40, Rule 132, Rules of Court).
Even if the rules do not spell out the details on how
this should be done, it is a common practice, in almost all
jurisdictions, for the offering counsel to produce, describe,
CHAPTER VII - OFFER OF EVIDENCE AND TRIAL OBJECTIONS 361
(RULE 132)
identify the object or document, and in case of the latter,
to state the contents of the document that is sought to be
admitted where the substance of the same is not apparent
on its face. Reading the substance of the document is an
accepted way of stating its contents for the record in states
which recognize a tender. A disclosure of the contents of the
document is necessary in order to aid the court in determining
its competence and relevance.
The next step is to state the purpose for which the object
or document sought to be attached is offered, and to ask that it
be marked for identification and have it attached to the record.
For example, counsel may state after manifesting to
make a tender of excluded evidence: ''Your Honor, this doc-
ument is a deed of sale executed between the plaintiff and
defendant on such and such date in the presence of both the
town mayor and vice-mayor who signed the deed as witnesses,
and notarized before Notary Public so and so. The document
reads: (Counsel reads the document). With this document, we
intend to prove that the defendant bought the parcel of land
herein described prior to taking possession of the property as
owner on such and such date. We request that this document
be marked and attached to and made part of the records of
this case."
4. If the evidence excluded is testimonial, the offeror
may state for the record the name and other personal
circumstances of the witness and the substance of the pro-
posed testimony (Sec. 40, Rule 132, Rules of Court).
There are two traditional methods of making the tender:
The first is where the counsel tells the court what the
proposed testimony will be. This is the method prescribed
in the Rules of Court. Mter stating for the record the name
and other personal circumstances of the witness, counsel, for
instance, says:
Counsel: Defendant, Your Honor, makes this tender
of excluded evidence. If permitted to testify, defendant
will affirm that he was allowed by the plaintiff to build a
 362 EVIDENCE
(The Bar Lectures Series)
house in the former's land; that the witness knows about
this fact because the plaintiff granted this permission to
him personally; that the permission was given on (date),
in (place) at approximately (time), and in the presence
of the plaintiff's neighbor and wife who interposed no
objection to the grant of permission.
The second method is by using the question and answer
form. To illustrate:
Counsel: Your Honor, if allowed to ask the question
objected to, the testimony would have been as follows:
Q: Why did you construct a house on the plaintiff's
land?
A: Because he allowed me to do so, Sir.
Q: When and where was the p~rmission granted?
A: On (date), in (place) at around (time), Sir.
Q: How was the permission granted?
A: It was orally granted.
Q: Who were present, if any, when plaintiff gave
you the permission to build a house on the land?
A: (Witness gives the names of witnesses)
The first method has the advantage of brevity and
efficiency but it does not create as clear a record as the second
method. Whichever method is to be used lies in the discretion
of the trial court. The court may prefer the second method
which, although not described in the rules, is not prohibited.
In fact, the use of the first method is not mandatory. This
is evident from the use of the word may, instead of shall, in
Sec. 40 of Rule 132. Whichever method of tender is used, the
advocate must see to it that the offer must be specific enough
to contain the facts and circumstances of the matter sought to
be proved by the excluded evidence.
The tender is not meant to be a mere manifestation to
the court in mere general terms. It must not be in the form of
CHAPTER VII - OFFER OF EVIDENCE AND TRIAL OBJECTIONS 363
(RULE 132)
conclusions of fact such as, "If permitted to pursue this line of
questioning, Your Honor, the witness will testify that he is not
a trespasser." The offer must make reference to the details of
the excluded testimony or excluded document.
5. An erroneous way of making an offer of excluded
testimony is to make a mere general 'offer of proof (tender
of excluded evidence) without producing the witness or
stating ihe evidence whereby the fact in issue is to be proved
(Douillard v. Wood [1942], 20 C2d 670, 128 P2d 6).
6. May an objection be interposed to the manner of
tender of excluded evidence? The rules are silent on the issue.
However, there is no cogent reason to disallow the objection.
If the document tendered is not described or identified, its
substance stated in vague and general terms or when the
purpose for which it is offered is not declared, then the evidence
has to be objected to. If the testimony tendered is in the form of
a conclusion and, thus, fails to disclose sufficient information
to enable the court and the other party to determine its
admissibility, the same may, likewise, be the target of an
objection. To have a contrary rule and confer immunity from
objection to such type of evidence would be to grant a favored
status to evidence initially excluded by the trial court.
Formal offer of evidence and formal offer of proof (Bar 1991)
Formal offer of evidence refers either to the offer of
the testimony of a witness prior to the latter's testimony,
or the offer of the documentary and object evidence after a
party has presented his testimonial evidence. Loosely, it has
been referred to as formal offer of exhibits where object and
documentary evidences are to be offered.
Offer of proof is the process by which a proponent of an
excluded evidence tenders the same. If what has been excluded
is testimonial evidence, the tender is made by stating for the
record the name and other personal circumstances of the
proposed witness and the substance ofhis proposed testimony.
If the evidence excluded is documentary or of things, the offer
364 EVIDENCE
(The Bar Lectures Series)

of proof is made by having the same attached to or made a

part ofthe record.

Additional evidence after case is rested INDEX

The Rules of Court does not prohibit a party from
requesting the court to allow it to present additional evidence A
even after it has rested its case (Republic v. Sandiganbayan Abay, Jr. v. People, 566 SCRA 34 .................................................. 261
[Fourth Division], 662 SCRA 152, 184, December 13, 2011). Abosta Management Corporation v. National Labor
Relations Commission [First Division],
- oOo- 654 SCRA 505, 516-517, July 27, 2011 .................................... 6
Abraham v. Kasten, 114 Phil. 239 ................................................. 354
Acabal v. Acabal, 454 SCRA 555 ...................................................... 89
Agdeppa v. Office of the Ombudsman, G.R. No. 146376,
April 23, 2014 ............................................................................ 6
Agustin v. Court of Appeals, 460 SCRA 315 ................................. 118
Air Philippines v. Pennswell, Inc., 540 SCRA 215 ........................ 220
AKBAYAN v. Aquino, 558 SCRA 468 ........................................... 215
Alana v. Magud-Logmao, G .R. No. 175540, April 7, 2014 ............. 50
Allied Banking Corporation v. South Pacific Sugar
Corporation, 543 SCRA 585 ..................................................... 52
Almonte v. Vasquez, 244 SCRA 286 ............................................. 215
Alonte v. Savellano, Jr., 287 SCRA 245 ......................................... 263
Aludos v. Suerte, 673 SCRA 413, 425, June 18, 2012 ................... 342
Alvarez v. PICOP Resources, 606 SCRA 444 ................................ 328
Alvarez v. Ramirez, 473 SCRA 72 .......................................... 197, 204
Alzua v. Johnson, 21 Phil. 308 ......................................................... 74
Ang v. Court of Appeals, G.R. No. 182835, April20, 2010 ............... 8
Anglo-American Packing, etc., Co. v. Cannon, 31 Fed. 313 .......... 147
Aquino v. Paiste, 555 SCRA 255 .................................................... 253
Arceo v. People, 495 SCRA 204 ...................................................... 134
Arroyo, Jr. v. Taduran, 421 SCRA 423 ............................................ 94
Asean Pacific Planners v. City ofUrdaneta, 566 SCRA 219 .......... 95
Asian Construction and Development Corporation v.
