CHAPTE! aan E. Admissions cae RV — TESTIMONIAL EVIDENCE 281 . Sstons and the Res Inter Alios Acta Rule (Rule 130) 5. Inacase,a lawyer, an in-house sel and ci ate secretary, wasadministratively charged withminnrotn ene millions of corporate funds. However, despite the severity of the charges against him and the opportunities granted him to comment on the charges, he refused to do so, The Court, thus, declared: ; “x x x The natural instinct resist an unfounded claim or imputation and defend himself. It Js totally against our human nature to just remain reticent and say nothing in the face of false accusations. Silence in such cases is almost always construed as implied admission of the truth thereof x x x” (HDI Holdings Philippines, Inc. v. Cruz, A.C. No. 11724, July 31, 2018). of man impels him to Res inter alios acta; branches (Bar 2019) 1. The expression if fully expressed reads: res inter. alios acta alteri nocere non debet which literally means that “things done between strangers ought not to injure those who. are not parties to them” (Black’s Law Dictionary, 5th Ed., p. 1178; Dynamic Signmaker Outdoor Advertising Services, Inc. v. Potongan, 461 SCRA 328). 2. The res inter alios acta rule has two branches, namely: ( @) The rule that the rights of a party cannot be prejudiced by an act, declaration, or omission of another (Sec. 29, Rule 130, Rules of Court). (b)) The rule that evidence of previous conduct or similar acts at_one time is not admissible to prove that one did or did not do the same act at another time (Sec. 35, Rule 132, ibid.). 3. The provisions on res inter alios acta under Rule 130 read: “SEC. 29. Admission by third party. — The rights judi t, declaration or of a party cannot be prejudiced by an act, i 1 orice of another, except as hereinafter provided.288 EVIDENCE (The Bar Lectures Series) “SEC. 35. Similar acts as evidence. — Evidence that one did or did not do a certain thing at one time is not admissible to prove that he or she did or did not do the same or a similar thing at another time; but it may be received to prove a specific intent or knowledge, identity, plan, system, scheme, habit, custom or usage, and the like.” 4. The first branch is a very simple and logical rule which holds that whatever one says or does or omits to do should only affect him but should not affect or prejudice others. In other words, both common reason and fairness demand that a man’s actions and declarations should affect him alone and should not affect others. Thus, if X makes a statement before the media admitting his participation in a previous murder, his statement is admissible against him under Sec. 27 of Rule 130. The rest of his statement pointing to Y and Z as co-participants in the murder are not admissible against Y and Z under the first branch of the res inter alios acta rule in Sec. 29 of Rule 130. Under this rule, the statement of X should not affect or prejudice Y and Z upon their timely objections. 5. The above rule has reference only to extrajudicial declarations. Hence, statements made in open court by a witness implicating persons, aside from his own judicial admissions, are admissible as declarations from one who has personal knowledge of the facts testified to. Thus, the Court, in one case, instructed that “When several accused are tried together, the confession made by one (1) of them during the trial, implicating the others, is evidence against the latter” (People v. Lumayag, G.R. No. 181474, duly 26, 2017). ee ee Distinctions between extrajudicial and judicial admissions 1. A distinction must be made. between extrajudicial and judicial confessions. “An extrajudicial confession may be given in evidence against the confessant but not against his co-accused as they are deprived of the opportunity to cross:CHAPTER) PEST Bo Admaatione Cone V— TESTIMONIAL EVIDENCE 289 “sions and the Res Inter Alios Acta Rule (Rule 130) amine him. A judicj eee ae oe cludicil confession is admissible against the ponerse ae wes Since the latter are afforded opportunity ‘ e the former. Section 30 [now See, 31] of Kule ” declarant’ 2011). : : , 2. An_extrajudicial confession or admission of one accused is admissible only against said accused, but_is. inadmissible against the other accused. But if the declarant or_admitter_repeats in court his extrajudicial admission, and the other accused is accorded the opportunity to cross- examine the admitter, the admission is admissible against both accused because then, it is transposed into a_judicial_ admission (Yapyuco v. Sandiganbayan, 674 SCRA 420, 451, June 25, 2012). (Bar 2003) Exceptions to the res inter alios acta rule (first branch) 1. The first branch of the rule admits of certain exceptions, to wit: (a)) admission by_co-part 130, Rules of Court); (@)) admission by y conspirator (Sec. 31, ibid.); and r or agent (Sec. 30, Rule i ©) admission by privies (Sec. 32, ibid.). T i itti bove admissions is_ basis for admitting the above th Fi cay making the statement. is under the same ecerereareaent n against whom it is offered. Such 5 es as he perso! H a A aeere give him substantially the same interest and the e motive to make statement. about certain matters same_motive to.m (4 Wigmore, Sec. 1080a, 140). -partner or agent forms some service in representation al (Art. 1868, Civil Code of the Admissions by a co 1. An agent pertor™” of or on behalf of his princ1p290 EVIDENCE (The Bar Lectures Series) Philippines). The agent, therefore, is in legal contemplation, g mere extension of the personality of the principal and unlegg the agent acts in his own name, the principal must comply with all the obligations which the agent may have contracted within the scope of his authority (Art. 1883; Art. 1910, ibid.), Hence, whatever is said by an agent to a third person, during the course of the agency and within the scope of his actual or apparent authority, relative to the business contemplated by the agency is, for legal purposes, also the statement of the principal and is, therefore, admissible against said principal (29A Am Jur 29, Evidence, §815 citing Hitchman Coal & Coke Co. v. Mitchell, 245 U.S. 229, 62 L Ed 260, 38 S Ct 65). 