REMEDIAL LAW REVIEW - BAR 2 0 2 3 “ EVIDENCE

7. Hearsay and Exceptions to the Hearsay

EVIDENCE Rule
2019 AMENDMENTS TO THE 1989 REVISED 8. Opinion Rule
RULES ON EVIDENCE (A.M. No. 19-08-15-SC) 9. Character Evidence
G. Burden of Proof and Presumptions
Evidence defined. - Evidence is the means, (Rule 131)
sanctioned by these [R Jules, of ascertaining in a
judicial proceeding the truth respecting a matter H. Presentation of Evidence (Rule 132)
of fact. (1)
1. Examination of Witnesses
a) Rights and Obligations of a Witness
A. General Concepts b) Leading and Misleading Questions
1. Proof vs. Evidence c) Impeachment of Witnesses
2. Burden of Proof vs. Burden of Evidence 2. Authentication and Proof of Documents
3. Equipoise Rule a) Meaning of Authentication
B. Admissibility of Evidence (Rule 128) b) Classes of Documents
1. Requisites for Admissibility of c) Authentication of a Private Writing
Evidence d) Public Documents as Evidence; Proof
2. Relevance of Evidence and Collateral of Official Record
Matters 3. Offer and Objection
3. Multiple Admissibility a) When to Make an Offer
4. Conditional Admissibility b) When to Make an Objection
5. Curative Admissibility c) Tender of Excluded Evidence
6. Direct and Circumstantial Evidence I. Judicial Affidavit Rule (A.M. No. 12-8-8-
7. Positive and Negative Evidence SC)
8. Competent and Credible Evidence
C. Judicial Notice and Judicial J. Weight and Sufficiency of Evidence
Admissions (Rule 129) (Rule 133)

D. Object (Real) Evidence (Rule 130, A)

1. Requisites K. Rules on Electronic Evidence (A.M. No.
2. Exclusionary Rules 01-7-01-SC)
E. Documentary Evidence (Rule 130, B)
1. Definition
2. Original Document Rule A. General Concepts
3. Secondary Evidence 1. Proof vs. Evidence
4. Parol Evidence Rule 2. Burden of Proof vs. Burden of Evidence
F. Testimonial Evidence (Rule 130, C) 3. Equipoise Rule