Mendoza, 675 SCRA 284, 290, June 27, 2012 ......................... 68
Asian International Manpower Services, Inc. v. Department
of Labor and Employment, G.R. No:-210308,
April6, 2016 ............................................................................. 69
Asian Terminals, Inc. v. Malayan Insurance Co., Inc.,
647 SCRA 111, 130-131, April4, 2011 .................................... 81

365
 366 EVIDENCE
(The Bar Lectures Series)
Astorga and Repol Law Offices v. Villanueva,
A.M. No. P-09-2669, February 24, 2015 .................................. 69
Atienza v. Board of Medicine, 642 SCRA 523, 529,
February 9, 2011 .................................................................. 2, 24
Atienza v. People, G.R. No. 188694, February 12, 2014 ......... 66, 282
Atillo v. Court of Appeals, 266 SCRA 596 ....................................... 95
Ayala de Roxas v. Case, 8 Phil. 197 ................................................. 14
Aznar Brothers Realty Co. v. Aying, 458 SCRA 496 ....................... 53
B Cargill v. State, 35 ALR 133, 220 Pac 64, 25 Ok.l. 314 ................. 200
Bacalso v. Padigos, 552 SCRA 185 ................................................. 333
Bagadiong v. Gonzales, 94 SCRA 906 ............................................ 223
Bahia Shipping Services, Inc. v. Hipe, Jr.,
I G.R. No. 204699, November 12, 2014 ...................................... 51
Bangayan v. RCBC, 647 SCRA 8, 26, April4, 2011.. .................... 169
Bank of the Philippine Islands v. Reyes, 544 SCRA 206 ................ 99
Bank of the Philippine Islands v. Spouses Royeca,
559 SCRA 207 ........................................................................... 53
Bantolino v. Coca Cola Bottlers, Inc., 403 SCRA 699 ............... 5, 343
Barcelon Roxas Security, Inc. v. Commissioner of
Internal Revenue, 498 SCRA 126 .......................................... 328
Bartolome v. Maranan, 740 SCRA 491 ............................................. 9
Bautista v. Sarmiento, 138 SCRA 587 ............................................. 53
Bayani v. People, 530 SCRA 84 ...................................................... 354
BBB v. AAA, G.R. No. 193225, February 9, 2015 ........................... 89
Bermejo v. Barrios, 31 SCRA 764 .................................................. 166
BJDC Construction v. Lanuzo, G.R. No. 161151,
March 24, 2014 ................................................................... 50, 68
Blue Cross Health Care, Inc. v. Olivares; 544 SCRA 580 ............... 63
Bognot v. RRI Lending Corporation, G.R. No. 180144,
September 24, 2014 .................................................................. 51
Bordalba v. Court of Appeals, 37 4 SCRA 555 ............................... 196
Borre v. Mayo, Adm. Matter 1765-CFI, 100 SCRA 314 .................. 83
Bughaw, Jr. v. Treasure Island Industrial Corporation,
550 SCRA 307 ........................................................................... 85
c Company [MERALCO], G.R. No. 181459, June 9, 2014 .......... ..
Calamba Steel Center, Inc. v. Commissioner oflnternal
Revenue, 457 SCRA 482 .................................................... 25, 81
Callo-Claridad v. Esteban, G.R. No. 191567,
March 20, 2013 ................................................................... 29, 30
INDEX 367
Camitan v. Fidelity Insurance Corporation,
551 SCRA 540 ........................................................................... 87
Candelaria v. People, G.R. No. 209386, December 8, 2014 ...... 29, 48
Candido v. Court of Appeals, 253 SCRA 78 ........................... 342, 346
Canuto v. Mariano, 37 Phil. 840 .................................................... 160
Capital Shoes Factory, Ltd v. Traveller Kids, Inc.,
736 SCRA 489 ......................................................................... 148
Carganillo v. People, G.R. No. 182424,
September 22, 2014 ........................................................ 152, 157
Cercado-Siga v. Cercado, Jr., G.R. No. 185374,
March 11, 2015 ....................................................... 169, 170, 179
Chavez v. PCGG, 299 SCRA 744 ............................................ 215, 217
Chavez v. Public Estates Authority, 384 SCRA 152 .................... 215
China Banking Corporation v. Ta Fa Industries, Inc.,
553 SCRA 211 ........................................................................... 53
Ching v. Court of Appeals, 331 SCRA 16 ................................... 87, 93
Chiongbian-Oliva v. Republic, 522 SCRA 599 ................................. 85
Chu v. Guico, A.C. No. 10573, January 13, 2015 ............................ 51
Chua Gaw v. Chua, 551 SCRA 505 ............................................... 134
Chua v. Westmont Bank, 667 SCRA 56, 65,
February 27, 2012 ,. ............................................................ 51, 68
Cirtek Employees Labor Union-Federation of Free
Workers v. Cirtek Electronics, Inc., 650 SCRA 656,
662-663, June 6, 2011 ................................................................ 6
Citibank, N.A. Mastercard v. Teodoro, 411 SCRA 577, 585 ......... 142
City of Manila v. Garcia, 19 SCRA 413 ........................................... 80
Civil Service Commission v. Belagan, 440 SCRA 578 .................. 338
Civil Service Commission v. Colanggo, 553 SCRA 640 ................... .4
Civil Service Commission v. Vergel de Dios,
G.R. No. 203536, February 4, 2015 ....................................... 172
Collins v. Western Union Tel. Co., 145 Ala. 412 41
So. 160, 8 ann. Cas. 268 ......................................................... 148
Comerciante v. People, G.R. No. 205926, July 22, 2015 ................. 39
Commissioner of Internal Revenue v. Hantex Trading
Co., Inc., 454 SCRA 301 ......................................................... 135
Commissioner of Internal Revenue v. Manila Electric
Commissioner of Internal Revenue v. Petron,
668 SCRA 735, 758, March 21, 2012 ....................................... 86
Commonwealth v. Blackwell, 343 Pa Super 201 .......................... 314
Campania Maritima v. Allied Free Workers Union,
77 SCRA 24 ............................................................................. 145
 368 EVIDENCE
(The Bar Lectures Series)
Computer Identics Corp. v. Southern Pacific Co. [CAl Mass] ....... 56
Conyers v. Postal Cable Co., 92 Ga. 619,
19 S.E. 253 Am. St. Rep. 100 ................................................. 148
Cruz v. Court of Appeals, 293 SCRA 239 .............................. 266, 267
Cuenco v. Talisay Tourist Sports Complex,
569 SCRA 616 ........................................................................... 87
D Expertravel and Tours, Inc. v. Court of Appeals,
D.M. Consunji, Inc. v. Court of Appeals, 357 SCRA 249 .............. 281
Dantis v. Maghinang, G.R. No. 191696, AprillO, 2013 ........ 282, 284
Datalift Movers, Inc. v. Belgravia Realty & Development
Corporation, 500 SCRA 163 ............................................... 58, 60
Dawson v. Bertolinin, 70 R.I. 325, 38 A.2d 765, 768 ...................... .42
De Garcia v. Court of Appeals, 37 SCRA 129 .................................. 93
DelaPaz v. Intermediate Appellate Court, 154 SCRA 65 ........... 229
