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VIII. EVIDENCE e. Rules on evaluation of reliability of

the DNA testing methodology
D. DOCUMENTARY EVIDENCE
TOPIC OUTLINE UNDER THE SYLLABUS:
1. Meaning of documentary evidence
2. Requisites for admissibility
A. GENERAL PRINCIPLES OF EVIDENCE
3. Original document rule
1. Concept of Evidence
a. Meaning of the rule
2. Scope of the rules of evidence
b. When not applicable
3. Distinguish: proof and evidence
c. Meaning of original document and
4. Distinguish: factum probans and factum
duplicate
probandum
d. Secondary evidence; summaries
5. Admissibility of evidence:
4. Electronic evidence
a. Requisites for admissibility of evidence;
a. Meaning of electronic evidence;
exclusions under the Constitution,
electronic data message
laws and Rules of Court
b. Probative value of electronic
b. Relevance of evidence and collateral
documents or evidentiary weight;
matters
method of proof
c. Multiple admissibility
c. Authentication of electronic
d. Conditional admissibility
documents and electronic signatures
e. Curative admissibility
d. Electronic document and the hearsay
f. Direct and circumstantial evidence
rule
g. Positive and negative evidence
e. Audio, photographic, video, and
h. Competent and credible evidence
ephemeral evidence
6. Burden of proof and Burden of evidence
5. Parol evidence rule
7. Presumptions
a. Application of the parol evidence rule
a. Conclusive presumptions
b. When parol evidence can be
b. Disputable presumptions
introduced
c. Presumptions in civil actions and
c. Distinguish: original document rule
proceedings; Presumption against an
and parol evidence rule
accused in criminal cases
6. Authentication and proof of documents
8. Construction of rules of evidence
a. Meaning of authentication
9. Quantum of evidence
b. Classes of documents
B. JUDICIAL NOTICE AND ADMISSIONS
c. When a private writing requires
1. What need not be proved
authentication; proof of a private
2. Matters of judicial notice
writing
a. Mandatory
d. When evidence of authenticity of a
b. Discretionary
private writing is not required
3. Judicial admissions
e. Genuineness of handwriting
a. Effect of judicial admissions
f. Public documents as evidence; proof
b. How judicial admissions may be
of official record
contradicted
g. Attestation of a copy
c. Pre-trial admissions
h. Public record of a public document
C. OBJECT (REAL) EVIDENCE
i. Proof of lack of record
1. Nature of object evidence
j. How a judicial record is impeached
2. Requisites for admissibility
k. Proof of notarial documents
3. Categories of object evidence
l. Alterations in a document
4. Chain of custody in relation to Section 21
m. Documentary evidence in unofficial
of the Comprehensive Dangerous Drugs
language
Act of 2002
E. TESTIMONIAL EVIDENCE
5. DNA Evidence
1. Qualifications of a witness
a. Meaning of DNA
2. Disqualification of witnesses
b. Application for DNA testing order
a. Disqualification by reason of marriage
c. Post-conviction DNA testing; remedy
d. Assessment of probative value of
DNA Evidence and admissibility
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b. Disqualification by reason of
privileged communications; rule on
third parties
i. Husband and wife
ii. Attorney and client; exceptions
iii. Physician and patient
iv. Priest and penitent
v. Public officers
c. Parental and filial privilege rule
d. Trade secrets
3. Examination of a witness
a. Rights and obligations of a witness
b. Order in the examination of an
individual witness
c. Leading and misleading questions
d. Impeachment of witness
i. Adverse party’s witness
ii. By evidence of conviction of
crime
iii. Own witness
iv. How the witness is
impeached by evidence of
inconsistent statements
e. Referral of witness to
memorandum
f. Examination of a child witness
i. Applicability of the rule
ii. Meaning of “child witness”
iii. Competency of a child
witness
iv. Examination of a child
witness
v. Live-link TV testimony of a
child witness
vi. Videotaped deposition of a
child witness
vii. Hearsay exception in child
abuse cases
viii. Sexual abuse shield rule
ix. Protective orders
4. Admissions and confessions
a. Admission by a party
b. Res inter alios acta rule
c. Admission by a third party
d. Admission by a co-partner or
agent
e. Admission by a conspirator
f. Admission by privies
g. Admission by silence
h. Confessions
i. Similar acts as evidence
j. Admissibility of offers of
compromise
5. Hearsay rule
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a. Meaning of hearsay
b. Reasons for exclusion of
hearsay evidence
c. Exceptions to the hearsay rule
i. Dying declaration
ii. Statement of decedent or
person of unsound mind
iii. Declaration against interest
iv. Act or declaration about
pedigree
v. Family reputation or
tradition regarding pedigree
vi. Common reputation
vii. Part of res gestae
viii. Records of regularly
conducted business activity
ix. Entries in official records
x. Commercial lists and the
like
xi. Learned treatises
xii. Testimony or deposition at a
former trial
xiii. Residual exception
d. Independently relevant
statements
6. Opinion Rule
a. Opinion of expert witness;
weight given
b. Opinion of ordinary witness
7. Character evidence
a. Criminal cases
b. Civil cases
c. Criminal and civil cases
8. Judicial affidavits
a. Scope
b. Submission in lieu of direct
testimony
c. Contents
d. Offer and objection
e. Application in criminal cases
f. Effect of non-compliance
F. OFFER AND OBJECTION
1. Offer of evidence
2. When to make an offer
3. Objection
4. Repetition of an objection
5. Ruling
6. Striking out of an answer
7. Tender of excluded evidence
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A. GENERAL PRINCIPLES OF EVIDENCE
1. CONCEPT OF EVIDENCE
EVIDENCE is the means sanctioned by the Rules
of Court, of ascertaining in a judicial proceeding
the truth respecting a matter of fact (Rule 128,
Sec.1)
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 the
Rules, even if it proves the existence or non-
existence of a fact in issue. (Riano, 1)
2. SCOPE OF THE RULES OF EVIDENCE
The rules on evidence, being components of the
Rules of Court, apply only to judicial proceedings.
(see Sec.1, Rule 128)
General Rule: The rules of evidence shall be the
same in all courts and in all trials and hearings.
Exception: Except as provided by law or by the
Rules of Court (Rule 128, Sec. 2) [NICOLE]
1. Naturalization Proceedings
2. Insolvency Proceedings
3. Cadastral Proceedings
4. Land Registration Cases
5. Election Cases
(Rule 1, Sec. 4)
Except by analogy or in a suppletory character
and whenever practicable and convenient (Rule
1, Sec. 4)
Applicability
The rules on evidence, being part of the Rules of
Court, apply only to judicial (as opposed to
administrative or quasi-judicial proceedings).
Judicial Proceedings include:
a. Civil – includes Ordinary and Special Civil
Actions
b. Criminal
c. Special Proceedings
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NOTE: While the definition of “evidence” under
the Rules of Court refers only to judicial
proceedings, the provisions of the Rules on
Electronic Evidence apply to all civil actions and
proceedings, as well as quasi-judicial and
administrative cases (Rules on Electronic
Evidence, Sec. 2)
But see Sept. 24, 2002 Resolution in A.M. No.
01-7-01-SC, expanding the coverage of the Rules
on Electronic Evidence to criminal cases as well.
As to the admissibility of text messages, the SC
noted in People v. Enojas that the RTC admitted
them in conformity with the SC’s earlier
Resolution applying the Rules on Electronic
Evidence to criminal actions. (People v. Enojas,
G.R. No. 204894, 2014)
When NOT Applicable
It does not apply to administrative or quasi-
judicial proceedings as administrative bodies are
not bound by the technicalities of the rules
obtaining in the courts of law. (El Greco Ship
Manning and Management Corporation v.
Commissioner of Customs, G.R. No. 177188,
2008) This is not to say that evidence is not
necessary in administrative or quasi-judicial
proceedings, only that the rules of evidence do
not strictly apply.
The rules of evidence are not strictly observed in
proceedings before administrative bodies.
Administrative bodies are not bound by the
technicalities of law and procedure and the rules
obtaining in the courts of law. (Bantolino v. Coca-
Cola Bottlers Phils., Inc., G.R. No. 153660, 2003)
Article 227 of the Labor Code provides that labor
tribunals are not bound by the technical rules of
evidene and they may use all reasonable means
to ascertain the facts of the case without regard
to the technicalities of law and procedure.
(Clemente v. Status Maritime Corp., G.R. No.
238933, 2020)
The Court held that the affidavits were admissible
because in Agrarian cases, the Rules of Court are
not applicable even in a suppletory character.
Section 16 of PD 946 provides that the Rules of
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Court shall not be applicable to agrarian cases,

Presumption There is no Presumption
even in a suppletory character. (Reyes v. Court
of Innocence presumption of innocence
of Appeals, G.R. No. 96492, 1992)
as to either attends the
party accused
While rules of evidence prevailing in courts of law
throughout
and equity shall not be controlling, this assurance
the trial until
of a desirable flexibility in administrative
the same has
procedure does not go as far as to justify orders
been
without basis in evidence having rational
overcome by
probative force. (First United Construction Corp.
proof beyond
v. Valdez, G.R. No. 154108, 2008)
reasonable
doubt
Rules of Evidence apply suppletorily to the Rules
on Electronic Evidence. General Not allowed Allowed
Denial (Sec. 10,
The rules do not apply in the mentioned Rule 8)
proceedings except by analogy or in a suppletory
character whenever practicable and convenient.
Offer of Not, as a May be
(Sec. 4, Rule 1, Rules of Court; Ong Chia v.
Compromise general rule, received as
Republic, 328 SCRA 749)
(Sec. 27, an admission implied
Rule 130) of liability admission of
Technical rules of evidence, such as the hearsay
guilt;
rule, are not to be rigidly applied in the course of
Exceptions:
preliminary investigation proceedings. Since a
1. In cases
preliminary investigation does not finally
involving
adjudicate the rights and obligations of the
quasi-
parties, probable cause can be established with
offenses
hearsay evidence, as long as there is substantial
2.Cases
basis for crediting the hearsay. (Riano 3, citing
allowed by
Estrada v. Sandiganbayan, G.R. Nos. 212761-
law to be
62, 2018)
compromised
COMPARISON OF CONSIDERATIONS THAT Quantum of Preponderan Guilt beyond
MAY HAVE AN IMPACT ON EVIDENCE IN Proof ce of reasonable
CIVIL CASES VERSUS EVIDENCE IN evidence. doubt
CRIMINAL CASES
Effect of Party with the The accused
CIVIL CRIMINAL Equipoise burden of is acquitted
CASES CASES rule proof loses

Cross Not Applicable

In Terms of Parties attend Accused
Examination applicable (Rule on
Attendance by accord attends by
in Summary Summary
compulsion
Procedure Procedure,
Sec. 15)

Doctor- Applicable Not

Patient Applicable
Privileged (Rule 130,
Commc’n Sec. 24[c])

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4. DISTINGUISH: FACTUM PROBANS AND

May a party Subject to The accused
be FACTUM PROBANDUM
privilege, if cannot be
compelled to applicable, a compelled to
Factum Probans Versus Factum Probandum
testify? party or a testify
defendant FACTUM PROBANS FACTUM
may be PROBANDUM
compelled to
be a witness The probative or The ultimate fact to be
through a evidentiary fact tending proved or proposition to
subpoena to prove the fact in issue be established.
provided or the FACTUM
written PROBANDUM. It is the
interrogatorie material evidencing the
s and request proposition.
for admission
have been
previously The factum probandum (i.e., the ultimate fact)
served upon need not be proved where it is a matter of judicial
him. (Rule 25, notice or is covered by a conclusive presumption
Sec. 6; Rule or is a judicial admission as these need no longer
26, Sec. 5) be established or proven.

3. DISTINGUISH: PROOF AND EVIDENCE Fact in Issue

Proof Versus Evidence
PROOF
The result or the The
probative effect of means by which a fact
evidence. When the is
requisite quantum of disproved.
evidence of a
particular fact has
been duly admitted
and given weight, the
result is called the
proof of such fact.
Facts in issue are those facts which a plaintiff
must prove in order to establish his claim and
those facts which the defendant must prove in
EVIDENCE
order to establish a defense set up by him, but
only when the fact alleged by the one party is not
medium or admitted by the other party. (Francisco, p. 22,
2017)
proved or
5. ADMISSIBILITY OF EVIDENCE
a. Requisites for admissibility of evidence;
exclusions under the Constitution, laws,
and Rules of Court
REQUISITES (RULE 128)
The Evidence MUST Be:
1. Relevant – Must have such a relation to the
fact in issue as to induce belief in its existence
or non-existence.
2. Competent – Not excluded by the Rules on
Evidence, the law or the Constitution

These two elements correspond to the Two

Axioms of Admissibility:
1. Axiom of Relevancy - That none but facts
having rational probative value are
admissible.
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2. Axiom of Competency - All facts having evidence which may have evidentiary weight may
rational probative value are admissible unless be inadmissible because a special rule forbids its
some specific rule forbids their admission. reception.(People v. Turco, G.R. No. 137757,
(Riano, p. 21, citing I Wigmore, §§9-10, 289- 2000)
295).
Evidence is admissible when it is relevant to the
If in doubt as to admissibility of the testimony issue and is not excluded by the Constitution, the
given in the court, the court should favor law or the rules (Rule 128, Sec. 3) or is
admissibility. Otherwise, if the trial court judge competent. Since admissibility of evidence is
erred in ruling and excluded the same, the determined by its relevance and competence,
appeals court would be precluded from reversing admissibility is, therefore, an affair of logic and
the ruling and taking such testimony. law. On the other hand, the weight to be given to
such evidence, once admitted, depends on
Importance of Admissibility in relation to judicial evaluation within the guidelines provided
Offer and Objection in Rule 133 and the jurisprudence laid down by
Any objection to the admissibility of evidence the Court. (People v. Turco, G.R. No. 137757,
should be made at the time such evidence is 2000)
offered or as soon thereafter as the objection to
its admissibility becomes apparent, otherwise the While the terms and provisions of a void contract
objection will be considered waived and such cannot be enforced since it is deemed inexistent,
evidence will form part of the records of the case it does not preclude the admissibility of the
as competent and admissible evidence. (Chua v. contract as evidence to prove matters that
CA, G.R. No. 109840, 1999) occurred in the course of executing the contract,
i.e., what each party has given in the execution of
Admissibility Distinguished from Weight of the contract.
Evidence
There is no provision in the Rules of Evidence
ADMISSIBILITY WEIGHT
which excludes the admissibility of a void
document. The Rules only require that the
Refers to the question Refers to the question evidence is relevant and not excluded by the
of whether or not the of whether or not the Rules for its admissibility. Hence, a void
evidence is to be evidence proves a fact document is admissible as evidence because the
considered at all in issue purpose of introducing it as evidence is to
ascertain the truth respecting a matter of fact, not
Pertains to its Pertains to its tendency to enforce the terms of the document itself.
relevance and to convince and (Tomas P. Tan, Jr. v. Jose G. Hosana, G.R. No.
competence persuade 190846, February 3, 2016)

Depends on logic and Depends on the EXCLUSIONS UNDER THE CONSTITUTION,

the law guidelines provided in LAWS, AND RULES OF COURT
Rule 133 and
jurisprudence Rules of Exclusion
Governed by the Rules or by Statute and
Constitution.
The admissibility of the evidence depends on its
relevance and competency, while the weight of
Some Exclusionary Rules
evidence pertains to its tendency to convince and
1. 1987 Constitution, Article III
persuade. (Tating v. Marcella, G.R. No. 15508,
 Section 2 The right of the people to be
2007)
secure in their persons, houses, papers,
and effects against unreasonable
While evidence may be admissible, it may be
searches and seizures of whatever nature
entitled to little or no weight at all. Conversely,
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and for any purpose shall be inviolable,
and no search warrant or warrant of arrest
shall issue except upon probable cause to
be determined personally by the judge
after examination under oath or affirmation
of the complainant and the witnesses he
may produce, and particularly describing
the place to be searched and the persons
or things to be seized.
 Section 3 (1) The privacy of
communication and correspondence shall
be inviolable except upon lawful order of
the court, or when public safety or order
requires otherwise, as prescribed by law.
(2) Any evidence obtained in violation of
this or the preceding section shall be
inadmissible for any purpose in any
proceeding.
 Section 12 (1) Any person under
investigation for the commission of an
offense shall have the right to be informed
of his right to remain silent and to have
competent and independent counsel
preferably of his own choice. If the person
cannot afford the services of counsel, he
must be provided with one. These rights
cannot be waived except in writing and in
the presence of counsel. (2) No torture,
force, violence, threat, intimidation, or any
other means which vitiate the free will shall
be used against him. Secret detention
places, solitary, incommunicado, or other
similar forms of detention are prohibited.
(3) Any confession or admission obtained
in violation of this or Section 17 hereof shall
be inadmissible in evidence against him.
(4) The law shall provide for penal and civil
sanctions for violations of this section as
well as compensation to and rehabilitation
of victims of torture or similar practices,
and their families.
 Section 17 No person shall be compelled
to be a witness against himself.
2. Section 201, Tax Reform Act of 1997
A document required by law to be stamped
shall not be admitted or used in evidence until
the requisite stamps are affixed thereto.
3. R.A. 1405, Law on Secrecy of Bank
Deposits, Sec. 2
All deposits of whatever nature are absolutely
confidential and may not be examined,
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inquired, looked into except upon written
permission of the depositor, or in cases of
impeachment, or upon order of a competent
court in cases of bribery or dereliction of duty
of public officials or in cases where the money
is the subject matter of litigation
4. R.A. 4200, Wire-Tapping Act, Sec. 4
Any communication or spoken word or the
existence, contents, substance or any
information contained therein secured in
violation of the Act shall not be admissible in
evidence in any judicial, quasi-judicial,
legislative or administrative hearing or
investigation.
5. R.A. 11479, Anti-Terrorism Act, Sec. 23–
Any listened to, intercepted, and recorded
communications, messages, conversations,
discussions, or spoken or written words, or
any part or parts thereof, or any information or
fact contained therein, including their
existence, content, substance, purport, effect,
or meaning, which have been secured in
violation of the pertinent provisions of this Act,
shall be inadmissible and cannot be used as
evidence against anybody in any judicial,
quasi-judicial, legislative, or administrative
investigation, inquiry, proceeding, or hearing.
6. R.A. 9745, Anti-Torture Act, Sec. 8
Any confession, admission or statement
obtained as a result of torture shall be
inadmissible in evidence in any proceedings,
except if the same is used as evidence against
a person or persons accused of committing
torture.
7. A.M. 02-6-02-SC, Confidentiality Rule in
Adoption Cases, Sec. 18
All hearings in adoption cases, after
compliance with the jurisdictional
requirements shall be confidential and shall
not be open to the public. All records, books
and papers relating to the adoption cases in
the files of the court, the Department, or any
other agency or institution participating in the
adoption proceedings shall be kept strictly
confidential.
8. R.A. 9285, Alternative Dispute Resolution
Act of 2004, Sec. 9
Information obtained through mediation
proceedings shall be subject to the following
principles and guidelines:
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(a) Information obtained through mediation
shall be privileged and confidential.
(b) A party, a mediator, or a nonparty
participant may refuse to disclose and
may prevent any other person from
disclosing a mediation communication.
(c) Confidential Information shall not be
subject to discovery and shall be
inadmissible in any adversarial
proceeding, whether judicial or quasi-
judicial, However, evidence or
information that is otherwise admissible
or subject to discovery does not
become inadmissible or protected from
discovery solely by reason of its use in
a mediation.
(d) In such an adversarial proceeding, the
following persons involved or previously
involved in a mediation may not be
compelled to disclose confidential
information obtained during mediation:
(1) the parties to the dispute; (2) the
mediator or mediators; (3) the counsel
for the parties; (4) the nonparty
participants; (5) any persons hired or
engaged in connection with the
mediation as secretary, stenographer,
clerk or assistant; and (6) any other
person who obtains or possesses
confidential information by reason of
his/her profession.
(e) The protections of this Act shall
continue to apply even if a mediator is
found to have failed to act impartially.
(f) A mediator may not be called to testify
to provide information gathered in
mediation. A mediator who is wrongfully
subpoenaed shall be reimbursed the
full cost of his attorney's fees and
related expenses.
9. R.A. 8505, Rape Victim Assistance and
Protection Act of 1998
In prosecutions for rape, evidence of
complainant's past sexual conduct, opinion
thereof or of his/her reputation shall not be
admitted unless, and only to the extent that
the court finds, that such evidence is material
and relevant to the case. (Section 6)
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The Exclusionary Rule
Commonly used for evidence excluded by the
Constitution. It is applied to cases where the
challenged evidence is quite clearly direct or
primary in its relationship to the prior arrest or
search. (Herrera, Remedial Law Vol V, 37)
What the Constitution prohibits is the use of
physical or moral compulsion to extort
communication from the accused, but not an
inclusion of his body in evidence, when it may be
material. This was a mechanical act the accused
was made to undergo which was not meant to
unearth undisclosed facts but to ascertain
physical attributes determinable by simple
observation. (Gutang v. People, G.R. No.
135406, 2000)
The extrajudicial confession to the “bantay
bayan” which was taken without counsel is
inadmissible in evidence as the “bantay bayan”
may be deemed to be a law enforcement officer
within the contemplation of Article III, Section 12
of the Constitution. Any inquiry the “bantay
bayan” makes has the color of a state-related
function and objective insofar as the entitlement
of a suspect to his constitutional rights provided
for under Article III, Section 12 of the Constitution,
otherwise known as the Miranda Rights, is
concerned. (People v. Lauga, G.R. No. 186228,
2010)
The phrase “device or arrangement” in Section 1
of RA No. 4200, although not exclusive to that
enumerated therein, should be construed to
comprehend instruments of the same or similar
nature, that is, instruments the use of which
would be tantamount to tapping the main line of a
telephone. It refers to instruments whose
installation or presence cannot be presumed by
the party or parties being overheard. (Ganaan v.
IAC, G.R. No. L-69809, 1986)
Rep. Act No. 4200 entitled “An Act to Prohibit and
Penalize Wire Tapping and Other Related
Violations of the Privacy of Communication, and
for other purposes” expressly makes such tape
recordings inadmissible in evidence. Absent a
clear showing that both parties to the telephone
conversations allowed the recording of the same,
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the inadmissibility of the subject tapes is
mandatory under Rep. Act No. 4200. (Salcedo-
Ortañez v. CA, G.R. No. 110662, 1994)
Personal information controllers may invoke the
principle of privileged communication over
privileged information that they lawfully control or
process. Subject to existing laws and regulations,
any evidence gathered on privileged information
is inadmissible. (Sec. 15, Data Privacy Act of
2012)
b. Relevance of evidence and collateral
matters
RELEVANCY
Evidence is relevant if it has such a relation to the
fact in issue as to induce belief in its existence or
non-existence (Rule 128, Sec. 4).
What constitutes RELEVANT Evidence:
1. Material – evidence offered upon a matter
properly in issue. It is directed towards a fact
within the range of allowable controversy.
2. Probative – tendency of evidence to establish
the proposition that it is offered to prove.
COMPETENCY
Facts having rational probative value are
admissible unless some rule or law forbids their
admission. If a rule or law excludes the evidence,
it is incompetent.
COLLATERAL MATTERS
Refers to matters other than the fact in issue.
These are matters outside the controversy or are
not directly connected with the principal matter or
issue in dispute, as indicated in the pleadings of
the parties.
General Rule: Evidence on collateral matters is
not allowed.
Exception: Evidence on collateral matters may
be admitted if it tends in any reasonable degree
to establish the probability or improbability of the
fact in issue (Rule 128, Sec. 4).
For instance, when a witness testifies having
seen the killing of the victim by the accused, his
testimony is direct evidence for it tends to prove
the fact in issue without the aid of inference or
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presumption; but when he testifies to the conduct
of the accused prior to the commission of the
crime or immediately thereafter from which an
inference may be made as to the probability or
improbability of the fact in issue, his testimony is
circumstantial evidence for it tends to prove
collateral matters which with the aid of inference
may tend to establish that probability or
improbability of the fact in issue. (Herrera,
Remedial Law Vol V, 63 – 64)
c. Multiple Admissibility
When proffered evidence is admissible for two or
more purposes. It may be admissible for one
purpose but inadmissible for another or vice
versa. It may also mean that it may be admissible
against one party but not against another.
Example: Admissions admissible against the
declarant but not against his co-accused under
the res inter alios acta rule.
The extrajudicial confession of the accused was
not competent as against his co-accused for
being hearsay. However, the confession of the
accused may still be admissible as evidence of
his own guilt. (People v. Yatco, G.R. No. L-9181,
1955)
NOTE: An extrajudicial confession of an accused
may be competent as against his co-accused
under the rule on admission by co-conspirators.
(Rule 130, Sec. 31)
d. Conditional Admissibility
When a piece of evidence appears to be relevant
as it is connected with other pieces of evidence
not yet offered or proved, such piece of evidence
may be conditionally admitted subject to the
condition that its relevancy and competency be
established at a later time. If the condition is not
met, the evidence should be rejected.
Example: In an action by A against B for recovery
of a real property, plaintiff offered a document
showing that the property belonged to X. On
objection of the defendant upon the ground of
irrelevancy, plaintiff stated that he would prove
later by other evidence that X, the original owner
sold the property to Y and the latter sold it to Z
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from whom plaintiff acquired title by purchase. for one relevance will opposing
The Court may admit the evidence conditionally purpose but readily be party may be
until the other facts mentioned by plaintiff are inadmissible seen when allowed to
proved. (Herrera, Remedial Law, Vol V, 29) for another connected to introduce
or vice other pieces otherwise
In a case of any intricacy it is impossible for a versa. of evidence inadmissible
judge of first instance to know with any certainty not yet evidence to
whether testimony is relevant or not; and where It may also offered. contradict the
there is no indication of bad faith on the part of mean that it previously
the attorney offering the evidence, the court may may be admitted
as a rule safely accept the testimony upon the admissible inadmissible
statement of the attorney that the proof offered against one evidence and
will be connected later. (Prats Co. v. Phoenix party but not to remove any
Insurance, G.R. No. L-28607, 1929) against prejudice
another caused by its
e. Curative Admissibility admission.
The purpose The Principle of
When a party is allowed to present inadmissible
for which the proponent of curative
evidence over the objection of the opposing party,
evidence is the evidence admissibility
such opposing party may be allowed to introduce
offered must may ask the should not be
otherwise inadmissible evidence to contradict the
be specified court that the made to apply
previously admitted inadmissible evidence and to
because evidence be where the
remove any prejudice caused by its admission.
such conditionally evidence was
evidence admitted in admitted
Example: At the trial, plaintiff testified that
may be the without
defendant is a man who never pays his debts as
admissible meantime, objection
shown by his refusal to pay his debts to other
for several subject to the because the
persons. This evidence is inadmissible but was
purposes condition that failure to
admitted by mistake. In such case, in fairness to
under the he is going to object
the defendant, the Court may allow him to explain
doctrine of establish its constitutes a
his dealings with such other persons. (Herrera,
multiple relevancy and waiver of the
Remedial Law Vol V, 26)
admissibility competency inadmissibility
In our jurisdiction, the principle of curative
, or may be at a later time. of the
admissibility should not be made to apply where
admissible evidence
the evidence was admitted without objection
for one
because the failure to object constitutes a waiver
purpose but
of the inadmissibility of the evidence.
not for
Inadmissible evidence not objected to
another.
becomes admissible (Riano, Evidence, 33)

MULTIPLE CONDITION CURATIVE

AL
When It happens When a party
proffered frequently is allowed to
evidence is enough that present
admissible the relevance inadmissible
for two or of a piece of evidence over
more evidence is the objection
purposes. It not apparent of the
may be at the time it is opposing
admissible offered, but its party, such

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f. Direct and circumstantial evidence

Example: The Example: Testimony
testimony of W that he of W that he could not
DIRECT EVIDENCE CIRCUMSTANTIAL saw P fire a gun at the have fired the gun
EVIDENCE victim is positive because he was not
evidence armed during the
That which proves the Evidence that indirectly incident is negative
fact in dispute without proves a fact in issue evidence
the aid of any through an inference
inference or which the fact finder h. Competent and credible evidence
presumption. draws from the evidence
established.
COMPETENT CREDIBLE
EVIDENCE EVIDENCE
Example: Witness Example: Witness
saw the accused testified that he saw the
inflict a blow which accused with blood on Evidence that is not When evidence is not
caused the victim’s his shirt and hands and excluded by the Rules, only admissible
death running from the scene statutes or evidence but is
of the crime where the Constitution. believable and used
victim was lying dead. by the court in
The next day, the deciding a case.
accused was nowhere to
be found in his place of Example: School
residence. Taken teacher who passed
altogether, inference of by saw the accused
guilt can be drawn that shoot the victim. His
the accused killed the testimony is credible.
victim. He is one who
practices a noble
profession and he is
g. Positive and negative evidence
neutral witness.

POSITIVE EVIDENCE NEGATIVE

EVIDENCE NOTE: that Rule 24, Administrative Order No. 1,
series of 1993 only provides for sanctions against
persons violating the rule on confidentiality of
When the witness When the witness birth records, but nowhere does it state that
affirms that a fact did states that an event procurement of birth records in violation of said
occur. Such evidence did not occur or that rule would render said records inadmissible in
is entitled to greater the state of facts evidence. On the other hand, the Revised Rules
weight since the alleged to exist does of Evidence only provides for the exclusion of
witness represents of not actually exist. evidence if it is obtained as a result of illegal
his or her personal searches and seizures. It should be emphasized,
knowledge the however, that said rule against unreasonable
presence or absence searches and seizures is meant only to protect a
of a fact. person from interference by the government or
the state.

Since both Rule 24, Administrative Order No. 1,

series of 1993 and the Revised Rules on
Evidence do not provide for the exclusion from
evidence of the birth certificates in question, said
public documents are, therefore, admissible and
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should be properly taken into consideration in the
resolution of this administrative case against
respondent. (Tolentino v. Mendoza, A.C. No.
5151 (Resolution), 2004).
6. BURDEN OF PROOF AND BURDEN OF
EVIDENCE
Burden of Proof
Burden of proof is the duty of a party to present
evidence on the facts in issue necessary to
establish his or her claim or defense by the
amount of evidence required by law. Burden of
proof never shifts. (Rule 131, Sec. 1)
Burden of Evidence
Burden of evidence is the duty of a party to
present evidence sufficient to establish or rebut a
fact in issue to establish a prima facie case.
Burden of evidence may shift from one party to
the other in the course of the proceedings,
depending on the exigencies of the case. (Rule
131, Sec. 1)
Burden of evidence is the duty of a party to go
forward with the evidence to overthrow any prima
facie presumption against him. (Bautista v.
Sarmiento, G.R. No. L-45137, 1985)
UPON WHOM THE BURDEN OF PROOF
RESTS
Civil Cases
The plaintiff has the burden of proof to show the
truth of his allegations if the defendant raises a
negative defense.
The defendant has the burden of proof if he raises
an affirmative defense on the complaint of the
plaintiff. (Jimenez v. NLRC, G.R. No. 116960,
1996)
NOTE: In a civil case, the plaintiff is always
compelled to allege affirmative assertions in his
complaint. When he alleges a cause of action, he
must necessarily allege that he has a right and
that such right was violated by the other party.
Thus, he has the duty to prove the existence of
this affirmative allegation. (see Vitarich Corp v.
Locsin, G.R. No. 181500, 2010)
REMEDIAL LAW
Criminal Cases
The burden of proof is on the prosecution by
reason of the presumption of innocence. (People
v. Alicante, G.R. No. 182941, 2009)
In cases of self-defense, the burden of evidence
shifts to the accused to show that the killing was
legally justified. (People v. Dagani, G.R. No.
153875, 2006
In both civil and criminal cases, the burden of
evidence lies on the party who asserts an
affirmative allegation.
Shifting of Burden of Evidence
In Civil Cases: In the course of trial in a civil
case, once plaintiff makes out a prima facie case
in his favor, the duty or the burden of evidence
shifts to defendant to controvert plaintiff’s prima
facie case, otherwise, a verdict must be returned
in favor of plaintiff. (Vitarich Corporation v. Losin,
G.R. No. 181560, 2010)
In Criminal Cases: When the trial court denies a
motion to dismiss by way of demurrer to
evidence, the accused has the burden of proving
his innocence. When a prima facie case is
established by the prosecution in a criminal case,
as in the case at bar, the burden of proof does not
shift to the defense. It remains throughout the trial
with the party upon whom it is imposed the
prosecution. It is the burden of evidence which
shifts from party to party depending upon the
exigencies of the case in the course of the trial.
The accused only has to present evidence to
equalize his evidence versus that of the plaintiff,
not a preponderance of evidence. (Bautista v.
Sarmiento, G.R. No. L-45137, 1985)
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should be against the party with the burden of

proof. Hence, where the burden of proof is on the
BURDEN OF BURDEN OF
plaintiff and the evidence does not suggest that
PROOF EVIDENCE
the scale of justice should weigh in his favor, the
court should render a verdict for the defendant
Obligation of a party Duty of a party
(Rivera v. CA, G.R. No. 115625, 1998)
to present evidence - to present evidence
on the facts in issue sufficient to establish
Also known as the Equiponderance Doctrine, it
necessary to or rebut a fact in issue
provides that where the evidence in a criminal
establish his claim or to establish a prima
case is evenly balanced, the constitutional
defense by the facie case
presumption of innocence tilts the scales in
amount of evidence - to go forward with
favor of the accused (People v. Lagmay, G.R. No.
required by law the evidence to
125310, 1999)
overthrow any prima
facie presumption 7. PRESUMPTIONS
against him
Presumption
Does not shift in the May shift from one
course of the trial. side to the other as Is an inference as to the existence or non-
trial unfolds. existence of a fact which courts are permitted to
draw from the proof of other facts. (In the Matter
PRINCIPLE OF NEGATIVE AVERMENTS of the Intestate Estates of Delgado v. Heirs of
General Rule: Negative allegations need not be Marciana, G.R. No. 155733, 2006)
proved, whether in a civil or criminal action.
Exception: When such negative allegations are A presumption is an assumption of fact resulting
essential parts of the cause of action or defense from a rule of law which requires such fact to be
in a civil case or are essential ingredients of the assumed from another fact found or otherwise
offense in a criminal case or defenses thereto. established in the action. (Estate of Honorio
(see People v. Yang, G.R. No. 148077, 2004) Poblador, Jr. v. Manzano, G.R. No. 192391,
2017)
In Criminal Cases, if the subject of a negative
averment inheres to the offense as an essential Judicial Admissions v. Presumptions
ingredient thereof, the prosecution has the JUDICIAL PRESUMPTION
burden of proving the same. In view, however, of ADMISSIONS AND
the difficult office of proving a negative allegation, JUDICIAL NOTICE
the prosecution, under such circumstance, needs
to do no more than make a prima facie case from Proponent need not Proponent still has to
the best evidence obtainable. For example, in a introduce any introduce evidence to
case for illegal possession of firearms, the evidence establish or prove the
prosecution has to present a certification from the basis of the
Firearms and Explosives Division of the presumption
Philippine National Police that the accused is not
licensed to carry a firearm outside of his or her
residence. (People v. Quebral, G.R. No. 46094, Inferences v. Presumption
1939) INFERENCE PRESUMPTION

EQUIPOISE RULE A factual conclusion Mandated by law

drawn from other
This rule refers to a situation where the evidence facts that is not
of the parties is evenly balanced, or there is doubt mandated by law
on which side the evidence preponderates or
weighs more heavily. In this case the decision
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Effect of Presumption
A party in whose favor the legal presumption
PRESUMPTION OF PRESUMPTION OF
exists may invoke such presumption to establish
LAW FACT
a fact in issue and need not introduce evidence
to prove the fact for the presumption is prima
facie proof of the fact presumed. (Diesel Certain inference Discretion is vested in
Construction Co. v. UPSI Property Holdings Inc., must be made the tribunal as to
G.R. No. 154937, 2008) whenever the facts drawing the inference
appear which furnish
A presumption shifts the burden of evidence or the basis of the
the burden of going forward with the evidence. It inference
imposes on the party against whom it is directed
the burden of going forward with evidence to Reduced to fixed Derived wholly and
meet or rebut the presumption. However, it does rules and form a part directly from the
not shift the burden of proof. of the system of circumstances of the
jurisprudence particular case by
In the law of evidence, a distinction should be means of the
drawn between the role of presumptions, judicial common experience
notice and judicial admissions. In the case of of mankind
presumptions, the proponent still has to introduce
evidence of the basis of the presumption, that is, Presumption Juris may be divided into:
he has to introduce evidence of the existence or 1. Conclusive Presumption (juris et de jure)
non-existence of the facts from which the court Inferences which the law makes so
can draw the inference of the fact in issue. In the peremptory that it will not allow them to be
case of judicial notice and judicial admissions, as overturned by any contrary proof however
a rule, the proponent does not have to introduce strong. (See Rule 131, Sec. 2)
any evidence. (REGALADO, p. 819) 2. Disputable Presumptions (juris tantum)
That which the law permits to be overcome or
CLASSIFICATION OF PRESUMPTIONS contradicted by other evidence (See Rule 131,
1. Presumption Juris or of Law – is a deduction Sec. 3)
which the law expressly directs to be made
from particular facts. a. Conclusive Presumption
2. Presumption Hominis or of Fact – is a
deduction which reason draws from facts a. ESTOPPEL IN PAIS
proved without an express direction from the
law to that effect. Whenever a party has, by his or her own
declaration, act, or omission, intentionally and
deliberately led another to believe a particular
thing true and to act upon such belief, he or she
cannot, in any litigation arising out of such
declaration, act or omission, be permitted to
falsify it. (Rule 131, Sec. 2[a])

Estoppel is effective only as between the parties

thereto or their successors in interest. (Civil
Code, Art. 1439)

Requisites as to the Party to be Estopped:

1. Conduct amounting to false representation or
concealment;
2. Intent or at least expectation that the conduct
shall be acted upon; and
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3. Knowledge, actual or constructive, of the real
facts (Kalalo v. Luz, G.R. No. L-27782, 1970)
Requisites as to the Party CLAIMING
Estoppel:
1. Lack of knowledge of truth as to the facts in
question;
2. Reliance in good faith upon the conduct or
statements of the party to be estopped; and
3. Action or inaction based thereon led to his
detriment or prejudice (Kalalo v. Luz, G.R. No.
L-27782, 1970)
b. ESTOPPEL AGAINST TENANT
The tenant is not permitted to deny the title of his
or her landlord at the time of the commencement
of their landlord-tenant relationship. (See Rule
131, Sec. 2[b])
The rule on estoppel against tenants is subject to
a qualification. It does not apply if the landlord’s
title has expired, or has been conveyed to
another, or has been defeated by a title
paramount, subsequent to the commencement of
lessor-lessee relationship [VII Francisco]. In other
words, if there was a change in the nature of the
title of the landlord during the subsistence of the
lease, then the presumption does not apply.
Otherwise, if the nature of the landlord’s title
remains as it was during the commencement of
the relation of landlord and tenant, then estoppel
lies against the tenant. (Santos v. National
Statistics Office, G.R. No. 171129, 2011)
c. CONCLUSIVE EFFECTS OF FINAL
JUDGMENT
Effect of judgments or final orders. The effect of a
judgment or final order rendered by a court or of
the Philippines, having jurisdiction to pronounce
the judgment or final order, may be as follows:
(a) In case of a judgment or final order against a
specific thing, or in respect to the probate of a
will, or the administration of the estate of a
deceased person, or in respect to the
personal, political, or legal condition or status
of a particular person or his relationship to
another, the judgment or final order is
conclusive upon the title to the thing, the will
or administration, or the condition, status or
REMEDIAL LAW
relationship of the person; however, the
probate of a will or granting of letters of
administration shall only be prima facie
evidence of the death of the testator or
intestate;
(b) In other cases, the judgment or final order is,
with respect to the matter directly adjudged or
as to any other matter that could have been
raised in relation thereto, conclusive between
the parties and their successors in interest by
title subsequent to the commencement of the
action or special proceeding, litigating for the
same thing and under the same title and in the
same capacity; and
(c) In any other litigation between the same
parties or their successors in interest, that only
is deemed to have been adjudged in a former
judgment or final order which appears upon its
face to have been so adjudged, or which was
actually and necessarily included therein or
necessary thereto. (Rule 39, Sec. 47)
b. Disputable Presumptions
Disputable presumptions are satisfactory if
uncontradicted, but they may be contradicted and
overcome by other evidence. (Rule 131, Sec. 3)
There is no constitutional objection to a law
providing that the presumption of innocence may
be overcome by a contrary presumption founded
upon the experience of human conduct, and
declaring what evidence shall be sufficient to
overcome such presumption of innocence. The
legislature may provide for prima facie evidence
of guilt provided there be a rational connection
between the facts proved and the ultimate fact
presumed. (Vallarta v. CA, et al., G.R. No. L-
40195, 1987) Thus, the prima facie presumption
of guilt in Article 217, Revised Penal Code, is
valid (Bacasnot v. Sandiganbayan, et al., G.R.
No. 60884, 1987).
The following are DISPUTABLE
PRESUMPTIONS:
(a) That a person is innocent of crime or wrong;
(b) That an unlawful act was done with an
unlawful intent;
(c) That a person intends the ordinary
consequences of his or her voluntary act;
A person is equally liable for all the
consequences arising from his criminal act,
and which are inherent therein; for example,
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such complications as may arise and which
are not due to circumstances completely
foreign to the act committed, or from the fault
or carelessness of the injured party (U.S. v.
Monasterial, G.R. No. L-5098, 1909)
(d) That a person takes ordinary care of his or her
concerns;
(e) That evidence willfully suppressed would be
adverse if produced;
In order that the presumption in par. (e) may
arise, it is necessary:
a. That the evidence is material (Cuyugan v.
Dizon, G.R. No. L-208, 1947);
b. That the party had the opportunity to
produce the same (People v. Balansag,
G.R. No. L-41568, 1934); and
c. That the said evidence is available only to
said party (People v. Tulale, 97 Phil. 953
[unreported case]).
The adverse presumption of suppression of
evidence does not arise when:
(1) the suppression is not willful;
(2) the evidence withheld is merely
corroborative or cumulative;
(3) the evidence is at the disposal of both
parties, and
(4) the suppression is an exercise of a
privilege (People v. Navaja, G.R. No.
104044, 1993).
(f) That money paid by one to another was due
to the latter;
(g) That a thing delivered by one to another
belonged to the latter;
(h) That an obligation delivered up to the debtor
has been paid;
(i) That prior rents or installments had been paid
when a receipt for the later one is produced;
See, in connection with par. (i), the provisions
of Art. 1176, Civil Code, which also lays down
the presumption that interest has been paid if
the principal is received by the creditor without
reservation. (REGALADO, p.823)
(j) That a person found in possession of a thing
taken in the doing of a recent wrongful act is
the taker and the doer of the whole act;
otherwise, that things which a person
possesses, or exercises acts of ownership
over, are owned by him or her;
The application of this disputable presumption
is limited to cases where such possession is
either unexplained or that the proffered
REMEDIAL LAW
explanation is rendered implausible in view of
independent evidence inconsistent thereto.
(People v. Urzais, G.R. No.207662, 2016;
Panaligan v. Phyvita Enterprises Corporation,
G.R. No. 2020886, 2017)
(k) That a person in possession of an order on
himself or herself for the payment of the
money, or the delivery of anything, has paid
the money or delivered the thing accordingly;
(l) That a person acting in a public office was
regularly appointed or elected to it;
(m) That official duty has been regularly
performed;
(n) That a court, or judge acting as such, whether
in the Philippines or elsewhere, was acting in
the lawful exercise of jurisdiction;
(o) That all the matters within an issue raised in a
case were laid before the court and passed
upon by it; and in like manner that all matters
within an issue raised in a dispute submitted
for arbitration were laid before the arbitrators
and passed upon by them;
(p) That private transactions have been fair and
regular;
(q) That the ordinary course of business has been
followed;
(r) That there was a sufficient consideration for a
contract;
(s) That a negotiable instrument was given or
indorsed for a sufficient consideration;
(t) That an indorsement of a negotiable
instrument was made before the instrument
was overdue and at the place where the
instrument is dated;
(u) That a writing is truly dated;
(v) That a letter duly directed and mailed was
received in the regular course of the mail;
For the presumption to arise, it must be proved
that:
- The letter was properly addressed with
postage pre-paid; and
- That it was actually mailed (Barcelon, Roxas
Securities v. CIR, G.R. No. 157064, 2006)
If said letter was not returned to the sender, it
is presumed that it was received by the
addressee (Sebastian v. WCC, et al., L-
42587, 1978).
(w) That after an absence of seven (7) years,
it being unknown whether or not the absentee
still lives, he or she is considered dead for all
purposes, except for those of succession.
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The absentee shall not be considered dead for
the purpose of opening his or her succession
until after an absence of ten (10) years. If he
or she disappeared after the age of seventy-
five years, an absence of five (5) years shall
be sufficient in order that his or her succession
may be opened.
The following shall be considered dead for all
purposes including the division of the estate
among the heirs:
1. A person on board a vessel lost during a
sea voyage, or an aircraft with is missing,
who has not been heard of for four (4)
years since the loss of the vessel or
aircraft;
2. A member of the armed forces who has
taken part in armed hostilities, and has
been missing for four (4) years;
3. A person who has been in danger of death
under other circumstances and whose
existence has not been known for four (4)
years;
4. If a married person has been absent for
four (4) consecutive years, the spouse
present may contract a subsequent
marriage if he or she has well-founded
belief that the absent spouse is already
dead. In case of disappearance, where
there is a danger of death the
circumstances hereinabove provided, an
absence of only two (2) years shall be
sufficient for the purpose of contracting a
subsequent marriage. However, in any
case, before marrying again, the spouse
present must institute summary
proceedings as provided in the Family
Code and in the rules for declaration of
presumptive death of the absentee,
without prejudice to the effect of
reappearance of the absent spouse.
There are four essential requisites for the
declaration of presumptive death:
- The absent spouse has been missing for 4
consecutive years, or 2 consecutive years
if the disappearance occurred where there
is danger of death under the circumstances
laid down in Article 391 of the Civil Code;
(Family Code, Art. 41)
- The present spouse wishes to remarry;
- The present spouse has a well-founded
belief that the absentee is dead; and
REMEDIAL LAW
- The present spouse files a summary
proceeding for the declaration of
presumptive death of the absentee.
(Republic of the Philippines v. Nilda B.
Tampus, G.R. No. 214243, 2016)
(x) That acquiescence resulted from a belief that
the thing acquiesced in was conformable to
the law or fact;
(y) That things have happened according to the
ordinary course of nature and ordinary habits
of life;
(z) That persons acting as copartners have
entered into a contract of co-partnership;
(aa) That a man and woman deporting
themselves as husband and wife have
entered into a lawful contract of marriage;
(bb) That property acquired by a man and a
woman who are capacitated to marry each
other and who live exclusively with each other
as husband and wife, without the benefit of
marriage or under a void marriage, has been
obtained by their joint efforts, work or industry.
(cc) That in cases of cohabitation by a man and a
woman who are not capacitated to marry each
other and who have acquired property through
their actual joint contribution of money,
property or industry, such contributions and
their corresponding shares, including joint
deposits of money and evidences of credit,
are equal.
(dd) That if the marriage is terminated and the
mother contracted another marriage within
three hundred days after such termination of
the former marriage, these rules shall govern
in the absence of proof to the contrary:
1. A child born before one hundred eighty
days after the solemnization of the
subsequent marriage is considered to
have been conceived during the former
marriage, provided it be born within the
three hundred days after the termination of
the former marriage.
2. A child born after one hundred eighty days
following the celebration of the subsequent
marriage is considered to have been
conceived during such marriage, even
though it be born within the three hundred
days after the termination of the former
marriage.
(ee) That a thing once proved to exist continues
as long as is usual with things of that nature;
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(ff) That the law has been obeyed;
(gg) That a printed or published book, purporting
to be printed or published by public authority,
was so printed or published;
(hh) That a printed or published book, purporting
to contain reports of cases adjudged in
tribunals of the country where the book is
published, contains correct reports of such
cases;
(ii) That a trustee or other person whose duty it
was to convey real property to a particular
person has actually conveyed it to him or her
when such presumption is necessary to
perfect the title of such person or his or her
successor in interest;
(jj) That, except for purposes of succession, when
two persons perish in the same calamity, such
as wreck, battle, or conflagration, and it is not
shown who died first, and there are no
particular circumstances from which it can be
inferred, the survivorship is determined from
the probabilities resulting from the strength
and the age of the sexes, according to the
following rules:
1. If both were under the age of fifteen years,
the older is deemed to have survived;
2. If both were above the age sixty, the
younger is deemed to have survived;
3. If one is under fifteen and the other above
sixty, the former is deemed to have
survived;
4. If both be over fifteen and under sixty, and
the sex be different, the male is deemed to
have survived, if the sex be the same, the
older; and
5. If one be under fifteen or over sixty, and
the other between those ages, the latter is
deemed to have survived.
In order that the presumption of survivorship
in par. (jj) may arise, it is necessary that (a)
the deaths occurred in a calamity, and (b)
there are no particular circumstances from
which it can be inferred that one died ahead of
the other. Thus, regarding the third rule, if one
is a one-day old child and the other is 61 years
old, it cannot be presumed that the one-day
old child survived, in view of the second
requirement. (REGALADO, p. 830)
(kk) That if there is a doubt, as between two or
more persons who are called to succeed each
other, as to which of them died first, whoever
REMEDIAL LAW
alleges the death of one prior to the other,
shall prove the same; in the absence of proof,
they shall be considered to have died at the
same time.
Par. (kk) may be distinguished from the rule in
par. (jj) as, in the former, it is not required that the
parties perished in a calamity and, furthermore, it
only applies in questions of successional rights.
The rule in par. (jj) applies only where the deaths
occurred during a calamity and applies to cases
not involving successional rights, e.g., in
insurance cases. Furthermore, par. (kk) provides
a presumption of simultaneity in the deaths of the
persons called to succeed each other, while par.
(jj) provides for presumptions of survivorship.
(REGALADO, p. 831)
SOME DISPUTABLE PRESUMPTIONS
EXPLAINED
1. Presumption of innocence
Applies to criminal cases.
Section 14. (2) In all criminal prosecutions, the
accused shall be presumed innocent until the
contrary is proved, and shall enjoy the right to be
heard by himself and counsel, to be informed of
the nature and cause of the accusation against
him, to have a speedy, impartial, and public trial,
to meet the witnesses face to face, and to have
compulsory process to secure the attendance of
witnesses and the production of evidence in his
behalf. However, after arraignment, trial may
proceed notwithstanding the absence of the
accused provided that he has been duly notified
and his failure to appear is unjustifiable. (Art. 3,
Sec 14(2), 1987 Constitution)
Equipoise Rule
Faced with two conflicting versions, the Court is
guided by the equipoise rule. 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. The
equipoise rule provides that where the evidence
in a criminal case is evenly balanced, the
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constitutional presumption of innocence tilts the
scales in favor of the accused. (People v.
Erguiza, G.R. No. 171348, 2008)
2. A person takes ordinary care of his
concerns
All men are presumed to be sane and normal and
subject to be moved by substantially the same
motives.
When of age and sane, they must take care of
themselves. Courts operate not because one
person has been defeated or overcome by
another but because he has been defeated or
overcome illegally. There must be a violation of
law, the commission of what the law knows as an
actionable wrong before the courts are authorized
to lay hold of the situation and remedy it.
Men may do foolish things, make ridiculous
contracts, use miserable judgment, and lose
money by them — indeed, all they have in the
world; but not for that alone can the law intervene
and restore. There must be, in addition, a
violation of law, the commission of what the law
knows as an actionable wrong, before the courts
are authorized to lay hold of the situation and
remedy it. (Valles v. Villa, G.R. No. 10028, 1916)
Exception: When one of the parties is unable to
read, or if the contract is in a language not
understood by him, and mistake or fraud is
alleged, the person enforcing the contract must
show that the terms thereof have been fully
explained to the former (Civil Code, Art. 1332)
3. Possession of stolen goods
This is not in conflict with the presumption of
innocence. At the start of the criminal case, the
court will apply the presumption of innocence.
But once the prosecution is able to prove that a
certain object has been unlawfully taken, that
there is a crime of theft committed and that the
prosecution has also proven that the accused is
in possession of this object unlawfully taken, and
then the presumption of innocence disappears.
The new presumption of guilt takes its place.
REMEDIAL LAW
The doctrinal rule is that before an inference of
guilt arising from possession of recently stolen
goods can be made, the following basic facts
need to be proved by the prosecution, viz.:
(1) the crime was actually committed;
(2) the crime was committed recently;
(3) the stolen property was found in the
possession of the accused; and
(4) the accused is unable to satisfactorily explain
his possession thereof.
For purposes of conclusively proving possession,
it is necessary that:
(1) the possession must be unexplained by any
innocent origin;
(2) the possession must be fairly recent; and
(3) the possession must be exclusive (Mabunga
v. People, G.R. No. 143039, 2004).
On this score, the Supreme Court has theretofore
taken the stand that convictions in cases
involving the foregoing assumptions are not
actually sustained upon a presumption of law but
rest wholly upon an inference of fact as to the guilt
of the accused. (U.S. v. Catimbang, G.R. No.
11750, 1916)
On a rationale similar to that of the presumption
in par. (j), it has been held that if a person had in
his possession a falsified document and he made
use of it, taken advantage of it and profited
thereby, the presumption is that he is the material
author of the falsification (People v. Sendaydiego,
et al., L-33252-54, 1978 and cases cited therein).
4. A person acting in a public office was
regularly appointed or elected to it
Reason
It would cause great inconvenience if in the first
instance strict proof were required of appointment
or election to office in all cases where it might be
collaterally in issue.
The burden of proof is on the adverse party to
show that he was not appointed or designated.
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5. An official duty has been regularly
performed
Reasons
a. Innocence and not wrongdoing is to be
presumed;
b. An official oath will not be violated;
c. A republican form of government cannot
survive unless a limit is placed upon
controversies and certain trust and confidence
reposed in each government, department, or
agent at least to the extent of such
presumption. (People v. De Guzman, G.R.
No. 106025, 1994)
Instances when the presumption of regularity
cannot be invoked:
The respondent, who is a public officer or
employee, in writ of Amparo cases, cannot invoke
the presumption (The Rule on the Writ of Amparo,
A.M. No. 07-9-12-SC, Sec. 17)
In custodial investigations (People v. Rodriguez,
G.R. No. 112262, 1996)
Where the official act in question is irregular on
its face, no presumption of regularity can arise
(People v. Casabuena, G.R. No. 186455, 2014)
When there is gross disregard of the procedural
safeguards set forth in Republic Act No. 9165,
serious uncertainty is generated as to the identity
of the seized items that the prosecution
presented in evidence. Such doubt cannot be
remedied by merely invoking the presumption of
regularity in the performance of official duties for
a gross, systematic, or deliberate disregard of the
procedural safeguards effectively produces an
irregularity in the performance of official duties.
(People v. Lagahit, G.R. No. 200877, 2014)
6. The presumption of regularity and legality
of official acts is applicable to criminal as well
as civil cases.
This presumption of authority is not confined to
official appointees. It has been extended to
persons who have been appointed pursuant to a
local or special statute to act in quasi-public or
REMEDIAL LAW
quasi-official capacities and to professional men
like surgeons and lawyers.
While law enforcers enjoy the presumption of
regularity in the performance of their duties, this
presumption cannot prevail over the
constitutional right of the accused to be presumed
innocent and it cannot by itself constitute proof of
guilt beyond reasonable doubt. The presumption
of regularity is merely just that - a mere
presumption disputable by contrary proof and
which when challenged by evidence cannot be
regarded as binding truth. (People v. Hementiza,
G.R. No. 227398, 2017)
7. Regularity of judicial proceedings
The court rendering the judgment is presumed to
have jurisdiction over the subject matter and the
parties and to have rendered a judgment valid in
every respect.
Jurisdiction is presumed in all cases, be it of a
superior or inferior court.
8. Private transactions have been fair and
regular
An individual intends to do right rather than wrong
and intends to do only what he has the right to do.
In the absence of proof to the contrary, there is a
presumption that all men act fairly, honestly, and
in good faith.
9. Ordinary course of business has been
followed
Those who were engaged in a given trade or
business are presumed to be acquainted with the
general customs and usages of the occupation
and with such other facts as are necessarily
incident to the proper conduct of the business.
10. Evidence willfully suppressed would be
adverse if produced.
The natural conclusion is that the proof, if
produced, instead of rebutting, would support the
inference against him and the court is justified in
acting upon the conclusion.
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No presumption of legitimacy or illegitimacy
(Rule 131, Sec. 4)
A child born after three hundred days following
the dissolution of a marriage or the separation of
the spouses will not be presumed legitimate or
illegitimate. Whoever alleges the legitimacy or
illegitimacy of such child must prove his or her
allegation.
It is a generally accepted principle of international
law to presume foundlings as having been born
of nationals of the country in which the foundling
is found. (Poe-Llamanzares v. Comelec, G.R. No.
221697, 2016)
JURISPRUDENCE ON DISPUTABLE
PRESUMPTIONS
1. A certificate of stock is a written instrument
signed by the proper officer of a corporation
stating or acknowledging that the person
named in the document is the owner of a
designated number of shares of its stock. It is
prima facie evidence that the holder of the
certificate of stock is a shareholder of a
corporation. (Teng v. SEC and Ting Ping Lay,
G.R. No. 184332, 2016)
2. The burden of proof in overcoming the
presumption of State ownership of the lands
of the public domain is on the person applying
for registration (or claiming ownership), who
must prove that the land subject of the
application is alienable or disposable. To
overcome this presumption, incontrovertible
evidence must be established that the land
subject of the application (or claim) is
alienable or disposable. (Central Mindanao
University v. Republic, G.R. No. 195026,
2016)
3. Notarization creates a presumption of
regularity and authenticity of the document.
This presumption may be rebutted by strong,
complete and conclusive proof to the contrary.
While notarial acknowledgment attaches full
faith and credit to the document concerned, it
does not give the document its validity or
binding effect. When there is evidence
showing that the document is invalid, the
presumption of regularity or authenticity is not
applicable. (University of Mindanao, Inc. v.
REMEDIAL LAW
Bangko Sentral ng Pilipinas, G.R. No.
194964-65, 2016)
4. There is a disputable presumption that things
have happened according to the ordinary
course of nature and the ordinary habits of life.
All of the foregoing evidence, that a person
with typical Filipino features is abandoned in a
Catholic Church in a municipality where the
population of the Philippines is
overwhelmingly Filipinos such that there
would be more than a 99% chance that a child
born in the province would be a Filipino, would
indicate with more than ample probability if not
statistical certainty, that petitioner's parents
are Filipinos. (Poe-Llamanzares, v.
COMELEC, G.R. No. 221697, 2016)
5. “Ownership of copyrighted material is shown
by proof of originality and copyrightability.”
While it is true that where the complainant
presents a copyright certificate in support of
the claim of infringement, the validity and
ownership of the copyright is presumed. This
presumption, however, is rebuttable and it
cannot be sustained where other evidence in
the record casts doubt on the question of
ownership, (Olano v. Lim Eng Co, G.R. No.
195835, 2016)
6. Manuel's birth certificate, a public document
and an official record in the custody of the Civil
Registrar, enjoys the presumption of regularity
and authenticity. To defeat these
presumptions, the party making the allegation
must present clear, positive and convincing
evidence of alteration. For obvious reasons,
this burden cannot be discharged by the mere
submission of an inconclusive report from the
Senate Committee and the presentation of an
excerpt of an NBI report on the purported
alterations. (Republic v. Harp, G.R. No.
188829, 2016)
7. Section 3, Rule 131 of the Rules of Court
identifies the following as disputable
presumptions: (1) private transactions have
been fair and regular; (2) the ordinary course
of business has been followed; and (3) there
was sufficient consideration for a contract. A
presumption may operate against a
challenger who has not presented any proof to
rebut it. The effect of a legal presumption upon
a burden of proof is to create the necessity of
presenting evidence to meet the legal
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presumption or the prima facie case created
thereby, and which, if no proof to the contrary
is presented and offered, will prevail. The
burden of proof remains where it is, but by the
presumption, the one who has that burden is
relieved for the time being from introducing
evidence in support of the averment, because
the presumption stands in the place of
evidence unless rebutted. In this case,
because of Atanacio, affixing his signature on
the deed of absolute sale, there arose a
disputable presumption that consideration
was paid. A mere allegation that no payment
was received is not sufficient to dispel such
legal presumption. Furthermore, the record
shows an official communication, dated
October 8, 1958, from the District Land Office
of Cebu to the Provincial Treasurer of Cebu
stating that Provincial Voucher No. 05358 was
disbursed in favor of Atanacio. (Mactan-Cebu
International Airport Authority v. Unchuan,
2016)
8. Literally, res ipsa loquitur means the thing
speaks for itself. It is the rule that the fact of
the occurrence of an injury, taken with the
surrounding circumstances, may permit an
inference or raise a presumption of
negligence, or make out a plaintiff’s prima
facie case, and present a question of fact for
defendant to meet with an explanation. (Cruz
v. Agas, G.R. No. 204095, 2015)
Under the res ipsa loquitur doctrine, expert
testimony may be dispensed with to sustain an
allegation of negligence if the following requisites
obtain:
a) the event is of a kind which does not ordinarily
occur unless someone is negligent;
b) the cause of the injury was under the exclusive
control of the person in charge; and
c) the injury suffered must not have been due to
any voluntary action or contribution on the part
of the person injured.
(Geromo v. La Paz Housing and Development
Corporation, G.R. No. 211175, 2017)
REMEDIAL LAW
c. Presumptions in civil actions and
proceedings; Presumption against an
accused in criminal cases
Presumptions in civil actions and
proceedings
In all civil actions and proceedings not otherwise
provided for by the law or these Rules, a
presumption imposes on the party against whom
it is directed the burden of going forward with
evidence to rebut or meet the presumption.
If presumptions are inconsistent, the presumption
that is founded upon weightier considerations of
policy shall apply. If considerations of policy are
of equal weight, neither presumption applies.
(Rule 130, Sec. 5)
Presumption of regularity in a petition for Writ
of Amparo
The presumption of regularity does not apply in a
petition for a Writ of Amparo. Under Sec. 17 of the
Rule on the Writ of Amparo, the “respondent
public official or employee cannot invoke the
presumption that official duty has been regularly
performed to evade responsibility or liability.”
(Riano, 75)
Presumption of regularity in custodial
investigation
The presumption of regularity of official acts does
not apply during in-custody investigation, it is
incumbent upon the prosecution to prove during
the trial that prior to questioning, the confessant
was warned of his constitutionally-protected
rights. 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. (Riano, 75 citing
People v. Camat, G.R. No. 112262, 1996)
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Presumption against an accused in criminal courts from judicially pronouncing an accused as

cases
If a presumed fact that establishes guilt, is an
element of the offense charged, or negates a
defense, the existence of the basic fact must be
proved beyond reasonable doubt and the
presumed fact follows from the basic fact beyond
reasonable doubt. (Rule 130, Sec. 6)
guilty just because he could not impute any ill
motives to arresting officers in arresting him and
from presuming the regularity of the arrest on that
basis alone. (Riano, 75 citing Casona v. People,
G.R. No. 179757, September 13, 2017)
8. CONSTRUCTION OF RULES OF
EVIDENCE

Note: Establish basic fact first, then presumption These rules shall be liberally construed in order
may apply to promote their objective of securing a just,
speedy, and inexpensive disposition of every
Example: In theft, you must first prove beyond action and proceeding. (Rule 1, Sec. 6)
reasonable doubt the basic fact of taking, then the
presumption of intent to gain may follow However, the rule on liberal construction is not a
license to disregard the evidence, or lack thereof
Presumption of regularity cannot overcome on record; or to misapply the laws. (Riano, 19
presumption of innocence citing Inter Orient Maritime Enterprises, Inc. v.
Creer III, G.R. No. 181921, 2014)
It must also be emphasized that the presumption
of regularity in the performance of official Rules on Electronic Evidence shall be liberally
functions cannot, by itself, overcome the construed to assist the parties in obtaining a just,
presumption of innocence. Evidence of guilt expeditious, and inexpensive determination of
beyond reasonable doubt, and nothing else, is cases. (A.M. No. 01-7-01-SC, Rule 2, Sec. 2)
required to erase all doubts as to the culpability
9. QUANTUM OF EVIDENCE
of the accused. (Riano, 74 citing Zafra v. People,
671 SCRA 396, 405, April 25, 2012)
QUANTUM OF FOR WHICH CASES
Hence, in case of conflict between the EVIDENCE
presumption of regularity in the performance of
duty of police officers and the presumption of Proof Beyond Criminal cases
innocence of the accused, the latter must prevail Reasonable Doubt
as the law imposes upon the prosecution the (Rule 133, Sec. 2)
highest degree of proof of evidence to sustain
conviction. (Riano, 74 citing People v. Guinto, Clear and Convincing Extradition cases
G.R. No. 198314, September 24, 2014) Evidence Charges filed against
(Gov’t of HK v. Olalia, judges and justices
It would be unconstitutional to place a higher G.R. No. 153675, 2007)
value in the presumption of regularity in the
performance of official duties – a mere tool of Preponderance of Civil cases
evidence – than in the more substantial Evidence
presumption of innocence favoring xxx an (Rule 133, Sec. 1)
accused – a right enshrined in the Bill of Rights.
(Casona v. People, G.R. No. 179757, September Substantial Evidence Administrative Cases,
13, 2017) (Rule 133, Sec. 6) Cases before Quasi-
Judicial Bodies, Writ of
Because presumption in the regularity of the Amparo
performance of duty is not sufficient for
conviction, the Court, in a subsequent
pronouncement, had the occasion to caution trial

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Degree of Proof That Satisfies the Burden of
Proof
Civil Cases
Preponderance of evidence.
The plaintiff has to establish his case by
preponderance of evidence. If he claims a right
granted or created by law, he must prove such
right. (Sps. Guidangen v. Wooden G.R. No.
174445, 2012)
Criminal Cases
a) To Sustain Conviction
Guilt beyond reasonable doubt.
b) To File an Information
Probable cause.
Engenders a well-founded belief of the fact of
the commission of a crime, and that the
respondent is probably guilty thereof, and
should be held for trial
c) Issuance of warrant of arrest
Probable cause (i.e., that there is reasonable
ground to believe that a criminal offense has
been committed and that the accused
committed the offense).
d) To deny bail when discretionary
When the evidence of guilt is strong
e) To accept a plea of guilty to a capital
offense That the accused voluntarily and fully
comprehended the consequences of his plea
f) To grant demurrer to evidence
The evidence is insufficient to sustain a
conviction
The prosecution has to prove its affirmative
allegations in the information (i.e., the elements
of the crime as well as the attendant
circumstances); while the defense has to prove
its affirmative allegations regarding the existence
of justifying or exempting circumstances,
absolutory causes or mitigating circumstances.
Hierarchy of Evidence
1. Proof beyond reasonable doubt
2. Clear and convincing evidence
3. Preponderance of evidence
4. Substantial evidence
REMEDIAL LAW
1. PROOF BEYOND REASONABLE DOUBT
In a criminal case, the accused is entitled to an
acquittal unless his guilt is shown beyond
reasonable doubt.
Proof beyond reasonable doubt does not mean
such a degree of proof as excluding the possibility
of error, produces absolute certainty.
Moral certainty only is required, or that degree of
proof which produces conviction in an
unprejudiced mind. (Rule 133 Sec. 2)
Requiring proof of guilt beyond reasonable doubt
necessarily means that mere suspicion of the
guilt of the accused, no matter how strong, should
not sway judgment against him. It further means
that the courts should duly consider every
evidence favoring him; and that in the process,
the courts should persistently insist that
accusation is not synonymous with guilt; hence,
every circumstance favoring his innocence
should be fully taken into account. Without the
proof of his guilt being beyond reasonable doubt,
therefore, the presumption of innocence in favor
of the accused herein was not overcome. (People
v. Claro, G.R. No. 19994, 2017)
CIRCUMSTANTIAL EVIDENCE
Circumstantial evidence is competent to establish
guilt as long as it is sufficient to establish beyond
a reasonable doubt that the accused, and not
someone else, was responsible for the killing.
For circumstantial evidence to suffice to convict
an accused, the following requisites must concur:
1. There is more than one circumstance;
2. The facts from which the inferences are
derived are proven; and;
3. The combination of all the circumstances is
such as to produce a conviction beyond
reasonable doubt. In this case, these
requisites for circumstantial evidence to
sustain a conviction are present. (People v.
Oandasan, Jr., G.R. No. 194605, 2016; Rule
133, Sec.4)
To be clear, then, circumstantial evidence may be
resorted to when to insist on direct testimony
would ultimately lead to setting a felon free. The
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Rules of Court makes no distinction between
direct evidence of a fact and evidence of
circumstances from which the existence of a fact
may be inferred; hence, no greater degree of
certainty is required when the evidence is
circumstantial than when it is direct.
In either case, the trier of fact must be convinced
beyond a reasonable doubt of the guilt of the
accused. Nor has the quantity of circumstances
sufficient to convict an accused been fixed as to
be reduced into some definite standard to be
followed in every instance. (People v. Magbitang,
G.R. No. 175592, 2016)
2. CLEAR AND CONVINCING EVIDENCE
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. (Black’s Law Dictionary, 5thed., 596)
Clear and convincing evidence is evidence
indicating that the thing to be proved is highly
probable or reasonably certain.
This is a greater burden than preponderance of
evidence, the standard applied in most civil trials,
but less than evidence beyond a reasonable
doubt, the norm for criminal trials. (Black’s Law
Dictionary, 8thed., 596)
An accused who invokes self-defense must prove
it by clear and convincing evidence. (Guevarra v.
People, G.R. No. 170462, 2014)
In extradition cases, the potential extraditee must
prove by "clear and convincing evidence" that he
is not a flight risk and will abide with all the orders
and processes of the extradition court. (Gov’t of
HK v. Olalia, G.R. No. 153675, 2007)
The rule is that charges of misconduct against
judges should be proven by clear and convincing
evidence, otherwise they should be dismissed.
(Pesole v. Rodriguez, A.M. No. 755-MJ, 1978)
REMEDIAL LAW
3. PREPONDERANCE OF EVIDENCE
In civil cases, the party having the burden of proof
must establish his case by a preponderance of
evidence. (Rule 133, Sec. 1)
In civil cases, the party having the burden of proof
must establish his case by preponderance of
evidence, or that evidence which is of greater
weight or is more convincing than that which is in
opposition to it. (BPI v. Reyes, G.R. 157177,
2008)
It does not mean absolute truth; rather, it means
that the testimony of one side is more believable
than that of the other side, and that the probability
of truth is on one side than on the other. (Rivera
v. Court of Appeals, G.R. No. 115625, 1998)
Land Bank failed to prove that the amount
allegedly “miscredited” to Oñate’s account came
from the proceeds of the pre-terminated loans of
its clients. It is worth emphasizing that in civil
cases, the party making the allegations has the
burden of proving them by preponderance of
evidence. Mere allegation is not sufficient. (Land
Bank of the Philippines v. Emmanuel C. Oñate,
G.R. No. 192371, 2014)
Positive identification where categorical and
consistent and without any showing of ill motive
on the part of the eyewitness testifying on the
matter, prevails over a denial which, if not
substantiated by clear and convincing evidence,
is negative and self-serving evidence
undeserving of weight in law. They cannot be
given greater evidentiary value over the
testimony of credible witnesses who testify on
affirmative matters. (People v. Caballero y
Garsola, G.R. No. 210673, 2016)
Factors which the court may consider in
determining where the preponderance or
superior weight of evidence lies:
1. All the facts and circumstances of the case;
2. The witnesses’
a) manner of testifying;
b) their intelligence;
c) their means and opportunity of knowing the
facts to which they are testifying;
d) the nature of the facts to which they testify;
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e) the probability or improbability of their
testimony;
f) their interest or want of interest;
g) their personal credibility so far as the same
may legitimately appear upon the trial.
3. The number of witnesses (though
preponderance is not necessarily with the
greater number.) (Rule 133, Sec. 1)
4. SUBSTANTIAL EVIDENCE
In cases filed before administrative and quasi-
judicial bodies, a fact may be deemed established
if it is supported by substantial evidence.
Substantial evidence is that amount of relevant
evidence which a reasonable mind might accept
as adequate to justify a conclusion. (Rule 133,
Sec. 6)
As in all administrative cases, the quantum of
proof necessary in election cases is substantial
evidence, or such relevant evidence as a
reasonable mind will accept as adequate to
support a conclusion. (Sabili v. Comelec, G.R.
No. 193621, 2012)
B. JUDICIAL NOTICE AND ADMISSIONS
1. WHAT NEED NOT BE PROVED
What Need Not be Proved
1. Facts which are presumed (Rule 131)
2. Facts of judicial notice (Rule 129)
3. Facts which are judicially admitted (Rule 129)
4. Matters of law
Except: Foreign law which needs to be proved
in accordance with Sec. 24 of Rule 132.
In the case of presumptions, the proponent still
has to introduce evidence of the basis of the
presumption, that is, he has to introduce evidence
of the existence or non-existence of the facts from
which the court can draw the inference of the fact
in issue.
In the case of judicial notice and judicial
admissions, as a rule, the proponent does not
have to introduce any evidence. (Regalado,
p.819)
REMEDIAL LAW
2. MATTERS OF JUDICIAL NOTICE
Judicial Notice
Cognizance of certain facts which judges may
properly take and act on without proof because
they already know them.
Object of Judicial Notice
Judicial notice is based on convenience and
expediency. It would certainly be superfluous,
inconvenient, and expensive both to parties and
the court to require proof, in the ordinary way, of
facts which are already known to the courts.
Direct Effect of Judicial Notice
Judicial notice relieves the parties from the
necessity of introducing evidence to prove the
fact noticed. It makes evidence unnecessary.
The stipulation and admission of the parties or
counsel cannot prevail over the operation of the
doctrine of judicial notice, and such stipulation
and admissions are all subject to the operation of
the doctrine.
Judge’s Personal Knowledge of the Facts
Judicial notice is not judicial knowledge. The
mere personal knowledge of the judge is not the
judicial knowledge of the court, and he is not
authorized to make his individual knowledge of a
fact, not generally or professionally known, the
basis of his action. Judicial cognizance is taken
only of those matters which are “commonly”
known. (Spouses Latip v. Chua, G.R. No.
177809, 2009)
a. Mandatory
Mandatory
Takes place at the court’s own initiative and it
needs no hearing.
Section 1. Judicial notice, when mandatory. — A
court shall take judicial notice, without the
introduction of evidence, of the existence and
territorial extent of states, their political history,
forms of government and symbols of nationality,
the law of nations, the admiralty and maritime
courts of the world and their seals, the political
constitution and history of the Philippines, the
official acts of legislative, executive and judicial
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departments of the National Government of the
Philippines, the laws of nature, the measure of
time, and the geographical divisions. (Rule 129,
Sec. 1)
WHEN JUDICIAL NOTICE IS MANDATORY
(RULE 129, SEC. 1)
1. Existence and territorial extent of states
The territorial extent of the nation and of the
several states and the division of states into
towns, countries and other political
subdivisions are generally regulated by public
laws and also matters of general notoriety.
Hence the courts do not require proof of such
facts. (Herrera, Remedial Law Vol V, 78-79)
2. Their political history, forms of government
and symbols of nationality
3. The law of nations
The law of nations, as opposed to foreign law,
is subject to mandatory judicial notice as the
Philippines adopts the generally accepted
principles of international law as part of the law
of the land.
4. The admiralty and maritime courts of the
world and their seals
5. The political constitution and history of the
Philippines
6. The official acts of the legislative, executive
and judicial departments of the National
Government of the Philippines
The lower courts should take judicial notice of
the fact that Congress and the Supreme Court
have both officially recognized the University
of the Philippines’ indefeasible title to its
landholdings. (Republic v. Rosario, G.R. No.
186635, 2016)
The Senate Report, an official act of the
legislative department, may be taken judicial
notice of. (CLT Realty Development Corp. v.
Hi-Grade Feeds Corporation, G.R. No.
160684, 2015)
7. The laws of nature
Example: The recurrence of seasons
8. The measure of time
Example: There are 24 hours in a day
9. The geographical divisions
Example: Certain cities are divided into lots,
blocks and streets.
REMEDIAL LAW
b. Discretionary
Discretionary
May be at the court’s own initiative or on request
of a party.
A hearing is necessary:
1. During pre-trial and the trial, the court, motu
proprio or upon motion, shall hear the parties
on the propriety of taking judicial notice of any
matter. (Rule 129, Sec. 3, par. 1)
2. Before judgment or on appeal, the court, motu
proprio or upon motion, may take judicial
notice of any matter and shall hear the parties
thereon if such matter is decisive of a material
issue in the case. (Rule 129, Sec. 3, par. 2)
Purpose of hearing
Not for the presentation of evidence but to afford
the parties reasonable opportunity to present
information relevant to the propriety of taking
such judicial notice or to the tenor of the matter to
be noticed.
Test of Notoriety
The doctrine of judicial notice rests on the wisdom
and discretion of the courts. The power to take
judicial notice is to be exercised by the courts with
caution; care must be taken that the requisite
notoriety exists; and every reasonable doubt
upon the subject should be promptly resolved in
the negative.
For a matter to be taken judicial notice of by the
courts of law, it must be a subject of common and
general knowledge. In other words, judicial notice
of facts is measured by general knowledge of the
same facts. A fact is said to be generally
recognized or known when its existence or
operation is accepted by the public without
qualification or contention.
The test is whether the act involved is so
notoriously known as to make it proper to assume
its existence without proof. The fact that a belief
is not universal, however, is not controlling for it
is very seldom that any belief is accepted by
everyone. It is enough that the matters are
familiarly known to the majority of mankind or
those persons with the particular matter in
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question. (20 Am Jur 49-50; Martin, Rules of
Court 37, Second Edition).
Furthermore, a matter may be personally known
to the judge and yet not be a matter of judicial
knowledge and vice versa, a matter may not be
actually known to an individual judge, and
nevertheless be a proper subject of judicial
cognizance. (Republic v. Court of Appeals, G.R.
No. L-54886, 1981)
Judicial notice is limited to facts evidenced by
public records and facts of general notoriety. A
judicially noticed fact must be one NOT subject to
a reasonable dispute. Thus, a court cannot take
judicial notice of a factual matter in controversy.
When Judicial Notice is Discretionary
(Rule 129, Sec. 2)
1. The matter is one of public or common
knowledge
“Commonly Known”
Things of “common knowledge,” of which courts
take judicial notice, may be matters coming to the
knowledge of men generally in the course of the
ordinary experiences of life, or they may be
matters which are generally accepted by mankind
as true and are capable of ready and
unquestioned demonstration. Thus, facts which
are universally known, and which may be found
in encyclopedias, dictionaries or other
publications, are judicially noticed, provided they
are of such universal notoriety and so generally
understood that they may be regarded as forming
part of the common knowledge of every person.
(Spouses Omar and Moshiera Latip v. Chua,
G.R. No. 177809, 2009)
Judicial notice is not judicial knowledge
The mere personal knowledge of the judge is not
the judicial knowledge of the court, and he is not
authorized to make his individual knowledge of a
fact, not generally or professionally known, the
basis of his action. Judicial cognizance is taken
only of those matters which are "commonly"
known. (Land Bank v. Wycoco, G.R. No. 140160,
2004)
2. The matter must be capable of
unquestionable demonstration
REMEDIAL LAW
Matters which are capable of unquestionable
demonstration pertain to fields of professional
and scientific knowledge. Thus, facts which are
universally known, and which may be found in
encyclopedias, dictionaries or other publications,
are judicially noticed, provided, they are of such
universal notoriety and so generally understood
that they may be regarded as forming part of the
common knowledge of every person.
(Expertravel & Tours, Inc. v. CA, G.R. No.
152392, 2005.)
3. The matter is one that is ought to be
known to judges because of their judicial
functions.
An example would be facts which are
ascertainable from the record of court
proceedings, e.g., as to when court notices were
received by a party.
This only applies to the records and events in the
same case pending before the court. Courts are
not authorized to take judicial notice of the
contents of the records of other cases, even when
such cases have been tried or are pending in the
same court and pending before the same judge.
(People v. Hernandez, G.R. No. 108028, 1996)
The taking of judicial notice is a matter of
expediency and convenience for it fulfills the
purpose that the evidence 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, 2014.)
When Hearing is NECESSARY; Purpose
Not for the presentation of evidence but to afford
the parties reasonable opportunity to present
information relevant to the propriety of taking
such judicial notice or to the tenor of the matter to
be noticed.
Stages Where the Court May Take Judicial
Notice of a Fact
1. Pre-trial
2. During trial;
3. After trial and before judgment;
4. Appeal
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Note: The court may do this motu proprio or upon
motion of the parties
Distinction Between Judicial Notice Taken
During Trial and That Taken After Trial but
Before Judgment or on Appeal:
STAGE DURING AFTER THE TRIAL
TRIAL AND BEFORE
JUDGMENT, OR ON
APPEAL
How to The court, on its own initiative, OR on
take the request of a party
judicial
notice?
Kind of Any matter Matter is decisive of a
matter material issue in the
case
Judicial Notice of Records of Other Cases
General Rule: Courts are not authorized to take
judicial notice of the contents of the records of
other cases, even when such have been tried or
are pending in the same court and with the same
judge.
Exceptions:
They may, however, take judicial notice of a
decision or the facts prevailing in another case
sitting in the same court if:
1. The parties present them in evidence, absent
any opposition from the other party.
2. The court, in its discretion, resolves to do so.
(Land Bank of the Philippines v. Yatco
Agricultural Enterprises, G.R. No. 172251,
2014)
In the absence of objection, and as a matter of
convenience to all parties, a court may properly
treat all or any part of the original record of a case
filed in its archives as read into the record of a
case pending before it when:
1. In the absence of objection;
2. With the knowledge of the opposing party OR
at the request or with the consent of the
parties; and
3. The case is clearly referred to OR the original
or part of the records of the case are actually
REMEDIAL LAW
withdrawn from the archives AND admitted as
part of the record of the case then pending.
These conditions must be established. (Tabuena
v. Court of Appeals, G.R. No. 85423, 1991)
Other Jurisprudence on Judicial Notice
Judicial notice signifies that there are certain
“facta probanda” or propositions in a party’s case,
as to which he will not be required to offer
evidence; these will be taken for true by the
tribunal without the need of evidence. (People v.
Rullepa, G.R. No. 131516, 2003)
This Court takes judicial notice that the validity of
the RTC Orders has been upheld in a separate
petition before this Court, under G.R. SP No.
171429 entitled Antonio Dela Cruz v. Regulus
Development, Inc. (Regulus Development, Inc. v.
Antonio Dela Cruz, G.R. No. 198172. January 25,
2016)
The mere personal knowledge of the judge is not
the judicial knowledge of the court, and he is not
authorized to make his individual knowledge of a
fact, not generally or professionally known, the
basis of his action.
In this case, judicial notice of the age of the victim
is improper, despite the defense counsel’s
admission thereof acceding to the prosecution's
motion. As required by Section 3 of Rule 129, as
to any other matters such as age, a hearing is
required before courts can take judicial notice of
such fact. Generally, the age of the victim may be
proven by the birth or baptismal certificate of the
victim, or in the absence thereof, upon showing
that said documents were lost or destroyed, by
other documentary or oral evidence sufficient for
the purpose. (People v. Tundag, G.R. Nos.
135695-96. October 12, 2000)
A management contract entered into by a GOCC
such as that involving the Philippine Ports
Authority is not something the courts can take
judicial notice of, because it was entered into
while performing a proprietary function (Asian
Terminals v. Malayan Insurance, G.R. No.
171406, 2011)
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Judicial notice may be taken of the fact that
contractual transactions with government or any
of its instrumentalities are invariably in writing.
(Board of Liquidators v. Ricma, G.R. No. L-
24318, 1969)
The Court takes judicial cognizance of the fact
that in rural areas in the Philippines, young ladies
are strictly required to act with circumspection
and prudence (People v. Godoy, G.R. Nos.
115908-09, 1995)
We point out in this respect that courts cannot
take judicial notice that vehicular accidents cause
whiplash injuries. This proposition is not public
knowledge, or capable of unquestionable
demonstration, or ought to be known to judges
because of their judicial functions. We have no
expertise in the field of medicine. Justices and
judges are only tasked to apply and interpret the
law on the basis of the parties’ pieces of evidence
and their corresponding legal arguments. (Dela
Llana v. Biong, G.R. No. 182356, 2013)
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. The foreign law
is treated as a question of fact to be properly
pleaded and proved as the judge or labor arbiter
cannot take judicial notice of a foreign law. He is
presumed to know only domestic or forum law.
Where a foreign law is not pleaded or, even if
pleaded, is not proved, the doctrine of
processual presumption applies and the
presumption is that foreign law is the same as
ours. (ATCI Overseas Corp. v. Echin, G.R. No.
178551, 2010)
Distinction between Mandatory Judicial
Notice and Discretionary Judicial Notice
MANDATORY DISCRETIONARY
JUDICIAL NOTICE JUDICIAL NOTICE
Court is compelled to Court not compelled
take judicial notice
REMEDIAL LAW
By own initiative of the At the court’s own
court initiative or on request of
any of the parties
No hearing Hearing required
 During pre- trial and
trial – on the
propriety of taking
judicial notice of any
matter
 Before judgment or
on appeal – if such
matter is decisive of
a material issue in
the case.
JUDICIAL NOTICE OF FOREIGN LAWS, LAW
OF NATIONS AND MUNICIPAL ORDINANCE
Rule on Foreign Laws
General Rule: Courts cannot take judicial notice
of foreign laws. Foreign laws have to be proved
like any other fact. (Del Socorro v. Van Wilsem,
G.R. 193707, 2014)
Exceptions:
1. When the said laws are already within the
actual knowledge of the court, such as when
they are well and generally known or they
have been actually ruled upon in other cases
before it and none of the parties concerned do
not claim otherwise. (PCIB v. Escolin, G.R.
Nos. L-27860 and L-27896, 1974)
2. 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. (Rule 130, Sec. 48) For
example, courts can cite the treatise of
Wigmore on Evidence without need of
testimony from a witness.
Stipulation by the parties – If the parties in a given
case do not have any controversy or are more or
less in agreement, the Court may take it for
granted for the purposes of the particular case
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before it that the said laws are as such virtual
agreement indicates, without the need of
requiring the presentation of what otherwise
would be the competent evidence on the point.
(PCIB v. Escolin, G.R. Nos. L-27860 and L-
27896, 1974)
How foreign laws are proved
A written foreign law maybe proved by:
a. An official publication; or
b. A copy attested by the officer having legal
custody of the record, or by his deputy.
If the office in which the record is kept is in a
foreign country which is a contracting party to a
treaty or convention to which the Philippines is
also a party, or considered a public document
under such treaty or convention pursuant to
paragraph (c) of Sec. 19 hereof: the certificate or
its equivalent shall be in the form prescribed by
such treaty or convention subject to reciprocity
granted to public documents originating from the
Philippines
For documents originating from a foreign country
which is not a contracting party to a treaty or
convention referred to in the next preceding
sentence: 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 or her office. (Rule 132, Sec. 24)
Note: Rule 132, Sec. 24: “A document that is
accompanied by a certificate or its equivalent
may be presented in evidence without further
proof, the certificate or its equivalent being prima
facie evidence of the due execution and
genuineness of the document involved. The
certificate shall not be required when a treaty or
convention between a foreign country and the
Philippines has abolished the requirement, or has
exempted the document itself from this formality.”
NOTE: This does NOT EXCLUDE presentation of
other competent evidence such as testimony of
witnesses skilled in that foreign law (CIR v.
Fisher, G.R. No. L-11622, 1961).
REMEDIAL LAW
When the foreign law is part of a published
treatise, periodical or pamphlet and the writer is
recognized in his profession or calling as an
expert in the subject, the court may take judicial
notice of the treatise containing the foreign law.
(See Rule 130, Sec. 48)
Doctrine of Processual Presumption
If the foreign law is not properly proved, the
foreign law is presumed to be the same as the law
in the Philippines (Northwest Orient Airlines v
Court of Appeals, G.R. No. 112573, 1995)
Rule on Court Records
1. Court’s Own Acts and Records
A court may take judicial notice of its OWN acts
and records in the SAME case.
2. Records of Other Cases
General Rule: Courts are not authorized to
take judicial notice of the contents of the
records of other cases, even when such have
been tried or are pending in the same court
and with the same judge.
Exceptions:
1. A party clearly makes reference to the
records of another case and there is no
objection by the other party;
2. Judicial notice is at the request or with the
consent of the parties; or
3. The original or part of the records of the
case are actually withdrawn from the
archives and are admitted as part of the
record of the case pending. (Tabuena v.
CA, G.R. No. 85423, 1991)
Judicial Notice of Other Matters
1. A court can take judicial notice of banking
practices.
2. A court cannot take judicial notice of an
administrative regulation or of a statute that is
not yet effective.
3. A court cannot take judicial notice of the age
of the victim without hearing and presentation
of proof.
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3. JUDICIAL ADMISSIONS Distinction between Judicial Admission and