2. However, not every declaration or act made or done by a partner or agent is admissible against the other partners or the principal. For the admission of a co-partner or agent to be admissible, the following requisites must concur: é (a) ) The declaration or act of the partner or agent must“have been made or done within the scope of his authority;_ ) ) The declaration or act of the partner or agent must have been made or done during the existence of the partnership or agency (while the person making the declaration was still a partner or an agent); and (c)}) The existence of the partnership or agency is proven by evidence other than the declaration or act of the partner or agent (Sec. 30, Rule 130, Rules of Court). 3. Any declaration made before the partnership oF agency existed, or those made after, are not admissible against pal but remains admissible the other partners or the princi against the partner or agent making the declaration. It.is als necessary for the application of the exception that the proof of the agency or partnership be from a i 3 nership be from a source ; ent of the declaration made by the partner or agent. egCHAPTER V — ao TEST : 7 BE, Admissions, Conferions ages TIMONIAL EVIDENCE 291 nd the Res Inter Alios Acta Rule (Rule 130) Thus, if after the partnership is dissolved and liquidated, AA, a former partner in ABC Partnership, admits before a police investigator that he and his partners were engaged in smuggling highly dutiable imported cigarettes while the partnership was operating a buy and sell business, the extrajudicial declarations of AA are not admissible against BB and CC, his former partners. His declarations are, nevertheless, admissible against him. 4. The above rules also apply to the declarations or acts of a Joint owner, joint debtor, or other persons jointly interested with the party (Ibid.). Admissions by a conspirator 1. Aconspiracy exists when two or more persons come to an agreement concerning the commission of: a felony and decide to commit it (Art. 8, Revised Penal Code; People v. Sabado, G.R. No. 218910, July 5, 2017). Once the conspiracy is mspirators as of one may be admitted against the other co: an exception to the rule on res inter alios acta, 2. Assume that two months after a successful bank robbery, A was arrested as a direct participant in the crime. During a television interview, he admitted his participation in the robbery. He also implicated B and C as his other companions in planning and executing the robbery. Is his statement admissible? The statement is admissible as to him (Sec. 27, Rule 180, Rules of Court) but not as to B and C (See. 29, ibid.). (Bar 1991) To be admissible against B and C, the following must concur: ((a)) The declaration or act be made or done during the existence of the conspiracy; ¢ ()) The declaration or act must relate to the conspiracy; and. . ‘he conspiracy must be shown -by_ evidence ROM such declaration or act (Sec. 31, ibid.).292 EVIDENCE (The Bar Lectures Series) Observe that the declaration of A was made long after the conspiracy was over. It was then no longer made during the existence of the conspiracy. In fact, at the time of the declaration, A was no longer a co-conspirator. Even assuming that the conspiracy can be proven by independent evidence and even if his statement was related to the conspiracy, the declaration is not admissible as an exception to the rule of res inter alios acta. The arrest of the declarant is often found to terminate the declarant’s participation in the conspiracy so that the declarant’s post arrest statements do not qualify as admissible co-conspirator statements (29A Am Jur, Evidence, §840). An extrajudicial confession is binding only upon the confessant and is not admissible against his co-accused (People v. Raquel, 265 SCRA 248). As against the latter, the confession is hearsay (People v. Camat, 256 SCRA 52). 3. The rule of res inter alios_acta_does not apply when the co-accused takes the witness stand and repeats his extrajudicial confession as_a witness. The declarations referred to under Sec. 31 of Rule 130 are merely extrajudicial statements or declarations. When he testifies as a witness, his statements become judicial and a: missible not only against -accused. This is also because the. ses in open court are admissible as testimonies.of a person based on his personal perceptions and knowledge pursuant to Sec. 22 of Rule 130, Rules of Court. It was thus, held that when several persons are tried together, the confession made by one of them during the trial implicating the others is evidence against the latter. An accused is always a competent witness for or against his co- accused (People v. Opiniano, G.R. No. 181474, July 26, 2017). 4. Jurisprudence holds that the general rule is that the extrajudicial confession or admission of one accused is. admissible only against the said accused but inadmissible against the other accused. However, if the declarant/admitter repeats in court his extrajudicial confession during trial and the other a opportunity to cross-examineCHAPTER v — E, Admissions, Confessions and the Meo EVIDENCE 293 nd the Res Inter Alios Acta Rule (Rule 130) ihe admin such confession or admission is admissible ee oth accused. The erstwhile extrajudicial confession or Bemission, when repeated during the trial, is transposed into judicial admissions (People v. Buntag, 427 SCRA 180). 7 ae oe Supreme Court also held in one case that a aist must be made between an extrajudicial and judicial confession. An extrajudicial confession may be given in evidence against the confessant but not against his co- accused since the latter are not afforded the opportunity to cross-examine him. A judicial confession is admissible against the declarant’s co-accused since the latter is afforded the opportunity to cross-examine the former. Section 30 (now Sec. 31) of Rule 130 applies only to extrajudicial admissions and not to testimonies at trial where the party adversely affected has the opportunity to cross-examine the declarant (People v. Palijon, 343 SCRA 486). When the extrajudicial admission_of a conspirator is_ confirmed at the trial, it ceases to be hearsay. It becomes, instead, a judicial admission, being a testimony of an eyewitness admissible in evidence against those he implicates. Here, the extrajudicial confession was affirmed by him in open court during the trial. Thus, such confession already partook of judicial admission (Abay, dr. v. People, 566 SCRA 34). 