De la Pefia v. Avila, 665 SCRA 553, 567, February 8, 2012 ........... 94
De la Torre v. Court of Appeals, 294 SCRA 196 ............................ 355
Del Socorro v. Van Wilsem, G.R. No. 193707,
December 10, 2014 ............................................................ ,52, 79
Delfin v. Billones, 485 SCRA 38 ....................................................... 88
DENR v. DENR Region 12 Employees, 409 SCRA 359 ............ 76, 82
Deoferio v. Intel Technology Philippines, Inc.,
G.R. No. 202996, June 18, 2014 ............................................... 50
Diaz v. People, G.R. No. 208113, December 2, 2015 ................. 60, 66
Diesel Construction Co., Inc. v. UPSI Property
Holdings; Inc., 549 SCRA 12 .................................................... 57
Dizon v. Court of Tax Appeals, 553 SCRA 111.. .................... 342, 343
Dizon v. Tuazon, 557 SCRA 487 ..................................................... 333
Doughlas v. Lopez, 325 SCRA 129 ................................................... 83
Douillard v. Wood [1942], 20 C2d 670, 128 P2d 6 ......................... 363
Dynamic Signmaker Outdoor Advertising Services,
Inc. v. Potongan, 461 SCRA 328 ............................................ 255
E
Eagleridge Development Corporation v. Cameron
Granville 3 Asset Management, Inc., 741 SCRA 557 ........... 155
Eastern Shipping Lines, Inc. v. BPIIMS Insurance
Corporation, G.R. No. 182684, January 12, 2015 ....... 83, 90, 94
Edrada v. Ramos, 468 SCRA 597 ................................................... 154
EDSA Shangri-La Hotel and Resort, Inc. v. BF
Corporation, 556 SCRA 25 ............................. ~ ............... 136, 141
Edwards v. Edwards, Tenn. App., 501 S.W. 2d 283. 289 ................ 30
INDEX 369
Enriquez v. People, 331 SCRA 538 ................................................ 265
Equitable Cardnetwork, Inc. v. Capistrano,
665 SCRA 454, 465, February 8, 2012 .................................... 94
Espineli v. People, G.R. No. 179535, June 9, 2014.......... 28, 285, 295
Espinosa v. Sandiganbayan, 331 SCRA 538 ................................. 265
Estioca v. People, 556 SCRA 300 ..................................................... 85
Estrada v. Desierto, 356 SCRA 108 ............................... 248, 283, 298
459 SCRA 147 ............................................. 77, 84
F
Fabay v. Resuena, A.C. No. 8723, January 26, 2016 .................... 173
Fajardo v. People, 677 SCRA 541, 549, July 25, 2012 .......... 113, 250
Feria v. Court of Appeals, 325 SCRA 525 .............................. 288, 295
Fil-Pride Shipping Company, Inc. v. Balasta,
G.R. No. 193047, March 3, 2014 .............................................. 83
Flores v. People, G.R. No. 181354, February 27, 2013 .................... 54
Floy v. Hibbard, 227 Iowa 149, 287 N.W. 829 ............................... 349
Franco v. People, G.R. No. 191185,
February 1, 2016 ............................................ 30, 34, 45, 67, 168
Frondarina v. Malazarte, G.R. No. 148423,
Dece1nber G, 2006 ..................................................................... 42
G
Gallego v. People, 8 SCRA 813 ......................................................... 80
Garcia v. Garcia-Recio, 366 SCRA 437 ............................................ 79
Garcia v. Vda. de Caparas, G.R. No. 180843,
April17, 2013 ......................................................................... 193
Garrucho v. Court of Appeals, 448 SCRA 165 ................................. 86
Garvida v. Sales, Jr., 271 SCRA 767 .............................................. 150
Geraldo v. People, 571 SCRA 420 .................................................. 309
Gevero v. Intermediate Appellate Court, 189 SCRA 201 ............. 263
Gonzales v. Court of Appeals, 298 SCRA 322 ............................... 214
Government Service Insurance System v. Vallar,
536 SCRA 620 ........................................................................... 85
Guong v. U.S., 860 F.2d 1063 (Fed. Cir 198_8) ............................... 214
H
Harold v. Aliba, 534 SCRA 478 ........................................................ 59
Hart v. Newland, 10 N.C. 122 .......................................................... 23
Heirs of Amado Celestial v. Heirs of Editha G. Celestial,
408 SCRA 291...... .... .. .. .. .. .. .. .. .... .. 171
370 EVIDENCE
(The Bar Lectures Series)
Heirs of E. B. Roxas, Inc. v. Tolentino, 167 SCRA 334 ................... 69
Heirs of Lourdes Saez Sabanpan v. Cormoposa,
408 SCRA 692 ........................................................................... 25
Heirs of Medina v. Natividad, 572 SCRA 227 ............................... 176
Heirs of Pedro Clemefia v. Heirs oflrene B. Bien,
501 SCRA 405 ........................................................................... 88
Herrera-Felix v. Court of Appeals, 436 SCRA 87 ............................ 88
Hitchman Coal & Coke Co. v. Mitchell, 245 U.S. 229,
· 62 LEd 260, 38 S Ct 65 .......................................................... 258
Homeowners Savings & Loan Bank v. Dailo, 453 SCRA 283 ......... 51
Hongkong Special Administrative Region v. Olalia, Jr.,
521 SCRA 470 ........................................................................... 71
Horn v. Hansen, 57 N.W. 315 ......................................................... 156
I Llemos v. Llemos, 513 SCRA 128 ................................................... 179
Ibanez v. People, G.R. No. 190798, January 27, 2016 ............. .44, 45
Icard v. Masigan, 40 O.G., 13th Suppl., 215; 71 Phil. 419 ............ 196
In re Estate of Rogelio Ong v. Diaz, 540 SCRA 480 ...................... 120
In re Federal Grand Jury Proceedings 89-10 [MIA],
938 F.2d 1578 [11th Cir. 1991]) ............................................. 209
In the Matter of the Intestate Estates of Delgado
and Rustia, 480 SCRA 334................................................. 55, 57
Inciong, Jr. v. Court of Appeals, G.R. No. 96405,
June 26, 1996,247 SCRA 578 ................................................ 155
Inter Orient Maritime Enterprises, Inc. v. Creer III,
G.R. No. 181921, September 17, 2014 ............................... 14, 51
Interpacific Transit, Inc. v. Aviles, 186 SCRA 385 ........................ 343
J
James v. State ex rel. Loser, 24 Tenn.App. 453,
145 S.W.2d 1026, 1033 ........................................................... 240
Jesus is Lord Christian Foundation, Inc. v. City ofPasig,
466 SCRA 235 ........................................................................... 52
Josefa v. Manila Electric Company, G.R. No. 182705,
July 18, 2014 ....................................................................... 65, 94
Jumamil v. Cafe, 470 SCRA 475 ...................................................... 81
K Mangangey v. Sandiganbayan, 546 SCRA 51 ................................. 32
Karen and Khristy Fishing Industry v. Court
of Appeals, 536 SCRA 243 ....................................................... 86
Kummerv. People, G.R. No.174461,
September 11, 2013 ................................................ 111, 172,174
INDEX 371
L