Extra-Judicial Admission
Admissions, oral or written, made by a party in the
course of the proceedings in the same case. JUDICIAL EXTRA-JUDICIAL
(Rule 129, Sec. 4) ADMISSIONS ADMISSION
(Rule 129, Sec. 4) (Rule 130, Sec. 26)
Elements of Judicial Admissions
1. Must be made by a party to a case; and Admission must be Out-of-court-
2. Must be made in the course of the proceedings made in the course of declarations, or in a
in the same case. the proceedings in the judicial proceeding
3. No particular form is required; thus a judicial same case other than the one
admission may be oral or written. under consideration

Conclusive upon the Rebuttable

Forms of Judicial Admission
admitter subject to some
1. May be oral
exceptions
Examples:
a) Verbal waiver of proof made in open court Does not require proof Requires proof that the
b) Admission made by a witness in the course admission was made
of his testimony or deposition
2. May be written
Examples: a. Effect of judicial admissions
a) Pleading
An admission, oral or written, made by the party
b) Bill of Particulars
in the course of the proceedings in the same
c) Stipulation of Facts (People v. Hernandez,
case, does not require proof. (Rule 129, Sec. 4)
G.R. No. 108028, 1996)
d) Sworn Response to a Request for
Considering that an admission does not require
Admission
proof, the admission of the petitioners would
e) Affidavit used in the case
actually be sufficient to prove the partition even
f) Depositions
without the documents presented by the
g) Written Interrogatories
respondent spouses. If anything, the additional
h) Motions (Republic v. de Guzman, G.R. No.
evidence they presented only served to
175021, 2011)
corroborate the petitioners' admission.
(Dimaguila v. Sps. Monteiro, G.R. No. 201011,
Judicial admissions may be made by either a
2014)
party or his counsel.
Judicial admissions are legally binding on the
When a defendant is declared in default for
party making the admissions. (Sps. Noynay v.
having failed to answer the complaint, such a
Citihomes Builder & Development, Inc., G.R. No.
failure does not amount to an admission of the
204160, 2014)
facts alleged in the complaint.
A judicial admission binds the person who makes
To be considered a judicial admission, the
the same, and absent any showing that this was
admission must be made in the same case;
made through palpable mistake, no amount of
otherwise, it is an extrajudicial admission.
rationalization can offset it. (CIR v. MERALCO,
G.R. No. 181459, 2014)
Extra-Judicial Admissions
Are those made out of court, or in a judicial
Though the title to the property was initially filed
proceeding other than the one under
in court through the Joint Answer, however,
consideration.
petitioner Republic failed to refute the same, and
even marked it during pre-trial. Hence, petitioner
Republic already admitted its genuineness and
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due execution. Such judicial admission was
correctly considered by public respondent
Sandiganbayan in resolving the demurrer to
evidence. When the due execution and
genuineness of an instrument are deemed
admitted because of the adverse party's failure to
make a specific verified denial thereof, the
instrument need not be presented formally in
evidence for it may be considered an admitted
fact. (Republic v. Sandiganbayan, G.R. No.
189590, 2018)
b. How judicial admissions may be
contradicted
General Rule: A judicial admission is conclusive
upon the party making it and does not require
proof
Exceptions: Judicial admissions may be
contradicted ONLY by showing that:
1. The admission was made through PALPABLE
MISTAKE
2. That the imputed admission was not, in fact,
made.
This may be invoked when the statement of a
party is taken out of context or his statement was
made not in the sense it is made to appear by the
other party. (Phil. Health Care Providers v.
Estrada, G.R. No. 171052, 2008)
When Pleading Superseded or Amended
Pleadings that are superseded or amended
“disappear” from the record and any admissions
made in such pleadings cease to be judicial
admissions. In order that any statement
contained therein may be considered as
evidence, a party should formally offer the
superseded or amended pleading in evidence.
(Ching v. CA, G.R. No. 110844, 2000)
Remedies of a Party Who Made a Judicial
Admission
a) Motion to Withdraw: For written judicial
admissions, by filing a motion to withdraw the
pleadings, motion or other written instrument
containing such admission; or by moving that
such admission be deemed withdrawn or
disregarded due to palpable mistake.
b) Motion for Exclusion: For oral judicial
admissions, counsel in open court may move
REMEDIAL LAW
for the withdrawal or exclusion of such
admission due to palpable mistake.
Other Judicial Admissions
Admissions in Drafted Documents
An admission made in a document drafted for
purposes of filing as a pleading but never filed, is
not a judicial admission. If signed by a party, it is
deemed an extrajudicial admission. If signed by
the attorney, it is not deemed as an admission by
the party. An attorney only has the authority to
make statements on behalf of his clients in open
court or in a pleading actually filed.
Hypothetical Admissions
Not all allegations or admissions in civil cases
may be considered as judicial admissions
because the Rules on Civil Procedure allow a
litigant to make hypothetical admissions in his
pleading.
Examples:
1. When a defendant sets up affirmative
defenses in his answer (Rule 6, Sec. 5[b]
2. When defendant files a motion to dismiss
based on lack of jurisdiction over the subject
matter of the claim.
c. Pre-trial admissions
Admissions in the Pre-Trial of Civil Cases
In civil cases, pre-trial is mandatory. Therefore,
admissions in pre-trial, as well as those made
during the depositions, or in sworn responses to
interrogatories or requests for admission are all
deemed judicial admissions because they are
made in the course of the proceedings of the
case.
Admissions in the Pre-Trial of Criminal Cases
An admission made by the accused in the pre-
trial of a criminal case is not yet admissible
against him. To be admissible, it must be
reduced to writing and signed by both the
accused and the counsel.
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Distinction: Admissions in Pre-Trial other person. The basis for admissibility of

PRE-TRIAL IN CIVIL
CASES
Admissions in pre-trial,
as well as those made
during the depositions, or
in sworn responses to
interrogatories or
requests for admission
are deemed judicial
admissions since they
are made in the course of
the proceedings of the
case
admissions made vicariously is that arising from
PRE-TRIAL IN
the ratification or adoption by the party of the
CRIMINAL CASES
statements which the other person had made. In
The admission must the Angara Diary, Estrada’s options started to
be: dwindle when the armed forces withdrew its
(1) reduced to writing support. Thus, Executive Secretary Angara had
and to ask Senate President Pimentel to advise
(2) signed by both the petitioner to consider the option of dignified exit
accused and counsel or resignation. Estrada did not object to the
suggested option but simply said he could never
leave the country. His silence on this and other
related suggestions can be taken as an
admission by him. (Estrada v. Desierto, G.R. Nos.
146710-15, 2001)