6. Also, assuming that the statement relating to the de by a conspirator during the existence for the statement to be admitted, the judici ents of the co-conspirator must be proven eee oa such admission (Sec. 31, Rule 130, Rules of Court; U.S. v. Arias- Villanueva [CA9 Or] 998 F2d 1491; 294 Am Jur 2d, §847). If the only evidence of the conspiracy is the _ j declarant, the statements are j declaration of the extrajudicial thers. not admissible against the ; ppellant, the prosecution relied ‘ynticti ed-a In indicting acct cuted by the two other accused. - its exe other Lee Se advocating the admissibility of the e Solici , prothers, cited Sec. 30 (now Sec. 34), e nee ile of Court which provides that, » Rule conspiracy was ma’ of the conspiracy,294 EVIDENCE _ (The Bar Lectures Series) “(t]he act or declaration of a conspirator [in furtherance of] the conspiracy and during its existence, may be given in evidence against the co-conspirator after the conspiracy 18 y oy evidence other than such act or declaration. The Court ruled that the inapplicability of the provision relied upon was clearly apparent. The confessions were made after the conspiracy had ended and after the consummation of the crime. Hence, it cannot be said that the execution of the affidavits were acts or declarations made during the conspiracy’s existence (People v. Quidato, Jr., 297 SCRA 1). 7. The res inter alios acta rule provides that the rights of a party cannot be prejudiced by an act, declaration, or omission of another. Consequently, an extrajudicial confession is binding only upon the confessant and is not admissible against his co-accused. The reason for the rule is that, on a principle of good faith and mutual convenience, a man’s own acts are binding upon himself and are evidence against him. So are his conduct and declarations. Yet, it would not only be rightly inconvenient, but also manifestly unjust, that a man should be bound by the acts of mere unauthorized strangers; and if a party ought not to be bound by the acts of strangers, neither ought their acts or conduct be used as evidence against im. The rule on admissions made by a. _conspirator is a ‘a the foregoing rule but in order for such sion to be admissi : seaman = Rule 130 of the Rules of Court rescines, geese See. 81 there be independent evidense noe ge ene others. that s i pendent evidence aside from the extrajudicial confession to prove conspiracy. If apart from the t ae dicial confession of the confessant, no other evidenc ré ian participation of the accused in the votiaping e of the allege by the prosecution, the culpability of th Gy was! presented sufficiently established (People v. Gui € accused could not be ple v. Guittap, 403 SCRA 167). Admission by privies “ TCT, 7 1. Privies are persons who are partakers or have_ an interest in any_action or thing, or any relation to.another__, CHAPTER V — TESTIMONIAL EVIDENCE 295 E. Admissions, Confessions and the Res Inter Alios Acta Rule (Rule 130) (Black’s Law Dictionary, 5th Ed., p. 1077). Examples: (a) A lessor and his lessee, a grantor and a grantee; an assignor and an assignee are privies in an estate or a contract; (b) An executor or an administrator and the estate of the deceased are privles 1n representation; or (c) An heir and his ascendant are privies in blood or succession. 2. Z inherited a house and lot from his father, X. Assume that X, while alive, sold the property and, thereafter, openly told his acquaintances that the same lot where his house stood had already been sold to Y. Is this declaration by X necessarily admissible against Z? It is not because the statement was made after X held his title to the land. For an admission of a predecessor-in- interest to be admissible against the successor-in-interest, the following requisites must be present: (a) There must be an act, declaration or omission by a predecessor-in-interest; (b) The act, declaration, or omission of the predecessor must have occurred while he was holding (not after) the title to the property; and (c) The act, declaration, or omission must be in relation to the property (Sec. 32, Rule 130, Rules of Court). 3. Accordingly, when the former owner of the property made the declaration after he ceased to be the owner of the property, the rule on admission by privies does not apply. What applies is the general rule that the rights of a party cannot be prejudiced by an act, declaration, or omission of another (Gevero v. Intermediate Appellate Court, 189 SCRA 201). Offer of compromise in civil cases In civil cases, an offer of compromise is not an admission ny liabili ; i issible in evidence against of any liability, and _is_not admissible ir dence. the offeror (Sec, 28, Rule 130, Rules of Court). The amended p 019 Amendments to the Rules on provision under the 2 ; : dmissible any evidence of conduct or Evidence also renders ina!296 EVIDENCE (The Bar Lectures & pries) statement made during the compromise negotiations, except for evidence otherwise discoverable or 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 (Ibid.). Offer of compromise in criminal cases (Bar 1989, 2008) 1. An offer_of compromise by the accused may be received in evidence as an implied admission of guilt (Ibid.). The rule does not make a distinction between an extrajudicial and a judicial offer of compromise. In either case, the offer of compromise implies an admission of criminal liability. 