La Bugal-B'laan Tribal Association v. Ramos, 445 SCRA 1 ........... 82
Lacurom v. Jacoba, 484 SCRA 206 ................................................ 206
Ladiana v. People, 393 SCRA 419 .......................................... 245, 246
Land Bank of the Philippines v. Wycoco, 419 SCRA 67 ........... 77, 78
Land Bank of the Philippines v. Yatco Agricultural
Enterprises, G.R. No. 172551, January 15, 2014 ............. 74, 81
Lapena, Jr. v. Marcos, 114 SCRA 572 ............................................. 83
Laureano v. Court of Appeals, 324 SCRA 414 ................................. 79
Lechugas v. Court of Appeals, 22 Phil. 310, August 6, 1986 ........ 156
Leviste v. Social Security System, 539 SCRA 120 .......................... 69
Lim v. Mindanao Wines & Liquor Galleria,
675 SCRA 628, 640, July 4, 2012 ............................................. 68
Llanto v. Alzona, 450 SCRA 288 .................................................... 186
Logue v. Von Almen, 379 Ill. 208, 40 N.E.2d 73, 82 ...................... 161
Lopez v. Court of Appeals, 156 SCRA 838 ..................................... 176
Lopez v. Valdez, 32 Phil. 644 .......................................................... 356
Lorenzana v. Austria, A.M. No. RTJ-09-2200, April2, 2014 .......... 50
Lorzano v. Tabayag, 665 SCRA 38, 47, February 6, 2012 ............ 333
M
Macalinao v. Ong, 477 SCRA 740 .................................................... 65
Macalino v. Ong, 477 SCRA 740 ...................................................... 65
Macasiray v. People, 291 SCRA 154 .............................................. 345
Macua Vda. de Avenido v. Avenido, G.R. No. 173540,
January 22, 2014 .................................................................... 143
Madrigal v. Court of Appeals, 456 SCRA 24 7 ............................... 163
Magdayao v. People, 436 SCRA 677 .............................................. 144
Magsaysay Mitsui OSK Marine, Inc. v. Bengson,
738 SCRA 184 ........................................................................... 83
Malacat v. Court of Appeals, 283 SCRA 159 ................................... 36
Malana v. People, 549 SCRA 451.. ................................................... 55
Malayan Insurance Co., Inc. v. Alberto,
664 SCRA 791, 799, February 1, 2012 .......................... 281, 328
Mallillin v. People, 553 SCRA 619 ......................................... 111, 112
Maliwat v. Court of Appeals, 256 SCRA 718 ................................... 64
Manliclic v. Calaunan, 512 SCRA 642 ................................... 330, 354
Manzanila v. Waterfields Industries Corporation,
G.R. No. 177484, ,July l8, 2014 ......................................... 87, 94
Marina Port Services, Inc. v. American Home Assurance
Corporation, G.R. No. 201822, August 12, 2015 ........... 281, 282
 372 EVIDENCE
(The Bar Lectures Series)
Marubeni Corp. v. Lirag, 362 SCRA 620 ......................................... 55
Masagana Concrete Products v. NLRC, 313 SCRA 576 ................. 61
Masangcay v. Trans-Global Maritime Agency, Inc.,
569 SCRA 592 ........................................................................... 69
Mattox v. U.S., 146 U.S. 140, 151 .................................................. 305
MCC Industrial Sales Corporation v. Ssangyong
Corporation, 536 SCRA 408 ........................................... 149, 150
Mcnaulty v. State, 138 Tex.Cr.R. 317. 135
S.W.2d 987, 989 ...................................................................... 240
Medina v. People, G.R. No. 182648, June 17, 2015 ................. 33, 343
Mekin v. Wolfe, 2 Phil. 74 ................................................................. 15
Mendez v. Court of Appeals, 672 SCRA 200, 209,
June 13, 2012 .............................................. .-............................ 333
Mercado v. Vitriolo, 459 SCRA 1.. .................................................. 210
Metrobank v. Tobias III, 664 SCRA 165, 179-180,
January 25, 2012 ...................................................................... 64
Metropolitan Life and Insurance Co. v. Kaufman,
104 Colo. 13, 87 P.2d 758 ....................................................... 211
Mills v. Texas Compensation Ins. Co., 75 Am Jur 29 256 ............ 348
Mills v. Texas Compensation Ins. Co.,
CA 5 Tex 220 F2nd 942 .......................................................... 348
Montinola v. Philippine Airlines, G.R. No. 198656,
September 8, 2014 .................................................................... 69
Moore v. Dresden Investment Co., 162 Wash, 289,
298 Pac. 465, 77 A.L.R. 1258 ................................................... 78
Morales v. Harbour Centre Port Terminal, Inc.,
664 SCRA 110, 121, January 25, 2012 .................................... 69
Morgan v. Foretich, Ca 4 Va, 846 F2d 941,
cited in 29 Am Jur 29 865 ..................................................... 314
N People v. Aminnudin, 163 SCRA 402 ............................................... 35 ·
Neri v. Senate Committees on Accountability of Public
Officers and Investigations, 435 SCRA 110, 148 ................. 217
NFF Industrial Corporation v. G & L Associated
Brokerage, G.R. No. 178169, January 12, 2015 ...................... 50
Noblejas v. Italian Maritime Academy Phils., Inc.,
G.R. No. 207888, June 9, 2014 ................................................. 50
Northwest Airlines, Inc. v. Chiong, 543 SCRA 308 ................ .43, 187
Northwest Orient Airlines v. Court of Appeals,
241 SCRA 192 ... :........................................ :.............................. 79
Noynay v. Citihomes Builder and Development, Inc.,
735 SCRA 708 ........................................................................... 93
INDEX 373
0
Office of the Court Administrator v. Bernardino,
450 SCRA 88 ........................................................................... 255
Ong Chia v. Republic, 328 SCRA 749 ............................................... .4
Ong v. People, 342 SCRA 372 ......................................................... 169
Ordofio v. Daquigan, 62 SCRA 270 ................................................ 200
Orion Savings Bank, G.R. No. 205487, November 12, 2014 ......... 175
Ortafiez v. Court of Appeals, 266 SCRA 561 ................................ 154
Ortiz v. De Guzman, 451 SCRA 393 .............................................. 255
p
Paredes v. Court of Appeals, 528 SCRA 577 ............................. 70, 71
Patula v. People, 669 SCRA 135, 157,
Aprilll, 2012 ................................................. 170, 172, 294, 323
Pau v. Yosemite Park [CA9 Cal] 928 F2d, 880 .............................. 265
PCIB v. Escolin, 56 SCRA 266 ......................................................... 79
Pe Lim v. Court of Appeals, 270 SCRA 1 ...................................... 118
Penera v. Dalocanog, Adm. Matter 2113-MJ, 104 SCRA 193 ........ 83
Penta Pacific Realty Corporation v. Ley Construction
and Development Corporation, 741 SCRA 426 ....................... 83
People v. Abella, G.R. No. 195666, January 20, 2016 .................... .40
People v. Ador, 432 SCRA 1 .................................................. .'253, 309