Admissions in Amended Pleadings

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
as extrajudicial admissions which must be
proven.
Having been amended, the original complaint
loses its character as a judicial admission which
would require no proof. It is now an extrajudicial
admission which requires proof (Torres v. Court
of Appeals, G.R. No. L-37420, July 31, 1984)
Admissions by Counsel
General Rule: Admissions by a counsel are
generally conclusive upon his client.
Negligence of counsel binds the client (Sarraga
v. Banco Filipino Savings & Mortgage Bank, G.R.
No. 143783).
Exception: In cases where:
1. Reckless or gross negligence of counsel
deprives the client of due process of law;
2. When its application will result in outright
deprivation of the client’s liberty or property; or
3. 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. (Villanueva v. People, G.R. No.
188630, 2011)
Adoptive Admissions
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
C. OBJECT (REAL) EVIDENCE
1. NATURE OF OBJECT EVIDENCE
Objects as evidence are those addressed to the
senses of the court. When an object is relevant to
the fact in issue, it may be exhibited to, examined
or viewed by the court. (Rule 130, Sec. 1)
It refers to the real thing itself and it consists of
tangible things, not merely perceptions of the
witness and a recollection of those perceptions.
Object evidence is not visual alone. It covers the
entire range of human senses: hearing, taste,
smell, and touch. (Riano p. 116)
Limitations on the Use of Object Evidence
The court MAY refuse the introduction of object
evidence and rely on testimonial evidence alone
if:
1. The exhibition of such object is contrary to
morals or decency; (Regalado, p. 716 citing 5
Moran, op. cit., p. 72)
2. To require its being viewed in court or in an
ocular inspection would result in delays,
inconvenience, unnecessary expenses out of
proportion to the evidentiary value of such
object; (Regalado, p. 716 citing People v.
Moreno 83 Phil. 286)
3. Such object evidence would be confusing or
misleading, as when the purpose is to prove
the former condition of the object and there is
no preliminary showing that there has been no
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substantial change in said condition
(Regalado, p. 716 citing People v. Saavedra
[CA], 50 o.g. 5407;) or
4. The testimonial or documentary evidence
already presented clearly portrays the object
in question as to render a view thereof
unnecessary (Regalado p. 716, citing Sec. 7,
Rule 133).
Even if the object is repulsive or indecent, if a
view of the same is necessary in the interest of
justice, such evidence may still be exhibited but
the court may exclude the public from such view.
2. REQUISITES OF ADMISSIBILITY
1. The object must be relevant to the fact in issue;
2. The object must be authenticated before it is
admitted;
3. The authentication must be made by a
competent witness;
4. The object must be formally offered in
evidence. (Riano)
Reason for Admissibility
The evidence of one’s own senses furnishes the
strongest probability of the existence of any
sensible fact.
AUTHENTICATION
To be admissible in evidence, the object sought
to be offered must be shown to have been the
very thing that is the subject matter of the lawsuit
or the very one involved to prove an issue in the
case.
Authentication by a competent witness is
essential to the admissibility of the object
evidence. After authentication, the object needs
to 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. (Riano, p.119)
Testimonial evidence provides the foundation for
all types of evidence. (Riano, p. 118)
Nothing in the Rules on Evidence deals with the
authentication of object evidence during trial. Aprt
REMEDIAL LAW
from the requirement of formal offer, however,
such practice is part and parcel of having an
object evidence admitted, because authenticity is
an inherent attribute of relevance – a component
of admissibility. (People v. Olarte, G.R. No.
233209, March 11, 2019)
The obvious reason is that an object offered in
court as evidence but without having any part in
the fact or event sought to be proven by the
proponent is irrelevant because it has no “relation
to the fact in issue as to induce a belief in its
existence or nonexistence. (People v. Olarte,
G.R. No. 233209, March 11, 2019)
NOTE: Under the Judicial Affidavit Rule, object
evidence now requires authentication or
testimonial sponsorship before it may be admitted
or considered by the court. (People v. Olarte,
G.R. No. 233209, March 11, 2019; please see
Secs.2 and 8 (c) of the Judicial Affidavit Rule )
Standard of Proper Foundation
If the proffered evidence is unique, readily
identifiable, and relatively resistant to change,
that foundation need only consist of testimony by
a witness with knowledge that the evidence is
what the proponent claims.
Otherwise, the chain of custody rule has to be
resorted to and complied with by the proponent to
satisfy the evidentiary requirement of relevancy.
(People v. Olarte, G.R. No. 233209, March 11,
2019)
Object Evidence and the Right Against Self-
incrimination
The right against self-incrimination cannot be
invoked against object evidence. Thus, an
accused may be compelled to submit himself to
bodily inspection and whatever object is retrieved
on his person would be admissible even though it
would incriminate such accused. Also, on cross-
examination, an accused may be compelled to
write so his handwriting may be used as object
evidence to compare with the one in question.
The right against self-incrimination guaranteed
under the fundamental law had no application in
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this case because no testimonial compulsion was
involved. (People v. Malimit, G.R. No. 109775,
1996)
Admissibility of Tape Recordings
Before a tape recording is admissible in evidence
and given probative value, the following
requisites must first be established:
1. A showing that the recording device was
capable of taking testimony;
2. A showing that the operator of the device was
competent;
3. Establishment of the authenticity and
correctness of the recording;
4. A showing that changes, additions, or deletions
have not been made;
5. A showing of the manner of the preservation of
the recording;
6. Identification of the speakers; and
7. A showing that the testimony elicited was
voluntarily made without any kind of
inducement. (Torralba v. People, G.R. No.
153699, 2005)
Note: Recordings may also fall under the
category of documentary evidence for
documentary evidence now covers “recordings”
or any material which contains “sounds” as long
as offered as proof of their contents.
3. CATEGORIES OF OBJECT EVIDENCE
1. Unique Objects
Objects that have readily identifiable marks, e.g.,
a gun with a serial number.
2. Objects Made Unique
Objects with no unique characteristics but are
made readily identifiable, e.g., a typical kitchen
knife with identifying marks placed on it by the
witness.
3. Non-Unique Objects
Objects with no identifying marks and cannot be
marked, e.g. narcotic substances. A proponent
offering evidence which falls under the third
category must establish a chain of custody.
(People v. Bardaje, G.R. No. L-29271, 1980).
Physical Evidence
A mute but eloquent manifestation of truth and it
ranks high in the hierarchy of trustworthy
evidence – where the physical evidence on
record runs counter to the testimonial evidence,
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the physical evidence should prevail. (BPI v.
Reyes, G.R. No. 157177, 2008)
Demonstrative Evidence
Demonstrative evidence is not the actual thing
but represents or demonstrates the real thing. It
is not strictly “real” evidence because it is not the
very thing involved in the case. Diagrams, maps,
models and the like fall under this category
(Riano, p. 120)
The admissibility of this type of evidence largely
depends on the laying of the proper foundation
for evidence: Does the evidence sufficiently and
accurately represent the object it seeks to
demonstrate and represent? If it does, the
evidence would be admissible (Riano, p. 121)
Under the Rules on Electronic Evidence,
photographic evidence of events, acts, or
transactions shall be admissible in evidence,
provided that it shall be presented, displayed, and
shown to the court, and it shall be identified,
explained or authenticated by either: the person
who made the recording; or some other person
competent to testify on the accuracy thereof (Rule
11, Sec. 1, Rules on Electronic Evidence)
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, G.R. No. 108280-83, 1995)
The correctness of a photograph as a faithful
representation of the object portrayed can be
proved prima facie, either by the testimony of the
person who made it or by other competent
witnesses, after which the court can admit it
subject to impeachment as to its accuracy. (Sison
v. People, G.R. Nos. 108280-83, 1995)
The rule is well-settled that a photograph may be
put in evidence if relevant to the issue and if
verified by the taker. Its verification depends on
the competency of the verifying witness and the
trial judge must in the first instance decide,
subject to reversal for substantial error.
(Adamczuk v. Halloway, 13 A.2d 2, 1940)
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Trial court ruled that the photographs are
inadmissible. The Court held that the
photographs are inadmissible because the map
or photograph, to be admissible, must first be
made a part of some qualified person's testimony.
Someone must stand forth as its testimonial
sponsor; in other words, it must be verified.
(Adamczuk v. Halloway, 13 A.2d 2, 1940)
On appeal, Tatum questioned the film’s
admission into evidence. The Court held that for
a photograph to be admissible in evidence, the
authentication required by courts is that some
witness (not necessarily the photographer) be
able to give some indication as to when, where,
and under what circumstances the photograph
was taken, and that the photograph accurately
portray the subject or subjects illustrated. (State
v. Tatum, 360 P.2d 754, 1961)
Note: Photographs may also fall under the
category of documentary evidence for
documentary evidence now covers
“photographs” as long as offered as proof of their
contents.
View Of An Object Or Scene
When an object is relevant to the fact in issue, it
may be exhibited to, examined or viewed by the
court. (Rule 130, Sec. 1)
A place or scene can fall under the classification
of object evidence. The court has to go to the
object if the object cannot be produced in court
due to its immovability or the difficulty or
inconvenience in removing it and producing it in
court.
Granted Only If View Is Of Substantial Aid
As a general rule, a view or inspection should be
granted only where it is reasonably certain that it
will be of substantial aid to the court in reaching a
correct verdict.
When Changes to the Object or Scene Have
Taken Place
A court may refuse to make the inspection where
changes have taken place since the time to which
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the action relates or where it is not shown that the
conditions are the same.
However, View May Be Granted If:
1. The change is not material.
2. The character and extent of the change are
properly brought out in evidence.
Notice to parties
The inspection or view is part of the trial and thus
should be made in the presence of the parties or
at least with previous notice to them of the time
and place set for the view. (Phil. Movie Pictures
Workers Ass’n v. Premiere Productions, G.R. No.
L-5621, 1953)
4. CHAIN OF CUSTODY IN RELATION TO
SEC. 21 OF THE COMPREHENSIVE
DANGEROUS DRUGS ACT OF 2002
Persons who actually handled or had custody of
the object must show through testimony that
there is no possibility that the evidence was
tampered with and that the integrity of the
evidence was preserved throughout the course of
gathering, collecting and storing the evidence.
This is done to ensure that the evidence
presented in court is the same evidence seized
from the defendant or recovered from the crime
scene or elsewhere.
Non-Compliance with the Doctrine of Chain of
Custody
General Rule: Non-compliance is fatal; the
accused’s arrest becomes illegal.
Exception: Non-compliance is not fatal and will
not make the accused’s arrest illegal nor render
the items seized as inadmissible, provided:
1. There is justifiable ground; and
2. The integrity and evidentiary value of the
items are properly preserved (R.A. No. 9165,
Sec. 21; People v. Dela Cruz, G.R. No.
205414, 2016)
Case Law: Chain of Custody
The chain of custody rule is but a variation of the
principle that real evidence must be authenticated
prior to its admission into evidence. To establish
a chain of custody sufficient to make evidence
admissible, the proponent needs only to prove
a rational basis from which to conclude that the
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evidence is what the party claims it to be. In other
words, in a criminal case, the prosecution must
offer sufficient evidence from which the trier of
fact could reasonably believe that an item still is
what the government claims it to be. Specifically
in the prosecution of illegal drugs, the well-
established federal evidentiary rule in the United
States is that when the evidence is not readily
identifiable and is susceptible to alteration by
tampering or contamination, courts require a
more stringent foundation entailing a chain of
custody of the item with sufficient
completeness to render it improbable that the
original item has either been exchanged with
another or been contaminated or tampered with.
It must be alleged and proved that the presence
of the three witnesses to the physical
inventory and photograph of the illegal drug
seized was not obtained due to reason/s such
as:
(1) Their attendance was impossible because the
place of arrest was a remote area;
(2) Their safety during the inventory and
photograph of the seized drugs was
threatened by an immediate retaliatory action
of the accused or any person/s acting for and
in his/her behalf;
(3) The elected official themselves were involved
in the punishable acts sought to be
apprehended;
(4) Earnest efforts to secure the presence of a
DOJ or media representative and an elected
public official within the period required under
Article 125 of the Revised Penal Code prove
futile through no fault of the arresting officers,
who face the threat of being charged with
arbitrary detention; or
(5) Time constraints and urgency of the anti-drug
operations, which often rely on tips of
confidential assets, prevented the law
enforcers from obtaining the presence of the
required witnesses even before the offenders
could escape. (People v. Romy Lim, G.R. No.
231989, 2018)
Each custodian of the evidence is not required to
testify as long as sufficient testimony is given by
some of the persons who have come into contact
with the evidence to negate the possibility of
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tampering. (People v. Climaco, G.R. No. 199403,
June 13, 2012)
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 to be.
While testimony about a perfect chain is not
always the standard because it is almost always
impossible to obtain, an unbroken chain of
custody becomes indispensable and essential
when the item of real evidence is not distinctive
and is not readily identifiable, or when its
condition at the time of testing or trial is critical, or
when a witness has failed to observe its
uniqueness.
While the SC in certain cases has tempered the
mandate of strict compliance with the requisite
under Sec. 21 of RA 9165, such liberality, as
stated in the IRR can be applied only when the
evidentiary value and integrity of the illegal drug
are properly preserved. In the case at bar, the
evidentiary value and integrity of the alleged
illegal drug had been thoroughly compromised.
Serious uncertainty is generated on the identity of
the item in view of the broken linkages in the
chain of custody. In this light, the presumption of
regularity in the performance of official duty
accorded the buy-bust team by the courts below
cannot arise. (People of the Philippines v.
Fernando Ranche Havana a.k.a. Fernando
Ranche Abana, G.R. No. 198450, 2016)
Generally, the authenticity of the seized items will
be put into doubt, and the state cannot establish
the corpus delicti when the prohibited substance
subject of the prosecution is missing or when
substantial gaps in the chain of custody. (People
v. Relato, G.R. No. 173794, 2012)
However, a conviction based on the seized items
may still be possible as long as there is justifiable
ground for noncompliance and there is
preservation of the integrity and the evidentiary
value of the seized items. (Cerbo v. People, G.R.
No. 176077, 2011)
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Historically, the Court has applied the "chain of
custody" rule as a mode of authenticating illegal
drug substances in order to determine its
admissibility.
However, such rule has not yet been extended to
other substances or objects for it is only a
variation of the principle that real evidence must
be authenticated prior to its admission into
evidence.
At this point, it becomes necessary to point out
that the degree of fungibility of amorphous
objects without an inherent unique characteristic
capable of scientific determination, i.e., DNA
testing, is higher than stably structured objects or
those which retain their form because the
likelihood of tracing the former objects' source is
more difficult, if not impossible.
Narcotic substances, for example, are relatively
easy to source because they are readily available
in small quantities thereby allowing the buyer to
obtain them at lower cost or minimal effort. It
makes these substances highly susceptible to
being used by corrupt law enforcers to plant
evidence on the person of a hapless and innocent
victim for the purpose of extortion. Such is the
reason why narcotic substances should undergo
the tedious process of being authenticated in
accordance with the chain of custody rule.
In this regard, the Court emphasizes that if the
proffered evidence is unique, readily identifiable,
and relatively resistant to change, that foundation
need only consist of testimony by a witness with
knowledge that the evidence is what the
proponent claims; otherwise, the chain of custody
rule has to be resorted to and complied with by
the proponent to satisfy the evidentiary
requirement of relevancy.
In the case at hand, the chain of custody rule
does not apply to an undetonated grenade (an
object made unique), for it is not amorphous and
its form is relatively resistant to change. A witness
of the prosecution need only identify the hand
grenade, a structured object, based on personal
knowledge that the same contraband or article is
what it purports to be—that it came from the
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person of accused-appellant. (People vs. Olarte,
G.R. No. 233209, 2019)
5. DNA EVIDENCE
a. Meaning of DNA
Deoxyribonucleic Acid, or DNA, is 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, mucus, urine, skin
tissue, and vaginal and rectal cells. Most
importantly, because of polymorphisms in human
genetic structure, no two individuals have the
same DNA, with the notable exception of identical
twins. (Agustin vs. Court of Appeals, G.R. No.
162571, 2005)
“Biological sample” means any organic material
originating from a person’s body, even if found in
inanimate objects, that is susceptible to DNA
testing. This includes blood, saliva and other
body fluids, tissues, hairs and bones (Rule on
DNA Evidence, Sec. 3a)
“DNA evidence” constitutes the totality of the
DNA profiles, results and other genetic
information directly generated from DNA testing
of biological samples (Rule on DNA Evidence,
Sec. 3c)
b. Application for DNA testing order
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 (Rule on
DNA Evidence, Sec. 4)
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:
1. A biological sample exists that is relevant to
the case;
2. The biological sample: (i) was not previously
subjected to the type of DNA testing now
requested; or (ii) was previously subjected to
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DNA testing, but the results may require
confirmation for good reasons;
3. The DNA testing uses a scientifically valid
technique;
4. The DNA testing has the scientific potential to
produce new information that is relevant to the
proper resolution of the case; and
5. The existence of other factors, if any, which
the court may consider as potentially affecting
the accuracy of integrity of the DNA testing.
(Sec. 4, Rule on DNA Evidence)
6. There must be a prima facie showing of
relationship or paternity (Lucas v. Lucas, G.R.
No. 190710 (June 6, 2011)
Note: The Court may motu proprio order a DNA
testing (Rule on DNA Evidence, Sec. 4)
If the court finds that the requirements in Sec. 4
have been complied with, the court shall:
a.) Order, where appropriate, that biological
samples be taken from any person or crime
scene evidence;
b.) Impose reasonable conditions on DNA testing
designed to protect the integrity of the
biological sample, the testing process and the
reliability of the test results, including the
condition that the DNA test results shall be
simultaneously disclosed to the parties
involved in the case; and
c.) If the biological sample taken is of such
amount that prevents the conduct of
confirmatory testing by the other or the
adverse party and where additional biological
samples of the same kind can no longer be
obtained, issue an order requiring all parties to
the case or proceedings to witness the DNA
testing to be conducted (Rule on DNA
Evidence, Sec. 5)
A court order is not always required before
undertaking a DNA testing. The last paragraph of
Sec. 4 of the Rule on DNA Evidence 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 if there is a pending litigation, but
not before the litigation (Riano, p.145)
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A court order granting a DNA testing is not
appealable and is immediately executory as Sec.
5 of the Rule on DNA Evidence provides. The
remedy would be to file a petition for certiorari
under Rule 65, but this shall not, in any way, stay
the implementation thereof, unless a higher court
issues an injunctive order (Riano, p.145)
c. Post-conviction DNA testing; remedy
A person convicted under a final and executory
judgement may still avail himself of DNA testing.
The test after his conviction is termed “post-
conviction” DNA testing. Significantly, Sec. 6 of
the Rule allows post-conviction DNA testing. It
may be available to (a) the prosecution, or (b) the
person convicted by a final and executory
judgement, provided that the following
requirements are met:
1. A biological sample exists
2. Such sample is relevant to the case; and
3. The testing would probably result in the
reversal or modification of the judgement of
conviction (Riano, page 147 citing Sec. 6 of
the Rule on DNA Evidence)
Note: There is no requirement of a prior court
order to avail oneself of this.
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
judgement of conviction and order the release of
the convict, unless his detention is justified for a
lawful cause.
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. (Riano, page 147
citing Sec. 10, Rule on DNA evidence)
Note: The petition for a writ of habeas corpus
may also be filed by the prosecution.
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d. Assessment of probative value of DNA
evidence and admissibility
In assessing the probative value of DNA
evidence, courts should consider the following
data:
1. How the samples were collected,
2. How they were handled,
3. Possibility of contamination,
4. Procedure followed in analyzing the samples,
5. Whether proper standards of procedure were
followed in conducting the tests,
6. Qualification of the analyst who conducted the
test. (People v. Vallejo G.R. No. 144656,
2002)
By the terms of Sec. 5 of the Rule on DNA
Evidence, the grant of a DNA testing application
shall not be construed as an automatic admission
into evidence of any component of the DNA
evidence that may be obtained as a result 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:
1. The chain of custody, including how the
biological samples were collected, how they
were handled, and the possibility of
contamination of the samples;
2. The DNA testing methodology, including the
procedure followed in analyzing the samples,
the advantages and disadvantages of the
procedure, and compliance with the
scientifically valid standards in conducting the
tests;
3. The forensic DNA laboratory, including
accreditation by any reputable standards-
setting institution and the qualification of the
analyst who conducted the tests. If the
laboratory is not accredited, the relevant
experience of the laboratory in forensic
casework and credibility shall be properly
established; and
4. The reliability of the testing result, as
hereinafter provided. (Riano, page 146 citing
Sec. 7, Rule on DNA Evidence)
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e. Rules on evaluation of reliability of the
DNA testing methodology
In evaluating whether the DNA testing
methodology is reliable, the court shall consider
the following:
1. The falsifiability of the principles or methods
used, that is, whether the theory or technique
can be and has been tested;
2. The subjection to peer review and publication
of the principles or methods;
3. The general acceptance of the principles or
methods by the relevant scientific community;
4. The existence and maintenance of standards
and controls to ensure the correctness of data
generated;
5. The existence of an appropriate reference
population database; and
6. The general degree of confidence attributed to
mathematical calculations used in comparing
DNA profiles and the significance and
limitation of statistical calculations used in
comparing DNA profiles. (Sec. 8, Rule on
DNA evidence)
D. DOCUMENTARY EVIDENCE
1. MEANING OF DOCUMENTARY
EVIDENCE
Documents as evidence consists of writings,
recordings, photographs, or any material
containing letters, words, sounds, numbers,
figures, symbols or their equivalent, or other
modes of written expression offered as proof of
their contents. Photographs include still pictures,
drawings, stored images, x-ray films, motion
pictures or videos. (Rule 130, sec. 2)
Documentary evidence is evidence supplied by
written instruments, or derived from conventional
symbols, such as letters, by which ideas are
represented on material substances.
For written material to qualify as documentary
evidence, the purpose of offering the written
material should be to prove its contents.
If offered for some other purpose (e.g., existence
or condition), the writings would not be deemed
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as documentary evidence but as object evidence.
(The Original Document Rule and the Parol
Evidence Rule do not apply to object evidence,
only to documentary evidence.)
2. REQUISITES OF ADMISSIBILITY
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,
original document rule, and parol evidence rule.
(Riano, p. 229)
3. ORIGINAL DOCUMENT RULE
(FORMERLY THE BEST EVIDENCE RULE)
a. Meaning of the rule
The best evidence rule applies only when the
subject of the inquiry is the contents of a
document. The rule requires that the original of
the writing must be produced. It is also known as
the “original document rule” or the “primary
evidence” rule. (National Power Corporation v.
Codilla, G.R. No. 170491, 2007)
The best evidence rule operates as a rule of
exclusion, that is, secondary evidence cannot be
introduced as the original writing itself must be
produced in court, subject to exceptions.
Note: The rule now also applies if the contents of
a writing, reading, photograph or other record is
the subject of inquiry
Purpose: The prevention of fraud, because it is
easy for a person to fabricate the alleged
contents of a document. Also, the rule ensures
accuracy. A person, even if acting in good faith,
may most likely not be able to recall all the details
of a document, especially a lengthy one.
The original document rule cannot be invoked
unless the contents of the writing are the subject
of the judicial inquiry.
If the subject of the inquiry is not the contents of
a document, then the Original Document Rule
does not apply.
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For example, accused is charged with perjury for
lying under oath in a Senate hearing. The
prosecution need not present the transcript of the
testimony given at the hearing. The prosecution
can present a witness who heard what Accused
testified to in the Senate because, here, the
subject of the inquiry is not the contents of the
transcript but whether accused uttered a
falsehood while under oath at the hearing. In this
instance, while the transcript is the “better” or
“best” evidence in the sense that it is presumably
more reliable, the testimony of the witness who
heard the utterance of the Accused at the Senate
is nonetheless admissible even without
accounting for the loss of the transcript
The best evidence rule applies only when the
contents of the documents are the subject of
inquiry. Since in this case the prosecution
presented the marked money solely for the
purpose of establishing its existence and not its
contents, other substitutionary evidence like a
Xerox copy is admissible without the need of
accounting for the original. (People v. Tandoy,
G.R. No. 80505, 1990)
Only a photocopy of the Employee Clearance
was presented in evidence. The Court held that
the photocopy is admissible as evidence since an
exception to the best evidence rule is when the
document sought to be presented is in the
possession of the person against whom it is to be
offered and such party fails to present it even
after reasonable notice. (Pacasum v. People,
G.R. No. 180314, 2009)
The general rules regarding the admissibility of
evidence are applicable to cases of libel or
slander. When such libel or slander was
committed through a published article, copies of
such article constitute the best evidence. (Fiscal
of Pampanga v. Reyes, G.R. No. L-35366, 1931)
The Best Evidence Rule may not be used to
prohibit a litigant from proving the existence of a
disputed deed of sale through secondary
evidence. The Rule applies only when the terms
of a writing are in issue. When the evidence
sought to be introduced concerns external facts,
such as the existence, execution, or delivery of
the writing, without reference to its terms, the
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Best Evidence Rule cannot be invoked. (Heirs of
Margarita Prodon v. Heirs of Maximo Alvarez,
G.R. No. 170604, 2013)
The Republic seeks exception to the application
of the best evidence rule by arguing that said
documents were presented to prove their
existence and execution, and not their contents.
The Court is hard-pressed to give credence to
such argument in the light of the purposes for
which these excluded documents were sought to
be admitted, i.e., to show that Rodolfo M. Cuenca
secured loans from government financial
institutions without sufficient collateral; to show
that Rodolfo M. Cuenca obtained favorable
rescue arrangement at the behest of Ferdinand
E. Marcos; to show that the sequestered
properties are part of the ill-gotten wealth; to
show that respondents are dummies of Ferdinand
E. Marcos; and to show the complicity between
respondents in amassing ill-gotten wealth.
Clearly, no amount of legal hermeneutics could
betray that what should be proven are the
contents, and not the mere existence, of the
documents themselves. (Republic v. Cuenca,
G.R. No. 198393, 2018)
b. When not applicable
General Rule: The original document must be
produced.
Exceptions:
1. When the original is lost or destroyed, or
cannot be produced in court, without bad faith
on the part of the offeror;
2. 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, or the
original cannot be obtained by local judicial
processes or procedures;
3. 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
4. When the original is a public record in the
custody of a public officer or is recorded in a
public office.
5. When the original is not closely-related to a
controlling issue (Rule 130, Sec. 3)
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c. Meaning of original document and
duplicate
Original of a document
An “original” of a document is the document itself
or any counterpart intended to have the same
effect by a person executing or issuing it
Original of a photograph
Includes the negative or any print therefrom
Original of data stored in a computer or
similar device
Any printout or other output readable by sight or
other means, shown to reflect the data accurately
Duplicate
Is a counterpart produced by:
the same impression as the original, or
from the same matrix, or
by means of photography, including
enlargements and miniatures, or
by mechanical or electronic re-recording or
by chemical reproduction, or
by other equivalent techniques which accurately
reproduce the original
A duplicate is admissible to the same extent as
an original unless:
A genuine question is raised as to the authenticity
of the original or
In the circumstances, it is unjust or inequitable to
admit the duplicate in lieu of the original (Rule
130, Sec. 4)
Note:
A carbon copy of a letter is a duplicate original
and admissible. Photographic copies of writings
or photocopies are not duplicate originals as they
are produced at a later time. Such are considered
secondary evidence.
When carbon sheets are inserted between two or
more sheets of writing paper so that the writing of
a contract upon the outside sheet, including the
signature of the party to be charged thereby,
produces facsimile upon the sheets beneath,
such signature being thus reproduced by the
same stroke of the pen which made the surface
or exposed impression, all of the sheets so
written on are regarded as duplicate originals and
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either of them may be introduced in evidence as
such without accounting for the nonproduction of
the others. (People v. Tan, G.R. No. L-14257,
1959)
There can be no proof of "substantial similarity"
and thus of copyright infringement unless Seiler's
works are juxtaposed with Lucas' and their
contents compared. Since the contents are
material and must be proved, Seiler must either
produce the original or show that it is unavailable
through no fault of his own.
The best evidence rule was applied in a copyright
infringement case, where plaintiff possessed no
originals of any work he contended was copied;
accordingly, before subsequent reconstructions
were admissible, plaintiff had to establish that the
originals were lost or destroyed through no fault
of his own. Thus, copyrighted drawings offered as
evidence are considered as documentary
evidence and when subject of inquiry is the
content of the creation the original must be
presented. (Seiler v. Lucas Film, Ltd., 797 F.2d
1504, 1986)
The evidence offered by NAPOCOR were
photocopies. The Court held that the photocopies
were not equivalent to the original documents
based on the Rules on Electronic Evidence. The
information contained in the photocopies
submitted by NAPOCOR will reveal that not all of
the contents therein, such as the signatures of the
persons who purportedly signed the documents,
may be recorded or produced electronically.
(National Power Corporation v. Codilla, G.R. No.
170491, 2007)
The Court held that the print-out and/or
photocopies of facsimile transmissions are not
electronic evidence. Thus, it is consequential that
the same may not be considered as the functional
equivalent of their original as decreed in the law.
(MCC Industrial Sales Corporation v. Ssangyong
Corporation, G.R. No. 170633, 2007)
Considering that the annotation of the disputed
Deed of Sale in a tax declaration is not sufficient
proof of the transfer of property and inasmuch as
the subject of inquiry is the Deed of Sale, it was
incumbent on the petitioners to adduce in
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evidence the original. In the absence of the said
document, the exhortations of petitioners
regarding the existence of said deed of sale must
fail. (Ebreo v. Ebreo, G.R. No. 160065, 2006)
In criminal proceedings for the falsification of a
document, it is indispensable that the judges and
courts have before them the document alleged to
have been simulated, counterfeited, or falsified,
in order that they may find, pursuant to the
evidence produced in the cause, whether or not
the crime of falsification was committed, and also,
at the same time, to enable them to determine the
degree of each of defendant’s liability in the
falsification under prosecution. Through the lack
of the original document containing the
memorandum alleged to be false, it is improper to
hold, with only a copy of the said original in view,
that the crime prosecuted was committed; and
although, judging from the testimony of the
witnesses who were examined in the two
consolidated causes, there is reason to entertain
much doubt as to the defendant’s innocence, yet,
withal, this case does not furnish decisive and
conclusive proof of their respective guilt as co-
principals of the crime charged. (U.S. v. Gregorio,
G.R. No. L-5791, 1910)
The best evidence of the cost of the said
equipment disputed in the case would have been
the sales invoices instead of the oral testimony of
Teves. He did not produce the sales invoices.
Even if the presentation of the records
themselves as exhibits should have been
dispensed with, yet the complainant to show good
faith and fair dealing, could have brought the
records in court (manifests, bills of lading,
receipts for freights, if any, etc.) and enabled the
court and the union’s counsel and its expert
accountant to verify the accuracy of Jayme’s
summaries. (Compania Maritima v. Allied Free
Workers, G.R. No. L-289999, 1977)
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However, based on People v. Pruna, the Court
established the guidelines in appreciating age,
either as an element of the crime or as a
qualifying circumstance:
The best evidence to prove the age of the
offended party is an original or certified true
copy of the certificate of live birth of such
party,
In absence of such, similar authentic
documents such as baptismal certificates and
school records.
In the absence of a certificate of live birth,
authentic document, or testimony of the
victim’s mother or relatives concerning the
victim’s age, the complainant’s testimony will
suffice provided that it is expressly and clearly
admitted by the accused. (People v. Arpon,
G.R. No. 183563, December 14, 2011)
d. Secondary evidence; summaries
REQUISITES FOR INTRODUCTION OF
SECONDARY EVIDENCE
When Original Document is Unavailable
a. Proof of the execution or existence of the
original;
b. Proof of cause of its unavailability without bad
faith on the offeror’s part; (Rule 130, Sec. 5)
Laying the basis
Secondary evidence may be admitted only by
laying the basis for its production. Laying such
basis requires compliance with the following:
The offeror must prove the existence and
execution of the original document;
The offeror must show the cause of its
unavailability such as the loss or destruction of
the original;
The offeror must show that the unavailability was
not due to his bad faith. (Republic v. Mupas, G.R.
No. 191892, 2015)
It must be shown that a diligent and bona fide but
unsuccessful search has been made for the
document in the proper place or places. (Lee v.
People, G.R. No. 159288, 2004)
The proponent must prove by a fair
preponderance of evidence as to raise a
reasonable inference of the loss or destruction of
the original copy. (Lee v. People, G.R. No.
159288, 2004)
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When More than One Original Exists
When more than one original copy exists, it must
appear that all of them have been lost, destroyed,
or cannot be produced in court before secondary
evidence can be given of anyone. A photocopy
may not be used without accounting for the other
originals. (Citibank v. Teodoro, G.R. No. 150905,
2003)
Order of proof
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, G.R. No. 150905,
2003)
Before secondary evidence can be presented, it
is imperative that all the originals, duplicates or
counterparts must be accounted for. The loss,
destruction, or inaccessibility of all the originals
must be shown in order to admit secondary
evidence. (De Vera v. Aguilar, G.R. No. 83377,
1993)
When the original is outside the jurisdiction of the
court, as when it is in a foreign country,
secondary evidence is admissible. (Regalado, p.
725 citing PNB v. Olila, 98 Phil. 1002)
Due Execution May be Proven Through the
Testimony of Either:
1. The person who executed it;
2. The person before whom its execution was
acknowledged; or
3. Any person who was present and saw it
executed and delivered or who thereafter saw
it and recognized the signatures, or
4. One to whom the parties thereto had
previously confessed the execution thereof
(Michael v. Enriquez, G.R. No. L-10824,
1915).
Rules on Loss
It is not necessary to prove the loss beyond all
possibility of mistake. A reasonable probability of
its loss is sufficient, and this may be shown by a
bona fide and diligent search for it in a place
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where it is likely to be found. (Paylago v. Jarabe,
G.R. No. L-20046, 1968)
The document conveying the land was lost so the
petitioner tried to present oral, secondary
evidence. The Court held that the secondary
evidence is admissible. The loss or destruction of
the instrument, meanwhile, may be proved by any
person aware of the fact, or by anyone who has
made, in the judgment of the court, a sufficient
examination in the place or places where the
document or papers of similar character are
usually kept by the person in whose custody the
document was kept, and has been unable to find
it; or who has made any other investigation
sufficient to satisfy the Court that the document
was indeed lost. (Michael & Co. v. Enriquez, G.R.
No. 10824, 1915)
Proof of loss of the original document may be
dispensed with where both parties admit that an
instrument has been lost. The contents of an
instrument may be proved against a party by his
admission in writing without accounting for non-
production of the original document (Tria v. Ortiz,
G.R. No. 5244, 1909)
Order by which contents of document may be
proved by secondary evidence of lost,
destroyed or unavailable originals (CRT):
1. A copy of the document;
2. Recital of its contents in some authentic
document;
3. The testimony of witnesses. (Rule 130, Sec.
5)
The hierarchy of preferred secondary evidence
must be strictly followed.
Rule on Testimony Regarding Original
Document
The fact that a writing is really a true copy of the
original may be shown by the testimony of a
person who has had the opportunity to compare
the copy with the original and found it to be
correct.
When contents may be proven by Oral
Evidence
After proper proof of the due execution and
delivery of the instrument and its loss or
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destruction, oral evidence may be given of its
contents by:
Any person who signed the document;
Any person who read it;
Any person who heard it read knowing, or it
being proved from the other sources, that the
document so read was the one in question.
Any person who was present when the
contents of the document were talked over
between the parties thereto to such an extent
as to give him reasonably full information as to
its contents
Any person to whom the parties to the
instrument have confessed or stated the
contents thereof; (Francisco, p. 364 citing
Michael & Co. v. Enriquez, G.R. No. 10824,
1915)
BUT NOTE: Hearsay Rule and Witness’
testimonial qualification of personal
knowledge
Authentic Document
Authentic means that the document should be
genuine. It need not be a public document.
In proving the contents of the original in some
authentic document, it is sufficient if it appears in
a private document which is proved to be
authentic.
When Original Document is in adverse party’s
custody or control
The following facts must be shown to allow
introduction of secondary evidence:
1. The document is in the custody or under the
control of the adverse party;
2. That reasonable notice was given to the
adverse party who has the custody or control
of the document;
3. Satisfactory proof of its existence;
4. Failure by the adverse party to produce it in
court. (Rule 130, Sec. 6)
If the refusal or failure of the adverse party to
produce the document is justified, it does not give
rise to the presumption of suppression of
evidence or create an unfavorable inference
against him. It, however, authorizes the
introduction of secondary evidence.
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It is not necessary for a party seeking to introduce
secondary evidence to show that the original is in
the actual possession of his adversary. It is
enough that the circumstances are such as to
indicate that the writing is in his possession or
under his control.
Neither is it required that the party entitled to the
custody of the instrument should, on being
notified to produce it, admit having it in his
possession. (Villa Rey Transit v. Ferrer, G.R. No.
L-23893, 1968)
Only a photocopy of the Employee Clearance
was presented in evidence. The Court held that
the photocopy is admissible as evidence since an
exception to the best evidence rule is when the
document sought to be presented is in the
possession of the person against whom it is to be
offered and such party fails to present it even
after reasonable notice. (Pacasum v. People,
G.R. No. 180314, 2009)
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. (Edsa
Shangri-la Hotel and Resort v. BF Corporation,
G.R. No. 145842, 2008)
Rules on Reasonable Notice
No particular form of notice is required, as long as
it fairly apprises the other party as to what papers
are desired. Even an oral demand in open court
for production within a reasonable period will
suffice.
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Notice must be given to the adverse party, or his
attorney, even if the document is in the actual
possession of a third party.
Where receipt of the original of a letter is
acknowledged on a carbon copy thereof, there is
no need for a notice to the other party to produce
the original of the letter.
Notice is a condition for the subsequent
introduction of secondary evidence by the
proponent.
Where the nature of the action is in itself a notice,
as where it is for the recovery or annulment of
documents wrongfully obtained or withheld by the
other party, no notice to produce said document
is required.
Evidence admissible when original document
is a public record
The contents of the original may be proved by a
certified copy issued by the public officer in
custody thereof. (Rule 130, Sec. 8)
When the original is outside of the jurisdiction of
the court, as when it is in a foreign country,
secondary evidence is still admissible (PNB v.
Olila, 98 Phil. 1002, unreported, 1956)
Affidavits as public documents
[W]hile affidavits may be considered as public
documents if they are acknowledged before a
notary public, these Affidavits are still classified
as hearsay evidence. The reason for this rule is
that they are not generally prepared by the affiant,
but by another one who uses his or her own
language in writing the affiant's statements, parts
of which may thus be either omitted or
misunderstood by the one writing them.
Moreover, the adverse party is deprived of the
opportunity to cross-examine the affiants.
For this reason, affidavits are generally rejected
for being hearsay, unless the affiants themselves
are placed on the witness stand to testify thereon.
(Republic v. Marcos-Manotoc, G.R. No. 171701,
2012)
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Collateral matter
When the original is not closely-related to a
controlling issue (Rule 130, Sec. 3[e])
This is an exception to the original document rule
to prevent an overly rigid technical application of
the rule as when the original is so tangential that
its production would add little or nothing to the
reliability of the fact-finding process.
Thus, incidental references by a witness to road
signs, street names, addresses, license plate
numbers, billboards, newspaper headlines,
names of commercial establishments, brand
names, tickets and similar writings will normally
be permitted, unless the terms of the writing have
particular significance in litigation (Mueller &
Kirkpatrick, Modern Evidence, Sec. 10.2 [1995])
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 (Rule 130, Sec. 9)
It is not until the party who demanded the
production of the papers examines them and
offers them in evidence that they assume the
status of evidentiary matter.
If there is no timely objection to a document on
the ground that it violates the Best Evidence Rule,
the secondary evidence will be admitted.
Under the rules, it is axiomatic that before a party
is allowed to adduce secondary evidence to
prove the contents of the original of a deed or
document, the party has to prove with the
requisite quantum of evidence, the loss,
destruction, or unavailability of all the copies of
the original of the said deed. (Ebreo v. Ebreo,
G.R. No. 160065, February 28, 2006)
Summaries
When the contents of documents, records
photographs, or numerous accounts are
voluminous and cannot be examined in court
without great loss of time, and the fact sought to
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be established is only the general result of the
whole, the contents of such evidence may be
presented in the form of a chart, summary, or
calculation
The originals shall be available for examination or
copying or both by the adverse party at a
reasonable time and place. The court may order
that they be produced in court. (Rule 130, Sec. 7)
There is no need to present the original where the
documents are too voluminous. Secondary
evidence may consist of a summary of the
voluminous documents or records. The
voluminous records must, however, be made
accessible to the adverse party so that the
correctness of the summary may be tested on
cross-examination.
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 defendant’s objection that the sales
invoices constitute the original documents and
should be presented (Compania Maritima v.
Allied Free Workers Union, G.R. No. L-28999,
1977).
4. ELECTRONIC EVIDENCE
a. Meaning of electronic evidence;
electronic data message
Note: The 2019 amendments to the Rules of
Evidence have essentially incorporated the
relevant provisions of the Rules on Electronic
Evidence in this area.
Electronic Document
information or the representation of information,
data, figures, symbols or other modes of written
expression, described or however represented,
by which a right is established or an obligation
extinguished, or by which a fact may be proved
and affirmed, which is received, recorded,
transmitted, stored, processed, retrieved or
produced electronically. (REE, Rule 2, Sec. 1(h))
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Electronic Data Message
Information generated, sent, received or stored
by electronic, optical or similar means. (REE,
Rule 2, Sec. 1(g))
A facsimile transmission cannot be considered as
electronic evidence. It is not the functional
equivalent of an original under the Best Evidence
Rule and is not admissible as electronic
evidence. (MCC v. Ssangyong, G.R. No. 170633,
2007)
Note: For purposes of these Rules, the term
“electronic document” may be used
interchangeably with “electronic data message.”
(REE, Rule 2, Sec 1(h))
Scope and Coverage
The Rules on Electronic Evidence (REE) shall
apply whenever an electronic document or
electronic data message as defined in these rules
is offered or used in evidence. (REE, Rule 1, Sec.
1)
These Rules shall apply to all criminal and civil
actions and proceedings, as well as quasi-judicial
and administrative cases. (REE, Rule 1, Sec. 2,
as amended by Sept. 24, 2002 Resolution in AM
No. 01-7-01-SC)
Applicability to Criminal Actions
As to the admissibility of the text messages, the
RTC admitted them in conformity with the Court’s
earlier Resolution applying the Rules on
Electronic Evidence to criminal actions. (People
v. Enojas, G.R. No. 204894, 2014)
Admissibility: An electronic document is
admissible in evidence if:
a. It complies with the rules on admissibility
prescribed by the Rules of Court and related
laws; and
b. It is authenticated in the manner prescribed by
these Rules. (REE, Rule 3, Sec. 2)
Admissibility of Tape Recordings
Before a tape recording is admissible in evidence
and given probative value, the following
requisites must first be established:
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1. A showing that the recording device was
capable of taking testimony;
2. A showing that the operator of the device was
competent;
3. Establishment of the authenticity and
correctness of the recording;
4. A showing that changes, additions, or
deletions have not been made;
5. A showing of the manner of the preservation of
the recording;
6. Identification of the speakers; and
7. A showing that the testimony elicited was
voluntarily made without any kind of
inducement. (Torralba v. People, G.R. No.
153699, 2005)
Admissibility of Photographs
Under the Rules on Electronic Evidence,
photographic evidence of events, acts, or
transactions shall be admissible in evidence,
provided that it shall be presented, displayed, and
shown to the court, and it shall be identified,
explained or authenticated by either: the person
who made the recording; or some other person
competent to testify on the accuracy thereof
(REE, Rule 11, Sec. 1)
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, G.R. No. 108280-83, 1995)
The correctness of a photograph as a faithful
representation of the object portrayed can be
proved prima facie, either by the testimony of the
person who made it or by other competent
witnesses, after which the court can admit it
subject to impeachment as to its accuracy. (Sison
v. People, G.R. Nos. 108280-83, 1995)
The rule is well-settled that a photograph may be
put in evidence if relevant to the issue and if
verified by the taker. Its verification depends on
the competency of the verifying witness and the
trial judge must in the first instance decide,
subject to reversal for substantial error.
(Adamczuk v. Halloway, 13 A.2d 2, 1940)
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Trial court ruled that the photographs are
inadmissible. The Court held that the
photographs are inadmissible because the map
or photograph, to be admissible, must first be
made a part of some qualified person's testimony.
Someone must stand forth as its testimonial
sponsor; in other words, it must be verified.
(Adamczuk v. Halloway, 13 A.2d 2, 1940)
On appeal, Tatum questioned the film’s
admission into evidence. The Court held that for
a photograph to be admissible in evidence, the
authentication required by courts is that some
witness (not necessarily the photographer) be
able to give some indication as to when, where,
and under what circumstances the photograph
was taken, and that the photograph accurately
portray the subject or subjects illustrated. (State
v. Tatum, 360 P.2d 754, 1961)
b. Probative value of electronic evidence
or evidentiary weight; method of proof
Factors in Determining Evidentiary Weight of
Electronic Evidence (REE, Rule 7, Secs. 1-2)
In assessing the evidentiary weight of an
electronic document, the following factors may be
considered: (REE, Rule 7, Sec. 1)
The reliability of the manner or method in
which it was generated, stored or
communicated, including but not limited to
input and output procedures, controls, tests
and checks for accuracy and reliability of the
electronic data message or document, in the
light of all the circumstances as well as any
relevant agreement;
The reliability of the manner in which its
originator was identified;
The integrity of the information and
communication system in which it is recorded
or stored, including but not limited to the
hardware and computer programs or software
used as well as programming errors;
The familiarity of the witness or the person
who made the entry with the communication
and information system;
The nature and quality of the information
which went into the communication and
information system upon which the electronic
data message or electronic document was
based; or
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Other factors which the court may consider as
affecting the accuracy or integrity of the
electronic document or electronic data
message.
In any dispute involving the integrity of the
information and communication system in which
an electronic document or electronic data
message is recorded or stored, the court may
consider, among others, the following factors:
(REE, Rule 7, Sec. 2)
Whether the information and communication
system or other similar device was operated in
a manner that did not affect the integrity of the
electronic document, and there are no other
reasonable grounds to doubt the integrity of
the information and communication system;
Whether the electronic document was
recorded or stored by a party to the
proceedings with interest adverse to that of
the party using it; or
Whether the electronic document was
recorded or stored in the usual and ordinary
course of business by a person who is not a
party to the proceedings and who did not act
under the control of the party using it.
Method of Proof
Affidavit Evidence
All matters relating to the admissibility and
evidentiary weight of an electronic document may
be established by an affidavit stating facts of:
1. Direct personal knowledge of the affiant; or
2. Based on authentic records
The affidavit must affirmatively show the
competence of the affiant to testify on the matters
contained therein. (REE, Rule 9, Sec. 1)
Cross-Examination of Deponent – The affiant
shall be made to affirm the contents of the
affidavit in open court and may be cross-
examined as a matter of right by the adverse
party. (REE, Rule 9, Sec. 2)
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Examination of Witness
Electronic Testimony
After summarily hearing the parties pursuant to
Rule 9 of these Rules, the court may authorize
the presentation of testimonial evidence by
electronic means. Before so authorizing, the court
shall determine the necessity for such
presentation and prescribe terms and conditions
as may be necessary under the circumstances,
including the protection of the rights of the parties
and witnesses concerned. (REE, Rule 10, Sec. 1)
Transcript of electronic testimony
When examination of a witness is done
electronically, the entire proceedings, including
the questions and answers, shall be transcribed
by a stenographer, stenotypist or other recorder
authorized for the purpose, who shall certify as
correct the transcript done by him. The transcript
should reflect the fact that the proceedings, either
in whole or in part, had been electronically
recorded. (REE, Rule 10, Sec. 2)
c. Authentication of electronic evidence
and electronic signatures
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. (REE, Rule 5, Sec. 1)
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: (REE, Rule 5, Sec. 2)
1. By evidence that it had been digitally signed
by the person purported to have signed the
same;
2. 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
3. By other evidence showing its integrity and
reliability to the satisfaction of the Judge.
Proof of electronically notarized document
A document electronically notarized in
accordance with the rules promulgated by the
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Supreme Court shall be considered as a public
document and proved as a notarial document
under the Rules of Court. (REE, Rule 5, Sec. 3)
Authentication of Electronic Signature
An electronic signature or a digital signature
authenticated in the manner prescribed
hereunder is admissible in evidence as the
functional equivalent of the signature of a person
on a written document. (REE, Rule 6, Sec. 1)
An electronic signature may be authenticated in
any of the following manner: (REE, Rule 6, Sec.
2)
1. By evidence that a method or process was
utilized to establish a digital signature and
verify the same;
2. By any other means provided by law; or;
3. By any other means satisfactory to the judge
as establishing the genuineness of the
electronic signature.
d. Electronic documents and the hearsay
rule
Original document rule under the REE
Electronic evidence as functional equivalent
of paper-based documents
Whenever a rule of evidence refers to the term
writing, document, record, instrument,
memorandum or any other form of writing, such
term shall be deemed to include an electronic
document as defined in these Rules. (REE, Rule
3, Sec. 1)
An electronic document shall be regarded as the
equivalent of an original document under the Best
Evidence Rule if it is a printout or output readable
by sight or other means, shown to reflect the data
accurately. (REE, Rule 4, Sec. 1)
When copies or duplicates of a document
shall be regarded as original:
It is in two or more copies executed at or about
the same time with identical contents; or
It 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
reproduce the original
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Such copies or duplicates shall be regarded as
the equivalent of the original. (REE, Rule 4, Sec.
2)
Note: Notwithstanding the foregoing, copies or
duplicates shall not be admissible to the same
extent as the original if: (REE, Rule 4, Sec. 2)
a. A genuine question is raised as to the
authenticity of the original; or
b. In the circumstances it would be unjust or
inequitable to admit the copy in lieu of the
original.
Note: This is essentially the same as Rule 130,
Sec. 4 under the Original Document Rule
Business records as exception to the hearsay
rule (REE, Rule 8, Sec. 1 & 2)
A memorandum, report, record or data
compilation of acts, events, conditions, opinions,
or diagnoses, made by electronic, optical or other
similar means is an exception to the hearsay rule
provided that the following are shown by the
testimony of the custodian or other qualified
witness:
1. That it was made at or near the time of or from
transmission or supply of information;
2. That it was made by a person with knowledge
thereof;
3. That it was kept in the regular course or
conduct of a business activity; and
4. That such was the regular practice to make
the memorandum, report, record, or data
compilation by electronic, optical or similar
means (REE, Rule 8, Sec. 1)
This exception (to the hearsay rule) may be
overcome by evidence of the untrustworthiness of
the source of information or the method or
circumstances of the preparation, transmission or
storage thereof. (REE, Rule 8, Sec. 2)
e. Audio, photographic, video and
ephemeral evidence
Ephemeral Electronic Communication
Refers to telephone conversations, text
messages, chatroom sessions, streaming audio,
streaming video, and other electronic forms of
communication the evidence of which is not
recorded or retained. (REE, Rule 2, Sec. 1(k))
Text messages have been classified as
“ephemeral electronic communication” under
Section 1(k), Rule 2 of the Rules on Electronic
REMEDIAL LAW
Evidence, and “shall be proven by the testimony
of a person who was a party to the same or has
personal knowledge thereof.” (Vidallon-Magtolis
v. Salud, A.M. No. CA-05- 20-P, 2005)
Admissibility (REE, Rule 11, Section 1 and 2)
Audio, photographic and video evidence
Audio, photographic and video evidence of
events, acts or transactions shall be admissible
provided: (REE, Rule 11, Sec. 1)
1. It shall be shown, presented or displayed to
the court; and
2. It 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
Ephemeral electronic communications
Ephemeral evidence shall be proven by the
testimony of a person who was a party to the
same or has personal knowledge thereof. (REE,
Rule 11, sec. 2)
In the absence or unavailability of such
witnesses, other competent evidence may be
admitted. (REE, Rule 11, sec. 2)
A recording of the telephone conversation or
ephemeral electronic communication shall be
covered by REE, Rule 11, Sec. 1 (on Audio, video
and similar evidence).
Note: If the foregoing communications are
recorded or embodied in an electronic document,
then the provisions of Rule 5 on authentication of
electronic documents shall apply. (REE, Rule 11,
Sec. 2)
5. PAROL EVIDENCE RULE
Parol Evidence
Any evidence aliunde (extraneous evidence),
whether oral or written, which is intended or tends
to vary or contradict a complete and enforceable
agreement embodied in a document.
Evidence Aliunde
Extrinsic evidence that may refer to testimonial,
real or documentary evidence
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General Rule: When the terms of an agreement
have been reduced to writing, it is to be
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.
The term “agreement” includes wills.
An express trust concerning an immovable or any
interest therein may not be proved by parol
evidence. (Civil Code of the Philippines, Art.
1443)
Exception: A party may present evidence to
modify, explain or add to the terms of the written
agreement if he puts in issue in a verified
pleading any of the following:
An intrinsic ambiguity, mistake or imperfection
in the written agreement;
The failure of the written agreement to
express the true intent and agreement of the
parties thereto;
The validity of the written agreement; or
The existence of other terms agreed to by the
parties or their successors in interest after the
execution of the written agreement. (Rule 130,
Sec. 10)
Basis for the Rule
The parol evidence rule is based upon the
consideration that when the parties have reduced
their agreement on a particular matter into writing,
all their previous and contemporaneous
agreements on the matter are merged therein,
hence evidence of a prior or contemporaneous
verbal agreement is generally not admissible to
vary, contradict, or defeat the operation of a valid
document.
The reason for the parol evidence rule is the
presumption that when the parties have reduced
their agreement to writing, they have made such
writing the only repository and memorial of the
truth, and whatever is not found in the writing
must be understood to have been waived or
abandoned. (Cruz v. CA, G.R. No. 79962, 1990)
REMEDIAL LAW
The rule forbidding the admission of parol or
extrinsic evidence to alter, vary, or contradict a
written interment does not apply so as to prohibit
the establishment by parol of an agreement
between the parties to a writing entered into
subsequent to the time when the written
instrument was executed, notwithstanding such
agreement may have the effect of adding to,
changing, modifying, or even altogether
abrogating the contract of the parties as
evidenced by the writing; for the parol evidence
does not in any way deny that the original
agreement of the parties was that which the
writing purports to express, but merely goes to
show that the parties have exercised their right to
change or abrogate the same, or to make a new
and independent contract. (Canuto v. Mariano,
G.R. No. L-11346, 1918)
a. Application of the parol evidence rule
When Parol Evidence Rule Applies
Existence of a valid contract;
The terms of the agreement must be in writing.
This may refer to either public or private
writing;
The dispute is between parties and their
successors in interest; and/or
There is dispute as to the terms of the
agreement with the party basing his claim or
asserting a right originating in the instrument
or the relation established thereby.
The parol evidence rule becomes operative when
the issues in litigation are the terms of a written
agreement. (Riano, p. 176)
No express trust concerning an immovable or any
interest therein may be proved by parol evidence
(Civil Code, Art. 1443)
The parol evidence rule is predicated on the
existence of a document embodying the terms of
an agreement. A receipt is not such a document
as it merely attests to the receipt of money and it
is not and could have not been intended by the
parties to be the sole memorial of their
agreement. (Cruz v. CA, G.R. No. 79962, 1990)
For purposes of the parol evidence rule, a person
who claims to be the beneficiary of an alleged
stipulation pour autrui in a contract (such as
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petitioners) may be considered a party to that
contract. It has been held that a third party who
avails himself of a stipulation pour autrui under a
contract becomes a party to that contract. This is
why under Article 1311, a beneficiary of a
stipulation pour autrui is required to communicate
his acceptance to the obligor before its
revocation. Moreover, to preclude the application
of Parol Evidence Rule, it must be shown that “at
least one of the parties to the suit is not party or
a privy of a party to the written instrument in
question and does not base a claim on the
instrument or assert a right originating in the
instrument or the relation established thereby.” A
beneficiary of a stipulation pour autrui obviously
bases his claim on the contract. He therefore
cannot claim to be a stranger to the contract and
resist the application of the Parol Evidence Rule.
(Heirs of Mario Pacres v. Heirs of Cecilla Ygoña,
G.R. No. 174719, 2010)
The parol evidence rule does not apply, and may
not properly be invoked by either party to the
litigation against the other, where at least one of
the parties to the suit is not party or a privy of a
party to the written instrument in question and
does not base a claim on the instrument or assert
a right originating in the instrument or the relation
established thereby. (Lechugas v. CA, G.R. Nos.
L-39972 & L-40300, 1986)
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, G.R. No.
204700, 2014)
For the parol evidence rule to apply, a written
contract need not be in any particular form, or be
signed by both parties. What is required is that
the agreement be in writing since written
evidence is so much more certain and accurate
than that which rests in fleeting memory only.
(Inciong, Jr. v. CA, G.R. No. 96405, 1996)
The parol evidence rule provides that “when the
terms of an agreement have been reduced into
writing, it is considered 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
REMEDIAL LAW
the written agreement.” In this case, the parties
entered into a compromise agreement to put an
end to the litigation between them. Nothing in the
quitclaim, however, indicates that the
compromise amount respectively paid to
petitioners included separation pay. Since there
is no evidence that the compromise amount
included separation pay, the services of
petitioners are presumed continuous, reckoned
from the date they first came under the employ of
respondent. (Cuadra v. San Miguel Corp., G.R.
No. 194467, 2020)
b. When parol evidence can be introduced
In order that the parol evidence may be
admissible, the mistake or imperfection of the
document, or its failure to express the true intent
and agreement of the parties, or the validity of the
agreement, or the existence of other terms
agreed to after the execution of the written
agreement must be put in issue in the
pleadings. Where the plaintiff failed to allege any
such fact in his complaint, he cannot introduce
parol evidence thereon.
If the defendant invoked such fact in his answer,
parol evidence may be introduced as such fact is
now put in issue.
While parol evidence is admissible in a variety of
ways to explain the meaning of written contracts,
it cannot serve the purpose of incorporating into
the contract additional contemporaneous
conditions which are not mentioned at all in the
writing, unless there has been fraud or mistake.
In the case at bar, it is sought to show that the
sugar was to be obtained exclusively from the
crop raised by the defendant; however, there is
no clause in the written contract which even
remotely suggests such a condition. (Yu Tek v.
Gonzales, G.R. No. L-9935, 1915)
Serrano introduced parol evidence to prove that
he was merely acting as an agent without any
consideration. The Court held that Serrano can
introduce such parol evidence because the case
at bar is not one where the evidence offered
varies, alters, modifies, or contradicts the terms
of indorsement admittedly existing. (Maulini v.
Serrano, G.R. No. L-8844, 1914)
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The act or statement of Woodhouse was not

sought to be introduced to change or alter the
INTRINSIC / LATENT EXTRINSIC /
terms of the agreement, but to prove how he
AMBIGUITY PATENT
induced Halili to enter into it — to prove the
AMBIGUITY
representations or inducements, or fraud, with
which or by which he secured the other party's The document is clear Such ambiguity which
consent thereto. These are expressly excluded on its face but matters is apparent on the
from the parol evidence rule. (Woodhouse v. outside the face of the writing
Halili, G.R. No. L-4811, 1953) agreement create the itself and requires
ambiguity. something to be
Although parol evidence is admissible to explain added in order to
the meaning of a contract, it cannot serve the ascertain the meaning
purpose of incorporating into the contract of the words used.
additional contemporaneous conditions which
are not mentioned at all in the writing unless there When the intrinsic Parol evidence is not
has been fraud or mistake. (Ortañez v. CA, G.R. ambiguity is put in admissible, otherwise
No. 107372, 1997) issue in the party’s the court would be
verified pleading, this creating a contract
a) An intrinsic ambiguity, mistake or will authorize the between the parties.
imperfection in the written agreement introduction of parol
evidence.
Purpose: The purpose of this exception is to
enable the court to ascertain the true intention of
the parties or the true nature of the transaction Intermediate Ambiguity
between the parties. A situation where an ambiguity partakes of the
nature of both patent and latent ambiguity. In this
Intrinsic Ambiguity case, while the words are seemingly clear and
with a settled meaning, they are actually
Is one which is not apparent on the face of the equivocal and admit of two interpretations. Here,
document but which lies in the person or thing parol evidence is admissible to clarify the
that is subject of the document or deed. The ambiguity provided that the matter is put in issue
language of the writing is clear and intelligible and by the pleader. (Regalado, p. 734 citing 20 Am.
suggests but a single meaning, but some matter Jur. 1011)
extraneous to the writing creates the ambiguity.
The document is clear on its face but matters Example: Dollars, tons and ounces.
outside the agreement create the ambiguity.
(Riano, p.161, 2016) Thus, intrinsic and intermediate ambiguities are
curable by extraneous evidence.
Example of intrinsic ambiguity is when the
documents refer to a particular person but such NOTE: False description does not vitiate a
name pertains to many persons with same name. document if the subject is sufficiently identified.
The incorrect description shall be rejected as
Patent or Extrinsic Ambiguity surplusage while the correct and complete
Is such ambiguity which is apparent on the face description standing alone shall sustain the
of the writing itself and requires something to be validity of the writing.
added in order to ascertain the meaning of the
words used. In this case, parol evidence is not Mistake
admissible, otherwise the court would be creating
a contract between the parties. A mistake of fact which is mutual to the parties or
where the innocent party was imposed upon by
unfair dealing of the other.

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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 Sps. Paras v. Kimwa Construction,
G.R. No. 171601, 2015)
To justify the reformation of a written
instrument upon the ground of mistake, the
concurrence of three things is necessary:
1. Mistake should be of FACT;
2. Mistake should be MUTUAL or common to
both parties to the instrument,
3. The mistake should be ALLEGED and
PROVED by clear and convincing evidence
The concurrence of these three things are
necessary; and the parties must have come to an
actual oral agreement before they have
attempted to reduce it to writing.
Imperfection
Includes an inaccurate statement in the
agreement, or incompleteness in the writing, or
the presence of inconsistent provisions therein.
As a matter of substantive law, when one party
was mistaken and the other knew that the
instrument did not state their real agreement but
concealed the fact from the former, the
instrument may be reformed.
b) Failure of the written agreement to express
the true intent and agreement of the parties
thereto
The failure of the writing to express the true
agreement of the parties must put in issue in the
verified pleading by the party who wants to prove
the defect in the writing.
Although parol evidence is admissible to explain
the meaning of the contract, it cannot serve the
purpose of incorporating into the contract
additional contemporaneous conditions which
are not mentioned at all in the writing unless there
has been fraud or mistake.
REMEDIAL LAW
Due execution of a writing may be proved by
parol evidence because what the rule prohibits is
varying the terms of the writing by parol evidence.
Ramos set up as affirmative defense that the
contract does not express the true agreement of
the parties because certain important conditions
agreed upon were not included therein by the
counsel who prepared the contract. The Court
held that the parole evidence is admissible when
there is allegation that the agreement does not
express the intent of the parties. (Enriquez v.
Ramos, G.R. No. L-18077, 1962)
Even 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. The true
understanding in this case is that the portion of
the property will not be disposed of. (Madrigal v.
Court of Appeals, G.R. No. 142944, 2005)
c) Validity of the written agreement
Parol evidence is admissible to show that the
contract never existed on the ground of fraud,
illegality or incapacity of one of the parties.
d) The existence of other terms agreed to by
the parties or their successors in interest after
the execution of the written agreement
Canuto claimed that two days before the
expiration of the original redemption period, she
asked Mariano for an extension of time for the
repurchase of the land and Mariano agreed. The
Court held that the rule forbidding the admission
of parol or extrinsic evidence to alter, vary, or
contradict a written instrument does not apply so
as to prohibit the establishment by parol of an
agreement between the parties to a writing,
entered into subsequent to the time when the
written instrument was executed. (Canuto v.
Mariano, G.R. No. L-11346, 1918)
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ADDITIONAL RULES received, regardless of whether or not the written

agreement contains any reference to such
Rule on Conditional Agreements collateral agreement, and whether the action is at
law or in equity. (Robles v. Lizarraga, G.R. No. L-
When the operation of the contract is made to 26173, 1927)
depend upon the occurrence of an event, which
for that reason is a condition precedent, such may Waiver of the Parol Evidence Rule
be established by parol evidence. This is not The parol evidence rule can be waived by failure
varying the terms of the written contract by to invoke the benefits of the rule. This waiver may
extrinsic agreement for the simple reason that be made by failure to object the introduction of
there is no contract in existence; there is nothing evidence aliunde. (Riano, p. 164, 2016)
to which to apply the excluding rule.
c. Distinguish: parol evidence rule and
The second paragraph contained in the letter is a original document rule
condition precedent, which states: “This matter
has been the subject of agreement between your Parol Evidence Rule Original Document
husband and this office.” When the operation of Rule
the contract is made to depend upon the
occurrence of an event, which, for that reason is It presupposes that the Establishes a
a condition precedent, such may be established original document is preference for the
by parole evidence. (Land Settlement and available in court. original document over
Development Corporation v. Garcia Plantation, secondary evidence
G.R. No. L-17820, 1963) thereof.

Rule on Collateral Oral Agreements Precludes the Precludes the

admission of other admission of secondary
A contract made prior to or contemporaneous evidence to prove the evidence if the original
with another agreement and if oral and not terms of an agreement document is available.
inconsistent with the written contract is other than the contents
admissible within the exception to the parol of the agreement itself
evidence rule. The parol evidence rule will not for the purpose of
apply when the collateral oral agreement refers to varying the terms of the
separate and distinct subjects. writing.

The verbal assurance given by Seeto is a Can be invoked only by Can be invoked by any
collateral agreement, separate and distinct from the parties to the litigant to an action
the indorsement, by virtue of which PNB was document and their whether or not said
induced to cash the check, and therefore, successors-in-interest. litigant is a party to the
admissible as an exception to the parol evidence document involved.
rule. An extrinsic agreement between indorser
and indorsee which cannot be embodied in the Applies to written Applies to all forms of
instrument without impairing its credit is provable agreements (contracts), writings
by parol. (PNB v. Seeto, G.R. No. L-4388, 1952) including wills.