1. Qualifications of Witnesses Proof is the result or effect of evidence while

2. Disqualifications of Witnesses evidence is the mode and manner of proving
a) Disqualification by Reason of Marriage competent facts in judicial proceedings.
b) Disqualification by Reason of
Privileged Communications;
Rule on Third Parties What does the burden of proof mean? Explain.
c) Parental and Filial Privilege Rule Burden of proof is the duty to establish the truth
d) Privilege Relating to Trade Secrets of a given proposition or issue by a such
3. Testimonial Privilege quantum of
4. Admissions and Confessions evidence as the law demands in the case in
5. Previous Conduct as Evidence which the issue arises. Burden of proof never
6. Testimonial Knowledge shifts.
REMEDIAL LAW REVIEW - BAR 2 0 2 3
In civil cases, the burden of proof is on the plaintiff
to establish his case by a preponderance of the
evidence,
i.e., the superior weight of evidence on the
issues involved.2 "Preponderance of
evidence" means evidence
that is of greater weight or more convincing
than that which is offered in opposition to it.3
(Republic vs. De Borja,
G.R. No. 187448, 9 January 2017)(First
Division)[Caguioa, J.].
The burden of evidence is the duty of a party to
present evidence sufficient to establish or
rebut a fact in anissue to establish a prima facie
case. The burden of evidence may shift from
one party to the other in the course of the
proceedings, depending on the exigencies of
the case.
The burden of proof is generally determined
by the pleadings filed by the party; the burden
of evidence is generally determined by the
developments at the trial, or by the provisions
of the substantive law or procedural rules
which may relieve the party from presenting
evidence on the fact alleged, i.e.,
presumptions, judicial notice and admissions
Equipoise Rule or Equipoise Doctrine
The doctrine refers to the situation where the
evidence of the parties are evenly balanced or
there is doubt on which side the evidence
preponderates. In this case, the decision
should be against the party with the burden of
proof
[Rivera v. C.A., G.R. No. 115625 (1998);
Marubeni v. Lirag, G.R. No. 130998, (2001)]
In criminal cases, the equipoise rule provides
that where the evidence is evenly balanced,
the constitutional presumption of innocence
tilts the scales in favor of the accused [Malana
v. People, G.R. No. 173612, (2008)
B. Admissibility of Evidence (Rule 128)
1. Requisites for Admissibility of Evidence
2. Relevance of Evidence and Collateral
Matters
“ EVIDENCE
3. Multiple Admissibility
4. Conditional Admissibility
5. Curative Admissibility
6. Direct and Circumstantial Evidence
7. Positive and Negative Evidence
8. Competent and Credible Evidence
Requisites for Admissibility of Evidence
a. Relevant to the issue; and
• When the evidence has such a relation
to the fact in issue as to induce belief
inits existence or non-existence [Sec. 4,
Rule 128]
b. Not excluded by the Constitution, the law
or the ROC (“competent”) [Sec. 3, Rule
128
All evidence must be offered orally. [Sec. 35, Rule
132] Offer of testimonial evidence—made at the
time the witness is called to testify # Offer of
documentary and object evidence—made after the
presentation of a party’s testimonial evidence
Relevancy
Evidence is relevant when it has “such a
relation to the fact in issue as to induce belief
in its existence or non-existence” [Sec. 4, Rule
128]
(e.g., evidence as to the age of a person who
has been raped is relevant in a situation where
the age would qualify the offence to statutory
rape)
Determinable by the rules of logic and human
experience
Collateral matters
Matters other than the fact in issue and which
are offered as a basis for inference as to the
existence or non-existence of the facts in issue
[2 Regalado 708, 2008 Ed.]
General rule: Evidence on collateral matters is
NOT allowed
Exceptions: When it tends in any reasonable
degree to establish the probability or
REMEDIAL LAW REVIEW - BAR 2 0 2 3
improbability of the fact in issue [Sec. 4, Rule
128]
Multiple Admissibility
Where the evidence is relevant and competent
for two or more purposes, such evidence
should be admitted for any or all the purposes
for which it is offered, provided it satisfies all
the requisites of law for its admissibility
therefor
Conditional Admissibility
Where the evidence at the time of its offer
appears to be immaterial or irrelevant unless it
is connected with the other facts to be
subsequently proved, such evidence may be
received on condition that the other facts will be
proved thereafter; otherwise, the evidence
already given shall be stricken out
Example: a copy of a writing may not be
considered competent evidence until the
original is proven to be lost or destroyed
Conditional admissibility requires no bad faith
on the part of the proponent.
e. Curative Admissibility
The right of a party to introduce incompetent
evidence in his behalf where the court has
admitted incompetent evdience adduced by
the adverse party
e. Curative Admissibility
The right of a party to introduce incompetent
evidence in his behalf where the court has
admitted incompetent evdience adduced by
the adverse party
Direct and Circumstantial Evidence
Direct- Proves the fact in dispute without the aid of
any inference or presumption
Circumstantial- Proof of facts from which,
taken collectively, the
existence of a particular fact
in dispute may be inferred
as a necessary or probable
consequence
“ EVIDENCE
Positive and Negative Evidence
Positive evidence Witness affirms that a certain
state of facts did exist or that a certain event
happened.
Negative evidence Witness states he/she did not
see or does not know of the occurrence of a
fact
Competent and Credible Evidence
Competent Not excluded by the Constitution, the
law, or the Rules
Credible It is not determined mathematically by the
numerical superiority of the witnesses testifying to
a given fact, but depends upon its practical effect
in inducing belief on the part of the judge trying the
case
C. Judicial Notice and Judicial Admissions
(Rule 129)
1. Matters of Judicial Notice
Judicial Notice
Judicial notice is the cognizance of certain
facts that judges may properly take and act on
without proof because these facts are already
known to them. Put differently, it is the
assumption by a court of a fact without need of
further traditional evidentiary support.
[Republic v. Sandiganbayan, G.R. No. 166859,
(2011)]
2. What Need Not Be Proved
a. Facts of Judicial Notice
b. Judicial Admissions
c. Conclusive Presumptions
Note: Evidence is also not required when the
issue is purely a question of law. The definition
of “evidence” in Sec. 1, Rule 128 refers to “a
matter of fact”.
3. Judicial Admissions
In General
To be a judicial admission, the same:
a. May be oral or written;
b. Must be made by a party to the case; and
REMEDIAL LAW REVIEW - BAR 2 0 2 3
c. Must be made in the course of the
proceedings in the same case.
[Sec. 4, Rule 129]
Note: The admission, to be judicial, must be
made in the course of the proceedings in the
same case. Thus, an admission made in
another judicial proceeding will not be deemed
a judicial admission in the case where the
admission is not made. Instead, it will be
considered an extrajudicial admission for
purposes of the other proceeding where such
admission is offered [Riano 87, 2016 Ed.]
Possible exam question:
In criminal cases, all agreements or admissions
made or entered during the pre-trial conference
shall be reduced in writing and signed by the
accused and counsel, otherwise, they cannot
be used against the accused [Sec. 2, Rule 118]
However, in the civil case instituted with the
criminal case, such admission will be admissible
against any other party.
a. When Mandatory
1. Existence and territorial extent of states;
2. Their political history, forms of government,
and symbols of nationality;
3. Law of nations;
4. Admiralty and maritime courts of the world and
their seals;
5. Political constitution and history of the
Philippines; 6. Official acts of the legislative,
executive and judicial departments of the
National Government of the Philippines; a. Note:
the 2019 Amendment added the words “of the
National Government of the Philippines”
7. Laws of nature;
8. Measure of time;
9. Geographical divisions
b. When Discretionary
1. Matters of public knowledge;
2. Matters capable of unquestionable
demonstration; and
“ EVIDENCE
3. Matters ought to be known to judges because
of their judicial functions [Sec. 2, Rule 129]
***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
D. Object (Real) Evidence (Rule 130, A)
1. Requisites
2. ***Exclusionary Rules
Basic requisites for admissibility
a. Evidence must be relevant;
b. Evidence must be authenticated by a
competent witness;
c. Object must be formally offered [Sec. 34, Rule
132]
Search incidental to a lawful arrest, the law
requires that there first be a lawful arrest before
a search can be made- the process cannot be
reversed.
Exclusionary rules of evidence
1. Constitutional exclusionary rules
Art III, Sec 2(unreasonable searches and
seizure)
Art III, Sec 3 (privacy of communication and
correspondence)
✓ Inadmissible for any proceeding
Art III, Sec 12 (right to counsel, prohibition on torture,
force, violence, threat, intimidation or other means
which vitiate the free will; prohibition on secret
detention places, solitary, incommunicado)
✓ Inadmissible against the accused, but may
be used by the offended party in a suit for
damages against the violator
✓ It is settled that for an extrajudicial confession
to be admissible in evidence against the
accused, the same “must be (a) voluntary, (b)
REMEDIAL LAW REVIEW - BAR 2 0 2 3 “ EVIDENCE

made with the assistance of a competent and the information or charge was filed for an
independent counsel, (c) express, and (d) in offense penalized by a fine only. It may be
writing.” stated as a corollary
that neither can a warrantless arrest be made
2. Statutory exclusionary rules for such an offense.
✓ Any communication obtained by a person,
not being authorized by all the parties to any ****
private communication, by tapping any EXAM QUESTIONS:
wire/cable or using any other At the trial of Ace for violation of the
device/arrangement to secretly Dangerous Drugs Act, the prosecution offers
overhear/intercept/record such information
in evidence a photocopy of the marked
by using any device, shall not be admissible
P100.00 bills used in the “buy-bust” operation.
in evidence in any hearing or investigation
Ace objects to the introduction of the
[Secs. 1 and 4, R.A. 4200 (Wire-Tapping
Act)] photocopy on the ground that the Original
Document Rule prohibits the introduction of
3. Exclusions under the Rules on Evidence secondary evidence in lieu of the original
• Original document rule (previously best evidence
rule)
• Hearsay evidence rule a. Is the photocopy real (object) evidence
• Offer of compromise in civil cases or documentary evidence? A: The
photocopy of the marked bills is real (object)
4. Exclusions under Court issuances evidence and not documentary evidence,
because the marked bills are real evidence
✓ Rule on Electronic Evidence, e.g. compliance
with authentication requirements for
a. Is the photocopy real (object) evidence
electronic evidence
✓ Rule on Examination of a Child Witness, e.g.
or documentary evidence? A: The
sexual abuse shield rule photocopy of the marked bills is real (object)
✓ Judicial Affidavit Rule evidence and not documentary evidence,
because the marked bills are real evidence
Possible exam question:

EXCLUSIONARY RULES (RECOGNIZED EVIDENCE

EXCEPTION)
Search incidental to a lawful arrest.
In this instance, the law requires that there first be
a lawful arrest
before a search can be made — the process
cannot be reversed.
In Picardal vs. People (G.R. No. 235749, 19 June
2019)(Second Division)[Caguioa, J.], the
petitioner was apprehended for violation of City
Ordinance No. 98-012, the failure to wear a
crash helmet while riding a
motorcycle is penalized by a fine only. Under
the Rules of Court, a warrant of arrest need not
be issued if
Q: In a DNA prosecution for rape, the defense
relied on Deoxyribonucleic Acid (DNA)
evidence showing that the semen found in the
private part of the victim was not identical with
that of the accused. As private prosecutor,
how will you dispute the veracity and accuracy
of the results of the DNA evidence? (2010 Bar)
A: As private prosecutor, I shall try to discredit
the results of the DNA test by questioning and
possibly impugning the integrity of the DNA
profile by showing a flaw/error in obtaining the
biological sample, or in the chain of custody of
the biological sample obtained; the testing
REMEDIAL LAW REVIEW - BAR 2 0 2 3
methodology employed; the scientific
standard observed; the forensic DNA
laboratory which conducted the test; and the
qualification, training and experience of the
forensic laboratory personnel who conducted
the DNA testing.
At the Public Attorney's Office station in
Taguig where you are assigned, your work
requires you to act as public defender at the
local Regional Trial Court and to handle cases
involving indigents. Still in another case, this
time for illegal possession of dangerous drugs,
the prosecution has rested but you saw from
the records that the illegal substance allegedly
involved has not been identified by any of the
prosecution witnesses nor has it been the
subject of any stipulation.
A: I will first file a motion for leave to file
demurrer to evidence within five (5) days from
the time the prosecution rested its case. If the
same is granted, then I will file a demurrer to
evidence within ten (10) days from notice on
the ground of insufficiency of evidence of the
prosecution (Sec. 23, Rule 119).
CHAIN OF CUSTODY
Chain of custody means the duly recorded,
authorized movements, and custody of the seized
drugs at each stage, from the moment of
confiscation to the receipt in the forensic
laboratory for examination until it is
presented to the court.
1. First, the seizure and marking of the
confiscated
drugs recovered from the accused, if
practicable by the apprehending officer;
2. The turnover of the illegal drug seized by the
apprehending officer to the investigating
officer;
“ EVIDENCE
3. The turnover by the investigating officer of the
illegal drug to the forensic chemist for
laboratory examination;
4. The turnover and submission of the marked
illegal drug by the forensic chemist to the
court.
What is the effect if the chain of custody has been
broken?
“Non-compliance by the apprehending/buy-bust
team with Sec 21, of RA No. 9165 is not fatal as
long as there is justifiable ground therefor, and as
long as the integrity and the evidentiary value of
the confiscated/seized items, are properly
preserved by the apprehending officer/team. Its
non-compliance will not render an accused's
arrest illegal or the items
seized/confiscated from him inadmissible. What
is of utmost importance is
the preservation of thé integrity and the
evidentiary value of the seized
items, as the same would be utilized in the
determination of the guilt or innocence of the
accused.
DNA
What are the requirements for DNA testing order?
The order for DNA testing shall issue after due
hearing and notice to the parties upon a showing
of the following:
a) A biological sample exists that is relevant to the
case;
(b) The biological sample: (i) was not previously
subjected to the type of DNA testing now
requested; or (ii) was
previously subjected to DNA testing, but the
results may require confirmation for good
reasons;
(c) The DNA testing uses a scientifically valid
technique;
(d) The DNA testing has the scientific potential to
produce new information that is relevant to the
proper resolution
of the case; and
REMEDIAL LAW REVIEW - BAR 2 0 2 3
(e) The existence of other factors, if any, which
the court may consider as potentially affecting
the accuracy or
integrity of the DNA testing.
The Rule shall not preclude a DNA testing,
without need of a prior court order, at the behest
of any party, including law
enforcement agencies, before a suit or
proceeding is commenced.
Q: Is DNA testing available in a petition for
correction of entries to
impugn paternity of the child?
No. Rule 108 of the Rules of Court charts the
procedure by which an entry in the
civil registry may be cancelled or corrected, and
the trial court has no jurisdiction
to nullify marriages and rule on legitimacy and
filiation in such petition much
less DNA testing.
Will non-paternity of the accused through DNA
Test negates the
crime of rape?
No, pregnancy and the subsequent birth of child
are not elements of the crime of
rape. Moreover, non-paternity of the appellant
through DNA testing, if that be the
case, will not necessarily negate the crime of rape
as positively proved and
established by credible testimony of the victim.
Impregnation is not an element of rape. Even the
proof that the child was
fathered by another man does not show that the
appellant is not guilty. For the
conviction of an accused, the pregnancy of the
victim is not required to be
proved, since it is sufficient that the prosecution
establish beyond reasonable
doubt, as it had in this case, that the accused had
forced sexual relations with the
victim. (People of the Philippines vs. Efren
Maglente y Cervantes, G.R. No. 179712,
June 27, 2008)
“ EVIDENCE
When to raise the issue of DNA testing?
It must be brought during the proceedings
otherwise, it is deemed waived.
Is the issuance of a DNA testing order, a matter of
right?
The issuance of a DNA testing order remains
discretionary upon the court. The
court may, for example, consider whether there is
absolute necessity for the DNA
testing. If there is already preponderance of
evidence to establish paternity and
the DNA test result would only be corroborative,
the court may, in its discretion,
disallow a DNA testing. (Jesse U. Lucas vs. Jesus
S. Lucas, G.R. No. 190710, Second
Division, June 6, 2011, Nachura, J.)
What is the effect if the State failed to produce the
semen
specimen?
A: Failure to produce the semen specimen not a
ground for acquittal.
What is the nature of the DNA testing order?
Under the rules, an order granting the DNA testing
shall be immediately
executory and shall not be appealable.
What is the remedy in case of issuance of DNA
Testing Order?
Any petition for certiorari initiated therefrom shall
not, in any way, stay the
implementation thereof, unless a higher court
issues an injunctive order.
Is taking of DNA samples from the party violates
the right of the
accused against self-incrimination?
REMEDIAL LAW REVIEW - BAR 2 0 2 3
No, DNA samples taken from the party does not
violate the right of the accused
against self-incrimination since it a only
applicable in case of testimonial
compulsion
What are the possible remedies in case of refusal
to comply for
DNA testing?
Enter a default judgment at the request of the
appropriate party, or if a trial is
held, allow the disclosure of the fact of the refusal
unless good cause is shown for
not disclosing the fact of refusal.
When to avail a post-conviction DNA Testing?
What are the
requirements?
Post-conviction DNA testing may be available,
without need of prior court order,
to the prosecution or any person convicted by