People v. Adoviso, 309 SCRA 1.. ..................................................... 128
People v. Adviento, 668 SCRA 486, 500-501, March 20, 2012 ........ 48
People v. Agsunod, Jr., 306 SCRA 612 ......................................... 251
People v. Alagarme, G.R. No. 184789, February 23, 2015 .............. 14
People v. Alejandro, G.R. No. 205227, April 7, 2014 ................. 60, 61
People v. Almodiel, G.R. No. 200951, September 5, 2012 .............. .46
People v. Amodia, 571 SCRA 444 ..................................................... 48
People v. Ansang, 93 Phil. 44 ......................................................... 251
People v. Asilan, 669 SCRA 405, 419, April 11, 2012 .................... .44
People v. Baconguis, 417 SCRA 66 ................................................ 127
People v. Bago, 330 SCRA 115 ...................................................... 139
People v. Baltazar, 352 SCRA o78 ............. ::~ ................................. 127
People v. Baraoil, 676 SCRA 24, 31, July 9, 2012 ...................... 7, 45
People v. Baro, 383 SCRA 75 ............................................................ 45
People v. Base, 329 SCRA 158 ....................................................... 249
People v. Batin, 539 SCRA 272 ........................................................ 42
People v. Bautista, 666 SCRA 518, 536, February 22, 2012 ........... 46
People v. Berry [1968], 260 CA2d 649, 67 CR 312 ........................ 182
 EVIDENCE
374
(The Bar Lectures Series)
People v. Binad Sy Chua, 444 Phil. 757 ........................................... 38
People v. Bingaan, 48 Phil. 926 ...................................................... 308
People v. Bio, G.R. No. 195850, February 16, 2015 ........................ 17
People v. Bobby Belgay, G.R. No. 182794,
September 8, 2014 .................................................................... 29
People v. Boco, 309 SCRA 42 .......................................................... 249
People v. Bontuyan, G.R. No. 206912,
September 10, 2014 ............................................................ 63, 67
People v. Brioso, 37 SCRA 336 ....................................................... 303
People v. Buduhan, 561 SCRA 337 ................................................ 127
People v. Bulos, 359 SCRA 621 ...................................................... 263
People v. Buntag, 427 SCRA 180 ................................................... 260
People v. Bustamante, 533 SCRA 179 ........................................... 186
People v. Cabiles, 284 SCRA 199 ................................................... 252
People v. Cabtalan, 666 SCRA 174, 191, 194-195,
February 15, 2012 ............................................................ 42, 300
People v. Cabungan, G.R. No. 189355, January 23, 2013 ............. .44
People v. Cacayan, 557 SCRA 550 ................................................... 44
People v. Cajumocan, 430 SCRA 311 ............................................. 127
People v. Calumpang, 454 SCRA 719 .............................................. 22
People v. Camacho, 44 Phil. 484 .................................................... 166
People v. Cam.at, 256 SCRA 52 ................................................ 61, 260
People v. Camat, 677 SCRA 610, 667, July 30, 2012 ..................... .48
People v. Camat, 677 SCRA 640,658-659, July 30, 2012 ........ .41, 44
People v. Canlas, 372 SCRA 401 ..................................................... .45
People v. Caranto, G.R. No. 193768, March 5, 2014 ....................... 62
People v. Carpo, 356 SCRA 248 ..................................................... 128
People v. Casabuena, G.R. No. 186455,
November 19, 2014 ................................................................... 61
People v. Casacop, G.R. No. 210454, January 13, 2016 .................. 14
People v. Castro, 668 SCRA 291, 300-301, March 14, 2012 .......... .45
People v. Cerilla, 539 SCRA 251 .............................................. 33, 300
People v. Chan Lin Watt, 50 Phil. 182 ................................... 303, 304
People v. Chavez, G.R. No. 207950, September 22, 2014 ............... 30
People v. Colentava, G.R. No. 190348, February 9, 2015 ............... 33
People v. Consorte, G.R. No. 194068, July 9, 2014 ......................... 29
People v. Court of Appeals, 21st Division, G.R. No. 183652,
February 25, 2015 ................................................................... ,53
People v. Court of Appeals, G.R. No. 183652,
February 25, 2015 .................................................................... 41
People v. Cruz, 726 SCRA 608 ............................ :............................ 48
People v. Cusi, Jr., 14 SCRA 944 ................................................... 295
INDEX 375
People v. Dacibar, 325 SCRA 725 ................................................... .48
People v. Dadao, G.R. No. 201860, January 22, 2014 .............. .44, 48
People v. Dahil, G.R. No. 212196,
January 12, 2015 ............................................ 111, 115, 116, 117
People v. Dayapdapan, G.R. No. 209040,
December 9, 2015 ................................................................... 186
People v. De Garcia, 18 SCRA 197 ................................................. 303
People v. De Guzman, 288 SCRA 346, 354 .................................... 236
People v. De Guzman, 676 SCRA 347, 360, July 11, 2012 ....... .40, 45
People v. DelaRosa, G.R. No. 206419, June 1, 2016 ..................... 33
People v. De Leon, 580 SCRA 617 ................................................... .45
People v. Del Rosario, 642 SCRA 625, 635, February 9, 2011 ...... 353
People v. Dela Peiia, G.R. No. 207635, February 18, 2015 ............ .40
People v. DeMarco, 195 N.E. 2d, 213, 216,
44 Ill. App. 2d 459 .................................................................. 284
People v. Deocampo, 666 SCRA 288, 293, February 15, 2012 ........ 29
People v. Diaz, 271 SCRA 504 ........................................................ 346
People v. Diaz, G.R. No. 197818, February 25, 2015 .................... 350
People v. Domingo, G.R. No. 211672, June 1, 2016 ............... .44, 250
People v. Ducay, G.R. No. 209590, November 19,2014
People v. Enad, G.R. No. 205764, February 3, 2016 ............... 62, 117
People v. Enojas, G.R. No. 204894, March 10, 2014 ................. 8, 106
People v. Espejon, G.R. No. 199445, February 4, 2015 .................. .40
People v. Espina, 361 SCRA 701 .................................................... 318
People v. Fieldad, G.R. No. 196005, October 1, 2014 ................ 22, 40
People v. Fontanilla, 664 SCRA 150, 158,
January 25,.2012 ...................................................................... 72
People v. Gabuya, G.R. No. 195245, February 16, 2015 ............... 350
People v. Galleno, 291 SCRA 761.. ................................................... 20
People v. Galvez, 519 SCRA 521 .................................................... 127
People v. Ganduma, 160 SCRA 799 ............................................... 102