The only proof of the payment was Robles'

testimony regarding it. The Court held that The
rule against the admission of parol evidence does
not extend so far as to preclude the admission of
extrinsic evidence to show prior or
contemporaneous collateral parole agreements
between the parties, but such evidence may be

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3. Documents that are considered public

When the subject of the When the subject of the
documents under treaties and conventions
inquiry is the terms of inquiry is the contents of
which are in force between the Philippines and
the agreement, one a writing, he must look
the country of source; and
must, as a rule, read the at the original writing.
4. Public records, kept in the Philippines, of
agreement itself and not This is the Original
private documents required by law to the
seek guidance on Document Rule.
entered therein.
sources outside the
writing. Sources outside
All other writings are PRIVATE (Rule 132, Sec.
the writing are
19).
considered parol
evidence, and are
PRIVATE DOCUMENTS
inadmissible.
A private document is any other writing, deed, or
6. AUTHENTICATION AND PROOF OF instrument executed by a private person without
DOCUMENTS the intervention of a notary or other person legally
authorized by which some disposition or
a. Meaning of authentication agreement is proved or set forth. (Patula v.
People, G.R. No. 164457, 2012)
Authentication is the process of proving the due
execution and genuineness of the document.
Public v. Private Documents
In order to be admissible in evidence, the object PUBLIC PRIVATE
sought to be offered must be authenticated, that DOCUMENT DOCUMENT
is, it must be shown to have been the very thing
that is the subject matter of the lawsuit or the very Admissible without Before admitted in
one involved to prove an issue in the case. further proof as to its evidence as
due execution and authentic, its due
Authentication is the preliminary step in showing genuineness (Riano, execution and
the admissibility of an evidence. (Riano, p. 189) Evidence, 172, 2016 authenticity must be
citing Kummer v. proved (Rule 132,
b. Classes of documents
People, GR No. Sec. 20)
DOCUMENTS 174461, 2013)

A deed, instrument or other duly authorized paper Evidence even Binds only the parties
by which something is proved, evidenced or set against third parties and privies to the
forth (US v. Orera, GR No. 3810, 1907). of the fact which gave private writing as to
rise to its due the due execution
For the purpose of their presentation in evidence, execution and of the and date of the
documents may either be public or private (Rule date of the latter document
132, Sec. 19).
Last wills and testaments are considered private
PUBLIC DOCUMENTS documents EVEN IF notarized (Riano, Evidence,
167, 2016).
1. The written official acts, or records of the
official acts of the sovereign authority, official Church registries of births, marriages, and deaths
bodies and tribunals, and public officers, made subsequent to the promulgation of General
whether of the Philippines, or of a foreign Orders No. 68, promulgated on December 18,
country; 1889, and the passage of Act No. 190, enacted
2. Documents acknowledged before a notary on August 7, 1901, are no longer public writings,
public except last wills and testaments; nor are they kept by duly authorized public
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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 (Riano, Evidence, 179, 2016
citing Llemos v. Llemos, G.R. No. 150162, 2007).
c. When a private writing requires
authentication; proof of a private writing
Before any private document offered as authentic
is received in evidence, its due execution and
authenticity must be proved by any of the
following means:
1. By anyone who saw the document executed
or written;
2. By evidence of the genuineness of the
signature or handwriting of the maker; or
3. By other evidence showing its due execution
and authenticity
Any other private document need only be
identified as that which it is claimed to be (Rule
132, Sec. 20).
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. Otherwise, only
identification is necessary (Riano, Evidence, 169,
2016).
Private documents in the custody of PCGG are
not public documents. What became public are
not the private documents (themselves) but the
recording of it in the PCGG. If a private writing
itself is inserted officially into a public record, its
record, its recordation, or its incorporation into the
public record becomes a public document, but
that does not make the private writing itself a
public document so as to make it admissible
without authentication. (Republic v.
Sandiganbayan, G.R. No. 188881, 2014)
Additional Modes of Authenticating a Private
Writing:
1. Doctrine of Self-Authentication
Where the facts in the writing could only have
been known by the writer.
2. Rule of Authentication by Adverse Party
REMEDIAL LAW
Where the reply of the adverse party refers to
and affirms the sending and his receipt of the
letter in question, a copy of which the
proponent is offering as evidence (Regalado,
Remedial Law, 859).
Receipt of Reply Communication.
With respect to a letter received thus in due
course of mail and purporting to come from a
person to whom a letter has previously been sent
and to be in reply thereto, a presumption of fact is
indulged in favor of the genuineness of the
signature and the letter is admissible in evidence
without further authentication; although, in order
to obtain the benefit of this presumption, it must
first be proven that a letter was written and
mailed, to which the letter offered is an answer.
The rule that the genuineness of the signature to
a reply letter may be assumed applies to a letter
signed in typewriting, or by rubber stamp. The
majority of the recent cases also support the rule
that where a letter sent in the ordinary course of
business is answered by an agent of the
individual or corporation addressed, authority of
such person is presumed and the reply letter is
admissible against the alleged principal without
preliminary proof of authority. In a few
jurisdictions, however, without expressly
repudiating the above rule, the decisions tend to
the contrary (Anstine v. McWilliams, 24 Wash. 2d
230, 163 P.2d 816, 1945 citing Jones
Commentaries on Evidence (2d ed.) 341, § 201)."
d. When evidence of authenticity of a
private writing is not required
1. Ancient Documents
2. When the genuineness and authenticity of an
actionable document have not been
specifically denied under oath by the adverse
party under Sec. 8 of Rule 8 of the Rules of
Court
3. When the genuineness and authenticity of the
document have been admitted under Sec. 4 of
Rule 129
4. 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” (Riano, page. 193)
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Ancient Document
Where a private document is:
1. More than thirty years old;
2. Is produced from a custody in which it would
naturally be found if genuine; and
3. Is unblemished by any alterations or
circumstances of suspicion;
no other evidence of its authenticity need be
given (Rule 132, Sec. 21).
The last requirement of the “ancient document
rule” that a document must be unblemished by
any alteration or circumstances of suspicion
refers to the extrinsic quality of the document
itself. The lack of signatures on the first pages,
therefore, absent any alterations or
circumstances of suspicion cannot be held to
detract from the fact that the documents in
question, which were certified as copies of the
originals on file with the Register of Deeds of
Pampanga, are genuine and free from any
blemish or circumstances of suspicion (Heirs of
Lacsa v. CA, G.R. No. 79597-98, 1994).
e. Genuineness of handwriting
The handwriting of a person may be proved by:
1. Any witness who believes it to be the
handwriting of such person because:
a. He has seen the person write; or
b. He 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; or
2. By comparison made by the witness or the
court, with writings admitted or treated as
genuine by the party against whom the
document is offered, or proved to be genuine
to the satisfaction of the judge
There is no inflexible rule as claimed by petitioner
under Sec. 22, Rule 132 of the Revised Rules of
Court that gives priority to subscribing witnesses
in the order and quality of evidence to prove a
handwriting. The rule referred to above merely
enumerates the means or methods by which the
handwriting of a person may be proved...The law
makes no preference, much less distinction
among and between the different means stated
above in proving the handwriting of a person
(Lopez v. CA, L-31494, 1978).
REMEDIAL LAW
The deed of sale (Exhibit 1) is not notarized and
is, therefore, a private writing (U.S. v. Orera, G.R.
No. 3810, 1907), whose due execution and
authenticity must be proved before it can be
received in evidence (Bunag v. Court of Appeals,
G.R. No. L-39013, 1988).
NOTE: Expert testimony on handwriting is not
mandatory (Riano, Evidence, 171, 2016).
SUMMARY OF AUTHENTICATING PRIVATE
DOCUMENTS
Due execution and authenticity are proved:
1. By anyone who saw the document executed
or written
2. By evidence of the genuineness of the
signature or handwriting
a) By a witness who believes it to be the
handwriting of such person because:
i. He or she has seen the person write
ii. Has seen writing purporting to be his or
hers upon which the witness has acted
or been charged thus acquiring
knowledge of the handwriting of such
person
b) By comparison made either by the
witness or the court of writings either:
i. Admitted or treated as genuine by the
party against whom the evidence is
offered or
ii. Proved to be genuine to the satisfaction
of the judge
3. By other evidence showing its due execution
and authenticity
Note: Expert testimony on handwriting is not
mandatory (Riano, Evidence, 171, 2016).
The opinions 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. (Heirs
of Peter Donton v. Stier, G.R. No. 216491, 2017)
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f. Public documents as evidence; proof of
official record
Public documents are admissible without further
proof of their genuineness and due execution.
Documents consisting of entries in public records
made in the performance of a duty by a public
officer are prima facie evidence of the facts
therein stated. This is a hearsay exception.
All other public documents are evidence, even
against a third person, of the fact which gave rise
to their execution and of the date of the latter.
(Rule 132, Sec. 23)
Proof of official record
The record of public documents referred to in
paragraph (a) of Section 19 (The written official
acts, or records of the official acts of the
sovereign authority, official bodies and tribunals,
and public officers, whether of the Philippines, or
of a foreign country), when admissible for any
purpose, may be evidenced by:
1. An official publication thereof
2. By a copy attested by the officer having the
legal custody of the record, or by his deputy
and if the record is not kept in the Philippines,
the attestation should be accompanied with a
certificate that such officer has the custody
(Rule 132, Sec. 24, 1st par.)
If the office in which the record is kept is in a
foreign country which is a contracting party to a
treaty or convention to which the Philippines is
also a party, or considered a public document
under such treaty or convention pursuant to
paragraph (c) of Sec. 19 hereof: the certificate or
its equivalent shall be in the form prescribed by
such treaty or convention subject to reciprocity
granted to public documents originating from the
Philippines (Rule 132, Sec. 24, 2nd par.)
The certificate shall not be required when a
treaty or convention between a foreign country
and the Philippines has abolished the
requirement, or has exempted the document itself
from this formality. (Rule 132, Sec. 24, 4th par.,
2nd sentence)
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For documents originating from a foreign country
which is not a contracting party to a treaty or
convention referred to [in the second paragraph
of Rule 132, Sec, 24, 2nd par.]: the certificate
may be made by 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 or her office.
(Rule 132, Sec. 24, 3rd par.)
A document that is accompanied by a certificate
or its equivalent may be presented in evidence
without further proof, the certificate or its
equivalent being prima facie evidence of the due
execution and genuineness of the document
involved. (Rule 132, Sec. 24, 4th par., 1st
sentence)
Even assuming (arguendo) that the POEA has
jurisdiction to recognize and enforce a foreign
judgment, still respondent Rances cannot rely
upon the Dubai decision. The Dubai decision was
not properly proved before the POEA. The Dubai
decision purports to be the written act or record
of an act of an official body or tribunal of a foreign
country, and therefore a public writing under
Section 20 (a) of Rule 132 of the Revised Rules
of Court. Sections 25 and 26 of Rule 132 (now
Sections 24 and 25 of Rule 132, respectively)
prescribe the manner of proving a public or official
record of a foreign country
Foreign laws do not prove themselves nor can the
courts take judicial notice of them. Like any other
fact, they must be alleged and proved. Written
law may be evidenced by an official publication
thereof or by a copy attested by the officer having
the legal custody of the record, or by his deputy,
and accompanied with a certificate that such
officer has custody.
The certificate may be made by a secretary of an
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
(Spouses Zalamea v. Court of Appeals, G.R. No.
104235, 1993).
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Doctrine of Processual Presumption
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 v. Suzuki, G.R. No. 205487,
2014).
g. Attestation of a copy
Whenever a copy of a document or record is
attested for the purpose of evidence, the
attestation must state, in substance, that the copy
is a correct copy of the original, or a specific part
thereof, as the case may be.
The attestation must be under the official seal of
the attesting officer, if there be any, or if he or she
be the clerk of a court having a seal, under the
seal of such court (Rule 132, Sec. 25).
The certificate (under Sec. 24) and attestation
(under Sec. 25) are required, because of the
general rule on the “irremovability of public
records”: 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 [Rule 132, Sec. 26; Riano,
Evidence, 174, 2016].
h. Public record of a private document
An authorized public record of a private document
may be proved by:
1. The original record, or
2. By a copy thereof, attested by the legal
custodian of the record, with an appropriate
certificate that such officer has the custody.
(Rule 132, Sec. 27).
Financial statements, whether audited or not, are,
as general rule, private documents. However,
once financial statements are filed with a
government office pursuant to a provision of law,
they become public documents (Salas v. Sta.
Mesa Market Corporation, G.R. No. 157766, July
12, 2007).
The same holds true for birth, marriage, and
death certificates once submitted to the Philippine
Statistics Authority.
REMEDIAL LAW
i. Proof of lack of record
A written statement signed by an officer having
the custody of an official record or by his or her
deputy that after diligent search no record or entry
of a specified tenor is found to exist in the records
of his or her office, accompanied by a certificate
as above provided, is admissible as evidence that
the records of his or her office contain no such
record or entry (Rule 132, Sec. 28).
It is not a conclusive proof however of the non-
existence of the record at all. It only provides
evidence that the record is not entered or found
in such particular office.
j. How a judicial record is impeached
Judicial record
The record of judicial proceedings. It does not
only include official entries or files or the official
acts of a judicial officer, but also the judgment of
the court (Riano, Evidence, 174, 2016 citing
Black’s Law Dictionary, 5thEd., p. 762 &
Wharton’s Criminal Evidence, 11thEd., Sec. 805).
Any judicial record may be impeached by
evidence of:
1. Want of jurisdiction in the court or judicial
officer;
2. Collusion between the parties; or
3. Fraud in the party offering the record, in
respect to the proceedings (Rule 132, Sec.
29).
k. Proof of notarial documents
Every instrument duly acknowledged or proved
and certified as provided by law, may be
presented in evidence without further proof, the
certificate of acknowledgment being prima facie
evidence of the execution of the instrument or
document involved (Rule 132, Sec. 30).
Notarized documents fall under the second
classification of public documents. However, not
all types of public documents are deemed prima
facie evidence of the facts therein stated. Hence,
under Section 23, notarized documents are
merely proof of the fact which gave rise to their
execution (e.g., the notarized Answer to
Interrogatories in the case at bar is proof that
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Philtrust had been served with Written
Interrogatories), and of the date of the latter (e.g.,
the notarized Answer to Interrogatories is proof
that the same was executed on October 12, 1992,
the date stated thereon), but is not prima facie
evidence of the facts therein stated. Additionally,
under Section 30 of the same Rule, the
acknowledgement in notarized documents is
prima facie evidence of the execution of the
instrument or document involved (e.g., the
notarized Answer to Interrogatories is prima facie
proof that petitioner executed the same)
(Philippine Trust Company v. Court of Appeals,
G.R. No. 150318, 2010).
Notarial documents, except last wills and
testaments, are public documents and are
evidence of the facts that gave rise to their
execution and of their date (Siguan v. Lim, G.R.
No. 134685, 1999).
A public document duly acknowledged before a
notary public, under his hand and seal with his
certificate thereto attached, is admissible in
evidence without further proof of its due execution
and delivery until some question is raised as to
the verity of said acknowledgment and certificate
(Antillon v. Barcelon, G.R. No. L-12483, 1917)
The above rule presupposes that the document
was notarized by a person duly authorized to
perform notarial functions, as well as that the
document was properly notarized in the presence
of the notary public.
The improper notarization stripped the document
of its public character and reduced it into a private
document (Aguinaldo v. Torres, G.R. No. 225808,
2017)
“Acknowledgement” refers to an act in which an
individual, on a single occasion:
a) appears in person before the notary public
and presents and integrally complete
instrument or document;
b) is attested to be personally known to the
notary public or identified by the notary public
through competent evidence of identity as
defined by these Rules; and
c) represents to the notary public that the
signature on the instrument or document was
REMEDIAL LAW
voluntarily affixed by him for the purposes
stated in the instrument or document, declares
that he has executed the instrument or
document as his free and voluntary act and
deed, and, if he acts in a particular
representative capacity, that he has the
authority to sign in that capacity. (Coquia v.
Laforteza, A.C. No. 9364, 2017)
l. Alterations in a document
The party producing a document as genuine
which has been altered and appears to have
been altered after its execution, in a part material
to the question in dispute, must account for the
alteration.
How a party may account for such alteration
1. The alteration was made by another, without
his or her concurrence; or
2. It was made with the consent of the parties
affected by it; or
3. It was otherwise properly or innocently made;
or
4. The alteration did not change the meaning or
language of the instrument.
If he or she fails to do that, the document shall not
be admissible in evidence (Rule 132, Sec. 31).
m. Documentary evidence in an unofficial
language
Documents written in an unofficial language shall
not be admitted as evidence, unless
accompanied with a translation into English or
Filipino. To avoid interruption of proceedings,
parties or their attorneys are directed to have
such translation prepared before trial (Rule 132,
Sec. 33).
More than once, this Court has taken into
consideration documents written in a Philippine
dialect, unaccompanied by the required
translation but which had been admitted in
evidence without objection by the accused. In
those instances, the Court merely ordered official
translations to be made.
It is true that Section 33, Rule 132 of the Revised
Rules of Court now prohibits the admission of
such document in an unofficial language but we
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believe that in the interest of justice, such
injunction should not be taken literally here,
especially since no objection thereto was
interposed by appellant, aside from the fact that
appellant, the concerned parties and the judicial
authorities or personnel concerned appeared to
be familiar with or knowledgeable of Cebuano in
which the document was written. There was,
therefore, no prejudice caused to appellant and
no reversible error was committed by that lapse
of the trial court (People v. Salison, G.R. No.
115690, 1996).
E. TESTIMONIAL EVIDENCE
1. QUALIFICATIONS OF A WITNESS
General Rule:
All persons who can perceive, and perceiving,
can make known their perception to others, may
be witnesses (Rule 130, Sec. 21)
Exceptions: Except as provided by law or the
Rules, such as:
1. Disqualification by reason of marriage (Rule
130, Sec. 23)
2. Disqualification by reason of privileged
communication (Rule 130, Sec. 24)
3. Parental and filial privilege (Rule 130, Sec. 25)
4. Privilege relating to trade secrets (Rule 130,
Sec. 26)
Note: The 2019 amendments to the Rules of
Evidence have deleted the previous Sec. 21
relating to disqualifications by reason of mental
incapacity or immaturity since it is deemed
superfluous, given that the general rule as to the
competency of a witness covers such
disqualification necessarily.
Loss of the perceptive senses after the
occurrence of the fact does not affect the
admissibility of the testimony.
General Rule: Religious or political belief,
interest in the outcome of the case, or conviction
of a crime shall not be a ground for
disqualification. (Rule 130, Sec. 21)
Exception: Unless otherwise provided by law
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General Rule: Conviction of a crime is not a
ground for disqualification of a witness.
Exceptions:
1. Those convicted of falsification of a document,
perjury or false testimony cannot be witnesses
to a will. (Civil Code, Art. 821)
2. An accused convicted of a crime involving
moral turpitude, whenever made a co-
accused in any criminal case, cannot be
discharged to become a witness for the
Government. (Rule 119, Sec. 17)
A prospective witness must show that he has the
following abilities: (ORRR)
1. To Observe testimonial quality of perception;
2. To Remember the perception;
3, To Relate the perception;
4. That he has to Recognize a duty to tell the
truth, under oath or affirmation. (Herrera, p.
278)
A deaf-mute is competent to be a witness so long
as he/she has the faculty to make observations
and he/she can make those observations known
to others (People v. Aleman y Longhas, G.R. No.
181593, 2012)
Parties declared in default are not disqualified
from taking the witness stand for non-disqualified
parties. The law does not provide default as an
exception. (Marcos v. Heirs of Navarro, G.R. No.
198240, 2013)
There is no substantive or procedural rule which
requires a witness for a party to present some
form of authorization to testify as a witness for the
party presenting him or her. (AFP Retirement and
Separation Benefits System v. Republic, G.R. No.
188956, 2013)
2. DISQUALIFICATIONS OF A WITNESS
a. Disqualification by reason of marriage
Reasons:
1. There is identity of interests between husband
and wife;
2. If one were to testify for or against the other,
there is the consequent danger of perjury;
3. The policy of the law is to guard the security
and confidence of private life and to prevent
domestic disunion and unhappiness;
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4. Where there is want of domestic tranquility,
there is danger of punishing one spouse by
the testimony of the other (Alvarez v. Ramirez,
G.R. No. 143349, 2005)
Requisites
1. Spouses are legally married; and
2. Either spouse must be a party to a case
Exceptions:
1. The case in which the husband or wife is
called to testify is a civil case instituted by one
against the other;
2. That it is a criminal case for a crime committed
by one against the other, or the latter's direct
descendants or ascendants. (Rule 130, Sec.
23)
Reason for the Exceptions
Where the martial and domestic relations are so
strained that there is no more harmony to be
preserved or peace and tranquility which may be
disturbed, the reason based upon such harmony
and tranquility fails. In such a case, identity of
interests disappears, and the consequent danger
of perjury based on that identity is nonexistent.
(Alvarez v. Ramirez, G.R. No. 143349, 2005)
When an offense directly attacks or directly and
vitally impairs the conjugal relation, it comes
within the exception to the statute that one shall
not be a witness against the other except in a
criminal prosecution for a crime committed by one
against the other. (People v. Castañeda, G.R. No.
L-46306, 1979)
Indeed, in those jurisdictions which allow one
spouse to be subjected to examination by the
adverse party as a hostile witness when both
spouses are parties to the action, either the
interests of the spouses are separate or
separable, or the spouse offered as a witness is
merely a formal or nominal party. (Lezama v.
Rodriguez, G.R. No. L-25643, 1968)
Note: The marital disqualification rule under Rule
130, Sec. 23 has been amended: The words “for
or against the affected spouse” became just
“against the other” in line with the rule’s
purpose to foster marital harmony. There lies no
REMEDIAL LAW
compelling rationale for extending the
disqualification to testimony “for” the affected
spouse. The disqualification should be limited to
“adverse spousal testimony.”
Duration of the Privilege
The privilege lasts only during marriage.
Q: Should the phrase "in a criminal case for a
crime committed by one against the other" be
restricted to crimes committed by one spouse
against the other, such as physical injuries,
bigamy, adultery or concubinage, or should it be
given a latitudinarian interpretation as referring to
any offense causing marital discord?
A: When an offense directly attacks or directly
and vitally impairs, the conjugal relation, it comes
within the exception to the statute that one shall
not be a witness against the other except in a
criminal prosecution for a crime committed by one
against the other.
Using the criterion thus judiciously enunciated in
the Cargill case, it can be concluded that in the
law of evidence the rape perpetrated by the father
against his daughter is a crime committed by him
against his wife (the victim's mother). (Ordoño v.
Daquigan, G.R. No. L-39012, 1975) This ruling
has been codified under Rule 130, Sec. 23.
Testimony Where Spouse is Accused with
Others
The disqualification is between husband and wife,
the law not precluding the wife from testifying
when it involves other parties or accused. The
wife may proceed and testify in the murder case
against the brothers who were jointly tried with
her husband, but the testimony cannot be used
against the husband through the guise of taking
judicial notice of the proceedings in the murder
case without violating the rule. What cannot be
done directly cannot be done indirectly. (People
v. Quidato, G.R. No. 117401, 1998)
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Non-Applicability of Disqualification: be compelled to give, or permits someone,

usually one of the parties, to prevent the witness
This rule may be waived. from revealing certain information. (Herrera,
p.315)
Objections to the competency of a husband or
wife to testify in a criminal prosecution against the Privileged communications are matters
other may be waived as in the case of the other learned in confidence
witnesses generally. It is also true that objection
to the spouse's competency must be made when Privileged Communications (Rule 130, Section
he or she is first offered as witness, and that the 24):
incompetency may be waived by the failure of the 1. Husband and Wife
accused to make timely objection to the 2. Attorney and Client
admission of the spouse's testimony, although 3. Physician and Patient
knowing of such incompetency, and the 4. Priest and Penitent
testimony admitted, especially if the accused has 5. Public Officers
assented to the admission, either expressly or
impliedly. (People v. Francisco, G.R. No. L-568, (i) Husband and Wife (Marital
1947) Communications Privilege)

Where the wife is a co-defendant in a suit Reason

charging fraud against the spouses, the wife
could not be compelled to testify as an adverse
party witness concerning her participation in the
alleged fraud without violating [Sec. 23] of Rule
130. (Lezama v. Rodriguez, G.R. No. L-25643,
1968)
Whether her testimony will turn out to be adverse
or beneficial to her own interest, the inevitable
result would be to pit her against her husband.
The interests of husband and wife in this case are
necessarily interrelated.
Where the marital and domestic relations are so
strained that there is no more harmony to be
preserved nor peace and tranquility which may be
disturbed, the reason based upon such harmony
and tranquility fails. In such a case, identity of
interests disappears and the consequent danger
of perjury based on that identity is non-existent.
Thus, there is no longer any reason to apply the
Marital Disqualification Rule. (Alvarez v. Ramirez,
G.R. No. 143349, 2005)
b. Disqualification by reason of privileged
communications; rule on third parties
Privilege
A rule of law that to protect a particular
relationship or interest, either permits a witness to
refrain from giving testimony he otherwise could
Society’s interest in the preservation of peace of
families and its strongest safeguard is to preserve
any violations of those confidences inherent in
the marital status.
Ability to communicate without inhibitions is
essential in a marital relationship.
Requisites:
1. There must be a valid marriage between
husband and wife;
2. There is a communication received in
confidence by one from the other;
3. The confidential communication was
received during the marriage; and
4. The spouse against whom such is being
offered has not given his/her consent to such
testimony
A widow of a victim allegedly murdered may
testify as to her husband’s dying declaration as to
how he died the since the same was not intended
to be confidential (U.S. v. Antipolo, G.R. No. L-
13109, 1918)
The privilege applies to any form of confidential
disclosure both in words and in conduct.
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To whom the privilege belongs once the marriage is testimony may object
The privilege belongs to the spouse against dissolved. even after the
whom the testimony is given. It may be asserted dissolution of the
only during the marriage. The
The privilege does NOT apply: marriage. privilege does not
1. When the husband or wife testifies against cease just because
the other in a civil case instituted by one the marriage has
against the other. ended.
2. When the husband or wife testifies against Requires that the No such requirement
the other in a criminal case for a crime spouse against whom as it applies
committed by one against the other or the the testimony is regardless of whether
latter’s direct ascendants or descendants. offered is a party to the spouses are
3. When there is waiver, such as in failure to the action. parties or not.
object on a timely basis to its presentation or The prohibition is What is prohibited is
by any conduct that may be construed as directed at testimony the examination of a
implied consent (Lacurom v. Jacoba, A.C. against the other. spouse as to matters
No. 5921, 2006) received in
confidence by one
Sec. 24 (a) of Rule 130 also requires that the from the other during
information received in confidence during the the marriage.
marriage be “by one from the other”. The (Riano, p. 235)
implication is clear: confidential information
received from a third person is not covered by the (ii) Attorney and Client; exceptions
privilege. (Riano, p.233)
Reason
Marital Disqualification versus Marital It is based upon grounds of public policy to enable
Privileged Communication full disclosure.
Marital Marital Privileged
Disqualification Communication McPartlin was entitled to the protection of the
Rule attorney-client privilege, because his statements
Does NOT refer to Refers to confidential were made in confidence to an attorney for a co-
confidential communications defendant for a common purpose related to both
communications received by one defenses. (U.S. vs. McPartlin, 595 F.2d 1321,
between spouses. spouse from the other 1979)
during the marriage.
Includes facts, Applies only to The period to be considered is the date when the
occurrences, or confidential privileged communication was made by the client
information even prior information received to the attorney in relation to either a crime
to the marriage. during the marriage. committed in the past or with respect to a crime
The scope of this rule intended to be committed in the future. In other
is broader because it words, If the client seeks his lawyer’s advice with
prevents testimony respect to a crime that the former has theretofore
for or against the committed, he is given the protection of a virtual
spouse on any fact confessional seal which the attorney-client
and not merely a privilege declares cannot be broken by the
disclosure of attorney without the client’s consent.
confidential If the advice he seeks is with respect to a future
information. crime, the communication is not protected.
The rule can no The spouse affected (People vs. Sandiganbayan, G.R. No. 115439-
longer be invoked by the disclosure of 41, 1997)
the information or
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Requisites:
1. There must be a communication made by the
client to the attorney, OR advice given by the
attorney to his client;
(No particular form is required under the Rules)
2. The communication or advice must be given
in confidence; and
3. The communication or advice must be given
either:
a. In the course of professional employment;
or
b. With a view to professional employment
(This contemplates preliminary negotiations,
even if later on the attorney-client relationship
is not perfected)
Attorney’s secretary, stenographer, clerk or other
persons assisting the attorney are also covered
by the rule and cannot be examined concerning
any fact the knowledge of which has been
acquired in such capacity without the consent of
the client AND their employer.
Note: Also covered is a “person reasonably
believed by the client to be licensed to engage in
the practice of law”
Work-Product Doctrine
The doctrine that the trial preparation materials of
a lawyer or his representative are protected from
discovery unless the other party shows that it has
a substantial need for the materials to prepare its
case, and cannot, without undue hardship, obtain
their substantial equivalent by other means. Trial
preparation materials include written documents,
such as records, notes, memorandums, and
tangible things.
It is not a privilege but a special protective rule
which limits discovery of an attorney’s work
product. (Riguerra, p. 741)
The doctrine protects the attorney’s right to work
with a certain degree of privacy in giving legal
advice and in preparing for trial. If the lawyer’s
trial preparation materials could be obtained by
discovery, much of what is now put down in
writing would remain unwritten. An attorney’s
thoughts, heretofore inviolate, would not be his
own. (Riguerra, p. 741-742)
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Note: While the work product doctrine is not
expressly recognized in Philippine law and
jurisprudence, it is submitted that it may be
invoked in the Philippines pursuant to S16, R23
on motion for protective orders or to S18 R233 on
motion to terminate or limit examination.
In an obiter dictum in Fortune Corp v. CA, 229
SCRA, 355, 372 (1994), the Supreme Court
stated that a bare allegation of the “work product
doctrine” is not sufficient to grant a motion for
protective and limiting orders, thereby implying
that such orders would be forthcoming if there is
sufficient showing of the applicability of the
doctrine. (Riguerra, p. 746-747).
THE PRIVILEGE DOES NOT APPLY:
(a) As provided for by the Rules of Court
[Rule 130, Sec. 24(b)]:
Furtherance of crime or fraud (future crime-
fraud) [Rule 130, Sec. 24(b)(i)]
There is no privilege if the services of the lawyer
were sought or obtained to enable or aid anyone
to commit or plan to commit a crime or a fraud.
(People v. Sandiganbayan, G.R. No. 115439-41,
1997)
Clients are not entitled to use lawyers to help
them in pursuing unlawful or fraudulent
objectives. If the privilege were to cloak such
activity, the result would be loss of public
confidence and corruption of the profession
An attorney’s service knowingly used to further a
crime or fraud is hardly qualified as “professional
legal services”, an essential element of the
privilege (Mueller & Kirkpatrick, Sec. 5.22)
Claimants through same deceased client
[Rule 130, Sec. 24(b)(ii)]
While the attorney-client privilege survives the
death of a client, there is no privilege in a will
contest or other case between parties who both
claim through that very client since it is not known
who stands in the shoes of the deceased client.
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Communication of such information may be
essential to an accurate resolution of competing
claims of succession, and the testator would
presumably favor disclosure of the
communications in order to dispose of his estate
in accord with his intentions (Mueller &
Kirkpatrick, Sec. 5.24)
Breach of duty by lawyer or client [Rule 130,
Sec. 24(b)(iii)]
If the client alleges a breach of duty on the part of
the lawyer - e.g., professional malpractice,
incompetence or ethical violations OR a lawyer
sues a client for his fee, either may testify as to
communications between them which would
otherwise be privileged
This “self-defense” exception is sometimes
justified on the theory that client impliedly waives
the privilege by making allegations of breach of
duty against the lawyer (Mueller & Kirkpatrick,
Sec. 5.23)
Document attested by the lawyer [Rule 130,
Sec. 24(b)(iv)]
When an attorney serves as an attesting witness,
he is not acting as a lawyer and the client’s
obvious intent is to have him available to testify to
the matter attested (Lempert, R. & Saltzburg, S.
at 697)
Joint clients [Rule 130, Sec. 24(b)(v)]
While joint client are within the class of persons
to whom otherwise confidential communications
can be disclosed without destroying
confidentiality, if they have a falling out, the
communications are not privileged in subsequent
litigations between themselves, unless they have
expressly agreed otherwise.
Joint clients do not intend their communication to
be confidential from each other. Therefore, joint
representation means each joint client accepts
the risk that another joint client may later use
what one has said to the lawyer (Mueller &
Kirkpatrick, Sec. 5.14)
REMEDIAL LAW
(b) Others
1. When there is no attorney-client relationship
2. When the communication was not intended to
be confidential
3. When the action is one brought by the client
against the attorney and the disclosure of the
confidential information becomes necessary
for the attorney (But limited only for what is
necessary for attorney's own protection).
Note: Contracts between attorneys and
clients are inherently personal and private
matters, but they are a constant subject of
litigation, and contracts relating to fees are
essentially not of a privileged nature. In other
words, the terms of employment between
attorney and client are not of a privileged
nature. (Orient Insurance v. Revilla, G.R. No.
34098, 1930)
4. When there is waiver.
The attorney cannot make a waiver without
the client's consent - express or implied.
Waiver of the Privilege:
a) Client of the attorney consents to disclose
privileged communication.
b) Giving evidence on the privileged
communication.
c) When the privileged communication falls
into the hands of the adverse party.
BUT NOTE THIS 2019 AMENDMENT:
The communication shall remain
privileged, even in the hands of a third
person who may have obtained the
information, provided that the original
parties to the communication took
reasonable precaution to protect its
confidentiality. (Rule 130, Sec. 24, last
paragraph)
d) In calling or cross-examining his attorney
regarding the privileged communication.
5. The receipt of fees from a client is not usually
within the privilege because the payment of a fee
is not normally a matter of confidence or a
communication. The ministerial or clerical
services of an attorney in transferring funds to or
from a client is not a matter of confidence that is
protected by the privilege. (In re Grand Jury
Investigation, 732 F.2d 447, 1983)
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General Rule: Client’s identity is not privileged.
Exceptions:
1. Where a strong probability exists that
revealing the client’s identity would implicate
him in the activity for which he sought the
lawyer’s advice.
2. Where disclosure would open the client to
civil liability.
3. Where the government’s lawyers have no
case against an attorney’s client unless, by
revealing the client’s name, the said name
would furnish the only link that would form the
chain of testimony necessary to convict an
individual of a crime (LAST LINK
DOCTRINE).
(Regala v. Sandiganbayan, G.R. No. 105398,
1996)
Where the government’s lawyers have no case
against an attorney’s client unless, by revealing
the client’s name, the said name would furnish
the only link that would form the chain of
testimony necessary to convict an individual of a
crime, the client’s name is privileged. (Regala v.
Sandiganbayan, G.R. No. 105398, 1996)
(iii) Physician and Patient
Reason
The privilege is intended to facilitate and make
safe, full, and confidential disclosure.
Requisites:
1. The privilege is claimed in a civil case;
2. The person against whom the privilege is
claimed is one duly authorized to practice
medicine, surgery or obstetrics;
3. Such person acquired the information while
he was attending to the patient;
4. The information was necessary to enable him
to act in that capacity; and
5. The information was confidential and if
disclosed would blacken the reputation of the
patient. (Lim v. Court of Appeals, G.R. No.
91114, 1992)
Note: The 2019 amendments to the Rules of
Evidence has removed the requirement that the
information involved “would blacken the
reputation of the patient”.
Duration of privilege
REMEDIAL LAW
The privilege survives the death of the patient.
After one has gone to his grave, the living are not
permitted to impair his name and disgrace his
memory by dragging to light communications and
disclosures made under the seal of the statute.
(Gonzales v. CA, G.R. No. 117740, 1998).
The Privilege Does Not Apply:
1. When the case is a criminal case.
2. When the testimony refers to information
regarding a patient which the physician
acquired either before the relation of
physician and patient began or after its
termination.
3. When there is waiver.
4. If the physician acted for purposes other than
to prescribe for the patient.
5. When the information was not necessary for
the proper treatment of the patient.
6. Where an action for damages is brought by
the patient against his physician.
7. When the physician is presented as an expert
witness and the facts testified to are merely
hypothetical. (Lim v. Court of Appeals, G.R.
No. 91114, 1992)
8. When the information was intended to be
public, such as results of physical and mental
examinations ordered by the court and
results of autopsies. (See Rule 28, Sec. 4)
Where the person against whom the privilege is
claimed is the patient’s husband who testifies on
a document executed by medical practitioners,
his testimony does not have the force and effect
of the testimony of the physician who examined
the patient and executed the report. Plainly, this
does not fall within the prohibition. (Krohn vs.
Court of Appeals, G.R. No. 108854, 1994)
BUT NOTE THIS 2019 AMENDMENT: The
communication shall remain privileged, even in
the hands of a third person who may have
obtained the information, provided that the
original parties to the communication took
reasonable precaution to protect its
confidentiality. (Rule 130, Sec. 24, last
paragraph)
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Hospital Records during Discovery
Procedure
To allow the disclosure during discovery
procedure of the hospital records would be to
allow access to evidence that is inadmissible
without the patient’s consent. Disclosing them
would be the equivalent of compelling the
physician to testify on privileged matters he
gained while dealing with the patient, without the
latter’s prior consent. (Chan v. Chan, G.R. No.
179786, 2013)
Note: A psychologist or psychometrician cannot,
without the consent of the client/patient, be
examined on any communication or information
disclosed and/or acquired in the course of giving
psychological services to such client. The
protection accorded herein shall extend to all
pertinent records and shall be available to the
secretary, clerk or other staff of the licensed
psychologist or psychometrician. (Sec. 30 of R.A.
10029, Philippine Psychology Act of 2009) This
has been incorporated into the privilege under the
2019 amendments which include
“psychotherapists” within the coverage of the
privilege.
(iv) Priest and Penitent
A minister, priest or person reasonably believed
to be so cannot, without the consent of the
affected person, be examined as to any
communication or confession made to or any
advice given by him or her, in his or her
professional character, in the course of discipline
enjoined by the church to which the minister or
priest belongs. (Rule 130, Sec. 24[d])
Reason
To compel a minister or priest to testify to a
confession made to him is equivalent to an
annulment of the confession institution.
Requisites:
1. The confession must be made to the minister
or priest in his professional character, and in
the course of discipline enjoined by the rules
of practice of the denomination to which the
priest or minister belongs; and
2. The confession must be of a penitential
character.
REMEDIAL LAW
The Privilege Does Not Apply:
1. Where a minister is consulted not as such
(e.g., he is consulted as a friend or
interpreter).
2. Where the confession is not made in the
course of religious discipline.
3. When there is waiver.
(v) Public Officers
Requisites:
1. The communication must have been
made to a public officer;
2. The communication was made in official
confidence; and
3. Public interest would suffer by the
disclosure of the information
Public interest means more than a mere
curiosity; it means something in which the public,
the community at large, has some pecuniary
interest by which their legal rights or liabilities
are affected. It does not mean anything so narrow
as to interest the particular localities which may
be affected by the matters in question (Banco
Filipino v. Monetary Board, G.R. No. L-70054,
1986).
This privilege is intended not for the protection of
public officers but for the protection of public
interest. Where there is no public interest that
would be prejudiced, this invoked rule will not be
applicable (Banco Filipino v. Monetary Board,
G.R. No. L-70054, 1986).
What is usually referred to as informer’s privilege
is in reality the government’s privilege to withhold
from disclosure the identity of persons who
furnish information of violations of laws to officers
charged with enforcement of that law. (People v.
Ong, G.R. No. 137348, 2004)
The privilege under Section 24, Rule 130 is
intended not for the protection of public officers
but for the protection of public interest. Where
there is no public interest that would be
prejudiced, this rule will not be applicable. The
rule that a public officer cannot be examined as
to communications made to him in official
confidence does not apply when there is nothing
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to show that the public interest would suffer by the
disclosure. (Banco Filipino v. Monetary Board,
G.R. No. 70054, 1986)
When the ground for asserting the privilege as to
subpoenaed materials sought for use in a criminal
trial is based only on the generalized interest in
confidentiality, unsupported by a claim of the
need to protect military, diplomatic or sensitive
national security secrets, it cannot prevail against
a demonstrated, specific need for the
documents/recordings needed and over the
fundamental demands of due process of law in
the administration of criminal justice. The
generalized assertion of the privilege must yield
to the demonstrated need for evidence in a
pending criminal trial. (U.S. vs. Nixon, 418 U.S.
683, 1974)
Presidential Communications Privilege
There is a Recognized Presumptive Presidential
Communications Privilege - it was the President
herself, through Executive Secretary Ermita, who
invoked executive privilege on a specific matter
involving an executive agreement between the
Philippines and China, which was the subject of
the three questions. (Neri v. Senate Committee,
G.R. No. 180643, 2008)
Elements of Presidential Communications
Privilege
1. Must relate to a “quintessential and non-
delegable presidential power;”
2. Must be authored or “solicited and received”
by a close advisor of the President or the
President himself; and
3. Privilege may be overcome by a showing of
adequate need such that the information
sought “likely contains important evidence”
and by the unavailability of the information
elsewhere (Neri v. Senate Committee, G.R.
No. 180643, 2008)
Newsman’s Privilege
General Rule: Without prejudice to his liability
under the civil and criminal laws, any publisher,
owner, or duly recognized or accredited
journalist, writer, reporter, contributor, opinion
writer, editor, columnist, manager, media
REMEDIAL LAW
practitioner involved in the writing, editing,
production, and dissemination of news for mass
circulation, of any print, broadcast, wire service
organization, or electronic mass media, including
cable TV and its variants, cannot be compelled to
reveal the source of any news item, report or
information appearing or being reported or
disseminated through said media, which was
related in confidence to the abovementioned
media practitioners. (R.A. No. 53, as amended by
R.A. 11458, Sec. 1)
Exception: Unless the court or the House of
Representatives or the Senate or any committee
of Congress finds that such revelation is
demanded by the security of the State. (R.A. No.
53, as amended by R.A. 11458, Sec. 1)
The State constitutional guarantee of a criminal
defendant’s right to confront witnesses prevails
over the State statute granting privilege to
newspersons regarding their sources of
confidential information. (Farber v. Jascalevich,
394 A.2d 330, 1978)
The Shield Law prevails over testimonial
privileges of newsmen. They can be required to
appear and testify before state or federal grand
juries since the ends of criminal justice would be
defeated if judgments were to be founded on a
partial or speculative presentation of the facts.
The very integrity of the judicial system and public
confidence in the system depend on full
disclosure of all the facts, within the framework of
the rules of evidence. The legislative intent in
adopting this statute in its present form as
seeking to protect the confidential sources of the
press as well as information so obtained by
reporters and other news media representatives
to the greatest extent permitted by the
Constitution (Matter of Farber, 394 A.2d 330,
1978)
Privileged Communication in Labor
Conciliation Proceedings
Information and statements made at conciliation
proceedings shall be treated as privileged
communication and shall not be used as
evidence in the Commission. Conciliators and
similar officials shall not testify in any court or
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body regarding any matters taken up at
conciliation proceedings conducted by them.
(Labor Code, Art. 233)
Secrecy of Bank Deposits
All deposits of whatever nature with banks or
banking institutions in the Philippines including
investments in bonds issued by the Government
of the Philippines, its political subdivisions and its
instrumentalities, are hereby considered as of an
absolutely confidential nature and may not be
examined, inquired or looked into by any person,
government official, bureau or office, except upon
written permission of the depositor, or in cases of
impeachment, or upon order of a competent court
in cases of bribery or dereliction of duty of public
officials, or in cases where the money deposited
or invested is the subject matter of the litigation.
(R.A. 1405, Sec. 2)
Court-Annexed Mediation and Judicial
Dispute Resolution
Any and all matters discussed, or
communications made, including requests for
mediation, and documents presented during
CAM or JDR proceedings, shall be privileged and
confidential.
If personal notes are taken for guidance, the
notes shall be destroyed. Should such records
exist, the same shall also be privileged and
confidential.
All privileged and confidential information
obtained in CAM or JDR shall be inadmissible as
evidence for any purpose in any other
proceedings.
However, evidence or information that is
otherwise admissible does not become
inadmissible solely by reason of its use in CAM or
JDR (Guidelines for the Conduct of CAM and
JDR in Civil Cases, A.M. No. 19-10-SC, Part D,
Sec. 7).
Judicial Privilege
At the most basic level and subject to the principle
of comity, Members of the Court, and Court
officials and employees may not be compelled to
REMEDIAL LAW
testify on matters that are part of the internal
deliberations and actions of the Court in the
exercise of their adjudicatory functions and
duties, while testimony on matters external to
their adjudicatory functions and duties may be
compelled by compulsory processes.
To summarize these rules, the following are
privileged documents or communications, and
are not subject to disclosure:
1. Court actions such as the result of the raffle of
cases and the actions taken by the Court on
each case included in the agenda of the
Court's session on acts done material to
pending cases, except where a party litigant
requests information on the result of the raffle
of the case, pursuant to Rule 7, Section 3 of
the Internal Rules of the Supreme Court;
2. Court deliberations or the deliberations of the
Members in court sessions on cases and
matters pending before the Court;
3. Court records which are "predecisional" and
"deliberative" in nature, in particular,
documents and other communications which
are part of or related to the deliberative
process, i.e., notes, drafts, research papers,
internal discussions, internal memoranda,
records of internal deliberations, and similar
papers.
4. Confidential Information secured by justices,
judges, court officials and employees in the
course of their official functions, mentioned in
(2) and (3) above, are privileged even after
their term of office.
5. Records of cases that are still pending for
decision are privileged materials that cannot
be disclosed, except only for pleadings, orders
and resolutions that have been made
available by the court to the general public.
6. The principle of comity or inter-departmental
courtesy demands that the highest officials of
each department be exempt from the
compulsory processes of the other
departments.
7. These privileges belong to the Supreme Court
as an institution, not to any justice or judge in
his or her individual capacity. Since the Court
is higher than the individual justices or judges,
no sitting or retired justice or judge, not even
the Chief Justice, may claim exception without
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the consent of the Court. (In re: Production of
Court Records, 2012)
Witness Protection, Security and Benefit Act
All proceedings involving application for
admission into the Program and the action taken
thereon shall be confidential in nature. No
information or documents given or submitted in
support thereof shall be released except upon
written order of the Department of Justice or the
proper court. (R.A. 6981, Sec. 7)
Third Persons
The communication shall remain privileged, even
in the hands of a third person who may have
obtained the information, provided that the
original parties to the communication took
reasonable precaution to protect its
confidentiality (Rule 130, Sec. 24)
Note: Communication divulged to "strangers" or
outsiders can scarcely be considered a
confidential communication between attorney
and client. (U.S. vs. Gordon-Nikkar, 518 F.2d
972, 1975)
c. Parental and Filial Privilege
No person shall be compelled to testify against
his or her parents, other direct ascendants,
children and other direct descendants, except
when such testimony is indispensable in a crime
against that person or by one parent against the
other (Rule 130, Sec. 25)
Note: This provision was amended in 2019 to
include the exception under Art. 215 of the Family
Code.
Art. 215:
No descendant shall be compelled, in a criminal
case, to testify against his parents and
grandparents, except when such testimony is
indispensable in a crime against the descendant
or by one parent against the other.
There are two privileges embodied in this rule:
Parental privilege rule and Filial privilege rule
1. Parental Privilege: A parent cannot be
compelled to testify against his child or direct
descendants
REMEDIAL LAW
2. Filial Privilege: A child cannot be compelled
to testify against his parents or other direct
ascendants
When the privilege does not apply
1. Voluntary testimony; waiver
A person may voluntarily testify against his
parents, but if he refuses to do so, the rule
protects him from any compulsion.
This rule is not strictly a rule on disqualification
because a descendant is not incompetent or
disqualified to testify against an ascendant. The
rule refers to a privilege not to testify, which can
be invoked or waived like other privileges. Elven
was not compelled to testify against his father; he
chose to waive that filial privilege when he
voluntarily testified against Artemio. Elven
declared that he was testifying as a witness
against his father of his own accord and only to
tell the truth (People v. Invencion, G.R. No.
131636, 2003)
2. Persons other than direct ascendants and
descendants
The privilege under the provision mentioned
applies only to direct ascendants and
descendants, a family tie connected by a
common ancestry. A stepdaughter has no
common ancestry by her stepmother. (Lee v.
Court of Appeals, G.R. No. 177861, 2010
d. Trade Secrets
A person cannot be compelled to testify about
any trade secret, unless non-disclosure will
conceal fraud or otherwise work injustice. When
disclosure is directed, the court shall take such
protective measure as the interest of the owner of
the trade secret and of the parties and the
furtherance of justice may require (Rule 130, Sec.
26)
A trade secret is defined as a plan or process,
tool, mechanism or compound known only to its
owner and those of his employees to whom it is
necessary to confide it.
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The definition also extends to a secret formula or 3. Not to be examined except only as to matters
process not patented, but known only to certain pertinent to the issue;
individuals using it in compounding some article 4. Not to give an answer which will tend to
of trade having a commercial value subject him/her to a penalty for an offense
unless otherwise provided by law (Right
A trade secret may consist of any formula, against self-incrimination);
pattern, device, or compilation of information that: 5. Not to give an answer which will tend to
(1) is used in one's business; and (2) gives the degrade his/her reputation, unless it be the
employer an opportunity to obtain an advantage very fact at issue or to a fact from which the
over competitors who do not possess the fact in issue would be presumed. But a
information. (Air Philippines vs. Pennswell, Inc., witness must answer to the fact of his
G.R. No. 172835, 2007) previous final conviction for an offense. (Right
Against Self-Degradation) (Rule 132, Sec. 3)
The following are factors in determining if a piece
of information is a trade secret protected from Scope of Right Against Self-Incrimination
disclosure:
1. The extent to which the information is known The right against self-incrimination is granted only
outside of the employer’s business; in favor of individuals. Therefore, a corporation
2. The extent to which the information is known cannot invoke that privilege as the questioned
by employees and others involved in the testimony can come only from a corporate officer
business; or employee who has a personality distinct from
3. The extent of measures taken by the that of the corporation.
employer to guard the secrecy of the
information; The right covers only testimonial compulsion and
4. The value of the information to the employer production by him/her of incriminating
and to competitors; documents. It does not exclude the body when it
5. The amount of effort or money expended by can furnish relevant and competent evidence.
the company in developing the information;
and Right Against Self-incrimination of an
6. The extent to which the information could be Accused and of an Ordinary Witness
easily or readily obtained through an Distinguished
independent source. (Air Philippines vs. ACCUSED ORDINARY WITNESS
Pennswell, Inc., G.R. No. 172835, 2007)
He cannot be He may be compelled
3. EXAMINATION OF A WITNESS compelled to testify or to testify by subpoena,
produce evidence but he will have the
a. Rights and obligations of a witness even by subpoena or right to refuse to
other process or order answer an
Obligation of a witness
of the court. incriminating question
A witness must answer questions, although
at the time it is asked to
his/her answer may tend to establish a claim
him.
against him/her. (Rule 132, Sec. 3)
He can refuse outright He does not have a
Note: Refusal of a witness to answer is to take the stand as a right to disregard a
punishable by Contempt (Rule 71). witness subpoena, decline to
appear before the court
Rights of a Witness at the time appointed,
1. To be protected from irrelevant, improper, or or refuse to testify
insulting questions, and from harsh or altogether. The witness
insulting demeanor; receiving a subpoena
2. Not to be detained longer than the interests of must obey. It is only
justice require;
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when the incriminating witness protection program cannot refuse to