final and executory judgment
provided that the following are present:
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 judgment of
conviction.
Post-conviction DNA Testing Results: Remedy if
favorable:
Sec. 10 of the DNA Evidence Rule (A.M. No. 06 11-
5-SC, October 15, 2007)
provides for the rule on the post-conviction DNA
Testing results and the remedy
if favorable. It states that:
The convict or the prosecution may file a petition
for a writ of habeas corpus in
the court of origin if the results of the post-
conviction DNA testing are favorable
to the convict. In case the court, after due hearing,
finds the petition to be
meritorious, it shall reverse or modify the
judgment of conviction and order the
release of the convict, unless continued detention
is justified for a lawful cause. A
“ EVIDENCE
similar petition may be filed either in the Court of
Appeals or the Supreme Court,
or with any member of said courts, which may
conduct a hearing thereon or
remand the petition to the court of origin and
issue the appropriate orders.
A similar petition may be filed either in:
1) The Court of Appeals; or courts.
2) The Supreme Court, or with any member of said
What are the courses of action of the court in case
of favorable
DNA Testing?
1) Reverse or modify the judgment of conviction;
and
2) Order the release of the convict, unless
continued detention is justified for a
lawful cause.
Probative Value of the
DNA Evidence
What are the matters to be considered in the
assessment of the
probative value of DNA analysis as evidence?
In assessing probative value of DNA evidence
therefor, courts should consider
how the samples were collected, how they were
handled, the possibility of
contamination of the samples, the procedure
followed in analyzing the samples,
whether the proper standards and procedures
were followed in conducting the
tests, and the qualification of the analyst who
conducted the tests.
Q: What is the effect of DNA analysis based on
contaminated
specimen?
DNA analysis based on a contaminated specimen
is not conclusive.
REMEDIAL LAW REVIEW - BAR 2 0 2 3
When is a methodology of DNA Testing reliable?
What are the
requirements?
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.
What is the nature of the DNA profiles and results
of the person?
What is Exception?
DNA profiles and all results or other information
obtained from DNA testing shall
be confidential. Except upon order of the court.
E. Documentary Evidence (Rule 130, B)
1. Definition
2. Original Document Rule
3. Secondary Evidence
4. Parol Evidence Rule
Documentary evidence consists of either: a)
writings: b) any other material containing
modes of written expressions.
Documents as evidence consists of writings,
recordings, photographs, or any material
“ EVIDENCE
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)
2. Requisites for admissibility a) The
document must be relevant; b) The evidence
must be authenticated c) The document must
be authenticated by a competent witness; d)
The document must be formally offered in
evidence.
****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.
Original Document Rule
“ORIGINAL” of a document is the document
itself or any counterpart intended to have the
same effect by a person executing or issuing
it. An "original" of a photograph includes the
negative or any print therefrom.
When duplicate considered original
A "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.
General Rule:
A duplicate is admissible to the same extent
as an original.
XPNs:
REMEDIAL LAW REVIEW - BAR 2 0 2 3
a. a genuine question is raised as to the
authenticity of the original, or
b. in the circumstances, it is unjust or
inequitable to admit the duplicate in lieu
of the original.
Restating the rule: If the subject of inquiry is
the contents of a document there can be no
evidence of the contents other than the
original of the document. Thus, goes the
ORIGINAL DOCUMENT RULE stated in
Section 3.
When is the original presented? When the
subject of inquiry is the content/s of the
document. This means the cause of action or
defense is based on what are contained in the
document i.e. the terms and conditions, the
entries, data or information written on the
document. This means the plaintiff is either
enforcing a right based on, or created, by a
document or a party is seeking non-liability by
virtue of the contents of a document.
What is secondary evidence? (LANPuC)
Secondary evidence refers to any evidence to
prove the contents of a document other than
the original. It maybe oral or written.
Under the rules, there are four instances
where secondary evidence may be presented.
These are:
(1) When the original has been lost,
destroyed, or cannot be produced in court
without bad faith on the part of the offeror
(Section 5, Rule 130);
(2) when the original is in the adverse party's
custody or control. (Section 6, Rule 130);
(3) when the original consists of numerous
accounts or other documents which cannot be
produced in
“ EVIDENCE
court without great loss of time and the fact
sought to be established is only the general
result of the whole (Section 7, Rule 130); and
(4) when the original document is a public
record (Section 8, Rule 130).
(5) When the original is not closely related to
a controlling issue.
THE PAROL EVIDENCE RULE (Section 9,
Rule 130)
The parol evidence rule forbids or prohibits
any attempt to vary, contradict, or modify the
terms of a written agreement by the use of
testimonial/oral evidence.
Exceptions: (IMTIS)
A. That there is an intrinsic ambiguity
The instrument/document itself is clear and
certain on its face Examples: (i) the donee is
described as “My uncle Tom” but the donor
has several uncles named Tom (ii) the thing
sold is “my house and lot in Baguio City” but
the vendor has three houses and lots in
Baguio City; (iii) the money shall be for the
tuition fee of my son “who is enrolled in UC”
but it is the daughter who is enrolled in UC
while the son is enrolled in UB; (iv) the subject
of the sale is the vendor’s “ two storey house
in Bakakeng” but what he has in Bakakeng is
a grocery store and it is his house in Aurora
Hill which is two storeys.
B. That there was mistake or imperfection; 1.
Imperfection includes situations of inaccurate
descriptions. There is mistake when a person
did or omitted because of an erroneous belief
or interpretation of a law or assessment of a
fact, or due to ignorance, forgetfulness,
unconsciousness, or misplaced confidence.
The mistake must be of a fact and is mutual to
both the parties. Examples include situations
REMEDIAL LAW REVIEW - BAR 2 0 2 3
where: (a) both were in error as to the property
sold and described in the deed of sale i.e.
another property as the one involved and not
that described in the document; (b) two
persons were supposed to be witnesses but
were named instead as parties; and (c) the
writing was incomplete when it mentioned only
some but not all the terms agreed upon
C. That the written agreement failed to
express the true intent and agreement of the
parties; The deed maybe ambiguous or vague
either through ignorance, lack of skill or
negligence of the party/person who drafted the
deed, or through the use of imprecise words.
It may be cured through the remedy of
reformation of instrument. Examples include:
(1) the deed turned out to be a sale when the
intention was as a security; or (2) the deed
was a sale and not a special power of attorney.
D. The validity of the agreement is put in issue;
One or both parties assert that the agreement
or document is null and void or unenforceable
for lack of the essential elements of a valid
contract
E. In case of subsequent agreements- the
terms and conditions being testified on were