People v. Gatarin, G.R. No. 198022, April 7, 2014 ........ 307, 308, 311
People v. Gondayao, 30 SCRA 226 ................................................. 315
People v. Gonzales, G.R. No. 182417, April3, 2013 ...................... 116
People v. Guinto, G.R. No. 198314, September 24, 2014 ................ 62
People v. Guittap, 403 SCRA 167 .............. ;;, .................................. 262
People v. Gustafsson, 677 SCRA 612, 621, July 30, 2012 ............. 250
People v. Hernandez, 206 SCRA 25 ................................................. 91
People v. Ison, G.R. No. 205097, June 8, 2016 ................................ 55
People v. Janjalani, G.R. No, 188314, January 10, 2011.. ............ 256
People v. Janson, 400 SCRA 584 .................................................... 120
People v. Kamad, 610 SCRA 295, 307-308 ................................... 115
376 EVIDENCE
(The Bar Lectures Series)
People v. Lagbo, G.R. No. 207535, February 10, 2016 ............. .42, 44
People v. Laguio, Jr., 518 SCRA 393 ............................................... 37
People v. Lamsen, G.R. No. 198338, February 20, 2013 ................. 29
People v. Langcua, G.R. No. 190343, February 6, 2013 ................ 108
People v. Lara, G.R. No. 199877, August 13, 2012 ......................... 29
People v. Larraiiaga, 463 SCRA 652 ............................... .46, 100, 101
People v. Lee, 382 SCRA 596 .......................................... 335, 336, 337
People v. Letigio, 268 SCRA 227 ..................................................... .43
People v. Libnao, 395 SCRA 407 .................................................... 343
People v. Lupac, G.R. No. 182230, September 19, 2012 ....... 311, 313
People v. Malimit, 264 SCRA 167 .................................................. 102
People v. Manalansan, 189 SCRA 619 ............................................ .43
People v. Maraorao, 674 SCRA 151, 159, June 20,2012 ................ 66
People v. Martin, 543 SCRA 143 .................................................... 354
People v. Martinez, 42 Phil. 85 ...................................................... 305
People v. Mate, 103 SCRA 484 ....................................................... 343
People v. Mendoza, 204 SCRA 288 ................................................... 81
People v. Mendoza, G.R. No. 192432, June 23,2014 ...................... 60
People v. Mengote, 210 SCRA 174 ........................................... ,....... 36
People v. Mercado, G.R. No. 213832, December 7, 2015 ................ .45
People v. Metin, 403 SCRA 105 (2003) ............................................ 84
People v. Mingming, 573 SCRA 509 ................................................ 63
People v. Molina, 352 SCRA 174 ................................................ 35, 38
People v. N a pat-a, 179 SCRA 403 .................................................. 343
People v. Navarette, Jr., 666 SCRA 689,704,
February 22, 2012 .................................................................... 48
People v. Navarro, 297 SCRA 331.. ................................................. .47
People v. Nebreja, 203 SCRA 45 .................................................... 356
People v. Negosa, 456 Phil. 861.. ..................................................... .42
People v. Ner, 28 SCRA 1151 ......................................................... 315
People v. Obmiranis, 574 SCRA 140 ............................................... 112
People v. Pabalan, 262 SCRA 574, 585 ............................................ 31
People v. Pacapac, 248 SCRA 77 .............. ,...................................... .43
People v. Padit, G.R. No. 202978, February 1, 2016 ..................... 281
People v. Palijon, 343 SCRA 486 .................................................... 261
People v. Paragsa, 84 SCRA 105 .................................................... 255
People v. Pascual, 576 SCRA 242 ..................................................... 30
People v. Patefio, G.R. No. 209040, December 9, 2015 .................. .48
People v. Peiia, 376 SCRA 639 ...................................................... 318
People v. Peteluna, G.R. No. 187048, January 23, 2013 ................ .42
People v. Posada, 667 SCRA 790, 808, March 12, 2012 ................ 112
People v. Quidato, Jr., 297 SCRA !.. ................... :................. 201, 261
People v. Rama, 350 SCRA 266 ....................................................... 32
INDEX 377
People v. Raquel, 265 SCRA 248 .................................................... 260
People v. Reanzares, 334 SCRA 624 .............................................. 128
People v. Reyes, G.R. No. 194606, February 18, 2014 .............. 13, 33
People v. Ricaplaza, 23 SCRA 374 ................................................. 315
People v. Roxas, G.R. No. 218396, February 10, 2016 .................... 66
People v. Sabadlab, 668 SCRA 237, 247,
March 14, 2012 ......................................................................... 40
People v. Salafranca, 666 SCRA 501, 511, 512, 513, 514,
February 22, 2012
25,307,311,313,314
People v. Salahuddin, G.R. No. 206291, January 18, 2016 ...... 33, 54
People v. Sanchez, 665 SCRA 639, 643, February 8, 2012 ............ .41
People v. Sandoval, 254 SCRA 436 .................................................. 13
People v. Santito, Jr., 201 SCRA 87 ............................................... 346
People v. Santos, 536 SCRA 489 .................................................... 266
People v. Sapitula, G.R. No. 209212,
February 10, 2016 ...................................................... 14, 41, 115
People v. Sasota, 91 Phil. 111.. ....................................................... 251
People v. Saturno, 355 SCRA 578 ................................................... ,55
People v. Seiieris, 99 SCRA 92 ...................................................... 228
People v. Silang Cruz, 53 Phil. 636 ................................................ 303
People v. Singh, 45 Phil. 676 .......................................................... 357
People v. Solina, G.R. No. 196784, January 13, 2016 ....... 33, 40, 186
People v. Sorila, Jr., 556 SCRA 392 ................................................. 85
People v. Steve, G.R. No. 204911, August 6, 2014 ......................... .46
People v. Stoll, 84 Cal App. 99, 257 Pac. 583 ................................ 249
People v. Strook, 347 Ill. 460, 170 N.E. 821 .................................. 249
People v. Tanchanco, 670 SCRA 130, 142-143,
April18, 2012 ........................................................................... 29
People v. Tandoy, 192 SCRA 28 ............................................. 139, 140
People v. Tapugay, G.R. No. 200336, February 11,2015 ....... 47, 117
People v. Teehankee, Jr., 249 SCRA 54 ................................... 47, 118
People v. Toledo, 51 Phil. 826 ......................................................... 325
People v. Torres, G.R. No. 189850, September 22, 2014 ................ .42
People v. Tuangco, 345 SCRA 429 ................................................. 185