2. An offer of compromise made by one not authorized by the accused does not amount to an implied admission of guilt. In one case, the Court instructs: “x x x [W]e believe that the better rule is that for a compromise to amount to an implied admission of guilt, the accused should be present or at least had authorized the compromise” (People v. Bangcado, G.R. No. 132330, November 28, 2000). 3. Even if the offer of compromise is accepted by the offended party, the criminal liability of the accused is not extinguished. Jurisprudence gives a clear reminder: “It needs to be remembered that a compromise is not one of the grounds prescribed by the Revised Penal Code for the extinction of criminal liability” (Team Image Entertainment, Inc. v. Solar Team Entertainment, Inc., G.R. No. 191652, September 13, 2017; See Article 89 of the Revised Penal Code). Hence, even if there is a compromise, criminal liability for estafa is not affected by compromise or novation of contract, for it is a public offense which must be prosecuted and punished by the Government on its own motion even though complete reparation should have been made of the damage suffered by the offended party. A criminal offense is committed against the People and the offended party may not waive oF extinguish the criminal liability that the law imposes for the commission of the offense. The criminal liability for estafaCHAPTER V — TESTIM a 5g 7 Ds IONIAL EVIDENCE, 297 . Adi s os: E. Admissions, Confessions and the Res Inter Alios Acta Rule (Rule 130) already committed is not affected by the subsequent novation th t 0 Y 7 io 2010) ract (Deganon y, People, G.R. No. 162826, October _ 4. Areading of the tenor of Sec. 28 of Rule 130 would give rise to a reasonable conclusion that there should be no implied admission of guilt if the offer of compromise is in relation to: (a) quasi-offenses (criminal negligence); or (b) cases allowed by law to be compromised. Thus, offenses committed by imprudence and negligence, described in Art. 365 of the Revised Penal Code on quasi-offenses/criminal negligence, may be compromised without the adverse effect of an implied admission of guilt. Thus, the accused should be allowed to make an offer of compromise in a case of reckless imprudence resulting in homicide without the offer being deemed an admission of guilt. Note, however, in the offenses of seduction, abduction, acts of lasciviousness and rape enumerated under Art. 344 of the Revised Penal Code, marriage of the offender with the offended party shall extinguish the criminal action or remit the penalty already imposed upon him. While Art. 89 of the Revised Penal Code does not mention the term “compromise” as a mode of extinguishing criminal liability, it may be reasonably argued that, from a practical standpoint, the marriage is a consequence of a compromise agreement between the parties. An offer of marriage, therefore, should not entail an implied admission of guilt. It appears that jurisprudence holds otherwise in cases where no marriage takes place in any of the above offenses between the offender and the offended party. iudici i : “As a rule in dicial yonouncement instructs l paisa of marriage to the offended party is an ffer rape eases: ot guilt” (People v. Bulos, G.R. No, 123542, June 26, 2001). ithdrawn withdraws his guilty plea, that plea gs not admissible in evidence against Plea of guilty later wi In case the accused of guilty later withdrawn288 EVIDENCE (The Bar Lectures Series) the accused who made the plea. The inadmissibility also applies to any statement made in the course of en with the prosecution as long as it does not result in ‘Se A. of guilty or results in a plea of guilty later withdrawn. (Sec. 28, Rule 130, Rules of Court). Unaccepted plea of guilty to a lesser offense If the plea of guilty to a lesser offense is not accepted, the rule does not provide for an adverse consequence of the unaccepted plea. On the contrary, the rule provides that an unaccepted plea of guilty to a lesser offense is not admissible in evidence against the accused who made the plea or offer (Ibid.). Offer to pay or the payment of medical, hospital, or other expenses An offer to pay or the payment of medical, hospital, or other expenses occasioned by an injury is not admissible in evidence as proof of civil or criminal liability for the injury (Ibid.). In other jurisdictions, this act of rendering aid is sometimes called the “Good Samaritan rule.” The phrase is used to refer to the rendering of voluntary aid to a suffering person, Subsequent remedial measures Assume that PP, while negotiating the stairs from the lobby of a hotel to his third floor room, slipped and fell from the stairs and sustained head injuries. The hotel owner, upon learning of the accident, immediately ordered the maintenance department of the hotel to install a non-slippery material on every step of the stairway. In an action for damages against the hotel owner by PP, may the latter introduce evidence of the subsequent remedial measures taken to prove an admission by the defendant of the hazardous iti i M condition of t! at the time of the incident? : , - eanpianed No direct legal provision in this jurisdiction addresses the question as it is. It is, however, interesting to observeCHAPTER V — Tr, aeeh ST) B, Admissions, Confessions arg oot MONIAL EVIDENCE 299 the Res Inter Alios Acta Rule (Rule 130) that the W-S. ederal Rules of Evidence (FRE), in Rule 407 thereof, prohibits the admission of e 7 remedial measures when offered to prove the negligence of the oe Evidence of such measures may, however, be admissible to prove some other purpose like the fact that the defendant had ownership of the hotel or control over the same and all the fixtures therein, vidence of subsequent Accordingly, the rule is based on the policy of encouraging potential defendants to remedy hazardous conditions without fear that their actions will be used as evidence against them (Pau v. Yosemite Park [CA9 Cal] 928 F2d, 880). To adopt the contrary rule would discourage owners from improving the condition causing the injury because of their fear of the evidential use of such improvement