agreed upon after the execution of the
document 1. As in the case of novation of the
document, in whole or in part; 2. Parties are
free to change or modify or abandon their
written agreement in which case it is the latter
which should given force and effect.
Possible exam question:
Electronic Evidence
“Electronic document” refers to information or
the representation of information, data,
figures, symbols
“ EVIDENCE
or other modes of written expression,
described or however represented, by which a
right is established or an
obligation extinguished, or by which a fact may
be proved and affirmed, which is received,
recorded,
transmitted, stored processed, retrieved or
produced electronically. It includes digitally
signed documents and
any print-out or output, readable by sight or
other means, which accurately reflects the
electronic data message
or electronic document. For purposes of these
Rules, the term “electronic document” may be
used
interchangeably with electronic data message
Rule 8 carries a long paragraph describing
certain electronically stored business data as
exceptions to the hearsay rule.
Section 1. Audio, video and similar evidence.
– Audio, photographic and video evidence of
events, acts or transactions shall be
admissible provided is shall be shown,
presented or displayed to the court and shall
be identified, explained or authenticated by
the person who made the recording or by
some other person competent to testify on the
accuracy thereof.
Section 2. Ephemeral electronic
communication. – Ephemeral electronic
communications shall be proven by the
testimony of a person who was a party to the
same or has personal knowledge thereof. In
the absence or unavailability of such
witnesses, other competent evidence may be
admitted.
A recording of the telephone conversation or
ephemeral electronic communication shall be
covered by the immediately preceding section.
If the foregoing communications are recorded
or embodied in an electronic document, then
the provisions of Rule 5 shall apply. • Under
REMEDIAL LAW REVIEW - BAR 2 0 2 3
the Rules on Electronic Evidence, the
admissibility of audio, photographic and
video evidence of events, acts or
transactions rests on
• Their being identified by the person
who made the recording;
• Their being shown, presented or
displayed in court;
• Their being explained or authenticated
by some other person competent to
testify on the accuracy thereof
What is considered as the Original of an
Electronic Document?(2001 Bar)
An electronic document shall be regarded as
the equivalent of an original document under
the Orig Document Rule if it is a printout or
output readable by sight or other means,
shown to reflect the data
accurately (Sec 1, Rule 4 of A.M. No. 01-7-01-
SC)
When will an electronic document be
considered original under the Orig Doc Rule?
If it is:
(1) A digitally signed document; or
(2) Any print-out or output readable by sight;
(3) By any other means which accurately
reflects the electronic data message or
electronic document
When is a copy of an electronic document
equivalent to an
original?
(1) When a document is in two or more copies
executed at or about the same time with
identical contents; or
(2) 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
(3) By other equivalent techniques which
accurately reproduces the original.
XPNs to this rule:
Copies or duplicates shall not be admissible to
the same extent as the original if:
“ EVIDENCE
(a) When there is a genuine question 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
****
EXAM QUESTIONS:
Q: May a private document be offered, and
admitted in evidence both as documentary
evidence and as object evidence? Explain
(2005 Bar)
A: Yes. A private document may be offered
and admitted in evidence both as
documentary evidence and as object
evidence. A document can also be considered
as an object for purposes of a case. Objects
as evidence are those addressed to the
senses of the court (Sec. 1, Rule 130)
Documents as evidence consist of writings,
recordings, photographs or any material
containing letters, words, sounds, numbers,
figures, symbols, or their equivalent, or other
modes of written expression off ered as proof
of their contents. Photographs include still
pictures, drawings, stored images, x-ray films,
motion pictures or videos. (Sec. 2, Rule 130;
Answered under the 2019 Amendments to the
Revised Rule on Evidence)
EXAM QUESTION
What is the effect if the documentary
evidence is not formally offered?
It is inadmissible.
Exceptions
The cases of People v. Napat-a People v. Mate
and The Heirs of Romana Saves, et al.
REMEDIAL LAW REVIEW - BAR 2 0 2 3
v. The Heirs of Escolastico Saves, et al.
enumerated the requirements so that
evidence, not previously offered, can be
admitted, namely:
(1) the evidence must have been duly identified
by testimony duly recorded
(2) the evidence must have been incorporated
in the records of the case.
Is the printout of a photograph from your
mobile phone showing a fly in the soup
you ordered admissible evidence in an action
for damages against the restaurant
owner? Explain briefly.
Yes, it is admissible as evidence
Under the rules on electronic evidence,
Audio, video and similar evidence. –
Audio, photographic and video evidence
of events, acts or transactions shall be
admissible provided is shall be shown,
presented or displayed to the court and
shall be identified, explained or
authenticated by the person who made
the recording or by some other person
competent to testify on the accuracy
thereof.
provided it can be shown, presented or
displayed to the court and shall be identified
explained or authenticated by the person who
made the recording or by some other person
competent to testify on the accuracy thereof
otherwise it is inadmissible in evidence.
!!!!!!!
In a case for Estafa, the prosecution offered
the photocopy of the acknowledgment receipt
signed by the accused showing personal
“ EVIDENCE
receipt of the sum of money from the private
complainant to prove the amount of damage.
Accused objected to the offer of the photocopy
on the sole ground that it is a mere
reproduction of the original in violation of the
original document rule. The court overruled
the accused’s objection and admitted in
evidence the photocopy of the
acknowledgment receipt. Did the court err in
admitting the photocopy? Explain briefly. (5
points)
Yes. The court erred in admitting the
photocopy.
Photocopies of acknowledgment receipts
which were used to prove that the accused
received the amount are not sufficient to
sustain conviction for Estafa in the absence of
any proof to corroborate the nonexistence of
the original documents.
Here, the prosecution did not even bother to
present any corroborating evidence to explain
the reason for the absence of the original
documents presented before the court. Thus,
they carry no evidentiary weight.
!!!!!!!!
Klaus was drinking in front of his rented
apartment when he suddenly heard a gunshot
which came from inside the apartment owned
by Luther. Klaus then saw Igor, a neighbor,
going down the stairs and leaving the scene
holding a gun. Klaus also witnessed Luther fall
from the stairs with blood oozing from his
chest. Vanya, Luther’s daughter, also rushed
to Luther when he fell. During Igor’s trial for
Murder, Vanya testified and presented a flash
drive containing the closed-circuit television
(CCTV) footages of the scene. Said footages
showed a man appearing to be Igor, armed
with PAGE 15 a gun, proceeding up the stairs
and entering Luther’s apartment. In the video,
the same man was seen hastily leaving the
premises. Vanya further testified that she was
REMEDIAL LAW REVIEW - BAR 2 0 2 3 “ EVIDENCE