People v. Tundag, 342 SCRA 704 ............. ::-...................................... 84
People v. Ubina, 527 SCRA 307 ...................................................... .45
People v. Urzais, G.R. No. 207662, Aprill3, 2016 .......................... 29
People v. Valero, 112 SCRA 661.. ................................................... 355
People v. Vallejo, 382 SCRA 192 (2002) ......................................... 118
People v. Velasquez, 669SCRA 307, 318; April11, 2012 .............. .46
People v. Villarico, Sr., 647 SCRA 43, 58, April4, 2011 ............... 311
 378 EVIDENCE
(The Bar Lectures Series)
People v. Villariez, G.R. No. 211160, September 2, 2015 ............. 300
People v. Villaviray, 262 SCRA 13 ................................................. 356
People v. Viojela, G.R. No. 177140, October 17, 2012 ..................... 44
People v. Viterbo, G.R. No. 203434, July 23, 2014 .......................... 13
People v. Wright, 26 Cal App 2d 197, 79 P2d 102 ......................... 348
People v. Yatar, 428 SCRA 504, May 19, 2004 .............................. 120
People v. Zeta, 549 SCRA 541 .......................................................... 86
Perez v. People, 544 SCRA 532 ........................................................ 51
Perry v. Simpson, Conn. 313 .......................................................... 24 7
Phil. Pryce Assurance Corp. v. Court of Appeals,
2·30 SCRA 164 ........................................................................... 59
Philippine Charter Insurance Corporation v. Central
Colleges of the Philippines, 666 SCRA 540, 553,
February 22, 2012 .................................................................... 93
Philippine Commercial International Bank [now BDO
Unibank, Inc.] v. Franco, G.R. No. 180069,
March 5, 2014 ........................................................................... 51
Philippine Health-Care Providers, Inc. v. Estrada/Cara
Health Services, 542 SCRA 616 .............................................. 95
Philippine National Bank v. Refrigeration
Industries, Inc., 479 SCRA 240 ............................................... 89
Pilipinas Bank v. Court of Appeals, 341 SCRA 527 ...................... 159
PNB v. Olila, 98 Phil. 1002 ............................................................. 141
PNOC Shipping and Transport Corporation v.
Court of Appeals, 297 SCRA 402 ............................................. 24
Policarpio v. Court of Appeals, 194 SCRA 729 .............................. 164
Porter v. Valentine, 18 Misc. Rep. 213,41 N.Y.S. 507 .................... 23
Programme Incorporated v. Province ofBataan,
492 SCRA 529 ..................................................................... 87, 91
R Santiago v. Court of Appeals, 278 SCRA 98 .................................. 164
Ramos v. Court of Appeals, 321 SCRA 584 ..................................... 65
Razon v. Intermediate Appellate Court, 207 SCRA 234 ............... 194
Reg. v. Bedforshire, 4 E. & B. 535, 82 E.C;L. 535, 542 ................. 327
Republic of the Philippines v. Rosario, G.R. No. 186635,
January 27, 2016 ...................................................................... 76
Republic v. Arias, G.R. No. 188909,
September 17, 2014 .................................................................. 69
Republic v. Bautista, 532 SCRA 598, 606 ...................................... 246
Republic v ..Court of Appeals, 107 SCRA 504 .................................. 82
Republic v. Court of Appeals, 277 SCRA 633 .................................. 80
Republic v. Kenrick Development Corporation, ·
498 SCRA 220, 231 ................................................................. 248
INDEX 379
Republic v. Marcos-Manotoc, 665 SCRA 367, 386,
February 8, 2012 ............................................................ 135, 282
Republic v. Mupas, G.R. No. 181892,
September 8, 2015 .................................................. 135, 142, 145
Republic v. Sandiganbayan [Fourth Division],
662 SCRA 152, 184, December 13, 2011 ............................... 364
Revita v. People, 570 SCRA 356 ..................................................... 127
Ricalde v. People, G.R. No. 211002, January 21, 2015 ................. 186
Ries Biological, Inc. v. The Bank of Santa Fe,
780 F .2d 888 [lOth Cir. 1986] .............................................. 293
Rivera v. C0urt of Appeals, 284 SCRA 673 ...................................... 55
Robles v. Lizarraga Hermanos, 42 Phil. 584 ................................. 282
Rosit v. Davao Doctors Hospital, G.R. No. 210445,
December 7, 2015 ................................................................... 282
Ross v. Cooper, 38 N.D. 173, 164 N. W. 679 ................................... 301
Rubio v. Alabata, G.R. No. 203947, February 26, 2014 .................. 14
Rural Bank ofCabadbaran, Inc. v. Melecio-Yap,
G.R. No. 178451, July 30, 2014 ............................................... 63
Ryan v. Town ofBrisol, 63 Conn., 26, 27, Atl. 309 .......................... 23
s
Saberola v. Suarez, 558 SCRA 135 ................................................ 157
Sabili v. Commission on Elections, 670 SCRA 664, 670,
April 24, 2012 ......................................................................... 328
Salazar v. Court of Appeals, 376 SCRA 459 .................................... 93
Samala v. Valencia, 512 SCRA 1 ................................................... 210
Samalio v. Court of Appeals, 454 SCRA 462,
March 31, 2005 ....................................................................... 330
Santos v. Alcazar, G.R. No. 183034, March 12, 2014 .................... 169
Santos v. Lumbao, 519 SCRA 408 .................................................... 95
Santos v. Santos, 366 SCRA 395 .................................................... 197
Sapio v. Undaloc Construction, 554 SCRA 148 ............................. 323
Saraum v. People, G.R. No. 205472,
January 25, 2016 ................................ _................................ 40, 67
Sarraga v. Banco Filipino Savings & Mortgage Bank,
393 SCRA 566 ........................................................................... 93
Sasan, Sr. v. NLRC, 569 SCRA 670 ................................................... 4
Sayco v. People, 547 SCRA 368 ...................................................... 250
SCC Chemicals Corporation v. Court of Appeals,
353 SCRA 70 ....................................................................... 15, 90
380 EVIDENCE
(The Bar Lectures Series)
Scott v. Times-Mirror Co., 181 Cal 345, 184 P 672,
12 ALR 1007 ........................................................................... 349
SeaOil Petroleum Corporation v. Autocorp Group,
569 SCRA 387 ......................................................................... 154
Senate of the Philippines v. Ermita, 488 SCRA 1.. ....................... 214
Servicewide Specialists, Inc. v. Court of Appeals,
257 SCRA 643 ........................................................................... 93
Sicam v. Jorge, 529 SCRA 443 ......................................................... 96
Siena Realty Corporation v. Gallang, 428 SCRA 422 ..................... 76