to their disadvantage (Werner v. Upjohn Co. [CA4 MD] 628 F2d, 848; 29 Am Jur 2d §463-464). The rule (FRE 407) provides that: “When after an event, measures are taken which, if taken previously, would have made the event less likely to occur, evidence of the subsequent measures is not admissible to prove negligence or culpable conduct in connection with the event. This rule does not require the exclusion of evidence of subsequent measures when offered for another purpose, such as proving ownership, control, or feasibility of precautionary measures, if A ” controverted, or impeachment. Evidence of similar conduct (Bar 2011) 1. The general rule is that the law will not consider evidence that a person has done a certain act at a particular time as probative of acontention that he has done a similar act ime. This is the rule of res inter alios acta found in. me eR Pee the Rules of Court, as amended. A similar which does not even sufficiently establish a plan_or coat wt nissible (Enriquez v. People, 331 SCRA 538; an a P 331 SCRA 538). Espinosa v. Sandiganbayan,EVIDENCE it (The Bar Lectures Series) 300 2. Assume that Mr. X is accused of physical injuries Is evidence that, in the past, he committed several acts constituting physical injuries pour Hartt as propensity for committing such acts or tha : cted in conformity with his past acts? Answer: The saa is not admissible for the purpose for which it 1s offered. Section 35 of Rule 130 clearly provides: “SEC. 35. Similar acts as evidence. — Evidence that = ie did not do a certain thing at one time is not admissible to prove that he or she did or did not do the same or a similar thing at another time; but it may be received to prove a specific intent or knowledge, identity, plan, system, scheme, habit, custom or usage, and the like.” 3. The above provision constitutes the second branch of the res inter alios acta rule as previously mentioned. The rule prohibits the admission of the so-called “propensity evidence” which is evidence that tends to show that what a person has done at one time is probative of the contention that he has done a similar act at another time. 4. Evidence of similar acts or occurrences compels the defendant to meet allegations that are not mentioned in the complaint, confuses him in his defense, raises a variety of relevant issues, and diverts the attention of the court from the issues immediately before it. Hence, the evidentiary rule guards the practical inconvenience of trying collateral issues and protracting the trial and prevents surprise or other mischief prejudicial to litigants (Cruz v. C 93 SCRA 289). a ourt of Appeals, 2 Under Sec. 35 of Rule 130, previously been charged with offenses, the trial court commits circumstance for the purpose of to commit the crimes charged i of collateral offenses must not evidence of the offenses on trial 489). although the accused has and convicted of similat an error if it considers such showing that he was likely n the indictment, Evidence be received as substantive (People v. Santos, 536 SCRACHAPTER V — Tp, issi SI » EVIDENCE, E. Admissions, Confessions ard TIMONIAL EVIDENCE, 301 ‘he Res Inter Alios Acta Rule (Rule 130) 5. Under the same rule, in an action to collect a sum of money, evidence that the debtor had contracted debts with various persons in the past and had not paid such debts, despite demand, 18 not admissible to show that the debtor did not pay his obligation to the plaintiff in the present case. In a similar vein, evidence that Jose was cleared of a previous char ge of robbery or that he was never involved in any robbery in the past is not admissible to prove that he could not have committed the robbery for which he is presently charged. The rule enunciated in Sec. 35 of Rule 130 is also founded on plain common sense. To argue that a person did or did not commit an act because he did or did not commit a similar thing in the past is certainly non sequitur. When evidence of similar acts or previous conduct is admissible 1. Evidence of similar acts is admissible for any of the_ following purposes: (@)) specific intent; (o) knowledge; identity; © (@) plan; (@) system; (®) scheme; ° ((g))_ habit; ( ‘(h))-custom= ()_usage; and (6) the like (Sec. 35, Rule 130, Rules of Court). imilar_acts may frequently become actions based on fraud and deceit, because it sheds light on the state of mind or knowledge of a person, his motive or intent, or they may uncover a scheme, design or plan (Cruz v. Court of Appeals, 293 SCRA 239). 2. Evidence of 8 relevant, especially 1EVIDENCE re (The Bar Lectures Series) 3. The admissibility of similar acts or previous conduet would depend on the purposes for which such acts or Conduct are offered. For example, evidence of the other similar crimes, acts Ge wrongs previously committed by the accused are admissib], to show that the offense for which he is currently charged and his prior similar acts show the “signature” or handiwork” of the accused, or because of identical modus operandi. In other words, the similar acts may be offered to show that they share distinctive features as the offense for which the accused jg currently charged with, but the evidence cannot be offered to show that the accused is likely to be guilty of the charge for having committed the same or similar acts before his present indictment. The rule is: The past acts of the accused are inadmissible to prove that he acted in conformity with such previous acts. F. Judicial Affidavit Rule (A.M. No. 12-8-8-SC) Rationale for the Judicial Affidavit Rule 1. The most basic reason for the adoption of the Rule is to decongest the courts of cases and to reduce delays in the disposition of cases. The Rule is designed to expedite court proceedings and primarily affects the manner by which evidence is presented in court particularly with regard to January 24, 2018). Due to these delays, the § whereas clause” of the Rule, t courts are unable to provide a their investments, keeping its The “whereas clause” of the Judicial Affidavit Rule, likewise, affirms that “case