the one who transferred to the flash drive the

video footages from the barangay-owned
CCTV that was located outside their
F. Testimonial Evidence (Rule 130, C)
apartment. When the footages were played in
court and an enlarged screenshot was
1. Qualifications of Witnesses
presented, Vanya identified the shooter as 2. Disqualifications of Witnesses
Igor. The defense objected on the ground that a) Disqualification by Reason of Marriage
Vanya was not the recorder of the video b) Disqualification by Reason of Privileged
footages. Are the CCTV footages admissible Communications;
as electronic evidence? Explain briefly. (5 Rule on Third Parties
points) c) Parental and Filial Privilege Rule
d) Privilege Relating to Trade Secrets
SUGGESTED ANSWER 3. Testimonial Privilege
4. Admissions and Confessions
Yes, the CCTV footages are admissible as
5. Previous Conduct as Evidence
electronic evidence.
6. Testimonial Knowledge
In the case of People v. Manansala 7. Hearsay and Exceptions to the Hearsay
Audio, video and similar evidence. – Rule
Audio, photographic and video evidence 8. Opinion Rule
of events, acts or transactions shall be 9. Character Evidence
admissible provided is shall be shown,
1. Qualifications of Witnesses
presented or displayed to the court and
shall be identified, explained or
GR: All persons who can perceive, and are
authenticated by the person who made perceiving, can make known their perception to
the recording or by some other person other, may be a witness (Sec 21).
competent to testify on the accuracy
thereof. Competent witnesses have to satisfy four
requirements:
In the case of People v. Manansala, the Court 1. They must be under oath or any similar
reiterated that under the Rules of Electronic substitute.
Evidence, audios, photographs and video 2. They must be knowledgeable about what
evidence are admissible only when presented they are going to testify on. This means they
and authenticated in Court. However, the must have perceived something with their
Court emphasized that persons authorized to senses that applies to the case in question.
authenticate the video or CCTV recording is 3. They must have a recollection of what they
not limited solely to the person who made the perceived.
recording but also by another competent 4. They must be in a position to relate what
witness who can testify as to its accuracy. they communicated.
Here, Vanya was able to establish the origin of
the CCTV footages, explain how she EXPN: Unless otherwise provided by law or the
personally transferred the same to the USB rules. (MPFS)
1. Disqualification by reason of marriage (Sec 23)
and subsequently presented it to the trial
court. Vanya, is also considered competent to
2. Disqualification by reason of privileged
authenticate the CCTV footages as she was communications (Sec
present during the incident and her testimony 24).
corroborates the content of the CCTV
footages.
REMEDIAL LAW REVIEW - BAR 2 0 2 3
3. Those who have been convicted of falsification
of a document, perjury, or false testimony, from
being witnesses
to a will (Art 821 of the Civil Code);
4. The accused sought to be discharged as a state
witness has not at anytime been convicted of any
offense involving
1. Disqualification by reason of marriage
(Marital Disqualification OR Spousal Immunity)
Rule)
Section 23. Disqualification by reason
marriage. - During their marriage, the
husband or the wife cannot testify against the
other without the consent of the affected spouse,
except in a civil case by one against the other, or
in a criminal case for a crime committed by one
against the other or the latter's direct descendants
or ascendants
Elements
1. During their marriage i. The marriage must
be valid and existing at the time of the offer of
the testimony
2. The husband or the wife cannot testify
against the other i. The “other” spouse must
be a party to the action, either as a plaintiff or
defendant ii. Note: 2019 Revision removed the
words “for or”
3. Without the consent of the affected spouse
[Sec. 23, Rule 130]
Except: Spouse may testify against the other
even without the consent of the latter
****
1. In civil case by one against the other; or
“ EVIDENCE
2. In criminal case for a crime committed by
oneagainst the other or the latter’s direct
descendants or ascendants.
3. Consent is given by the party-spouse; or
4. Testimony was made outside of marriage.
Duration General rule: During their marriage
[Sec. 23 Rule 130] Exception: 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 [Alvarez v. Ramirez,
of
G.R. No. 143439 (2005)]
Characteristics:
1. A blanket disqualification of a spouse from
testifying for or against the other.
2. Effective only during the existence of the
marriage.
3. Can be invoked only if one of the spouse s
is a party to the action.
4. The married witness would not be allowed
to take the witness stand at all. Even if the
testimony is, against the objecting spouse,
the spouse-witness cannot testify.
Problem:
For over a year, Nenita had been estranged
from her husband Walter because of the
latter’s suspicion that she was having an affair
with Vladimir, a barangay kagawad who lived
in nearby Mandaluyong. Nenita lived in the
meantime with her sister in Makati. One day,
the house of Nenita’s sister inexplicably
burned almost to the ground. Nenita and her
sister were caught inside the house but Nenita
survived as she fled in time, while her sister
REMEDIAL LAW REVIEW - BAR 2 0 2 3
tried to save belongings and was caught
inside when the house collapsed. As she was
running away from the burning house, Nenita
was surprised to see her husband also
running away from the scene. Dr. Carlos,
Walter’s psychiatrist who lived near the
burned house and whom Walter medically
consulted after the fire, also saw Walter in the
vicinity some minutes before the fire.
Coincidentally, Fr. Platino, the parish priest
who regularly hears Walter’s confession and
who heard it after the fire, also encountered
him not too far away from the burned house.
Walter was charged with arson and at his trial,
the prosecution moved to introduce the
testimonies of Nenita, the doctor and the
priest-confessor, who all saw Walter at the
vicinity of the fire at about the time of the fire.
(2013 BAR EXAMS)
a. May the testimony of Nenita be allowed
over the objection of Walter?
SUGGESTED ANSWER
No. Nenita may not be allowed to testify
against Walter. Under the Marital
Disqualification Rule, during their
marriage, neither the husband nor the wife
may testify for or against the other without
the consent of the affected spouse, except
in a civil case by one against the other, or
in a criminal case for a crime committed by
one against the other or the latter's direct
descendants or ascendants (Sec. 22, Rule
130). The foregoing exceptions cannot apply
since it only extends to a criminal case of one
spouse against the other or the latter’s direct
ascendants or descendants. Clearly, Nenita
is not the offended party and her sister is
not her direct ascendant or descendant for
her to fall within the exception.
“ EVIDENCE
b. May the testimony of Dr. Carlos, Walter’s
psychiatrist, be allowed over Walter’s
objection?
Problem:
On March 12, 2008, Mabini was charged with
Murder for fatally stabbing Emilio. To prove the
qualifying
circumstance of evident premeditation, the
prosecution introduced on December 11, 2009
a text message,
which Mabini's estranged wife Gregoria had
sent to Emilio on the eve of his death, reading:
"Honey, pa2tayin u
ni Mabini. Mtgaln nyang plano i2. Mg ingat u
bka ma tsugi k." (2010 BAR EXAMS)
A subpoena ad testificandum was served on
Gregoria. For her to be presented for the
purpose of identifying her cellphone and the
text message. Mabini objected to her
Presentation on the ground of marital privilege
SUGGESTED ANSWER The objection should
be sustained on the ground of the marital
disqualification rule (Rule 130, Sec. 22); not
on the ground of the "marital privilege"
communication rule. (Rule 130, Sec. 24). The
marriage between Mabini and Gregoria is still
subsisting and the situation at bar does not
come under the exceptions to the
disqualification by reason of marriage which
refers to that the spouse may testify against
the other even without the consent of the latter
1. In a civil case by one against the other; or
2. In a criminal case for a crime committed by
one against the other or the latter's direct
descendants/ascendants
b. Suppose Mabini's objection in question A
was sustained. The prosecution thereupon
announced that it would be presenting Emilio's
wife Graciana to' identify Emilio's cellphone
bearing Gregoria's text message. Mabini
objected again. Rule on the objection. (2%)
REMEDIAL LAW REVIEW - BAR 2 0 2 3 “ EVIDENCE