question is addressed testify or give evidence, produce books,
that he may refuse to documents, records, or writings necessary for the
answer. (Rosete v. prosecution of the offense or offenses for which
Lim, GR No. 136051, he has been admitted on the ground of the right
June 8, 2006) against self-incrimination. (R.A 6981, Sec. 14)
(Riano, Evidence, 363)
Invocation of the right The offense involved is
may be with reference one for which he may b. Order in the examination of an individual
to: be tried in another witness
the offense involved case. (Regalado,
in the same case Evidence, 842) The order in which an individual witness may be
wherein he is examined is as follows:
charged, or 1. Direct-examination by the proponent;
an offense for which 2. Cross-examination by the opponent;
he may be charged 3. Re-direct examination by the proponent;
and tried in another 4. Re-cross-examination by the opponent. (Rule
case (Regalado, 132, Sec. 4)
Evidence, 842)
DIRECT EXAMINATION

Immunity Statutes Is the examination-in-chief of a witness by the

“USE” IMMUNITY “TRANSACTIONAL” party presenting him on the facts relevant to the
IMMUNITY issue.

Prohibits the use of Grants immunity to Scope of Direct Examination: All facts relevant
the witness’s the witness from to the issue
compelled testimony prosecution for an
and its fruits in any offense to which his Purpose
manner in connection compelled testimony To elicit facts about the client’s cause of action or
with the criminal relates. This second defense. It is now subject to the Judicial Affidavit
prosecution of the immunity is broader. Rule, which took effect on January 1, 2013.
witness. (Riano, Evidence, 369) (But see Section 9 of the
JAR on application to criminal cases)
Immunity statutes may be generally classified into
two: one, which grants "use immunity"; and the CROSS EXAMINATION
other, which grants what is known as
"transactional immunity." The distinction between Cross examination is the questioning of a witness
the two is as follows: "Use immunity" prohibits at a trial or hearing by the party opposed to the
use of witness' compelled testimony and its fruits party who called the witness to testify (Black’s
in any manner in connection with the criminal Law Dictionary, 7th Ed. 433)
prosecution of the witness. On the other hand,
"transactional immunity" grants immunity to the Scope of Cross Examination
witness from prosecution for an offense to which 1. On any relevant matter, with sufficient fullness
his compelled testimony relates. (Galman v. and freedom to test the witness’s accuracy
Pamaran, 138 SCRA 294, G.R. Nos. L-71208-09 and truthfulness and freedom from interest or
and L-71212-13, 1985) bias, or the reverse
2. All important facts bearing upon the issue
Note:
Under R.A. 6981 (Witness Protection, Security Note: The 2019 amendment of 132, Sec. 6 now
and Benefit Act), a witness admitted into the expanded the coverage of cross-examination on
“any relevant matter”. However, Rule 115, Sec. 1
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(d) provides that the scope of the cross-
examination of an accused shall only be on
“matters covered by his/her direct examination”.
In People v. Ayson, G.R. No. 85215, 1989, the
Supreme Court ruled that if an accused chooses
to testify, then he may be cross-examined as any
other witness. He may be cross-examined as to
any matters stated in his direct examination, or
connected therewith.
Although there is no definitive case on this matter
yet, one can cite the 2019 amendment of Rule
132, Sec. 6 as basis to say that the accused who
testifies may indeed be cross-examined “on any
relevant matter” because he “may be cross-
examined as any other witness.”
Purpose of Cross Examination
1. To bring out facts favorable to the counsel’s
[cross-examiner’s] client not established by
direct testimony (Riano, Evidence, supra
citing Jackson v Feather River Water Co.,
1859 14 C 18)
2. To enable counsel to impeach or to impair the
credibility of the witness. (Riano, Evidence,
supra citing Kelly v Bailey 1961 189 CA2d
728, 11 CR 448)
Rules on Cross-Examination
American Rule
Cross-examination must be confined to matters
inquired about in the direct examination.
English Rule
A witness may be cross-examined not only upon
matters testified by him on his direct examination
but also on all matters relevant to the issue. We
follow the English Rule.
Note:
But, where the witness is an unwilling or hostile
witness so declared by the court or is an adverse
party, the cross-examination shall only be on the
subject matter of his examination-in-chief. (Rule
132, Sec. 13)
Cross Examination is an Absolute Right
Cross-examination is an absolute right. The
Constitution provides that the accused shall enjoy
REMEDIAL LAW
the right to meet the witnesses face to face. (Phil.
Const. art. III, § 14)
When Cross Examination Becomes a
Privilege
When the cross-examination in chief is concluded
and the attendance of the witness is either
dispensed with from the stand or the re-
examination, if any, has begun.
The right of a party to confront and cross-examine
opposing witnesses in a judicial litigation is a
fundamental right which is part of due process.
Until such cross-examination has been finished,
the testimony of the witness cannot be
considered as complete and may not be allowed
to form part of the evidence to be considered by
the court in deciding the case. However, the right
to cross-examine is a personal one which may be
waived expressly or impliedly by conduct
amounting to a renunciation of the said right. In
this case, the testimony of the last witness was
never finished. However, the court permitted the
testimony anyway because the petitioners’ failure
to cross-examine was due to its own repeated
postponing of the cross-examination and failure
to appear at hearings. (De la Paz v. IAC, G.R. No.
71537, 1987)
The right is a personal one which may be waived
expressly or impliedly by conduct amounting to a
renunciation of the right of cross-examination.
Thus, where a party has had the opportunity to
cross-examine a witness but failed to avail
himself/herself of it, he/she necessarily forfeits
the right to cross-examine and the testimony
given on direct examination of the witness will be
received or allowed to remain in the record.
(Fulgado v. CA, G.R. No. L-61570, 1990)
Effects of death or absence of a witness
1. Dies before his cross examination is over
If the witness dies before his cross-
examination is completed, 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
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already been sufficiently cross-examined, and
the matter on which the cross-examination is
sought is not in controversy. (People v.
Señeris, G.R. No. L-48883, 1980)
2. Witness not cross-examined.
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 examination,
the direct testimony of 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
witness. (De la Paz v. IAC, G.R. No. 71537,
1987)
RE-DIRECT EXAMINATION
It is the further examination by a party of his/her
own witness after cross-examination.
Scope of Re-direct Examination
Matters dealt with during the cross-examination.
Other matters may be allowed by the court in its
discretion.
Purpose
To allow the witness to explain or supplement his
answers given during the cross-examination.
The counsel may elicit testimony to correct or
repeal 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.
(Riano, Evidence, 370)
RE-CROSS EXAMINATION
It is the examination of a witness (who has
finished his/her examination-in-chief, cross-
examination, and re-direct examination) by the
counsel who cross-examined.
Scope of Re-cross Examination
Matters stated in the re-direct examination.
However, other matters may be allowed by the
court in its discretion
REMEDIAL LAW
RECALLING WITNESS
After the examination of a witness by both sides
has been concluded, the witness cannot be
recalled without leave of the court.
The court will grant or withhold leave in its
discretion, as the interests of justice may require.
Purpose
For the witness to correct or explain his/her prior
testimony.
Witnesses may also be recalled after they have
left the stand to lay the proper foundation for
impeachment but this is within the discretion of
the court.
Section 9, Rule 132 of the Rules of Court
explicitly provides that the court may grant or
withhold leave to recall a witness, in its discretion,
as the interest of justice may require. The record
is loaded with circumstances tending to show
insidious attempts to tamper with the witnesses
for the prosecution. It was the better part of
discretion and caution on the part of the trial court
to have denied as it did, the request of the
defense to recall Ceribo. (People v. Del Castillo,
G.R. No. L-16941, 1968)
c. Leading and misleading questions
LEADING QUESTION
It is a question which suggests to the witness the
answer which the examining party desires.
It is not allowed, EXCEPT:
1. On cross-examination;
2. On preliminary matters;
3. When there is difficulty in getting direct and
intelligible answers from a witness who is
ignorant, or a child of tender years, or is of
feeble mind, or a deaf-mute;
4. Of an unwilling or hostile witness; or
5. Of a witness who is [i] an adverse party or [ii]
an officer, director, or managing agent of a
public or private corporation or of a
partnership or association which is an adverse
party. (Rule 132, Sec. 10)
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Generally, leading questions are not allowed in
direct examination and should be confined to
cross-examination save for the exceptions
aforementioned.
However, some leading questions were
warranted given the circumstances. A child of
tender years may be asked leading questions
under Section 10I, Rule 132 of the Rules of Court.
Section 20 of the 2000 Rule on Examination of a
Child Witness also provides that the court may
allow leading questions in all stages of
examination of a child if the same will further the
interests of justice. This rule was formulated to
allow children to give reliable and complete
evidence, minimize trauma to children,
encourage them to testify in legal proceedings
and facilitate the ascertainment of truth. (People
v. Ilogon, G.R. No. 206294, 2016)
MISLEADING QUESTION
It is one which assumes as true a fact [i] not yet
testified to by the witness, or [ii] contrary to that
which he or she has previously stated. It is not
allowed. (Rule 132, Sec. 10)
Test Whether Question Leading or Misleading
The test whether a question is leading or not is
the suggestiveness of its substance and not the
form of the question. If the question suggests the
answer desired by putting words into the mouth
of the witness, it is leading.
The principal test to a leading question is: Does it
suggest the answer desired? In order to elicit the
facts, a trial lawyer may find it necessary to direct
the attention of the witness to the specific matter
concerning which his testimony is desired, and if
the question does not suggest the answer, it is
not leading. Even though the question may call
for a “yes” or “no” answer, it is not leading for that
reason unless it is so worded that by permitting
the witness to answer the “yes” or “no,” he would
be testifying in the language of the interrogator
rather than his own. Nevertheless, such a
question may become leading, insofar as it
rehearses lengthy details, which the witness
might not otherwise have mentioned and thus
supplies him with full suggestions which he
REMEDIAL LAW
incorporates without any effort, by the simple
answer, “I did” or “I did not.” Thus, the question
may or may not be improper according to the
amount of palpably suggestive detail which it
embodies. (State v. Scott, 149 P.2d 152, 1944)
d. Impeachment of witness
To impeach a witness means to call into question
the veracity of the witness or by showing that the
witness is unworthy of belief.
Destroying credibility is vital because it is linked
with a witness’s ability and willingness to tell the
truth. (Riano, Evidence, 373)
i. Adverse party’s witness
The Adverse Party’s Witness May be
Impeached By:
1. Contradictory evidence;
2. Evidence that his or her general reputation for
truth, honesty, or integrity is bad
3. Evidence that he/she has made at other times
statements inconsistent with his/her present
testimony. (PRIOR INCONSISTENT
STATEMENTS)
General Rule: The adverse party’s witness
cannot be impeached by evidence of particular
wrongful acts.
For example, a lawyer for the other party cannot
ask a witness the following question on cross-
examination: “Isn’t it a fact that you shoplifted one
week ago?”
Exception: It may be shown by the examination
of the witness or the record of the judgment that
the adverse party’s witness has been convicted
of an offense.
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he saw a man with a 5’3 frame and oriental

CONTRADICTORY PRIOR features exit the burglarized store. Witness A
EVIDENCE INCONSISTENT would confirm this. The defense counsel would
STATEMENTS then bring up witness A’s statement to the police
that he could not provide the description of the
Contradictory Prior inconsistent man who came out because he was wearing a
evidence normally is statements are mask and was wearing dark sleeves shirt. The
sourced in a statements made by a witness then is faced to respond whether he
declaration made by witness on an earlier denies or admits the same. If he admits it, then
the witness in his occasion which he should explain, and if he denies, then the
direct testimony which contradict the defense counsel may simple bring in the police
does not correspond statements he later officer to whom witness A made his prior
to the real facts of the made during the trial inconsistent statement.
case (Riano, p. 260) (Riano, p. 262) Impeachment by bad reputation
…witnesses have
given conflicting When a witness testifies, he puts his credibility at
testimonies, which are issue because the weight of his testimony
inconsistent with their depends upon his credibility. One way to impair
present testimony and his credibility is by showing a not so pleasing
which would reputation.
accordingly cast a
doubt on their But not every aspect of a person’s reputation may
credibility. (Villalon v. be the subject of impeachment. Evidence of bad
IAC, G.R. No. 73751, reputation should only refer to the following
1986) specific aspects:
1. For truth
2. For honesty
Example of contradictory evidence v. prior 3. For integrity
inconsistent statements:
These are aspects of a person’s reputation that
Contradictory evidence are relevant to his credibility. He cannot be
impeached for his reputation on any other
grounds. (Riano, p. 267)
Witness A testifies on direct examination that he
was barely 5 meters away from where the
accused D shot victim V. The defense counsel Sec. 11 talks about a witness’s reputation and not
his character. A witness is not allowed to be
has reliable information that at the time the
shooting took place, witness A was standing as a impeached by evidence of bad character but by
witness in a wedding of his friend, witness B, in a bad reputation.
place a hundred miles away. When the defense
“Character” is made up of the things an individual
counsel asks witness A as to his direct testimony
of being within 5 meters away from the accused is and does
when the shooting happened, witness A would
say yes. The defense counsel would then call “Reputation” is what people think an individual is
witness B to provide information that witness A and what they say about him
was in his wedding at said time.
ii. By evidence of conviction of crime
Prior inconsistent statements
For the purpose of impeaching a witness,
In a robbery case, witness A stands in trial as the evidence that he or she has been convicted by
final judgement of a crime shall be admitted if:
prosecution witness. The defense counsel asks
him to confirm his direct examination stating that
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1. The crime was punishable by a penalty in
excess of 1 year; or
2. The crime involved moral turpitude,
regardless of the penalty
However, evidence of a conviction is not
admissible if the conviction has been the subject
of an amnesty or annulment of the conviction
(Rule 132, Sec. 12)
iii. Own witness
General Rule: A party producing a witness is not
allowed to impeach his/her own witness’s
credibility.
Exceptions:
1. If the witness has become an unwilling or
hostile witness.
2. If the witness is [a] an adverse party or [b] an
officer, director or managing agent of a public
or private corporation or of a partnership or
association which is an adverse party (Rule
132, Sec. 13)
3. If the witness is not voluntarily offered but is
required by law to be presented by the
proponent, as in the case of subscribing
witnesses to a will (Fernandez v. Tantoco,
G.R. No. 25489, 1926)
A witness may be considered as unwilling or
hostile only if so declared by the court upon
adequate showing of his or her adverse interest,
unjustified reluctance to testify or his or her
having misled the party into calling him or her to
the witness stand. (Rule 132, Sec. 13)
A party can impeach his or her own witness
only by:
1. Evidence contradictory to witness’s testimony;
or
2. Evidence of prior inconsistent statements of
the witness.
Note: The rule provides that the unwilling or
hostile witness or adverse party may be
impeached in the same manner as if he or she
was an adverse party witness, except by
evidence of his or her bad character.
REMEDIAL LAW
But, where the witness is an unwilling or hostile
witness so declared by the court or is an adverse
party witness, the cross-examination shall only be
on the subject matter of his examination-in-chief.
(Rule 132, Sec. 13)
iv. How the witness is impeached by evidence
of inconsistent statements
General Rule: A witness cannot be impeached
by proof of inconsistent statements until the
proper foundation or predicate has been laid.
Exception: Failure to lay a proper foundation
may be waived by the failure of the adverse party
to object in proper form to the alleged inconsistent
statement.
A Witness is Impeached by Prior Inconsistent
Statements by “Laying the Predicate”:
1. By relating to him or her such statements with
the circumstances of the times and places
and the persons present.
2. By asking him or her whether he made such
statements
3. By giving him or her a chance to explain the
inconsistency.
4. If the statements be in writing, they must be
shown to the witness before any question is
put to him or her concerning them. (Rule 132,
Sec. 14)
Unless the witness is given the opportunity to
explain the discrepancies, the impeachment is
incomplete. However, such defect can be waived
if no objection is raised when the document
involved is offered for admission. (Regalado,
Evidence, 852)
The “Laying the Predicate” Rule Does NOT
Apply:
1. If the prior inconsistent statement appears in
a deposition of the adverse party, and not a
mere witness, as such statements are in the
nature of admissions of said adverse party.
(Regalado, Evidence, 852)
2. Where the previous statements of a witness
are offered as evidence of an admission, and
not merely to impeach him. (Regalado,
Evidence, 852 citing Juan Ysmael & Co., Inc,
v. Hashim, et. al., G.R. No. L-26247)
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e. Referral of witness to a memorandum
A witness may be allowed to refresh his or her
memory respecting a fact, by anything written or
recorded by himself or herself, or under his or her
direction at the time when the fact occurred, or
immediately thereafter, or at any time when the
fact was fresh in his or her memory and he or she
knew that the same was correctly written or
recorded; but in such the case the writing or
record must be produced and may be inspected
by the adverse party, who may, if he or she
chooses, cross-examine the witness upon it, and
may read it in evidence.
A witness may also testify from such writing or
record, although he or she retains no recollection
of the particular facts, if he or she is able to swear
that the writing or record correctly stated the
transaction when made; but such evidence must
be received with caution (Rule 132, Sec. 16)
PRESENT
PAST RECOLLECTION
RECOLLECTION
RECORDED
REFRESHED
Stimulus attempts to Where the witness cannot
revive current recall the incident but a
memory — written record adopted by
document need not witness at the time is
be admitted into admitted in place of
evidence because witness’s testimony — the
the testimony is the document is the evidence
evidence itself
f. Examination of a child witness
i. Applicability of the rule
Unless otherwise provided, this Rule shall govern
the examination of child witnesses who are
victims of crime, accused of a crime, and
witnesses to crime.
It shall apply in all criminal proceedings and
non-criminal proceedings involving child
witnesses. (Sec. 1, A.M. 004-07 SC; the Rule on
Examination of a Child Witness)
REMEDIAL LAW
ii. Meaning of “child witness”
A “child witness” is any person who at the time
of giving testimony is below the age of eighteen
(18) years.
Note: In child abuse cases, a child includes one
over eighteen (18) years but is found by the
court as unable to fully take care of himself or
protect himself from abuse, neglect, cruelty,
exploitation, or discrimination because of a
physical or mental disability or condition.
iii. Competency of a child witness
Every child is presumed qualified to be a witness
(Sec. 6, A.M. 004-07 SC). Thus the burden of
proof lies on the party challenging his
competence.
Youth and immaturity are badges of truth and
sincerity. (People v. Entrampas, G.R. No.
212161, 2017)
When the court finds that substantial doubt exists
regarding the ability of the child to perceive,
remember, communicate, distinguish truth from
falsehood, or appreciate the duty to tell the truth
to the court, the court shall conduct a competency
examination of the child. The court may do so
motu proprio or on motion of the party (Riano,
citing Sec. 6 of the Rule on Examination of a Child
Witness)
A party seeking a competency examination must
present proof of necessity of 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. (Riano,
citing Sec. 6[a] of the Rule on Examination of a
Child Witness)
The competency examination of a child witness is
not open to the public and only the following are
allowed to attend a competency examination:
1. The judge and necessary court personnel;
2. The counsel for the parties;
3. The guardian ad litem;
4. One or more support persons for the child; and
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5. The defendant, unless the court determines
that competence can be fully evaluated in his
absence. (Sec. 6[c] of the Rule on
Examination of a Child Witness)
The conduct of the examination of a child as to
his competence shall be conducted only by the
judge. Counsel for the parties may not do so
directly, but instead can submit questions to the
judge that he may, in his discretion, ask the child
(Sec. 6[d] of the Rule on Examination of a Child
Witness)
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 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] of the Rule on Examination
of a Child Witness)
iv. Examination of a child witness
The examination of a child witness presented in a
hearing or any proceeding shall be done in open
court.
Unless the witness is incapacitated to speak, or
the question calls for a different mode of answer,
the answers of the witness shall be given orally.
(Sec. 8 of the Rule on Examination of a Child
Witness)
When a child testifies, the court may order the
exclusion from the courtroom of all 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, 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.
REMEDIAL LAW
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
of the Rule on Examination of a Child Witness)
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 of the
Rule on Examination of a Child Witness)
When a child does not understand the English or
Filipino language or is unable to communicate in
said languages due to his developmental level,
fear, shyness, disability, or other similar reason,
an interpreter whom the child can understand and
who understands the child may be appointed by
the court, motu proprio or upon motion, to
interpret for the child. 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
though is also a witness, he shall testify ahead of
the child (Sec. 9 of the Rule on Examination of a
Child Witness)
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. If the court appoints a
facilitator, questions to the child are posed only
through the facilitator. (Sec. 10 of the Rule on
Examination of a Child Witness)
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 person not to prompt, sway, or influence
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the child during his testimony. (Sec. 11(a) of the
Rule on Examination of a Child Witness)
The support person may be another witness but
the court may disapprove the choice if it is
sufficiently established that the attendance of the
support person would pose a substantial risk of
influencing or affecting the content of the
testimony of the child. If the support person is
also a witness, he shall testify ahead of the child
(Sec. 11(b) and (c) of the Rule on Examination of
a Child Witness)
v. Live-link TV testimony of a child witness
The prosecutor, counsel or the guardian ad litem
may apply for an order that the testimony of the
child be taken in a room outside the courtroom
and be televised to the courtroom by live-link
television. The application has to be made at
least 5 days before trial date. (Sec. 25(a) of the
Rule on Examination of a Child Witness)
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 completeness or truthfulness of
the testimony of the child (Sec. 25(f) of the Rule
on Examination of a Child Witness)
If the child is testifying by live-link television and
it is necessary to identify the accused at the 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 the image of
the latter on a television monitor. (Sec. 25(g)(3)
of the Rule on Examination of a Child Witness)
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
shall be subject to a protective order as provided
in section 31(b). (Sec. 25(h) of the Rule on
Examination of a Child Witness)
REMEDIAL LAW
vi. Videotaped deposition of a child witness
The prosecutor, counsel, or guardian ad litem
may apply for an order that a deposition be taken
of the testimony of the child and that it be
recorded and preserved on videotape
If the court finds that the child will not be able to
testify in open court at trial, it shall issue an order
that the deposition of the child be taken and
preserved by videotape. The judge shall preside
at the videotaped deposition of a child. Objections
to deposition testimony or evidence, or parts
thereof, and the grounds for the objection shall be
stated and shall be ruled upon at the time of the
taking of the deposition.
The rights of the accused during trial, especially
the right to counsel and to confront and cross-
examine the child, shall not be violated during the
deposition
The videotaped deposition shall be preserved
and stenographically recorded. The videotape
and the stenographic notes shall be transmitted
to the clerk of the court where the case is pending
for safekeeping and shall be made a part of the
record. The videotaped deposition and
stenographic notes shall be subject to a
protective order as provided in section 31(b).
If, at the time of trial, the court finds that the child
is unable to testify for a reason stated in section
25(f) of this Rule, or is unavailable for any reason
described in section 4(c), Rule 23 of the 1997
Rules of Civil Procedure, the court may admit into
evidence the videotaped deposition of the child in
lieu of his testimony at the trial. The court shall
issue an order stating the reasons therefor. (Sec.
27 of the Rule on Examination of a Child Witness)
vii. Hearsay exception in child abuse cases
A statement made by a child describing any act
or attempted act of child abuse, not otherwise
admissible under the hearsay rule, may be
admitted in evidence in any criminal or non-
criminal proceeding subject to the following rules:
(a) Before such hearsay statement may be
admitted, its proponent shall make known to
the adverse party the intention to offer such
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statement and its particulars to provide him a
fair opportunity to object.
If the child is available, the court shall, upon
motion of the adverse party, require the child
to be present at the presentation of the
hearsay statement for cross-examination by
the adverse party.
When the child is unavailable, the fact of such
circumstance must be proved by the
proponent and his hearsay testimony shall be
admitted only if corroborated by other
admissible evidence.
(b) In ruling on the admissibility of such hearsay
statement, the court shall consider the time,
content and circumstances thereof which
provide sufficient indicia of reliability. Factors
to be considered:
a. Whether there is a motive to lie
b. The general character of the declarant
child
c. Whether more than one person heard the
statement
d. Whether the statement was spontaneous
e. The timing of the statement and the
relationship between the declarant child
and witness
f. Cross-examination could not show the lack
of knowledge of the declarant child
g. The possibility of faulty recollection of the
declarant child is remote
h. The circumstances surrounding the
statement are such that there is no reason
to suppose the declarant child
misrepresented the involvement of the
accused
(c) The child witness shall be considered
unavailable under the following situations:
a. Is deceased, suffers from physical
infirmity, lack of memory, mental illness, or
will be exposed to severe psychological
injury; or
b. Is absent from the hearing and the
proponent of his statement has been
unable to procure his attendance by
process or other reasonable means (Sec.
28 of the Rule on Examination of a Child
Witness)
REMEDIAL LAW
viii. Sexual abuse shield rule
General Rule: The following evidence is not
admissible in any criminal proceeding involving
alleged sexual child abuse:
a. Evidence offered to prove that the alleged
victim engaged in other sexual behavior; and
b. Evidence offered to prove the sexual
predisposition of the alleged victim
Exception: Evidence of specific instances of
sexual behavior by the alleged victim to prove
that a person, other than the accused, was the
source of the semen, injury, or other physical
evidence (This is admissible) (Sec. 30 of the Rule
on Examination of a Child Witness)
ix. Protective orders
Any videotape or audiotape of a child that is part
of the court record shall be under a protective
order that provides as follows:
(a) Tapes may be viewed only by parties, their
counsel, their expert witness, and the
guardian ad litem. None of these people may
divulge the tapes or any portion thereof to any
other person, except as necessary for the trial
nor shall they be given, loaned, sold or shown
to any other person except by order of the
court
(b) No person shall be granted access to the tape,
its transcription or any part thereof unless he
signs a written affirmation that he has received
and read a copy of the protective order; that
he submits to the jurisdiction of the court with
respect to the protective order; and that in
case of violation thereof, he will be subject to
the contempt power of the court.
(c) Within thirty (30) days from receipt, all copies
of the tape and any transcripts thereof shall be
returned to the clerk of court for safekeeping
unless the period is extended by the court on
motion of a party.
(d) This protective order shall remain in full force
and effect until further order of the court.
(e) Each of the tape cassettes and transcripts
thereof made available to the parties, their
counsel, and respective agents shall bear a
cautionary notice stating the provisions of this
section.
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Whoever publishes or causes to be published in ADMISSION

any format the name, address, telephone
number, school, or other identifying information of Refers to a voluntary acknowledgement, in
a child who is or is alleged to be a victim or express terms or by implication, by a party in
accused of a crime or a witness thereof, or an interest or by another by whose statement he is
immediate family of the child shall be liable to the legally bound, against his interest, of the
contempt power of the court. existence or truth of a fact in dispute material to
the issue. In other words, it is an
Where a youthful offender has been charged acknowledgement of fact/s opposite to the fact/s
before any city or provincial prosecutor or before raised or positions taken in court.
any municipal judge and the charges have been
ordered dropped, all the records of the case shall When is an admission admissible? It must:
be considered as privileged and may not be 1. Involve matters of fact, and not of law;
disclosed directly or indirectly to anyone for any 2. Be categorical and definite;
purpose whatsoever. If he is charged and 3. Be knowingly and voluntarily made; and
acquitted or the case is dismissed, the records 4. Be adverse to the admitter’s interests
are also privileged.
Otherwise: it would be self-serving and
The youthful offender concerned shall not be held inadmissible
under any provision of law to be guilty of perjury
or of concealment or misrepresentation by reason Two Types of Admissions:
of his failure to acknowledge the case or recite 1. JUDICIAL ADMISSION - one made in a
any fact related thereto in response to any inquiry judicial proceeding under consideration.
made to him for any purpose. (Sec. 31 of the Rule 2. EXTRAJUDICIAL ADMISSION - one made
on Examination of a Child Witness) out of court or in a judicial proceeding other
than the one under consideration.
4. ADMISSIONS AND CONFESSIONS JUDICIAL EXTRAJUDICIAL
ADMISSION ADMISSION
a. Admission by a party
Rule 129, Sec. 4 Rule 130, Sec. 27
Rule on Admissions by a party
Made in course of the
The act, declaration, or omission of a party as to Out-of-court
proceedings in the
a relevant fact may be given in evidence against declaration
same case
him. (Rule 130, Sec. 27)
Does not require
Requires proof; must
Example: After a murder, accused goes to his proof; deemed
be formally offered in
neighbor and tells her, “Nakapatay ako”. His automatically part of
evidence
neighbor can testify on this fact in a murder case the record
against the accused. The admission may be
given in evidence against the accused. Conclusive upon the
admitter
The admissions of the president of a company as
to its indebtedness are binding on the company BUT may be
contradicted by
under the rule that admissions of liability by a
showing that: Rebuttable
party may be given against it. (Keller & Co. v. a. It was made
COB, G.R. No. L-68097, 1986) through palpable
mistake
Reason b. The imputed
Based on presumption that no man would declare admission was
anything against himself unless such not, in fact, made
declarations were true.
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Admissible, even if it Admissible, only if it is
is a self-serving not a self-serving
declaration declaration
Two (2) Ways to Introduce an Admission as
Evidence:
1. As INDEPENDENT EVIDENCE
2. As IMPEACHING EVIDENCE
SELF-SERVING DECLARATIONS
Unsworn statements made by the declarant out
of court and which are favorable to his interests.
But if the declarant takes the stand to testify and
be cross-examined, then it is not self-serving.
Example: Accused tells neighbor that:
“Nakapatay yung barkada namin pero wala
akong kinalaman.” Later on, accused cannot
have his neighbor testify in court and say that
Accused went to him and said that he had nothing
to do with the killing. Accused’s statement to the
neighbor is self-serving because it was given out
of court and it served his interest.
Accused may, however, take the stand and
explain why he has nothing to do with the killing.
General Rule: Self-serving declarations are not
admissible.
Exceptions:
1. Diaries, if it is against interest, or if it is in the
nature of books of accounts. Letters prepared
not in anticipation of litigation are not
considered self-serving declarations.
2. Part of the res gestae, which covers
spontaneous statements and verbal acts.
3. When in the form of complaint and
exclamations of pain and suffering.
4. When part of a confession offered by the
prosecution. (such as those favorable to the
accused, e.g., I shot him because he was
going to stab me.)
5. When the credibility of a party has been
assailed on the ground that his testimony is a
recent fabrication.
6. When offered by the opponent.
7. When offered without objection or there is
waiver.
REMEDIAL LAW
Reason for exclusion of self-serving
declarations
1. The inherent untrustworthiness of the
declarations.
2. Allowance would open the door to fraud and
fabrication of testimony.
3. If testified by one other than the defendant,
such declarations would be hearsay.
b. Res inter alios acta rule
This rule refers to the maxim, “res inter alios acta
alteri nocere non debet,” which means, “A thing
done among some persons ought not to do harm
to another.” (Regalado, 2008 ed.)
Reason for Res Inter Alios Acta rule
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. It would not only be inconvenient,
but also manifestly unjust, that a man should be
bound by the acts of mere unauthorized
strangers; and that 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.
(People v. Raquel, G.R. No. 119005, 1996)
Two branches of the res inter alios acta rule
1. The rights of a party cannot be prejudiced by
an act, declaration, or omission of another
(Rule 130, Sec. 29)
2. Similar Acts Rule: Evidence of one’s previous
conduct or similar acts at one time is not
admissible to prove that he did or did not do
the same or a similar act at another time (Rule
130, Sec. 35)
This rule only applies to extrajudicial declarations
(People v. Raquel, G.R. No. 119006, 2006)
Exceptions to the res inter alios acta rule (1st
Branch):
1. Admission by a Co-Partner or Agent (Rule
130, Sec. 30);
2. Admission by a Co-Conspirator (Rule 130,
Sec. 31);
3. Admission by Privies (Rule 130, Sec. 32);
4. Admission by Silence (Rule 130, Sec. 33; see
Tan Siok Kuan v. Returta, G.R. No. 175085,
2016, J. Perez); and
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5. Interlocking Confessions (People v. Muit, G.R.
No. 181043, 2008)
In a case, petitioners failed to establish that the
defendants’ alleged implied admission of a
lessor-lessee relationship falls under the
exceptions to the principle of res inter alios acta
as to make such admission binding upon
respondents. Although defendants and
respondents were all defendants in the
complaints for unlawful detainer filed by
petitioners, it is very clear that defendants and
respondents espoused different defenses.
Contrary to defendants’ position, respondents, as
early as the filing of their response to petitioners'
demand letter, firmly and consistently denied the
existence of any lease contract between them
and petitioners over the subject land. (Tan Siok
Kuan v. Returta, G.R. No. 175085, 2016)
Additional Exception
Statements made by an employee against his
employer are admissible against the latter, where
the statements while in employ and where they
concerned a matter within the scope of his
employment. (Mahlandt v. Wild Canid Survival &
Research Center, 588 F.2d 626, 8th Cir. 1978)
Inadmissibility of Extrajudicial Declaration of
Accused
As a general rule, the extrajudicial declaration of
an accused, although deliberately made, is not
admissible and does not have probative value
against his co-accused. It is merely hearsay
evidence as far as the other accused are
concerned. (People v. Alegre, G.R. No. L-30423,
1979)
The rights of an accused cannot be prejudiced by
the extra-judicial declarations of another person.
(People v. Raquel, G.R. No. 119006, 1996)
c. Admission by a third party
Rule on Admissions by a third party (Res Inter
Alios Acta)
The rights of a party cannot be prejudiced by an
act, declaration, or omission of another, except as
hereinafter provided. (Rule 130, Sec. 29)
REMEDIAL LAW
Example: After a murder, Accused goes to his
neighbor and tells her, “Napatay namin ni Jose si
Juan”. His neighbor can testify on this fact in a
murder case against Accused; the declaration
may be given in evidence as an admission only
against Accused. It is not admissible against
Jose.
HOWEVER: If the Accused testifies and explains
the participation of Jose, then the testimony is
admissible against Jose.
NOTE: Sec. 28 [now Sec. 29], Rule 130 refers to
the first branch of the res inter alios acta rule. The
second branch can be found in Sec. 35, Rule
130—similar acts as evidence. (Regalado 2008
ed., 758)
d. Admission by a co-partner or agent
The act or declaration of a partner or agent of
the party may be given in evidence against his
co-partner or agent provided that the
following requisites are present:
1. That the partnership or agency be previously
proven by evidence other than the admission
itself.
2. The act or declaration refers to a matter
within the scope of his authority or the partner
or agent was authorized by the party to make
a statement concerning the subject
3. The act or declaration was made during the
existence of the partnership or agency. (Rule
130, Sec. 30)
Reason
Identity of interests between the co-partners or
agents.
Proving the Partnership, Agency, or Joint
Ownership
1. Entries in the partnership books made by one
partner during the continuance of the
partnership;
2. By the separate admissions of all who are
sued;
3. By the acts, declarations, or conduct of the
parties; or
4. The act of one and the declarations or
conduct of the others
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The same rule applies to the act or declaration
of a joint owner, joint debtor, or other person
jointly interested with the party.
1. There exists a joint interest between the joint
owner, joint debtor, or other person jointly
interested with the party;
2. The existence of the joint interest must first
be made to appear by evidence other than
the act or declaration itself;
3. The act or declaration was made while the
interest was subsisting; and
4. The act relates to the subject matter of the
joint interest (Rule 130, Sec. 30)
e. Admission by a conspirator
The act or declaration of a conspirator may be
given in evidence against the co-conspirator
provided the following requisites are present:
1. That the conspiracy be first proved by
evidence other than the act or declaration
itself.
2. That the act or declaration was in furtherance
of the conspiracy.
3. That the act or declaration was made during
the existence of the conspiracy. (Rule 130,
Sec. 31)
In the example above, the utterance of the
Accused that “Napatay namin ni Jose si Juan”
was made after the conspiracy. Hence, the out
of court statement to the neighbor is not binding
on Jose. However, as stated, if the Accused
testifies and points to Jose as responsible for the
death of Juan, his testimony would be admissible
against Jose.
Reason
Identity of interests for the commission of a crime.
Scope
This rule applies only to extrajudicial acts or
declaration but NOT to testimony at the trial
where the defendant has the opportunity to cross-
examine the declarant. (People v. Janjalani, G.R.
No. 188314, 2011)
If the declaration is made after the act designed
is fully accomplished and after the object of the
conspiracy has been either attained or finally
defeated, the declaration will be admissible only
REMEDIAL LAW
against the person who made it. (People v. Yatco,
G.R. No. L-9181, 1955)
In the absence of any other evidence to prove the
existence of an alleged conspiracy, extra-judicial
statements and admissions of an individual
cannot be taken as evidence against an alleged
co-conspirator. An extrajudicial statement made
by a co-accused is, by itself, insufficient to convict
an accused of a crime charged because said
statement is inadmissible since they were made
not during the existence of the conspiracy but
after the said conspiracy had already ceased and
when the co-accused was already in the custody
of the police. (People vs. Cabrera, G.R. No. L-
37398, 1974)
The admissibility of a confession by one accused
against the other in the same case, must relate to
statements made by one conspirator during the
pendency of the unlawful enterprise (or during its
existence) and in furtherance of its objects, and
not to a confession made, as in this case, long
after the conspiracy had been brought to an end.
(People v. Chaw Yaw Shun, G.R. No. L-19590,
1968)
The testimony of a witness must be considered
and calibrated in its entirety and not by truncated
portions thereof or isolated passages therein. It is
perfectly reasonable to believe the testimony of a
witness with respect to some facts and disbelieve
it with respect to other facts, as there is hardly a
witness who can perfectly remember the details
of a crime. (People v. Bulan, G.R. No. 143404,
2005)
f. Admission by privies
Privies
Denotes not only the idea of succession in right
of heirship or testamentary legacy but also
succession by virtue of acts inter vivos as by
assignment, subrogation or purchase – in fact
any act whereby the successor is substituted in
the place of the predecessor in interest. The
purchaser at an execution sale is a privy of the
execution debtor. (Alpuerto v. Pastor, G.R. No. L-
12794, 1918)
General Rule: In order for an admission of a
former owner of property to be admissible against
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his successor in title, it must have been made at interested, and calling, naturally, for an
the time when the title was still held by the answer;
declarant. (Rule 130, Sec. 33) 4. The facts were within his knowledge; and
5. The fact admitted or the inference to be
Exception: The declaration made subsequent to drawn from his silence would be material to
the transfer of the property shall be admissible: the issue. (People v. Paragsa, G.R. No. L-
1. Where the declaration was made in the 44060, 1978)
presence of the transferee and he acquiesces
in the statements or asserts no rights where Silence of an Accused Under Custodial
he ought to speak. (Rule 130, Sec. 33) Investigation
2. Where the evidence establishes a continuing The silence of an accused under custody, or his
conspiracy to defraud which conspiracy exists failure to deny statements by another implicating
between the vendor and the vendee. (Rule him in a crime, especially when such accused is
130, Sec. 31) not asked to comment or reply to such
implications or accusations, cannot be
The act of a predecessor is not binding on the considered as a tacit confession of his
successor if the acts/declarations made by the participation in the commission of the crime.
predecessor acknowledging ownership or (People v. Alegre, G.R. No. L-30423, 1979)
offering to purchase the property from a third
party were made before the predecessor held title h. Confessions
to the land. (City of Manila v. Del Rosario, G.R.
No. 1284, 1905) Confession
A categorical acknowledgment of guilt made by
g. Admission by silence an accused in a criminal case, without any
exculpatory statement or explanation. (Regalado
An act or declaration made in the presence and 2008 ed.)
within the hearing or observation of a party who
does or says nothing when the act or declaration A confession is an acknowledgement in express
is such as naturally to call for action or comment terms, by a party in a criminal case, of his guilt of
if not true, and when proper and possible for him the crime charged, while an admission is a
to do so, may be given in evidence against him or statement by the accused, direct or implied, of
her. (Rule 130, Sec. 33) facts pertinent to the issue and tending, in
connection with proof of other facts, to prove his
Reason guilt. (People v. Maqueda, G.R. No. 112983,
Based on common experience and natural 1995)
human behavior. ADMISSION CONFESSION
A statement of fact Involves an
Applicability to Criminal Cases which does not acknowledgement of
The rule allowing silence of a person to be taken involve an guilt or liability
as an implied admission of the truth of the acknowledgement of
statements uttered in his presence is applicable guilt or liability
in criminal cases. (People v. Paragsa, G.R. No. May be express or Must be express
L-44060, 1978) tacit
May be made by third Can be made only by
But Before the Silence of a Party can be Taken persons and, in the party himself and,
as an Admission of What is Said, it Must certain cases, are in some instances,
Appear that: admissible against a are admissible
1. He heard and understood the statement; party (see Rule 130, against his co-
2. He was at liberty to interpose a denial; Sec. 40, on accused (e.g.,
3. The statement was in respect to some matter declarations against interlocking
affecting his rights or in which he was then interest) confessions)