congestion and delays plagueCHAPTER V — TESTIMONIAL EVIDENCE 303 F. Judicial Affidavit Rule (A.M. No. 12-8-8-SC) most courts in cities, given the huge volume of cases filed each year and the slow cumbersome adversarial system that the judiciary has in place.” The Rule also recognizes that “about 40% of criminal Cases are dismissed annually owing to the fact that complainants simply give up coming to court after repeated postponements,” 2. : The same “whereas clause” reports that after the evaluation of a pilot project in Quezon City requiring the compulsory use of judicial affidavits, “such piloting has quickly resulted in reducing by about two-thirds the time used for presenting the testimonies of witnesses, thus speeding up the hearing and adjudication of cases.” Thus, in order “to replicate nationwide the success of the Quezon City experience in the use of judicial affidavits,” the Supreme Court promulgated the Judicial Affidavit Rule. Significance of the use of a judicial affidavit; exhibits 1. The judicial affidavit shall take the place of the direct testimonies of witnesses (Sec. 2 /aJ[1], Judicial Affidavit Rule; See Lagon v. Velasco, G.R. No. 208424, February 14, 2018). The rule, therefore, modifies the existing practice in the conduct of _ a trial and reception of evidence by doing away with the usual oral examination of a witness in a direct examination. 2. To be attached to the judicial affidavit are the documentary or object evidence of the parties which shall be marked as Exhibits A, B, C, and so on in the case of the complainant or plaintiff. In the case of the respondent or the defendant, the evidence shall be marked as Exhibits 1, 2, 3 and soon (Sec. 2faj[2], Judicial Affidavit Rule). al document or object evidence need not dicial affidavit. The party or witness may possession after the exhibit has been hibit and authenticated. He must, dicial_affidavit that the copy or ful copy or reproduction of the 3. The origin: be attached to the ju' keep the same in his identified, marked as an €* however, warrant in his ud reproduction attached isa faith’ original (Sec. 2/bj, ibid.).3 EVIDENCE Z (The Bar Lectures Series) Aside from the above requirement, the party or witness is required to bring the original document or object evidence for comparison with the attached copy, reproduction or Pictures, during the preliminary conference. In case of failure to bring the originals for comparison, the attached copy, reproduction or pictures shall not be admitted (Sec. 2/b/, ibid.). Scope of the Judicial Affidavit Rule 1. The Rule shall apply to all (a) actions, (b) proceedings, or (c) incidents requiring the reception of evidence (Sec. 1, ibid.). 2. The Rule, in effect, applies to all courts, other than the Supreme Court. It also applies to certain non-judicial bodies. The Rule specifies the following courts and bodies: fa) Metropolitan Trial Courts, Municipal Trial Courts in Cities, Municipal Trial Courts, Circuit Trial Courts and the Shari’a Circuit shall not, however, apply to small claims case (@)) Regional Tria »)} 1 Courts and Shari’a _District Courts; Municipal Courts but S3 ( © ‘ Sandiganbayan, Cc Appeaié and Shari’a Appell ourt of Tax Appeals, Court of 7 ate Courts; b A, Investigating. officers_and_ bodies authorized vy the Supreme Court to receive evidence, including the Integrated Bar of the Philippines; and nee, including 1eu2 Special courts and quasi-judicial bodies, whose qules of procedure are subject to_disapproval. the Supreme Court (Sec. 1, ibid. ) ‘°isapproval. of Applicability of the Judicial Affidavit Rule to criminal cases 1. The Judicial cases (See. 9, big. je vit Rule shall. apply to criminal The reaso, a n for the above rul Criminal case, = € is not difficult to appreciate. S_are actions which _ o apprec ich require the reception ofCHAPTER v _ TESTIMONIAL EVIDENCE F. Judicial Athan DNIAL EVIDENCE, 305 vit Rule (A.M. No. 12-8-8-SC) evidence. Remember that the Judicial Affidavit Rule, in See,_ it rane requires its application to all actions, proceedings, and incidents requiring the reception of evidence. 2. Note, however, that the Judicial Affidavit Rule applies to criminal cases where “the maximum of the imposable penalty does not exceed six years” (Sec, 9{1], ibid.). In other cases, the use of judicial affidavits will now depend on the accused. The Rule will apply, irrespective of the penalty. involved, where the accused agrees to the use of judicial affidavits (Sec. 9[2J, ibid.). Judicial Affidavit Rule shall apply, irrespective of the penalty involved (Sec. 9/3], ibid.). Hence, with respect. to the civil aspect, the penalty for the offense is not to be considered. With respect to the civil aspect of the criminal action, the It is understood that the civil aspect of the criminal action refers to the action to recover civil liability “arising from the offense charged” and which is deemed instituted with the criminal action as provided in Sec. 1 of Rule 111 of the Rules of Court. Contents of the judicial affidavit i 1. Ajudicial affidavit shall be prepared in the language known. to the witness. If the affidavit. “is not in English or Filipino, it shall be accompanied by a translation in either _ language (Sec. 3, ibid.). 2. The judicial affidavit shall contain the name, age, residence or business address, and occupation of the witness (Sec. 3{a], ibid.). ate be a statement in the affidavit that hep must gis the questions asked of him, fully vit) i ering the mates, 7 fe ea so under oath, and that he may face criminal Hability for false testimony or perjury (Sec. 3{c) ibid.). 7 in the name . idjcial affidavit shall also contain the nam and err ars This is because the examination306 EVIDENCE (The Bar Lectures Series) of the witness shall be conducted and supervised by a lawyer (Sec. 3{b], ibid.). 4. The judicial affidavit shall also indicate the place where the examination is being held (Sec. 3[b], ibid.). 