Silot v. DelaRosa, 543 SCRA 533 ............................................. 91, 93
Sison v. People, 250 SCRA 58, 75 .................................................. 103
Sison v. People, 666 SCRA 645, 662, February 22, 2012 ............... .41
Sistual v. Ogena, A. C. No. 9807, February 2, 2016 ....................... 173
Skunac Corporation v. Sylianteng, G.R. No. 205879,
April23, 2014 ................................................................. 137, 148
Solidbank Corporation v. Mindanao Ferroalloy
Corporation, 464 SCRA 409 ..................................................... 82
Solidum v. People, G.R. No. 192123, March 10, 2014 ..................... 66
Spaak v. Chicago & Northwestern Railway Co.,
231 F.2d 279 [7th Cir. 1956] .................................................. 106
Sparfv. United States, 156 US 51, 39 LEd 343,
15 S. Ct. 273 ............................................................................ 349
Spouses Lehner v. Chua, G.R. No. 174240,
March 20, 2013 ....................................................................... 172
Spouses Manzanilla v. Waterfields Industries Corporation,
G.R. No. 177484, July 18, 2014 ............................................... 59
Spouses Paras v. Kimwa Construction and Development
Corporation, G.R. No. 171601, AprilS, 2015 ........ 154, 158, 162
Spouses Ragudo v. Fabella Estate Tenants Association,
Inc., 466 SCRA 136 ................................................................. 346
Spouses Ramos v. Obispo, G.R. No. 193804,
I
.w
'~
February 27, 2013 .................................................................... 68
Spouses Tan v. Republic, 573 SCRA 89 ......................................... 342
Standard Insurance Co., Inc. v. Cuaresma,
G.R. No. 200055, September 10, 2014 ..................................... 68
State Prosecutors v. Muro, 236 SCRA 505 ................................ 78, 83
State v. Dena, 28 N. Mexico, 479,214, Pac. 583 ........................... 249
State v. Hancock, 28 Nev. 300, 32, Pac. 95 .................................... 198
State v. Hernandez [App] 170 Arizona 301;
29 Am Jur 29, 710 .................................................................. 293
Sunga-Chan v. Chua, 363 SCRA 249 ...................: ......................... 194
Sy v. Court of Appeals, 330 SCRA 550 .......................................... 136
INDEX 381
T
T.C. Young Construction Co. v. Brown [Ky] 372 SW2d 670,
99 ALR3d 288 105
Tabuena v. Court of Appeals, 196 SCRA 650 81,343
Talidano v. Falcom Maritime & Allied Services, Inc.,
558 SCRA 279 312,313,318
Tan Shuy v. Maulawin, 665 SCRA 604, 612,
February 8, 2012 .................................................................... 169
Tan v. Court of Appeals, 295 SCRA 247 ........................................ 193
Tan v. Hosana, G.R. No. 190846, February 3, 2016 .................. 16, 63
Tating v. Marcella, 519 SCRA 79 ............................................... 23, 25
Tecson v. COMELEC, 424 SCRA 277 ............................................ 120
Tijing v. Court of Appeals, 354 SCRA 17 ...................................... 118
Titan Construction Company v. Uni-Field
Enterprises, Inc., 517 SCRA 180 ........................................... 344
Torres v. Court of Appeals, 131 SCRA 24 ........................................ 93
Tze Sun Wong v. Wong, G.R. No. 180364,
December 3, 2014 ..................................................................... 49
u
U.S. v. Antipolo, 37 Phil. 726 ................................................. 206, 305
U.S. v. Arias-Villanueva [CA9 Or] 998 F2d 1491.. ........................ 261
U.S. v. Aucoin, 964 F.2d 1492 [5th Cir. 1992] ............................... 209
U.S. v. Baird, 29 F.3d 647, D.C. Cir 1994 ...................................... 289
U.S. v. Behrens, 689 F.2d 154 [lOth Cir. 1982] ............................. 186
U.S. v. Blanco, 37 Phil. 126 .............................................................. 80
U.S. v. Canieso, 470 F2d 1224 2d Cir. 1972 .................................. 289
U.S. v_ Cervantes-Pacheco, 826 F2d 310 [5th Cir. 1987] .............. 185
U.S. v. Clemente, 22 Phil. 277 ........................................................ 305
U.S. v. Cook, 949 F2d 289 [lOth Cir. 1991] ................................... 185
U.S. v. Enriquez, 1 Phil. 241 .......................................................... 283
U.S. v. Evangelista, 29 Phil. 215 .................................................... 179
U.S. v. Fowler, 605 F.2d 181 [5th Cir. 1979] ................................. 221
U.S. v. Gordon, 493 F. Supp. 822 [7th Cir. 1987] .......................... 214
U.S. v. Hernandez, 31 Phil. 342 ....................................................... 80
U.S. v. Monroe, 943 F 2d 1007, 9th Cir. 1991 ............................... 289
U.S. v. Nerlinger [CA2 NY] 862 F2d 967, 27 Fed
Rules Evidence Serv 271 ........................................................ 260
U.S. v. Norwood, 798 F.2d 1094 [7th Cir. 1960] ............................ 292
U.S. v. Novo Sampol, 636 F.2d 621 [D.C. Cir. 1980] ..................... 186
U.S. v. Orera, 11 Phil. 596 .............................................................. 166
 382 EVIDENCE
(The Bar Lectures Series)

U.S. v. Tedder, [CA4 SC] 801 F2d 1437;

29AAm Jur 2d §1007 ............................................................. 128
U.S. v. Wilson, 798 F.2d 509 [1st Cir. 1986] .................................. 209
Ubales v. People, 570 SCRA 251 ...................................................... 22

v
Valdez v. People, 538 SCRA 611 ...................................................... 38
Valencia v. People, G.R. No. 198804,
January 22, 2014 ............................................................ 116, 1J.7
Valleno v. People, G.R. No. 192050, January 9, 2013 ................... 115
Vda. de Catalan v. Catalan-Lee, 665 SCRA.487, 495,
i""
February 8, 2012 .............................................................. 79, 179
Vda. de Gabriel v. Court of Appeals, 264 SCRA 137 ....................... 52
Vda. de Onate v. Court of Appeals, 250 SCRA 283 ....................... 343

w
Werdell v. Turzynski, 128 Ill. App. 2d 139 ...................................... 27
Werner v. Upjohn Co. [CA4 MD] 628 F2d, 848;
29 Am Jur 2d §463-464 ......................................................... 265
Willex Plastic Industries Corporation v. Court of Appeals,
256 SCRA 478 ................................................ ~ ........................ 164
Winfrey v. State, 174 Ark. 729, 296 S.W...................................... 301
Wyne v. Newman, 75 Va., 811, 817 .................................................. 30
y
Yapyuco v. Sandiganbayan, 674 SCRA 420,451,
June 25, 2012 .......................................................................... 257

z
Zabala v. People, G.R. No. 210760,
January 26, 2015 ...................................................... 29, 249, 250
Zafra v. People, 671 SCRA 396, 405, April 25, 2012 ............... 61, 112
Zapanta v. People, G.R. No. 170863, March 20, 2013 ........... 250, 251
Zulueta v. Court of Appeals, 253 SCRA. 699 .................................. 205