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In a confession, there is an acknowledgment of
guilt. On the other hand, the term admission is
usually applied in criminal cases to statements of
fact by the accused which do not directly involve
an acknowledgment of his guilt or of the criminal
intent to commit the offense charged. The rights
of an accused are not confined to the period prior
to the filing of an information but are available at
that stage when a person is under investigation
for the commission of an offense.
These rights are available to a person at any time
before arraignment whenever he is investigated
for the commission of an offense. (People v.
Maqueda, G.R. No. 112983, 1995)
A Confession May be
1. Judicial Confession:
One made before a court in which the case is
pending and in the course of legal
proceedings therein and, by itself, can sustain
a conviction in capital offenses.
This is admissible against the declarant’s co-
accused since the latter are afforded the
opportunity to cross-examine.
2. Extra-Judicial Confession:
One made in any other place or occasion and
cannot sustain a conviction unless
corroborated by evidence of the corpus delicti.
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. (Riano 2016 ed.)
Note: The important thing is the affected party
(i.e., co-accused) was given the opportunity to
cross-examine. It is irrelevant whether such party
actually cross-examined the confessant.
Where an extrajudicial admission or confession is
repeated during trial and the other accused is
accorded the opportunity to cross-examine the
admitter, such admission or confession is
transposed into a judicial admission or
confession. (People v. Buntag, G.R. No. 123070,
2004)
REMEDIAL LAW
Admissibility of Extra-judicial Confessions
To be admissible, it is necessary that:
1. The confession must involve an express and
categorical acknowledgement of guilt.
2. The facts admitted must be constitutive of a
criminal offense.
3. The confession must have been given
voluntarily.
4. The confession must have been intelligently
made, the accused realizing the importance
or legal significance of his act.
5. There must have been no violation of Section
12, Art. III of the 1987 Constitution.
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
priests or minister of the gospel as chose by him;
otherwise, such extrajudicial confession shall be
inadmissible as evidence in any proceeding. (Bar
2006; 2008)
A confession made before the confessant is
placed under custodial investigation need not
comply with the above. (Riano, 2016 ed.)
The silence of an accused under custody, or his
failure to deny statements by another implicating
him in a crime, especially when such accused is
neither asked to comment nor reply to such
implications or accusations, cannot be
considered as a tacit confession of his
participation in the commission of the crime.
Such an inference of acquiescence drawn from
his silence or failure to deny the statement would
appear incompatible with the right of an accused
against self-incrimination. xxx While an accused
is in custody, his silence may not be taken in
evidence against him as he has a right to remain
silent. His silence when in custody may not be
used as evidence against him, otherwise, his right
of silence would be illusory. (People v. Alegre,
G.R. No. L-30423, 1979)
Admissions obtained during custodial
interrogations without the benefit of counsel
although later reduced to writing and signed in the
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presence of counsel are flawed under the
Constitution and as such cannot be admitted in
Court. (People v. Compil, G.R. No. 95028, 1995)
Any confession, including a re-enactment without
admonition of the right to silence and to counsel,
and without counsel chosen by the accused is
inadmissible in evidence. (People v. Yip Wai
Ming, G.R. No. 120959, 1996)
General Rule: The extrajudicial confession of an
accused is binding only upon himself and is not
admissible against his co-accused.
Exceptions:
1. If the co-accused impliedly acquiesced in or
adopted the confession by not questioning its
truthfulness, as where it was made in his
presence and he did not remonstrate against
his being implicated by it;
2. If the co-accused persons voluntarily and
independently executed identical
confessions without conclusions;
Confessions corroborated by other evidence
and without contradiction by the co-accused
who was present (INTERLOCKING
CONFESSIONS)
The rule that an extrajudicial statement is
evidence only against the person making it, also
recognizes various exceptions. One such
exception worth noting is the rule that where
several extrajudicial statements had been (i)
made by several persons charged with an offense
and (ii) there could have been no collusion with
reference to said several confessions, (iii) the
facts that the statements are in all material
respects identical, is confirmatory of the
confession of the co-defendants and is
admissible against other persons implicated
therein.
They are also admissible as circumstantial
evidence against the person implicated therein to
show the probability of the latter’s actual
participation in the commission of the crime and
may likewise serve as corroborative evidence if it
is clear from other facts and circumstances that
other persons had participated in the perpetration
of the crime charged and proved. (People v.
Lising, G.R. Nos. 106210-11, 1998).
REMEDIAL LAW
After accused-appellant was arrested, he stated
that five police officers at the police station beat
him up. They asked him to undress, forced him to
lie down on a bench, sat on his stomach, placed
a handkerchief over his face, and poured water
and beer over his face. When he could no longer
bear the pain, he admitted the crime charged,
participated in a re-enactment, and signed an
extrajudicial statement. He was not informed of
his right to remain silent nor did he have counsel
of his choice to assist him in confessing the crime.
This was contrary to the constitution (People v.
Yip Wai Ming, G.R. No. 120959, 1996).
The fact that all accused are foreign nationals
does not preclude application of the “exclusionary
rule” because the constitutional guarantees
embodied in the Bill of Rights are given and
extend to all persons, both aliens and citizens.
The accused cannot be made to affix their
signatures on evidence without complying with
the Bill of Rights. By affixing their signatures on
the evidence, the accused are in effect made to
tacitly admit the crime charged for, in this case,
mere possession of prohibited drugs is a crime.
These signatures amount to uncounseled extra-
judicial confession prohibited by the Bill of Rights
and are therefore inadmissible as evidence.
(People v. Wong Chuen Ming, G.R. Nos. 112801-
11 1996)
Confrontation Clause and Confessions
The Confrontation Clause does not bar admission
into evidence of every relevant extrajudicial
statement by a non-testifying declarant simply
because it in some way incriminates the
defendant. And an instruction directing the jury to
consider a co-defendant's extrajudicial statement
only against its source is generally sufficient to
avoid offending the implicated defendant's
confrontation right. The court may admit into
evidence interlocking confessions of co-
defendants/accused even without giving the
accused an opportunity to cross-examine his co-
defendant. The rule however is different when a
co-defendant does not confess. In such cases,
the co-defendant must be given an opportunity to
cross-examine the confessant if and when such
person takes the witness stand. (Parker v.
Randolph, 442 U.S. 62, 1979)
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Admissions made before the Mayor & Station
Commander during a conference that defendants
were responsible for killing the victims is an
admission. Also a judicial admission by one
accused is admissible against his co-accused,
unlike in an extrajudicial confession, where its
admissible only against the one making it.
(People v. Encipido, G.R. No. 70091, 1986)
A videotaped interview showing the accused
unburdening his guilt, willingly, openly and
publicly in the presence of newsmen does not
form part of custodial investigation if it was not
given to police officers but media men in an
attempt to elicit sympathy and forgiveness from
the public. However, it is prudent that the trial
courts are reminded that extreme caution must be
taken in further admitting confessions of such
nature. (People v. Endino, G.R. No. 133026,
2001)
A confession to a radio reporter is admissible
where it was not shown that said reporter was
acting for the police or that the interview was
conducted under circumstances where it is
apparent that the suspect confessed to the killing
out of fear. (People v. Coyos, G.R. No. 138403,
2001)
An uncounseled confession or admission given
by the accused to a private individual is not
covered by Sec. 12, Art. III of the Constitution
where there is no showing that said private
individual was acting under police authority.
(People v. Mayo, G.R. No. 170470, 2006)
An uncounseled extrajudicial confession taken by
a “bantay bayan,” who is charged with the state
related function of peace-keeping, is inadmissible
in evidence. (People v. Lauga, G.R. No. 186228,
2010)
Any confession, including a re-enactment without
admonition of the right to silence and to counsel,
and without counsel chosen by the accused is
inadmissible. (People v. Duero, G.R. No. L-
52016, 1981)
REMEDIAL LAW
i. Similar acts as evidence
General Rule: 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
similar thing at another time. (Rule 130, Sec. 35)
Exceptions: Similar acts may be received as
evidence to prove. SIPPS-HCU
1. A specific intent or knowledge
2. Identity
3. Plan
4. System
5. Scheme
6. Habit
7. Custom
8. usage; and
9. The like.
The prosecution may, however, introduce the
robbery in January to prove the robbery in June
to establish a modus operandi: that in both
robberies, the robbers used explosives to gain
entry into the bank, that the robbers threw tear
gas while wearing gas masks; and that the
robbers struck at the close of bank hours.
NOTE:
Rule 130, Sec. 35 is the second branch of the res
inter alios acta rule and applies to both civil and
criminal cases.
Burden of proof
The offering party must allege and prove specific,
repetitive conduct that might constitute evidence
of habit. The examples offered in evidence to
prove habit, or pattern of evidence must be
numerous enough to base on inference of
systematic conduct. Mere similarity of contracts
does not present the kind of sufficiently similar
circumstances to outweigh the danger of
prejudice and confusion. (Boston Bank v. Manalo,
G.R. No. 158149, 2006)
The general rule is that evidence of other
offenses committed by the defendant is
inadmissible. However, such evidence may be
admitted where its purpose is to ascertain the
knowledge and intent of the defendant to fix his
negligence. Evidence which tends to explain or
establish conduct of the accused or defendant is
admissible unless it has no legitimate bearing on
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the issue (irrelevant) or where it is merely
calculated to prejudice the accused. (US v.
Pineda, G.R. No. L-12858, 1918)
While evidence of another crime is generally not
admissible in another prosecution, it is admissible
when it is otherwise relevant, as where it tends to
identify the defendant as the perpetrator of the
robbery charged, or tends to show his presence
at the scene or in the vicinity of the crime at the
time charged or when it is evidence of a
circumstance connected with the crime. (People
v. Irang, G.R. No. L-45179, 1937)
Similar Acts Rule in Special Laws
1. Rape Shield (SEC. 6, R.A. No. 8505):
In prosecutions for rape, evidence of the
complainant’s past sexual conduct, opinion
thereof, or of his/her reputation shall not be
admitted:
Exception: Unless, and only to the extent that
the court finds, that such evidence is relevant
and material to the case.
2. Rule on Examination of Child Witnesses
(Sec. 30)
The following evidence is not admissible in
any criminal proceeding involving alleged
sexual child abuse:
a. Evidence offered to prove that the alleged
victim engaged in other sexual behavior;
and
b. Evidence offered to prove the sexual
predisposition of the alleged victim
Exception: Evidence of specific instances of
sexual behavior by the alleged victim to prove
that a person, other than the accused, was the
source of the semen, injury, or other physical
evidence. (This is admissible.)
j. Admissibility of offers or compromise
RULE ON COMPROMISES
1. CIVIL CASES
General Rule: An offer of compromise is not an
admission of any liability and is NOT admissible
in evidence against the offeror.
Exception: When such offer is clearly not only to
buy peace but amounts to an admission of
liability, the offered compromise being directed
REMEDIAL LAW
only to the amount paid (El Varadero de Manila v.
Insular Lumber, G.R. No. 21911, September 15,
1924).
Rule on Compromise Negotiations:
Neither is evidence of conduct nor statements
made in compromise negotiations admissible
Exception:
1. Evidence otherwise discoverable;
2. Offered for another purpose, such as proving
bias or prejudice of a witness, negativing a
contention of undue delay or proving an effort
to obstruct a criminal investigation or
prosecution. (Rule 130, sec. 28)
2. CRIMINAL CASES:
General Rule: an offer of compromise by the
accused may be received in evidence as an
implied admission of guilt.
Exceptions:
1. Plea of guilty later withdrawn;
2. Tax cases – payment of any internal
revenue tax may be compromised, and all
criminal violations may likewise be
compromised (Sec. 204, NIRC)
EXC: Those already filed in court & those
involving fraud
3. Offer to pay or the payment of medical,
hospital, or other expenses occasioned by
an injury
4. Those involving quasi-offenses or criminal
negligence;
5. An unaccepted offer of plea of guilty to a
lesser offense;
6. Those covered by Katarungang
Pambarangay Law;
7. B.P. 22 cases
8. Any statement made in the course of plea
bargaining with the prosecution, which
does not result in a plea of guilty or which
results in a plea of guilty later withdrawn
The following are NOT admissible in evidence
against the accused who made the plea or
offer:
1. A plea of guilty later withdrawn, or
2. An unaccepted offer of a plea of guilty to
lesser offense
3. Any statement made in the course of plea
bargaining with the prosecution, which does
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not result in a plea of guilty or which results in

a plea of guilty later withdrawn An offer of compromise does not require that a
criminal complaint be first filed before the offer
Rule on Offer of Payment of Expenses can be received in evidence against the offeror.
occasioned by injury (Good Samaritan What is required is that after committing the
Doctrine) crime, the accused or his representative makes
an offer to compromise and such offer is proved.
An offer to pay or the payment of medical, (People v. Yparraguirre, G.R. No. 117702, 1997)
hospital or other expenses occasioned by an
injury is not admissible in evidence as proof of 5. HEARSAY RULE
civil or criminal liability for the injury.
a. Meaning of hearsay
The offer of compromise which naturally, under
Statement other than one made by the declarant
the general rules of evidence, must be excluded,
while testifying at a trial or hearing, offered to
except that as the amounts named in the offers to
prove the truth of the facts asserted therein.
accept certain sums in settlement appear to have
been arrived at as a fair estimate of value, they
A statement is:
are relevant. (El Veradero v. Insular, G.R. No.
1. An oral or written assertion or
21911, 1924)
2. A non-verbal conduct of a person, if it is
intended by him or her as an assertion
The accused is permitted to show that the offer
was not made under the consciousness of guilt
Hearsay evidence is inadmissible except as
but merely to avoid the inconvenience of
otherwise provided in these Rules.
imprisonment or for some other reason which
would justify a claim by the accused that the offer
A statement is not hearsay if the declarant
to compromise was not in truth and admission of
testifies at the trial or hearing and is subject to
guilt, or an attempt to avoid the legal
cross-examination concerning the statement, and
consequences which would ordinarily ensue
the statement is:
therefrom. (People v. Godoy, G.R. No. 115908-
(a) Inconsistent with the declarant’s
09, 1995)
testimony and was given under oath
subject to the penalty of perjury at a trial,
The weight of authority sustains the rule which
hearing or other proceeding, or in a
admits evidence of offers to compromise, in
deposition
criminal cases, but permits the accused to show
(b) Consistent with the declarant’s testimony
that such offer was not made under a
and is offered to rebut an express or
consciousness of guilt, but merely to avoid the
implied charge against the declarant of
inconvenience of imprisonment or for some other
recent fabrication or improper influence or
reason which would justify a claim by the accused
motive; or
that the offer to compromise was not in truth an
(c) One of identification of a person made
admission of his guilt and an attempt to avoid the
after perceiving him or her (Rule 130, Sec.
legal consequences which would originally ensue
37)
therefrom. (US v. Maqui, G.R. No. L-8931, 1914)
Any evidence is hearsay if its probative value is
A plea for forgiveness may be considered as
not based on the personal knowledge of the
analogous to an attempt to compromise. In
witness, but on the knowledge of some other
criminal cases, except those involving quasi-
person not on the witness stand. (Regalado 2008
offenses or those allowed by law to be
ed.)
compromised, an offer of compromise by the
accused may be received in evidence as an
The personal knowledge of a witness is a
implied admission of guilt. (People v. De
substantive prerequisite for accepting testimonial
Guzman, G.R. No. 117217, 1996)
evidence that establishes the truth of a disputed
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fact. The rule excluding hearsay as evidence is
based upon serious concerns about the
trustworthiness and reliability of hearsay
evidence due to its not being given under oath or
solemn affirmation and due to its not being
subjected to cross-examination by the opposing
counsel to test the perception, memory, veracity
and articulateness of the out-of-court declarant or
actor upon whose reliability the worth of the out-
of-court statement depends. (Patula v. People,
G.R. No. 164457, 11 April 2012)
The term “hearsay” as used in the law on
evidence, signifies evidence which is not founded
upon the personal knowledge of the witness from
whom it is elicited and which consequently does
not depend wholly for its credibility and weight
upon the confidence which the court may have in
him; its value, if any, is measured by the credit to
be given to some third person not sworn as a
witness to that fact, and consequently, not subject
to cross-examination. If one therefore testifies to
facts which he learned from a third person not
sworn as a witness to those facts, his testimony
is inadmissible as hearsay evidence.
Elements of Hearsay
1. There must be an out-of-court statement,
whether oral or written, or a conduct intended
as an assertion, and
2. The statement made out of court is repeated
and offered by the witness to prove the truth
of the matters asserted in the statement.
Form of Hearsay Evidence
It may be verbal, in writing or even non-verbal
conduct.
b. Reason for exclusion of hearsay
evidence
Hearsay evidence is excluded because the party
against whom it is presented is deprived of his
right and opportunity to cross-examine the
persons to whom the statements or writings are
attributed. (Regalado 2008 ed.)
The reason for the exclusion of hearsay evidence
is that the party against whom the hearsay
testimony is presented is deprived of the right or
opportunity to cross-examine the person to whom
the statements are attributed. Moreover, the court
REMEDIAL LAW
is without opportunity to test the credibility of
hearsay statements by observing the demeanor
of the person who made them. (People of the
Philippines v. Victor P. Padit, G.R. No. 202978,
2016)
Failure to object to hearsay evidence
Consequently, if a party does not object to the
hearsay evidence, the same is admissible, as a
party can waive his right to cross-examine.
However, it has also been held that hearsay
evidence not objected to may be admissible but,
whether objected to or not, has no probative
value and, as opposed to direct primary evidence,
the latter always prevails. (Regalado 2008 ed.
citing People v. Ola, G.R. No. L-47147, 1987)
Hearsay Statements may be the basis of
Probable Cause
Probable cause can be established with hearsay
evidence, as long as there is substantial basis for
crediting the hearsay. Hearsay evidence is
admissible in determining probable cause in a
preliminary investigation because such
investigation is merely preliminary and does not
finally adjudicate rights and obligations of parties.
(Estrada v. Ombudsman, G.R. No. 212140-41,
2015)
Hearsay Statements may be considered in an
Amparo Proceeding
Though hearsay evidence is generally
considered inadmissible under the rules of
evidence, such may be considered in a writ of
amparo proceeding if required by the unique
circumstances of the case. It is the totality of the
obtaining situation that must be taken into
consideration to determine if a petitioner is
entitled to a writ of amparo .Clearly, and based on
the totality of obtaining circumstances, X and her
children were the subject of surveillance because
of their relationship with a suspected member of
the NPA, creating a real threat to their life, liberty,
or security. (Sanchez v. Darroca, G.R. No.
242257, 2019)
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c. Exceptions to the hearsay rule
i. Dying declarations
Dying Declaration
The declaration of a dying person, made under
the consciousness of an impending death, may
be received in any case wherein his or her death
is the subject of inquiry, as evidence of the cause
and surrounding circumstances of such death.
(Rule 130, Sec. 38)
A statement made by a dying person referring to
the material facts which concern the cause and
circumstances of his death and which is uttered
under a fixed belief that death is impending and
is certain to follow immediately, or in a very short
time, without an opportunity of retraction and in
the absence of all hopes of recovery.
Elements:
1. Declaration concerns the cause and the
surrounding circumstances of declarant's
death;
2. Made when death appears to be imminent and
the declarant is under a consciousness of
impending death;
3. The statement was made declarant would have
been competent to testify had he or she
survived;
4. Dying declaration is offered in a case in which
the subject of inquiry involves the declarant's
death (People vs. Bautista, G.R. No. 117685,
1999)
Note: A dying declaration is NOT considered
confidential communication between spouses
(U.S. v. Antipolo, G.R. No. L-13109, 1918).
Examples:
‘Tabangi ko Pre, gipusil ko ni kapitan,’ meaning
‘Help me, Pre, I was shot by the captain.’ –> dying
declaration (Marturillas v. People, G.R. No.
163217, 2006).
Intervening Time is Immaterial
There must be a settled, hopeless expectation
that death is at hand. It is sufficient that the
declarant believed himself to be in imminent
danger of death at the time of such declaration.
REMEDIAL LAW
But death need not follow soon; statements made
during a 7-day interval between stabbing and the
victim’s death were held to be a dying declaration
(People v. Rarugal, G.R. No. 188603, 2013).
It is the belief in impending death and not the
rapid succession of death in point of fact that
renders the dying declaration admissible (People
v. Bautista, G.R. No. 11148, 1997)
The fact that death did not ensue until three days
after the declaration was made will not alter its
probative force since it is not indispensable that a
declarant expires immediately thereafter. It is the
belief in impending death and not the rapid
succession of death, in point of fact, that renders
the dying declaration admissible. (People v.
Sabio, G.R. No. L-26193, 1981)
Dying declarations are Admissible in Both
Civil and Criminal Cases
The former rule was that dying declarations were
admissible only in criminal prosecutions for
homicide, murder, or parricide wherein the
declarant is the victim. As amended, the rule now
provides for such admissibility in any case as
long as requisites concur. (Regalado 2008 ed.)
Purposes for Admitting Dying Declaration:
1. To identify the accused or
2. To show the cause of death or
3. To show the circumstances under which the
assault was made upon him.
The declaration of the deceased is not admissible
as an ante mortem declaration since the
deceased was in doubt as to whether he would
die or not. The declaration fails to show that the
deceased believed himself in extremis, "at the
point of death when every hope of recovery is
extinct, which is the sole basis for admitting this
kind of declarations as an exception to the
hearsay rule." It may be admitted, however, as
part of the res gestae since the statement was
made immediately after the incident and the
deceased had no sufficient time to concoct a
charge against the accused. (People v. Laquinon,
G.R. No. L-45470, 1985)
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Dying declarations may be used to corroborate
the testimony of a witness. (People v. Brioso,
G.R. No. L-28482, 1971)
Thus, while a dying declaration may be
admissible in evidence, it must identify with
certainty the assailant. Otherwise, it loses its
significance. (People v. Ador, G.R. Nos. 140538-
39, 2004)
ii. Statement of decedent or person of
unsound mind
In an action:
a. Against an executor or administrator or
other representative of a deceased person
or
b. 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,
Where a:
Party or
Assignor of a party or
A person in whose behalf a case is
prosecuted
TESTIFIES on a matter of fact occurring
before the death of the deceased or before
the person became of unsound mind,
Any statement of the deceased or the person
of unsound mind, may be received in
evidence if:
The statement was made upon the
personal knowledge of the deceased or
person of unsound mind
At a time when the matter had been
recently perceived by him or her and
While his or her recollection was clear.
Such statement, however may be inadmissible if
made under circumstances indicating its lack of
TRUSTWORTHINESS (Rule 130, Sec. 39)
Note: The previous version of this provision was
the former Rule 130, Sec. 23 on disqualifications
by reason of death or insanity of adverse party
(Dead man’s rule)
The former Dead Man’s rule has now been
superseded.
REMEDIAL LAW
The former Dead Man’s rule prohibited the
survivor from testifying against the deceased
or person of unsound mind; the Dead Man’s
Statute put the two parties on equal footing:
Where death has sealed the lips of the dead, the
law seals the lips of the living.
BUT now, a party, a party’s assignor or a person
in whose behalf a case is being prosecuted in an
action demanding or claiming against the
executor, administrator or other representative of
the deceased or the person of unsound mind, can
now TESTIFY on a matter of fact occurring before
the death of the deceased or before the person
became of unsound mind.
To minimize however the danger of injustice to
the decedent’s estate or person of unsound mind,
the (otherwise hearsay) statement of the
deceased or person of unsound mind may be
admitted, so long as the statement was made
upon the personal knowledge of the deceased or
person of unsound mind, at the time when the
matter had been recently perceived by him or her
and while his or her recollection was clear, and
there are no circumstances indicating its lack of
trustworthiness.
iii. 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
person in his or her position would not have made
the declaration unless he or she believed it to be
true, may be received in evidence against himself
or herself or his or her successors in interest and
against third persons.
A statement tending to expose the declarant to
criminal liability and offered to exculpate the
accused is not admissible unless corroborating
circumstances clearly indicate trustworthiness of
the statement (Rule 130, Sec. 40)
Note: The second sentence of this rule is an
addition to the old rule concerning declarations
against interest
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Consider this factual scenario: the alleged Declarations Against Interest and Admissions
declarant Zoilo Fuentes Jr., a cousin of accused- Distinguished
appellant Alejandro Fuentes Jr., supposedly DECLARATIONS ADMISSIONS
verbally admitted to the latter, and later to their AGAINST
common uncle Felicisimo Fuentes, that he (Zoilo) INTEREST
killed the victim because of a grudge, after which Exception to the Admissions of a party
he disappeared. One striking feature that hearsay rule; are NOT covered by
militates against the acceptance of such a admissible the Hearsay Rule
statement is its patent untrustworthiness. (see Estrada v.
Zoilo who is related to accused-appellant had Desierto)
every motive to prevaricate. The same can be Secondary evidence; Primary evidence;
said of accused-appellant and his uncle admissible only if the admissible even if the
Felicisimo (Fuentes v. CA, G.R. No. 111692, declarant is dead or declarant is available
1996) unable to testify as a witness
The fact asserted in A party’s admission
Requisites for declarations against interest: the declaration must need not have been
1. Declarant must not be available to testify due have been at the time made against his
to death, mental incapacity, or physical it was made so far interest at the time it
incompetence, or his being outside the contrary to the was made.
territorial jurisdiction of the country if exact declarant’s own
whereabouts are unknown. interest that a
2. The declaration must concern a fact reasonable man in his
cognizable by the declarant. position would not
3. The circumstances must render it improbable have made that
that a motive to falsify existed. (Fuentes vs. declaration unless he
CA, G.R. No. 111692, 1996) believed it to be true
NOT necessary that The declarant or
Scope the person declarant someone identified in
The declaration against interest includes all kinds be a party to the interest is a party to
of interests such as pecuniary, proprietary, or action; it is admissible the action
penal interests. in an action where his
declaration is relevant
Kinds of Declarations against Interests: May be admitted Used only against the
1. Declaration against Pecuniary Interests - against himself or his party admitting and
those which may bar in whole or in part the successor-in-interest those identified with
declarant’s interests or which may give rise to and against 3rd him in legal interest
a monetary claim against him. persons
2. Declaration against Proprietary Interests - The declarant must An admission is made
those which are at variance with the be first accounted for by the party himself,
declarant’s property interests as dead, absent from primary evidence and
3. Declaration against Penal Interests - those the jurisdiction, or competent though he
which put the declarant at the risk of otherwise unavailable is present in court and
prosecution. as a witness ready to testify
Declarations against May be made at any
interests must have time, before or during
been made ante litem the trial
motam (before the
controversy)

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Declaration Against Interest and Self-serving
Declaration Distinguished
DECLARATION SELF-SERVING
AGAINST DECLARATION
INTEREST
Admissible in Not admissible in
evidence evidence as proof of
notwithstanding its the facts asserted
hearsay character since its introduction
in evidence would
open the door to fraud
and perjury
The testimony of the accused that he was married
to the deceased was an admission against his
penal interest. It was a confirmation of the maxim
semper praesumitur matrimonio and the
presumption “that a man and woman deporting
themselves as husband and wife have entered
into a lawful contract of marriage.” He and the
deceased had five children. He alluded in his
testimony to his father-in-law. That implies that
the deceased was his lawful wife. The fact that he
bitterly resented her infidelity, her failure to visit
him in prison and her neglect of their children are
other circumstances confirmatory of their marital
status. (People v. Majuri, G.R. No. L-38833,
1980)
But more importantly, the far weightier reason
why the admission against penal interest cannot
be accepted in the instant case is that the
declarant is not “unable to testify.” There is no
showing that the declarant is either dead,
mentally incapacitated or physically incompetent
which Sec. 38 [now Sec. 40] obviously
contemplates. His mere absence from the
jurisdiction does not make him ipso facto
unavailable under this rule. (Fuentes vs. CA, G.R.
No. 111692, 1996)
A statement of fact in a verified petition and an
accompanying silence about any contrary fact
may be appreciated in more than one context—a
declaration against interest and a judicial
admission combined. A declaration against
interest is the best evidence which affords the
greatest certainty of the facts in dispute. A judicial
admission binds the person who makes the
same, and absent any showing that this was
made thru palpable mistake, no amount of
REMEDIAL LAW
rationalization can offset it. (Heirs of Miguel
Franco v. CA, G.R. No. 123924, 2003)
iv. Act or declaration about pedigree
Pedigree
History of family descent which is transmitted
from one generation to another by both oral and
written declarations and traditions.
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. (Rule 130, Sec. 41)
Reasons for Admissibility
Declarations in regard to pedigree, although
hearsay, are admitted on the principle that they
are natural expressions of persons who must
know the truth. Pedigree testimony is admitted
because it is the best that the nature of the case
admits and because greater evil might arise from
the rejection of such proof than from its
admission. (People v. Alegado, G.R. No. 93030-
31, 1991)
Requisites:
1. The actor/declarant is dead or unable to
testify;
2. The actor/declarant must be a relative by
birth, adoption, marriage or, in the absence
thereof, the actor/declarant was so intimately
associated with the family of another person
(whose pedigree is in question) as to be likely
to have accurate information concerning the
latter’s pedigree;
3. The act or declaration must have been made
before the controversy occurred; and
4. The relationship between the actor/declarant
and the person whose pedigree is in question
must be shown by evidence other than such
act or declaration.
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Rule on Proving Evidence of Relationship for
Establishing Pedigree
General Rule: Where the party claiming seeks
recovery against a relative common to both
claimant and declarant, but not from the declarant
himself or the declarant's estate:
The relationship of the declarant to the common
relative may not be proved by the declaration
itself. There must be some independent proof of
this fact.
Exception: [Where the party seeks] to reach the
estate of the declarant himself and not merely to
establish a right through his declarations to the
property of some other family member:
The declaration itself will suffice. (Tison v. CA,
G.R. No 121027, 1997)
In a marriage nullity case, the lack of personal
interview of the respondent does not render
hearsay the psychological report (Camacho-
Reyes v. Reyes, G.R. No. 185286, 2010).
v. 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, affinity or adoption. 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. (Rule,
130 Sec. 42)
By family reputation or tradition regarding
pedigree is meant such declarations and
statements as have come down from generation
to generation from deceased relatives in such a
way that even though it cannot be said or
determined which of the deceased relatives
originally made them, yet it appears that such
declarations and statements were made as family
history, ante litem motam, by a deceased person
connected by blood, marriage or adoption with
the person whose pedigree is to be established.
REMEDIAL LAW
Requisites:
1. There is controversy in respect to the
pedigree of any member of a family;
2. The reputation or tradition of the pedigree of
the person concerned existed previous to the
controversy; and
3. The witness testifying to the reputation or
tradition regarding the pedigree of the person
concerned must be a member of the family of
said person either by consanguinity, affinity
or adoption.
Scope of enumeration
The scope of the enumeration contained in the
second portion of this provision is limited to
objects which are commonly known as family
possessions, or those articles which represent, in
effect, a family’s joint statement of its belief as to
the pedigree of a person. These are objects
openly exhibited and well known to the family; or
those which, if preserved in a family, may be
regarded as giving a family tradition. Other
examples are: inscriptions on tombstones,
monuments or coffin plates (Jison v. CA, G.R. No.
124853, 1998)
The law does not require that the entries in the
said booklet be made at the same time as the
occurrence of those events; hence, the written
memorandum in the same is not subject to the
defect attributed to it. The witness Joaquin Jose
de Inchausti declared affirmatively that the
memorandum under consideration has been
written in the handwriting of his brother Ramon
Martinez de Viademonte, whose handwriting he
was familiar with, and the testimony of this
witness contains some reference to a member of
the family, now dead, and concerning the family
genealogy of the same. (Ferrer v. de Inchausti,
G.R. No. L-12993, 1918)
A person’s testimony as to his age is admissible
although hearsay and though a person can have
no personal knowledge of the date of his birth as
all the knowledge a person has of his age is
acquired from what he is told by his parents, he
may testify as to his age as he had learned it from
his parents and relatives. His testimony in such
case is an assertion of family tradition. (People v.
Alegado, G.R. No. 93030-31, 1991)
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Distinguish Section 41 v. Section 42 What may be Established by Common

SECTION 41 SECTION 42 Reputation:
1. Boundaries of or customs affecting lands in
Family reputation or the community
Act or declaration
tradition regarding 2. Reputation as to events of general history
about pedigree
pedigree important to the community
The witness testifies 3. Reputation respecting marriage
as to the reputation or 4. Reputation respecting moral character
Actor/Declarant is tradition regarding
deceased or unable pedigree within the Requisites for Admissibility of Common
to testify family (the Reputation as to events of general history
actors/declarants may important to the community:
be dead or alive). 1. The facts must be of public or general
Witness need not be interest;
Witness is a member
a member of the 2. The reputation must have been formed
of the family
family among a class of persons who were in a
The witness himself is position to have some sources of information
Relation of the
the one to whom the and to contribute intelligently to the formation
actor/declarant and
fact relates; it is not of the opinion; and
the person subject of
necessary for him to 3. The reputation must have been existing
the inquiry must be
establish by previous to the controversy.
established by
independent evidence
independent
his relationship to his Requisites for Admissibility of Common
evidence
family Reputation Respecting Marriage:
1. The common reputation must have been
vi. Common reputation formed previous to the controversy; and
Common reputation existing previous to the 2. The reputation must have been formed
controversy, as to boundaries of or customs among a class of persons who were in a
affecting lands in the community and reputation position to have some sources of information
as to the events of general history important to and to contribute intelligently to the formation
the community, or respecting marriage or moral of the opinion.
character, may be given in evidence. Monuments
and inscriptions in public places may be received Requisites for Admissibility of Common
as evidence of common reputation (Rule 130, Reputation Respecting Moral Character:
Sec. 43) 1. That it is the reputation in the place where the
person in question is best known; and
Testimony does not constitute common 2. That it was formed previous to the
reputation unless such is equivalent to universal controversy. (People v. Alegado, G.R. No.
reputation. (City of Manila v. Del Rosario, G.R. 93030-31, 1991)
No. 1284, 1905)
Reputation and Character Distinguished
Common reputation is the definite opinion of the
community in which the fact to be proved is Character
known or exists. It means the general or Refers to the inherent qualities of a person. It
substantially undivided reputation, as means that which a person really is.
distinguished from a partial or qualified one,
although it need not be unanimous. (Regalado, Reputation
2008 ed.) Applies to the opinion which others may have
formed and expressed of his character. It means
that which a person is reputed to be.