5. The judicial affidavit shall contain the questions asked of the witness and his answers to the questions, al] consecutively numbered. Th questions and answers shall: ‘(a)\ show the circumstances under which the Y witness acquired the facts upon which he testifies; \ (b) } elicit from him those facts which are relevant to ‘Gg the i8sues that the case presents; and (c) } identify the attached documentary and object \ evidence and establish their authenticity (Sec. 3[dj, ibid.). ‘Tt is evident that the questions to be asked will determine whether or not the witness has personal knowledge of the facts upon which he testifies, and thus, prevent the introduction into the record of mere hearsay testimonies. The matters testified to should also be on matters relevant to the issues of the case. The_ affidavit also requires that the witness not merely identify the exhibits but_also authenticate the same for evidentiary purposes, Under the Rules of Court, proof of the due execution and authenticity of a private document shall be made in case the document is offered as authentic. If not offered as authentic, the private document need only be identified as that which it is claimed to be (Sec. 20, Rule 132, Rules of Court). Nothing in the provisions of the Judicial Affidavi i 1 ‘ovis avit Ri th the application of this principle. nie dispenses wi 6. The judicial affidavit sh i _ 7 all be signed by the witness over his printed name (Sec. 3[e], Judicial Affidavit Rule). 7. The judicial affidavit shall contain a jurat, with the signature of the notar ubli ini an officer who is author public who administers the oath or ibid,), rized to administer the same (Sec. 3/fhPee V — TESTIMONIAL EVIDENCE 307 - Judicial Affidavit Rule (A.M. No. 12-8-8-SC) Effect of non-compliance with the content and attestation requirements of the Judicial Affidavit Rule | Ajudicial affidavit which does not conform to the content and attestation requirements of Sec. 3 and 4 of the Judicial Ser Tole th a not be admitted by the court in evidence. The relevant provision, however, does not absolutely bar the submission of a compliant replacement judicial affidavit as. long as the replacement shall be submitted before the hearing or trial and the following requisites are met: ; @ The submission shall be allowed only once; f 2) The delay is for a valid reason; ns (3) The delay would not unduly prejudice the opposing party; and { 4.) The public or private counsel responsible for the preparation and submission of the affidavit pays a fine of not less than P1,000.00 nor more.than-P5,000.00, at the discretion of the court (Sec. 10{c], ibid.). Sworn attestation of the lawyer The judicial affidavit, aside from the content requirements of Sec. 3 of the Judicial Affidavit Rule, shall also contain a sworn attestation. at the end, executed by the lawyer who conducted and supervised the examination, to the effect that there was a faithful recording of the questions and answers : aa at at there was no coaching of the | affidavit and that t tl ae eS to answer. Specifically, the sworn attestation shall attest to the following: (a That he faithfully seclay - caused to be recovdéd the questions he asked and the corresponding answers that the witness gave; and (fs i he nor any other person present or t neither % ast bt coached the witness regarding the latter’s answers (Sec. 4/a/, ibid.).308 EVIDENCE (The Bar Lectures Series) Effect of a false attestation by the lawyer . A false attestation shall subject the lawyer to disciplinary action, including disbarment (Sec. 4/b/, ibid.). Judicial affidavits must be attached to the Complaint and Answer Under Sec. 6(b) of Rule 7 of the Rules of Civil Procedure, as amended, the judicial affidavits of witnesses shall already be attached to every pleading stating a party’s claims or defenses. Only witnesses whose judicial affidavits are attached to the pleading shall be presented by the parties during trial. Except if a party presents meritorious reasons as basis for the admission of additional witnesses, no other witness or affidavit shall be heard or admitted by the court. Effects of failure to submit the judicial affidavits and exhibits on time 1... A-party who fails to submit the required judicial affidavits and exhibits on time shall be deemed to have waived their submission (Sec. 10/aJ, ibid.). 2. The waiver would mean that a party who failed to submit the judicial affidavit of.a particular witness would have. no direct testimony for that witness and the documentary or object evidence integrated with such affidavit could not be identified, marked as an exhibit, and authenticated. In effect, the exhibit could not be offered oi If the waiver extends to the required affidavits of all the witnesses of a party because all the judicial affidavits were not filed and served, then said party is deemed to have not presented his evidence-in-chief fo Remedy in case of late submission 1, The failure of a party to submit a judicial affidavit on time does not mean a permanent waiver to submit.the same. He is given another chance to do so. The remedy is 1 move that the late submission of the judicial affidavit and its exhibits be allowed. aieCHAPTER V — TESTIMONIAL EVIDENCE 309 F. Judicial Affidavit Rule (A.M. No. 12-8-8-SC) 2. The court may allow the late submission of the judicial affidavit and exhibits provided the following requisites concur: l@\A late submission shall be allowed only once; (b) The delay is for a valid reason; \(©). The late submission will not unduly prejudice the opposing party; and (d)* The defaulting party pays a fine of not less than P1,000:00 nor more than P5,000.00, at the discretion of the court (Ibid.; See also Lara’s Gift and Decors, Inc. v. PNB General Insurers Co., Inc., G.R. Nos. 230429-80, January 24, 2018). Offer of testimony in the judicial affidavit Instead of offering the oral testimony of the witness, the party using the judicial affidavit of his witness in place of a direct testimony, shall present such affidavit and state the purpose of the testimony contained therein at the start of the presentation of the witness (Sec. 6, Judicial Affidavit Rule). Objections to testimony in the judicial affidavit; ruling of the court 1. The presentation of the judicial affidavit and the statement of the purpose of the testimony contained therein will give the adverse party the opportunity to object to the testimony, The adverse party may, on the ground of inadmissibility, Move to (a) disqualify the witness, (b) strike out his affidavit, oxr_(c) strike out any of the answers found in the judicial affidavit (Sec. 6, ibid.). 