SUGGESTED ANSWER The objection should

be overruled. The testimony of Graciana is not
covered by the said marital disqualification
rule because she is not the wife of Mabini.
Besides, Graciana will identify only the
cellphone as that of her husband Emilio, not
the messages therein which to her are
hearsay
REMEDIAL LAW REVIEW - BAR 2 0 2 3
2. Disqualification by reason of privileged
communications
The husband or the wife, during or after the
marriage, cannot be examined without the consent
of the other as to any communication received in
confidence by one from the other during the
marriage except in a civil case by one against the
other, or in a criminal case for a crime committed
by one against the other or the latter's direct
descendants or ascendants.
A. Husband and Wife Also known as
marital privilege
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; AND
3. The confidential communication was received
during the marriage.
Elements
1. The husband or the wife
2. During or after the marriage
3. Cannot be examined
4. Without the consent of the other
5. As to any communication received in
confidence by one from the other during the
marriage [Sec. 24(a), Rule 130]
Take note:
Exceptions
1. In civil case by one against the other; or
2. In criminal case for a crime committed by one
against the other or the latter’s direct descendants
or ascendants.
When not applicable
1. When the communication was not intended
to be kept in confidence
“ EVIDENCE
Take note: A widow of a victim allegedly
murdered may testify as to her husband’s
dying declaration as to how he died since the
same was not intended to be confidential
2. When the communication was made prior to
the marriage
3. Waiver of the privilege
• Failure of the spouse to object; or
• Calling spouse as witness on cross
examination
Characteristics:
1. The privilege applies only to confidential
communications.
2. Effective during and after the marriage.
3. May be invoked whether a spouse is a
party to the action or not.
4. The married person is on the stand, but the
objection of privilege is raised when the
confidential marital communication is
inquired into.
Problem:
Husband and wife (1995, 2004, 2010)
Marital privileged communication
Requisites: a) There must be a valid marriage
between the husband and the wife b) There is
communication received in confidence by one
from the other c) The ‘confidential
communication’ (one that is made during and
by reason of the marital relations and is not
intended to be shared with others) was
received during the marriage d) The non-
disclosure of the confidential information by
the other spouse is effective even after the
dissolution of marriage e) Prohibition of the
testimony applies whether the spouses are
parties or not.
Problem:
REMEDIAL LAW REVIEW - BAR 2 0 2 3
The only question to be determined in this
case is whether the accused is guilty of murder
or simple homicide. The crime was committed
with evident premeditation and therefore
constituted murder and can be sustained only
by taking into consideration Exhibit L, a letter
written to the accused by his wife and seized
by the police in searching his effects on the
day of his arrest. The letter shows that the
letter writer (the wife) feared that the accused
contemplated resorting to physical violence in
dealing with the deceased. Is the letter
admissible?
The letter is admissible. Where privileged
communication from one spouse to another
comes into the hands of a third party, whether
legally or not, without collusion or voluntary
disclosure on the part of either of the spouses,
the privilege is thereby extinguished and the
communication, if otherwise competent,
becomes admissible.
Problem:
John filed a petition for declaration of nullity of
his marriage to Anne on the ground of
psychological incapacity under Article 36 of
the Family Code. He obtained a copy of the
confidential psychiatric evaluation report on
his wife from the secretary of the psychiatrist.
Can he testify on the said report without
offending the rule on privileged
communication? Explain.
There is no violation of marital communication
privilege since the report is not a confidential
communication between spouses. There is
also no violation of the marital disqualification
rule since the case involves an exception, that
is, a civil case by one spouse against the other
“ EVIDENCE
B. Communication between Atty and Client
(b) An attorney or person reasonably believed by
the client to be licensed to engage in the practice
of law cannot, without the consent of the client,
be examined as to any communication made by
the client to him or her, or his or her advice given
thereon in the course of, or with a view to,
professional employment, nor can an attorney's
secretary, stenographer, or clerk, or other persons
assisting the attorney be examined without the
consent of the client and his or her employer,
concerning any fact the knowledge of which has
been acquired in such capacity, except in the
following cases:
(FCBDJ)
(i) Furtherance of crime or fraud. If the services
or advice of the lawyer were sought or obtained to
enable or aid anyone to commit or plan to commit
what the client knew or reasonably should have
known to be a crime or fraud;
(ii) Claimants through same deceased
client. As to a communication relevant to an issue
between parties who claim through the same
deceased client regardless of whether the claims
are by testate or intestate or by inter
vivos transaction;
(iii) Breach of duty by lawyer or client. As to a
communication relevant to an issue of breach of
duty by the lawyer to his or her client or by the client
to his or her lawyer;
(iv) Document attested by the lawyer. As to a
communication relevant to an issue concerning an
attested document to which the lawyer is an
attesting witness; or
(v) Joint clients. As to a communication relevant
to a matter of common interest between two [(2)] or
more clients if the communication was made by
any of them to a lawyer retained or consulted in
common, when offered in an action between any of
the clients, unless they have expressly agreed
otherwise
1. Attorney cannot, without the consent of his
client, b eexamined as to any communication
made by the client
REMEDIAL LAW REVIEW - BAR 2 0 2 3
to him, or his advise given thereon.
2. There exists an atty-client relationship, and it
is by
reason of this relationship that the client made
the
communication.
3. The client made the communication in
confidence. The
mere relation of attorney-client does not raise a
presumption of confidentiality. The client must
intend
the communication to be confidential.
4. The legal advice must be sought from the
attorney in his
professional capacity.
Requisites:
a) There must be a communication made by the
client to the attorney or person reasonably believed
by the client to be licensed to engage in the
practice of law or an advice given by the attorney
or person reasonably believed by the client to be
licensed to engage in the practice of law to his
client
b) The communication or advice must be given in
confidence
c) The communication or advice must be given
either in the course of professional
employment or with a view to professional
employment (here, there may be no
perfected atty-client relationship)
d) The statements of the client need not be made
to the attorney in person. Those made to
the attorney’s secretary, stenographer or clerk or
other persons assisting the attorney
cannot also be examined as to the communication
made by the client or the advice given by the
attorney without the client’s consent and
employer’s consent
“ EVIDENCE
Problem:
In a murder prosecution, the prosecutor calls
the house counsel for accused’s computer
corporation to testify that on the night of the
crime, she received a phone call from the
accused’s wife who said, “JOSE (the accused)
just called me from jail to say that police have
arrested him for murdering his business
partner and he wants me to burn some letters
in his desk. What should I do?” The witness
testifies further that she replied, “How the hell
should I know – I’m not a criminal defense
lawyer! Call my classmate, GARY K. – maybe
he can help you.” The statement of the wife is:
Inadmissible if the wife claims the attorney-
client privilege
Inadmissible if the wife claims the attorney-
client privilege
Problem:
V, who suffered physical injuries including a
fractured wrist bone, underwent surgery to
screw a metal plate to his wrist bone. On
complaint of V, a criminal case for Reckless
Imprudence Resulting in Serious Physical
Injuries was filed against X before the
Municipal Trial Court (MTC) of Sta. Maria.
Atty. L, the private prosecutor, did not reserve
the filing of a separate civil action. V
subsequently filed a complaint for Damages
against X and Y before the Regional Trial
Court of Pangasinan in Urdaneta where he
resides. In his "Certification against Forum
Shopping” V made no mention of the
pendency of the, criminal case in Sta. Maria. x
x x x x x x x x x x x Atty. L offered in the criminal
case his affidavit respecting what he
witnessed during the incident. X's lawyer
wanted to cross examine Atty. L who,
however, objected on the ground of lawyer
client privilege. Rule on the objection. (2%)
REMEDIAL LAW REVIEW - BAR 2 0 2 3 “ EVIDENCE