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Under this section, the character of a person is
permitted to be established by his common
reputation. (Regalado, 2008 ed.)
The character of a certain place as an “opium
joint” can be established by proof of facts and
circumstances including evidence of its common
reputation in the community (U.S. v. Choa Chiok,
G.R. No. 12423, 1917)
vii. Part of the res gestae
Statements made by a person while a startling
occurrence is taking place or immediately prior or
subsequent thereto, under the stress of
excitement caused by the occurrence 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 (Rule 130, Sec. 44)
Res Gestae is from the Latin phrase meaning
“things done”.
Res gestae, as an exception to the hearsay rule,
refers to those exclamations and statements
made by either the participants, victims, or
spectators to a crime immediately before, during,
or 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 to fabricate a false statement.
(DBP Pool of Accredited Insurance Companies v.
Radio Mindanao Network, Inc., G.R. No. 147039
January 27, 2006)
There are two types of res gestae utterances:
1. Spontaneous Statements
Statements made by a person while a startling
occurrence is taking place or immediately
prior or subsequent thereto with respect to the
circumstances thereof. The spontaneous or
excited utterance is part of the “things done”,
the startling occurrence.
Example: A heard a gunshot and saw B
holding a gun pointed at C who was slumped
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on the ground. C shouted, “Please don't kill
me.” A’s testimony regarding the statement
made by C may be deemed part of the res
gestae.
2. Verbal Acts
Utterances which accompany some equivocal
act or conduct to which the utterances give a
legal effect.
A verbal act presupposes conduct that is
equivocal or ambiguous, one which, in itself,
does not signify anything when taken
separately. It only acquires a meaning,
specifically what the rules call a legal
significance, only because of the statements
that accompany the act. (Riano, 2019 ed.)
Example: A gives B, a public officer, P1
Million. As he gives the money to B, A says
that the P1 Million is the loan he is extending
to B. In a case for corruption of public officer,
A’s statement can be given as part of the res
gestae.
Rationale
Statements made instinctively at the time of some
startling event or incident without the opportunity
for formulation of statements favorable to one’s
own cause cast important light upon the matter in
issue and are presumed truthful. This is the first
type of res gestae statement. The event is
“speaking through” the witness and not the
witness talking about the event.
Spontaneous Statements v. Verbal Acts
SPONTANEOUS
VERBAL ACTS
STATEMENTS
Res gestae is the Res gestae is the
startling occurrence equivocal act
Statement must be
Statement may be
contemporaneous
made prior, or
with or must
immediately after, the
accompany the
startling occurrence
equivocal act
Requisites for Admissibility of Spontaneous
Statements:
1. There must be a startling occurrence;
2. The statement must be made before the
declarant had the time to contrive or devise a
falsehood; and
3. The statement must concern the occurrence
in question and its immediate attending
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circumstances. (People v. Estibal, G.R. No.
208749, 2014)
It is important to stress that the statement must
not only be spontaneous. It must also be made
at a time when there was no opportunity for the
person to concoct or develop his own story.
(People v. Lungayan, G.R. No. L-64556, 1988)
Not every statement made under the startling
event is admissible even if it be spontaneous. The
only spontaneous statement made under the
stress of excitement of the startling event that
qualifies for admissibility is one that relates to the
circumstances of the event. The statement must
describe the event perceived. (Riano, 2019 ed.)
Requisites for Admissibility of Verbal Acts
1. Act or occurrence characterized must be
equivocal;
2. Verbal acts must characterize or explain the
equivocal act;
3. Equivocal act must be relevant to the issue;
and
4. Verbal acts must be contemporaneous with
equivocal act (Talidano v. Falcom Maritime &
Allied Services, G.R. No. 172031, 2008)
Res Gestae and Dying Declaration
Distinguished (People v. Peralta, G.R. No.
94570, 1994)
RES GESTAE DYING
DECLARATION
It is the event itself A sense of impending
which is speaking death takes the place
through the witness of an oath and the law
(People v. Peralta, regards the declarant
G.R. No. 94570, as testifying (People
1994) v. Peralta, G.R. No.
94570, 1994)
A statement as part of Made only by the
the res gestae may be victim (Regalado,
that of the killer 2008 ed.)
himself during or after
the killing or that of a
third person
(Regalado, 2008 ed.)
The rule of res gestae The trustworthiness
has its justification in of a dying declaration
the spontaneity of the is based upon its
being given under the
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statement (Regalado, awareness of
2008 ed.) impending death
(Regalado, 2008 ed.)
It may precede, Confined to matters
accompany or follow surrounding or
the events occurring occurring after the
as a part of the homicidal act (People
principal act (People v. Peralta, G.R. No.
v. Peralta, G.R. No. 94570, 1994)
94570, 1994)
Although a declaration does not appear to have
been made by the declarant under the
expectation of a sure and impending death, and,
for that reason, is not admissible as a dying
declaration yet if such declaration was made at
the time of, or immediately after, the commission
of the crime, or at a time when the exciting
influence of the startling occurrence still
continued in the declarant’s mind, it is admissible
as a part of the res gestae. The victim’s statement
was given sometime after the stabbing while he
was undergoing treatment at a medical clinic. He
had no time to concoct a falsehood or to fabricate
a malicious charge against Putian. No motive has
been shown as to why he would frame up the
accused. (People v. Putian, G.R. No. L-33049,
1976)
The interval of time between the startling
occurrence and the statement depends upon the
circumstances; but such statement must have
been made while the declarant was under the
immediate influence of the startling occurrence,
hence it is generally required to have been made
immediately prior or subsequent to the event.
(Regalado, 2008 ed.)
If the statement was made under the influence of
a startling event and the declarant did not have
the opportunity to concoct or contrive a story,
even if made 9 hours after the killing, the
statement is admissible as part of res gestae.
(Regalado citing People v. Berame, G.R. L-
27606, 1976)
The statements taken cannot be considered as
part of res gestae when the bystanders already
had enough time and opportunity to mill around,
talk to one another and exchange information, not
to mention theories and speculations, as is the
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usual experience in disquieting situations where
hysteria is likely to take place. It cannot therefore
be ascertained whether the utterances were the
products of truth. That the utterances may be
mere idle talk is not remote. At best, the
testimonies of the investigators that the
statements were made may be considered as
independently relevant statements gathered in
the course of their investigation and are
admissible not as to the veracity thereof but to the
fact that they had been thus uttered. (DBP Pool
of Accredited Insurance Companies v. Radio
Mindanao Network, Inc., G.R. No. 147039 2006)
viii. Records of regularly conducted business
activity
A memorandum, report, record or data
compilation of acts, events, conditions, opinions
or diagnoses, made by writing, typing, electronic,
optical or other similar means at or near the time
of or from transmission or supply of information -
a) By a person with knowledge thereof and
b) Kept in the regular course or conduct of a
business activity and
c) Such was the regular practice to make the
memorandum, report, record or data
compilation by electronic, optical or similar
means
d) All of which are shown by the testimony of the
custodian or other qualified witnesses,
- is excepted from the rule of hearsay evidence
(Rule 130, Sec. 45)
Note:
There are two persons covered by this exception,
the entrant and the witness.
The entrant himself or herself is not required to
be dead or unable to testify (which was the
requirement under the old version of the rule).
The testimony of the custodian or the other
qualified witnesses should be able to prove the
other requisites under this exception.
The counterpart provision in the Rules on
Electronic Evidence is Rule 8.
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ix. Entries in official records
Entries in official records made in the
performance of his or her 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. (Rule 130 Sec. 46)
Requisites:
1. That the entry was made by:
a. A public officer, or
b. Another person, specially enjoined by law
to do so;
2. That it was made by the public officer in the
performance of his or her duties, or by such
other person in the performance of a duty
specially enjoined by law; and
3. That the public officer or other person had
sufficient knowledge of the facts stated by
him or her, which must have been acquired
by him or her personally or through official
information. (Africa v. Caltex, G.R. No. L-
12986, 1966)
Proof of Unavailability of Entrant
Unnecessary
It is not necessary to show that the person
making the entry is unavailable for he is excused
from appearing in court in order that public
business be not interrupted.
The written entries in the clinical case record,
showing the date of her admission in the hospital
on April 22, 1973, her complaint of vaginal
bleeding and the diagnosis of "Healing lacerated
wide at 2 o'clock and 10 o'clock hymen" are prima
facie evidence of the facts therein stated, the said
entries having been made in official records by a
public officer of the Philippines in the
performance of his duty especially enjoined by
law, which is that of a physician in a government
hospital. (People v. Leones, G.R. No. L-48727,
1982)
It remains only to note that entries in a police
blotter, though regularly done in the course of
performance of official duty, are not conclusive
proof of the truth of such entries. (People v.
Cabuang, G.R. No. 103292, 1993)
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In a homicide case, one of the issues was
determining which of the two medical certificates
issued by two different doctors, one of whom was
a government physician, should be given
credence. The Court ruled that the medical
certificate issued by the government doctor
should be given more weight. By actual practice,
only government physicians, by virtue of their
oaths as civil service officials, are competent to
examine persons and issue medical certificates
which will be used by the government. As such,
the medical certificate carries the presumption of
regularity in the performance of his functions and
duties. Moreover, under Section 44 [now Section
46], Rule 130, entries in official records made in
the performance of official duty are prima facie
evidence of the facts therein stated. An unverified
medical certificate not issued by a government
physician is unreliable. (Tarapen v. People, G.R.
No. 173824, 2008)
x. Commercial lists and the like
Evidence of statements of matters of interest to
persons engaged in an occupation contained in a
list, register, periodical, or other published
compilation is admissible as tending to prove the
truth of any relevant matter so stated if that
compilation is published for use by persons
engaged in that occupation and is generally used
and relied upon by them therein. (Rule 130, Sec.
47)
Requisites for Admissibility:
1. It is a statement of a matter of interest to
persons engaged in an occupation;
2. Such statement is contained in a list, register,
periodical or other published compilation;
3. That compilation is published for the use of
persons engaged in that occupation, and
4. That compilation is generally used and relied
upon by persons in the same occupation (Rule
130, Sec. 47)
Examples:
1. Trade journals
2. Table of mortality compiled by life insurance
companies
3. Abstracts of title compiled by reputable title
examining institutions or individuals
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4. Business directories
NOTE: A preliminary foundation must first be laid
for such evidence showing that such publications
have been regularly prepared by a person in
touch with the market and that they are generally
regarded as trustworthy and relied upon.
Mere price quotations are not commercial lists.
They are issued personally to the claimant, who
requested for them from dealers of equipment
similar to the ones lost at the collision of the two
vessels. These are not published in any list,
register, periodical or other compilation on the
relevant subject matter. Neither are these market
reports or quotations within the purview of
commercial lists as these are not standard
handbooks or periodicals, containing data of
everyday professional need and relied upon in
the work of the occupation. (PNOC Shipping v.
CA, G.R. No. 107518, 1998)
A mere newspaper account with nobody testifying
as to its accuracy, and which was not even a
commercial list, does not qualify under the
Section 45 [now Section 47] of Rule 130. No
evidence was presented that the publication was
regularly prepared by a person in touch with the
market and that it is generally regarded as
trustworthy and reliable. At most, it is but an
analysis or opinion which carries no persuasive
weight, as no sufficient figures to support it were
presented. It cannot be said that businessmen
generally rely on news items such as this in their
occupation. Absent extrinsic proof of accuracy,
these reports are not admissible. (Manila Electric
Company v. Quisumbing, G.R. No. 127598,
2000)
Newspapers containing stock quotations are not
admissible in evidence when the source of the
reports is available. With more reason, mere
analyses or projections of such reports cannot be
admitted. Statement of matters contained in a
periodical may be admitted only "if that
compilation is published for use by persons
engaged in that occupation and is generally used
and relied upon by them therein." (Manila Electric
Company vs. Quisumbing, G.R. No. 127598,
2000)
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xi. 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 or her
profession or calling as expert in the subject.
(Rule 130, Sec. 48)
Requisites:
1. There is a published treatise, periodical or
pamphlet on a subject of history, law, science,
or art
2. It is offered to prove the truth of a matter stated
therein
3. 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. (Rule 130,
Sec. 48)
Learned Treatises are Admissible Only if:
1. The court takes judicial notice that the writer
is recognized in his profession as expert in
the subject; or
2. A witness who is an expert on the subject
testifies that the writer of the statement is
recognized in his profession as expert in the
subject.
xii. Testimony or deposition at a former
proceeding
The testimony or deposition of a witness
deceased or out of the Philippines or who cannot,
with due diligence, be found therein, or is
unavailable or otherwise 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 or her (Rule 130, Sec. 49)
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Requisites:
1. The witness whose testimony is offered in
evidence is:
a. Deceased
b. Unable to testify
c. Out of the Philippines
d. Cannot with due diligence be found in the
Philippines, or
e. Unavailable;
2. 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
(identity of parties);
3. The former case involved the same subject
as that in the present case, although on
different causes of action (identity of issues);
and
4. The adverse party had an opportunity to
cross-examine the witness in the former
case. (Riano, 2019 ed.)
While a former testimony or deposition appears
under the Exceptions to the Hearsay Rule, the
classification of former testimony or deposition as
an admissible hearsay is not universally
conceded. A fundamental characteristic of
hearsay evidence is the adverse party’s lack of
opportunity to cross-examine the out-of-court
declarant. However, Section 49, Rule 130
explicitly requires, inter alia, for the admissibility
of a former testimony or deposition that the
adverse party must have had an opportunity to
cross-examine the witness or the deponent in the
prior proceeding. This rule contemplates a
different kind of cross-examination, whether
actual or a mere opportunity, whose adequacy
depends on the requisite identity of issues in the
former case or proceeding and in the present
case where the former testimony or deposition is
sought to be introduced. (Republic v.
Sandiganbayan, G.R. No. 152375, 2011).
Laying the Proper Predicate is Necessary
Before the former testimony or deposition can be
introduced in evidence, the proponent must first
lay the proper predicate therefor, i.e., the party
must establish the basis for the admission of the
deposition in the realm of admissible evidence.
(Riano, 2019 ed.)
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Note: Actual cross-examination of the witness in
the former trial is not a prerequisite. It is enough
if there was an opportunity to cross-examine.
xiii. Residual exception
A statement not specifically covered by any of the
foregoing exceptions, having equivalent
circumstantial guarantees of trustworthiness,
is admissible if the court determines that:
a) The statement is offered as evidence of a
material fact;
b) The statement is more probative on the point
for which it is offered than any other evidence
which the proponent can procure through
reasonable efforts; and
c) The general purposes of these rules and the
interests of justice will be best served by
admission of the statement into evidence.
However, a statement may not be admitted under
this exception unless the proponent makes
known to the adverse party, sufficiently in
advance of the hearing, or by the pre-trial stage
in the case of a trial of a main case, to provide the
adverse party with fair opportunity to prepare to
meet it, the proponent’s intention to offer the
statement and the particulars of it, including the
name and address of the declarant. (Rule 130,
Sec. 50)
d. Independently relevant statements
Where the statements or writings attributed to a
person who is not on the witness stand are being
offered not to prove the truth of the facts stated
therein but only to prove that those statements
were actually made, or those writings were
executed, such evidence is not covered by the
hearsay evidence rule. The witness who testifies
thereto is competent because he heard the same
or saw the execution of the document, as these
are matters of fact derived from his own
perception and the purpose is only to prove either
that the statement was made or the tenor thereof.
(Regalado citing People v. Cusi, G.R. No. L-
20986, 1965; Cornejo, Sr. v. Sandiganbayan,
G.R. No. 58831, 1987; Sebastian, Sr. v.
Garchitorena. et al., G.R. No. 114026, 2000)
Where, regardless of the truth or falsity of a
statement, the fact that it has been made is
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relevant, the hearsay rule does not apply. A
witness may testify to the statements made by a
person if, for instance, the fact that such
statements were made by the latter would
indicate the latter’s mental state or physical
condition. The ban on hearsay evidence does not
cover independently relevant statements, which
consist of statements that are independently
relevant of the truth asserted therein. (Estrada v.
Desierto, G.R. Nos. 146710-15, 2001)
The doctrine on independently relevant
statements states that conversations
communicated to a witness by a third person may
be admitted as proof that, regardless of their truth
or falsity, they were actually made. Evidence as
to the making of such statements is not
secondary but primary, for in itself it (a)
constitutes a fact in issue or (b) is circumstantially
relevant to the existence of such fact. (Republic
v. Heirs of Alejaga, G.R. No. 146030, 2002)
Two Classes of Independently Relevant
Statements
1. Those statements which are the very facts in
issue.
2. Those statements which are circumstantial
evidence of the facts in issue.
The Second Class of Independently Relevant
Statements Includes the Following:
1. Statement of a person showing his state of
mind;
2. Statement of a person showing his physical
condition;
3. Statements of a person from which inference
may be made as to the state of mind of
another person;
4. Statements which may identify the date,
place, and person in question; and
5. Statements showing the lack of credibility of
a witness. (Estrada v. Desierto, G.R. Nos.
146710-15, 2001)
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6. OPINION RULE
Opinion Evidence
It is the statement by the witness of an inference
as to the existence or nonexistence of a fact in
issue based upon other facts presented directly
to the senses of the witness.
General rule: The opinion of a witness is not
admissible. (Rule 130, Sec. 51)
Exceptions:
1. Opinion of expert witness (Rule 130, Sec. 52)
2. Opinion of ordinary witness as to certain
matters (Rule 130, Sec. 53)
a. Opinion of expert witness; weight given
The opinion of a witness on a matter requiring
special knowledge, skill, experience, training or
education, which he or she is shown to possess,
may be received in evidence. (Rule 130, Sec. 52)
Expert
A person who is so qualified either by actual
experience or by careful study as to enable him
to form a definite opinion of his own respecting
any division of science, art, or trade about which
persons having no particular training are
incapable of forming accurate opinions or of
deducing correct conclusions.
Expert Evidence
It is the testimony of persons who are particularly
skilled, or experienced in a particular art, science,
trade, business, profession, or vocation, a
thorough knowledge of which is not possessed by
man in general, in regard to matters connected
therewith.
Weight or Probative Value of Expert
Testimony
The court is not 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 light of its own
general knowledge and experience upon the
subject of inquiry. (Dizon v Tuazon, G.R. No.
172167, 2008)
A finding of forgery does not depend entirely on
the findings of handwriting experts, because the
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judge must conduct an independent examination
of the questioned signature in order to arrive at a
reasonable conclusion. (Lorzano v. Tabayag,
G.R. No. 189647, 2012)
Where the sanity of a person is at issue, expert
opinion is not necessary. The observations of the
trial judge coupled with evidence establishing the
person's state of mental sanity will suffice.
(Hernandez v. San Juan-Santos, G.R. No.
166470, 2009)
b. Opinion of ordinary witness
The Opinion of a Witness for Which Proper
Basis is Given, May be received in Evidence
Regarding:
1. The identity of a person about whom he or
she has adequate knowledge
2. A handwriting with which he or she has
sufficient familiarity; and
3. The mental sanity of a person with whom he
or she is sufficiently acquainted.
The witness may also testify on his or her
impressions of the emotion, behavior, condition
or appearance of a person. (Rule 130, Sec. 53)
Proper Basis or Predicate Must First be
Established
1. Adequate knowledge of the person
identified
2. Sufficient familiarity with the handwriting
regarding which the opinion is given
3. Sufficient acquaintance with the person
whose mental sanity is the subject of the
opinion given
An ordinary witness cannot give an opinion as to
the mental sanity of a person based in whole or
in part upon an abstract hypothetical question,
but must base his opinion solely upon his own
personal knowledge, observation, or
acquaintance.
American and Philippine courts 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, whether
the accused or the prosecution seeks its
introduction, for the reason that the polygraph has
not as yet attained scientific acceptance as a
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reliable and accurate means of ascertaining truth
or deception (People v. Adoviso, G.R. No.
116196, 1999)
Generally, a lay witness may testify only to facts
and not to opinions or conclusions, but may be
permitted to use so-called short hand
descriptions (in reality, opinions), in presenting
to court their impressions of general physical
condition of a person. In murder prosecution,
where the defendant’s mother testified on the
issue of the defendant’s insanity and related
history of the defendant from infancy to the day of
the alleged crime, including his illness, both
mental and physical, his hospitalizations, his
moral delinquencies and his crimes, and
whatever might throw light on his mental
condition, words used by defendant’s mother
“such a terrible shape” and “physically ill” in
describing defendant’s condition should have
been permitted to stand. (State v. Garver, 225
P.2d 771, 1950)
Just when a scientific principle or discovery
crosses the line between the experimental and
demonstrable stages is difficult to define.
Somewhere in this twilight zone the evidential
force of the principle must be recognized, and
while courts will go a long way in admitting expert
testimony deduced from a well-recognized
scientific principle or discovery, the thing from
which the deduction is made must be sufficiently
established to have gained general acceptance in
the particular field in which it belongs. (U.S. v.
Stifel, 433 F.2d 431, 1970)
The Rules place appropriate limits on the
admissibility of purportedly scientific evidence by
assigning to the trial judge the task of ensuring
that an expert’s testimony both:
(1) rests on a reliable foundation and
(2) is relevant to the task at hand.
The reliability standard is established by the
requirement that an expert’s testimony pertains to
“scientific knowledge,” since the adjective
“scientific” implies a grounding in science’s
methods and procedures, while the word
“knowledge” connotes a body of known facts or
of ideas inferred from such facts or accepted as
true on good grounds. The Rule’s requirement
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that the testimony “assist the trier of fact to
understand the evidence or to determine a fact in
issue” goes primarily to relevance by demanding
a valid scientific connection to the pertinent
inquiry as a precondition to admissibility. Expert
testimony is thus admissible only if relevant and
reliable. (Daubert v. Merrell Dow
Pharmaceuticals, 113 S. Ct. 2786, 1933)
“Hot Tub” Method – Concurrent Expert
Evidence (ISAAA v. Greenpeace, G.R. No.
209271, 2015)
"Hot tubbing," the colloquial term for concurrent
expert evidence, is a method used for giving
evidence in civil cases in Australia.
In a "hot tub" hearing, the judge can hear all the
experts discussing the same issue at the same
time to explain each of their points in a discussion
with a professional colleague.
Objective
To achieve greater efficiency and expedition by
reduced emphasis on cross-examination and
increased emphasis on professional dialogue,
and swifter identification of critical areas of
disagreement between experts.
How to Determine Weight to be Given to
Opinion of Expert Witness
In any case where the opinion of an expert
witness is received in evidence, the court has a
wide latitude of discretion in determining the
weight to be given to such opinion, and for that
purpose may consider the following:
a. Whether the opinion is based upon
sufficient facts or data;
b. Whether it is the product of reliable
principles and methods;
c. Whether the witness has applied the
principles and methods reliably to facts of
the case; and
Such other factors as the court may deem helpful
to make such determination. (Rule 133, Sec. 5)
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7. CHARACTER EVIDENCE
Character
The possession by a person of certain qualities of
mind or morals, distinguishing him from others.
Character and Reputation Distinguished
CHARACTER REPUTATION
Aggregate of the Depends on attributes
moral qualities which which others believe
belong to and one to possess.
distinguish an (Riano, Evidence,
individual person. 491-492, 2019 ed.)
General Rule: Evidence of character or a trait of
character is not admissible. (Rule 130, Sec. 54)
Reason
The rule is that the character or reputation of a
party is regarded as legally irrelevant in
determining a controversy, so that evidence
relating thereto is not admissible. Ordinarily, if the
issues in the case were allowed to be influenced
by evidence of the character or reputation of the
parties, the trial would be apt to have the aspects
of a popularity contest rather than a factual
inquiry into the merits of the case. After all, the
business of the court is to try the case, and not
the man; and a very bad man may have a
righteous cause. (People v. Lee, G.R. No.
139070, 2002)
a. Criminal cases
1. As to the character of the accused
A. The accused may prove his or her good moral
character, which is pertinent to the moral trait
involved in the offense charged. (Rule 130,
Sec. 54[a][2])
For example, the accused in a murder case
may present evidence that he has a reputation
for being a peaceful person.
B. The prosecution may not prove his or her bad
moral character pertinent to the moral trait
involved in the offense charged, unless on
rebuttal. (Rule 130, Sec. 54[a][2])
In rebuttal, the prosecution may present
evidence that the accused has a reputation
for being a quarrelsome person.
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2. As to the Character of the Offended Party
The 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. (Rule 130, Sec. 54[a][1])
For example, in a murder case, the accused,
invoking self-defense, can present evidence that
the offended party (the victim) was of a
quarrelsome disposition.
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
predisposition of the alleged victim (Riano, p.
367 citing Sec. 30 of the Rule on Examination
of a Child Witness)
b. Civil cases
Evidence of the moral character of a party in a
civil case is admissible only when pertinent to the
issue of character involved in the case. (Rule 130,
Sec. 54[b])
General Rule: The moral character of a party to
a civil case is not a proper subject of inquiry.
Exception: In cases where, because of the
nature of the action, the character of a party
becomes a matter in issue.
c. Criminal and civil cases
Evidence of the good character of a witness is
not admissible until such character has been
impeached. (Rule 130, Sec. 54[c])
In all cases in which evidence of character or trait
of character of a person is admissible, proof may
be made by testimony as to reputation or by
testimony in the form of an opinion. On cross-
examination, inquiry is allowable into relevant
specific instances of conduct. (Rule 130, Sec. 54,
second par.)
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In cases in which character or trait of character of
a person is an essential element of a charge,
claim or defense, proof may also be made of
specific instances of that person’s conduct (Rule
130, Sec. 54, third par.)
8. JUDICIAL AFFIDAVITS
The rule 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. (Riano,
Evidence, 418, 2019 ed.)
a. Scope
The Judicial Affidavit Rule shall apply to all
actions, proceedings, and incidents requiring the
reception of evidence before:
1. The Metropolitan Trial Courts, the Municipal
Trial Courts in Cities, the Municipal Trial
Courts, the Municipal Circuit Trial Courts, and
the Shari' a Circuit Courts but shall not apply
to small claims cases under A.M. 08-8-7-SC;
2. The Regional Trial Courts and the Shari'a
District Courts;
3. The Sandiganbayan, the Court of Tax
Appeals, the Court of Appeals, and the Shari'a
Appellate Courts;
4. The investigating officers and bodies
authorized by the Supreme Court to receive
evidence, including the Integrated Bar of the
Philippine (IBP); and
5. The special courts and quasi-judicial bodies,
whose rules of procedure are subject to
disapproval of the Supreme Court, insofar as
their existing rules of procedure contravene
the provisions of this Rule. (JAR, Sec. 1(a))
b. Submission in lieu of direct testimony
(a) The parties shall file with the court and serve
on the adverse party, personally or by licensed
courier service, not later than five days before
pre-trial or preliminary conference or the
scheduled hearing with respect to motions and
incidents, the following:
(1) The judicial affidavits of their witnesses,
which shall take the place of such
witnesses' direct testimonies; and
(2) The parties' documentary or object
evidence, if any, which shall be attached to
REMEDIAL LAW
the judicial affidavits and marked as
Exhibits A, B, C, and so on in the case of
the complainant or the plaintiff, and as
Exhibits 1, 2, 3, and so on in the case of
the respondent or the defendant.
(b) Should a party or a witness desire to keep the
original document or object evidence in his
possession-- he may, after the same has been
identified, marked as exhibit, and authenticated,
warrant in his judicial affidavit that the copy or
reproduction attached to such affidavit is a faithful
copy or reproduction of that original. In addition,
the party or witness shall bring the original
document or object evidence for comparison
during the preliminary conference with the
attached copy, reproduction, or pictures, failing
which the latter shall not be admitted.
This is without prejudice to the introduction of
secondary evidence in place of the original when
allowed by existing rules. (JAR, Sec. 2)
The judicial affidavit shall take the place of the
direct testimonies of witnesses. 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. (Riano, p. 296)
c. Contents
A judicial affidavit shall be prepared in the
language known to the witness and, if not in
English or Filipino, accompanied by a translation
in English or Filipino, and shall contain the
following:
(a) The name, age, residence or business
address, and occupation of the witness;
(b) The name and address of the lawyer who
conducts or supervises the examination of the
witness and the place where the examination
is being held;
(c) A statement 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 perjury;
(d) Questions asked of the witness and his
corresponding answers, consecutively
numbered, that:
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(1) Show the circumstances under which the
witness acquired the facts upon which he
testifies;
(2) Elicit from him those facts which are
relevant to the issues that the case
presents; and
(3) Identify the attached documentary and
object evidence and establish their
authenticity in accordance with the Rules
of Court;
(e) The signature of the witness over his printed
name; and
(f) A jurat with the signature of the notary public
who administers the oath or an officer who is
authorized by law to administer the same.
(JAR, Sec. 3)
(g) A sworn attestation at the end, executed by
the lawyer who conducted or supervised the
examination of the witness, to the effect that:
(1) He faithfully recorded or caused to be
recorded the questions he asked and the
corresponding answers that the witness
gave; and
(2) Neither he nor any other person then
present or assisting him coached the
witness regarding the latter's answers.
(JAR, Sec. 4(a))
The questions to be asked of the witness in the
preparation of the judicial affidavit will determine
whether he/she has personal knowledge of the
facts upon which he/she testifies. The matters
testified to should also be on matters relevant to
the issues of the case. (Riano, Evidence, 272)
d. Offer and objection
Offer of and objections to testimony in judicial
affidavit—
The party presenting the judicial affidavit of his
witness in place of direct testimony shall state the
purpose of such testimony at the start of the
presentation of the witness. The adverse party
may move to disqualify the witness or to strike out
his affidavit or any of the answers found in it on
ground of inadmissibility. The court shall promptly
rule on the motion and, if granted, shall cause the
marking of any excluded answer by placing it in
brackets under the initials of an authorized court
personnel, without prejudice to a tender of
REMEDIAL LAW
excluded evidence under Section 40 of Rule 132
of the Rules of Court. (JAR, Sec. 6)
Oral offer of and objections to exhibits—
(a) Upon the termination of the testimony of his
last witness, 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.
(b) 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.
(c) Since the documentary or object exhibits form
part of the judicial affidavits that describe and
authenticate them, 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.
(JAR, Sec. 8)
e. Application in criminal cases
This rule shall apply to all criminal actions:
1. Where the maximum of the imposable
penalty does not exceed six years;
2. Where the accused agrees to the use of
judicial affidavits, irrespective of the penalty
involved; or
3. With respect to the civil aspect of the
actions, whatever the penalties involved are.
(JAR, Sec. 9(a))
Example of crimes where applicable:
1. Falsification and use of falsified documents.
2. False testimony and perjury.
3. Indirect bribery.
4. Death caused in a tumultuous affray (if it
cannot be ascertained who actually killed the
deceased)
5. Inducing a minor to abandon his home.
6. Adultery and Concubinage.
7. Acts of lasciviousness.
8. Consented abduction.
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f. Effect of non-compliance
1. A false attestation shall subject the lawyer
mentioned to disciplinary action, including
disbarment. (JAR, Sec. 4(b))
2. If the government employee or official, or the
requested witness, who is neither the witness
of the adverse party nor a hostile witness,
unjustifiably declines to execute a judicial
affidavit or 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, the requesting party may avail himself
of the issuance of a subpoena ad
testificandum or duces tecum under Rule 21
of the Rules of Court. The rules governing the
issuance of a subpoena to the witness in this
case shall be the same as when taking his
deposition except that the taking of a judicial
affidavit shall be understood to be ex parte.
(JAR, Sec. 5)
Section 5 of the JAR contemplates a situation
where there is a (a) government employee or
official or (b) requested witness who is not the
(1) adverse party’s witness nor (2) a hostile
witness. If this person either (a) unjustifiably
declines to execute a judicial affidavit or (b)
refuses without just cause to make the
relevant documents available to the other
party and its presentation to court, Section 5
allows the requesting party to avail of
issuance of subpoena ad
testificandum or duces tecum under Rule 21
of the Rules of Court. Thus, adverse party
witnesses and hostile witnesses being
excluded, they are not covered by Section
5.
Here, Yap is a requested witness who is the
adverse party’s witness. Regardless of
whether he unjustifiably declines to execute a
judicial affidavit or refuses without just cause
to present the documents, Section 5 cannot
be made to apply to him for the reason that he
is included in a group of individuals expressly
exempt from the provision’s application. (Ng
Meng Tam vs. Chinabank, G.R. No. 214054,
2015)
REMEDIAL LAW
3. A party who fails to submit the required judicial
affidavits and exhibits on time shall be
deemed to have waived their submission.
The court may, however, allow only once the
late submission of the same provided, the
delay is for a valid reason, would not unduly
prejudice the opposing party, and 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.
4. The court shall not consider the affidavit of any
witness who fails to appear at the scheduled
hearing of the case as required. Counsel who
fails to appear without valid cause despite
notice shall be deemed to have waived his
client's right to confront by cross-examination
the witnesses there present.
5. The court shall not admit as evidence judicial
affidavits that do not conform to the content
requirements of Section 3 and the attestation
requirement of Section 4.
The court may, however, allow only once the
subsequent submission of the compliant
replacement affidavits before the hearing or
trial provided the delay is for a valid reason
and would not unduly prejudice the opposing
party and provided further, that public or
private counsel responsible for their
preparation and submission pays a fine of not
less than P1,000.00 nor more than P5,000.00,
at the discretion of the court. (JAR, Sec. 10)
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F. OFFER AND OBJECTION
1. 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. (Rule
132, Sec. 34)
Exceptions:
1. Evidence not formally offered can be
considered by the court as long as they have
been properly identified by testimony duly
recorded and
2. They have been incorporated in the records of
the case. (People v Libnao, G.R. No. 13860,
2003)
Purpose of Offer
Formal offer is necessary because it is the duty
of the judge to rest his findings of facts and his
judgment only and strictly upon the evidence
offered by the parties at the trial. (Candido, v. CA,
G.R. No. 107493, 1996)
The purpose for which the evidence is offered
must be specified because such evidence may be
admissible for several purposes under the
doctrine of multiple admissibility, or may be
admissible for one purpose and not for another;
otherwise the adverse party cannot interpose the
proper objection. Evidence submitted for one
purpose may not be considered for any other
purpose. (Catuira v. CA, G.R. No. 105813, 1994)
Note: A party who has offered evidence is NOT
entitled as a matter of right to withdraw it on
finding that it does not answer his purpose.
Note: A party who calls for the production of a
document and inspects the same is not obliged to
offer it as evidence. (Rule 130, sec. 9)
Note: A party has the option of not offering into
evidence the evidence identified at the trial and
marked as an exhibit.
Note: The mere fact that a particular document is
identified and marked as an exhibit does not
mean it will be or has been offered as part of the
evidence of the party. The party may decide to
formally offer it if it believes this will advance its
REMEDIAL LAW
cause, and then again it may decide not to do so
at all. (Interpacific Transit v. Aviles, G.R. No.
86062, 1990)
There are instances when the Court relaxed the
foregoing rule and allowed evidence not formally
offered to be admitted. Citing People v. Napat-a
and People. v. Mate, the Court in Heirs of
Romana Saves, et al., v. Heirs of Escolastico
Saves, et al. (G.R. No. 152866, 2010),
enumerated the requirements for the evidence to
be considered despite failure to formally offer it,
namely: “first, the same must have been duly
identified by testimony duly recorded and,
second, the same must have been
incorporated in the records of the case.”
In People v. Vivencio De Roxas et al. (G.R. No.
L-16947, 1962), the Court also considered
exhibits which were not formally offered by
the prosecution but were repeatedly referred
to in the course of the trial by the counsel of
the accused.
In the instant case, the Court finds that the above
requisites are attendant to warrant the relaxation
of the rule and admit the evidence of the
petitioners not formally offered. As can be seen in
the records of the case, the petitioners were able
to present evidence that have been duly identified
by testimony duly recorded. To identify is to prove
the identity of a person or a thing. Identification
means proof of identity; the proving that a person,
subject or article before the court is the very same
that he or it is alleged, charged or reputed to be.
(Rodolfo Laborte, et al. v. Pagsanjan Tourism
Consumers’ Cooperative, et al., G.R. No.
183860, 2014)
2. WHEN TO MAKE AN OFFER
DOCUMENTARY
TESTIMONIAL
AND OBJECT
EVIDENCE
EVIDENCE
The offer must be It shall be offered after
made at the time the the presentation of a
witness is called to party’s testimonial
testify. (Rule 132, evidence. (Rule 132,
Sec. 35) Sec. 35)
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Note: The Rules of Court now mandate that all Grounds for the objections must be specified.
evidence be offered orally. (Rule 132, Sec. 35)
An objection to evidence cannot be made in
3. OBJECTION advance of the offer of the evidence sought to be
introduced.
Purposes of Objections:
1. To keep out inadmissible evidence that would The right to object is a mere privilege which the
cause harm to a client’s cause. The rules of parties may waive. And if the ground for
evidence are not self-operating and hence, objection is known and not seasonably made, the
must be invoked by way of an objection; objection is deemed waived and the court has no
2. To protect the record, i.e., to present the issue power, on its own motion, to disregard the
of inadmissibility of the offered evidence in a evidence. (People v. Yatco, G.R. No. L-9181,
way that if the trial court rules erroneously, the 1955)
error can be relied upon as a ground for a
future appeal;
WHEN OFFERED WHEN IT MAY BE
3. To protect a witness from being embarrassed OBJECTED TO
on the stand or from being harassed by the
Object Evidence
adverse counsel;
When the same is
4. To expose the adversary’s unfair tactics like
presented for its view
his consistently asking obviously leading
or evaluation, as in
questions;
ocular inspection or
5. To give the trial court an opportunity to correct
demonstrations, or Should be made either
its own errors and, at the same time, warn the
when the party rests at the time it is
court that a ruling adverse to the objector may
his case (after the presented in an ocular
supply a reason to invoke a higher court’s
presentation of a inspection or
appellate jurisdiction; and
party’s testimonial demonstration or when
6. To avoid a waiver of the inadmissibility of
evidence [Rule 132, it is formally offered
otherwise inadmissible evidence. (Riano,
Sec. 35]) and the
Evidence, 517-518)
real evidence
consists of objects
Purpose
exhibited in court.
To stop an answer to a question put to a witness
Testimonial Evidence
or to prevent the receipt of a document in
As to the qualification
evidence until the court has had opportunity to
of the witness – should
make a ruling upon its admissibility.
be made at the time he
is called to the stand
Rules on Objections (Rule 132, Sec. 36)
and immediately after
the opposing party
Objection to offer of evidence
offers his/her
Must be made orally immediately after the offer is
testimony.
made When witness is
called to the witness
If otherwise qualified -
Objection to the testimony of a witness for stand, before he/she
objection should be
lack of formal offer testifies
raised when the
Must be made as soon as the witness begins to
objectionable question
testify
is asked or after the
answer is given if the
Objection to a question propounded in the
objectionable features
course of the oral examination of a witness—
became apparent by
Must be made as soon as the grounds therefor
reason of such
become reasonably apparent
answer.
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Documentary Evidence
Formally offered by
the proponent after
the presentation of At the time it is formally
his/her last witness offered. (Francisco,
and before he rests supra)
his case. (Francisco,
supra)
4. REPETITION OF AN OBJECTION
(CONTINUING OBJECTION)
When it becomes reasonably apparent in the
course 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 or her continuing objection to such
class of questions. (Rule 132, Sec. 37)
5. RULING
When Ruling of Court Must be Given
General Rule: The ruling of the court must be
given immediately after the objection is made
Exception: Unless the court desires to take a
reasonable time to inform itself on the question
presented.
Note: The ruling shall always be made:
1. During the trial; and
2. At such time as will give the party against
whom it is made an opportunity to meet the
situation presented by the ruling. (Rule 132,
Sec. 38)
When Reason For Ruling Must be Stated
General Rule: The reason for sustaining or
overruling an objection need not be stated.
Exception: 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. (Rule 132, Sec. 38)
Note: The rulings of the trial court on procedural
questions and on admissibility of evidence during
the course of a trial are interlocutory in nature and
may not be the subject of separate appeals or
REMEDIAL LAW
review on certiorari. These are to be assigned as
errors and reviewed in the appeal taken from the
trial court on the merits of the case. (Gatdula v.
People, GR No. 140688, Jan. 26, 2001)
6. STRIKING OUT OF AN ANSWER
General Rule: An objection to questions
propounded in the course of oral examination
must be interposed as soon as the ground(s)
become evident. Failure to interpose a timely
objection may be taken as a waiver of the right to
object and the answer will be admitted.
Exceptions: A motion to strike out the answer,
testimony or narration is available as a remedy
where:
1. Where a witness answers a question before
the adverse party had the opportunity to voice
fully its objection to the same
2. Where a question not objectionable, but the
answer is not responsive
3. Where a witness testifies without a question
being posed
4. Where witness testifies beyond limits set by
the court
5. Where the witness does a narration instead of
answering the question
(Rule 132, Sec. 39)
An Answer, Testimony or Narration May be
Stricken Off the Record:
On motion of party
Should a witness answer the question before the
adverse party had the opportunity to voice fully its
objection to the same or where a question is not
objectionable, but the answer is not responsive,
or where a witness testifies without a question
being posed or testifies beyond limits set by the
court or when the witness does a narration
instead of answering the question and such
objection is found to be meritorious, the court
shall sustain the objection and order the answer,
testimony or narration to be stricken off the
record. (Rule 132, Sec. 39)
On proper motion, the court may also order the
striking out of answers which are incompetent,
irrelevant, or otherwise improper. (Rule 132, Sec.
39)
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7. TENDER OF EXCLUDED EVIDENCE In Inter-pacific Transit, Inc. v. Aviles, we had the

Where the court refuses to permit the counsel to
present testimony which he thinks is competent,
material and necessary to prove his case, the
method to properly preserve the record to the end
that the question may be saved for the purposes
of review, is through the making of an offer of
proof.
Purpose
1. To inform the court of what is expected to be
proved.
2. To enable a higher court to determine from the
record whether the proposed evidence is
competent.
occasion to make a distinction between
identification of documentary evidence and its
formal offer as an exhibit. We said that the first is
done in the course of the trial and is accompanied
by the marking of the evidence as an exhibit while
the second is done only when the party rests its
case and not before. A party, therefore, may opt
to formally offer his evidence if he believes that it
will advance his cause or not to do so at all. In the
event he chooses to do the latter, the trial court is
not authorized by the Rules to consider the same.
(Vda. de Oñate v. CA, G.R. No. 116149, 1995)
————- end of topic ————-

Rule on Tender of Excluded Evidence

1. If the excluded evidence is documentary or
object
The offeror may have the same attached to or
made part of the record. (Rule 132, Sec. 40)
2. 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. (Rule 132, Sec. 40)

The non-inclusion of the controverted bills of

lading in the formal offer of evidence cannot,
under the facts of this particular case, be
considered a fatal procedural lapse as would bar
respondent carrier from raising the defense of
prescription. (PHILAMGEN v. Sweet Lines, Inc.,
G.R. No. 87434, 1992)

The reason for requiring that evidence be formally

introduced is to enable the court to rule
intelligently upon the objection to the questions
which have been asked. As a general rule, the
proponent must show its relevancy, materiality
and competency. Where the proponent offers
evidence deemed by counsel of the adverse party
to be inadmissible for any reason, the latter has
the right to object. But such right is a mere
privilege which can be waived. Necessarily, the
objection must be made at the earliest
opportunity, lest silence when there is opportunity
to speak may operate as a waiver of objections.
(Catuira v. CA, G.R. No. 105813, 1994)

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