2. The court is required to promptly rule on the motion of the adverse party. If it grants the motion, any excluded answer shall be marked by placing the same in brackets under the initials of an authorized court personnel, The other party may, however, make a tender of excluded evidence under Sec. 40 of Rule 132 of the Rules of Court (Sec. 6, ibid.).310 EVIDENCE (The Bar Lectures Series) 8. The provisions of Sec. 6 of the Judicial Affidavit Rule require the court to promptly rule on the motion of the adverse party. The term “promptly,” it is submitted, should be taken in its literal context and akin to the word, “immediately,” as used in Sec. 38 of Rule 132 of the Rules of Court. Under the said provision, the ruling of the court in case of an objection, must be given immediately. The mandate on the giving of an immediate ruling is, however, qualified by the phrase, “unless the court desires to take: a reasonable time to inform itself on the question presented.” It is significant to note that such qualification is not found in the Judicial Affidavit Rule. Appearance of the witness at the scheduled hearing 1. . The submission of the judicial affidavit of the witness and the attached exhibits does not exempt the witness from. appearing at the sche 1 hearing. The rule still requires his appearance (Sec. 10[bj, ibid.). 2... The appearance of the witness is necessary because the adverse party has the right to cross-examine him, The cross-examination shall be on his judicial affidavit and on_ the attach bits. After the cross-examination, the party presenting the wi (Sec. 7, ibid.). AL _postponement_ _of the cross-examination would be contrary to the spirit of the rule because the judicial affidavits have been filed and served even before the scheduled hearing. 3. Thecourt, under the Judicial Affidavit Rule, is not a mere passive entity that merely receives evidence from the parties. The Rule integrates an element of the inquisitorial system which allows the court to have an active role in the proceedings. The Rule clearly mandates the court to take. active part in examining the witness to (a):determine the () ibility of the witness and (ii) truth of-his testimony; and elicit the answers that it needs in resolving the case (Sec. ; The questions of the court shall not, therefore, be confined to mere clarificatory questions. _ ay also examine him as on re-directHARTER V — TESTIMONIAL EVIDENCE 311 - Judicial Affidavit Rule (A.M. No. 12-8-8-SC) Effect of failure of a witness to appear at the scheduled hearing; failure of Counsel to appear Jd The court shall not consider the affidavit of any witness who does not appear in the scheduled hearing of the case as required (Sec. 10/bj, ibid.). If the affidavit is not considered, it is as if no judicial affidavit has been executed by the absent witness. Such witness, hence, shall be deemed as not having given a direct testimony in the trial. 2. It is the duty of counsel to appear at the scheduled hearing because of the adverse effect of his failure to do so on. a basic right of his client. A counsel who fails to appear without a valid cause despite notice shall be deemed to have waived his client's right to confront by cross-examination, the witnesses present (Sec. 10[b], ibid.). When there is a need for the issuance of a subpoena 1. -Arequesting party may avail himself of the issuance. of a subpoena ad testificandum or duces tecum under Rule 21 of the Rules of Court if a witness unjustifiably declines to (a) execute a juc ial affidavit, or (b) refuses without just cause to make the relevant books, documents, or other things under _ his cont av: ilable for copying, authentication, and eventual production in court (Sec. 5, ibid.). The witness referred to is a government employee or official, or a requested witness, who is neither the witness of the adverse party nor a hostile witness (Sec. 5, ibid.). 2. The rules governing the issuance of a subpoena to the witness ‘shall be the same as when taking his deposition except that the taking of ajudicial affidavit shall be understood to be ex parte (Sec. 5, ibid.). Oral offer and objections to exhibits 1. A party shall immediately make an oral offer of evidence of his documentary or object exhibits, piece by piece,EVIDENCE ; a (The Bar Lectures Series) in their chronological order, stating the DUTPOBE or purposes ine ticular exhibit. The offer shall be for which he offers the par ; fhis last witnes made upon the termination of the testimony of his last witness (Sec. 8{aj, ibid.). It is not necessary to describe each exhibit in the offer of evidence. It is sufficient that such exhibits are simply cited by their markings | during the offers, the objections, and the rulings, dispensing with the description of each exhibit since the documentary or object exhibits form part of the judicial affidavits that_describe and authenticate them (Sec. 8/c/, ibid.). After each piece of exhibit is offered, the adverse party shall state the legal ground for his objection, if any, to its admission, and the court shall immediately make its ruling respecting that exhibit (Sec. 8/b], ibid.)--- . 2. Under Sec. 35 of Rule 132 of the Rules of Court, documentary and object evidence shall be offered after the presentation of a party’s testimonial evidence. “Under the 2019 Amendments to the Rules on. Evidence, all evidence aaa -now be -offered- orally. The Judicial Affidavit Rule axewise echoes the same principle, requiring that the offer of @ Party's documentary or object exhibits shall be made upon the termination of th i i i orally.::...,. wevestimony. af me “ast witness and only — 000 —