3. Members of the patient’s family

(2010 BAR EXAMS) SUGGESTED ANSWER

Requisites:
The objection should be overruled. Lawyer-
client privilege is not involved here. The
1. The privilege applies only to a civil case,
subject on which the counsel would be
whether the patient is a party or not;
examined has been made public in the
counsel would be examined has been made
public in the affidavit he offered and thus, no
2. The person against whom the privilege is
longer privileged, aside from the fact that it is
claimed is a physician, psychotherapist, or a
in respect of what the counsel witnessed
person reasonably believed by the patient to
during the incident and not to the
be authorized to practice medicine or
communication made by the client to him or
psychotherapy; Applies also to persons,
the advice he gave thereon in his professional
including members of the patient family who
capacity
have participated in the diagnosis or treatment
of the patient under the direction of the
physician or psychotherapist;

C. Communication between physician and

patient (Physician-Patient Privilege); 3. The information which cannot be disclosed
refers to: • Diagnosis or treatment of the
c) A physician, psychotherapist or person patient • Physical, mental, or emotional
reasonably believed by the patient to be authorized condition of the patient including alcohol or
to practice medicine or psychotherapy cannot in a
drug addiction
civil case, without the consent of the patient be
examined as to any confidential communication
4. The rule does not require a perfected physician-
made for the purpose of diagnosis or treatment of
patient relationship by reason of a contract. This
the patient's physical. mental or emotional
also includes quasi-contract as when the patient is
condition, including alcohol or drug addiction,
seriously il and the physician treats him.
between the patient and his or her physician or
psychotherapist. This privilege also applies to
5. The privilege is still effective even after the death
persons, including members of the patient's family,
of the patient. Death does not permit the
who have participated in the diagnosis or treatment
impairment of the reputation of the patient.
of the patient under the direction of the physician
or psychotherapist.
6. The privilege may be waived by the patient
expressly or impliedly (as when the patient
A "psychotherapist" is:
answers
(a) A person licensed to practice medicine
question on matters which are supposedly
engaged in the diagnosis or treatment of a mental
privileged on cross examination)
or emotional condition, or
(b) A person licensed as a psychologist by the
government while similarly engaged.

Problem:
Persons bound by confidentiality

1. Physician In a murder prosecution: To support a claim of

2. Person reasonably believed to be authorized self-defense, the accused calls the victim’s
to practice medicine
REMEDIAL LAW REVIEW - BAR 2 0 2 3
psychiatrist to testify that in her opinion, the
victim was a homicidal maniac.
The testimony is:
Inadmissible if the psychiatrist claims the
psychotherapist privilige
Problem:
Accused, Dr. AB, famed law professor is
charged with criminal destruction of property.
Dr. CB is called as a witness by the defense in
this criminal trial, with the expectation that he
will testify that he, not accused Dr. AB
destroyed the valuable, highly-modified Ford
F-150, by setting it on fire. Dr. CB is a
doctor/consultant of the Baguio General
Hospital for the Criminally Insane. Prior to this
offer of testimony, in separate proceedings
alleging that he had murdered a hospital
orderly during an escape attempt, Dr. CB was
found to be criminally insane and incompetent
to stand trial. Among certain other personal
quirks, he has publicly stated that he is a Red
Avenger from Planet Krypton and that he must
return to the Eighth Dimension to rescue his
army, in order to conquer the universe,
starting with Planet Earth. The prosecution
objects that Dr. CB is incompetent to testify
False
Problem:
In an action for legal separation filed by a
husband against the wife, the physician of a
hospital testified to the effect that the wife was
a patient in the hospital and stayed there for a
certain length of time. The physician further
testified that the wife came to the hospital
without a baby and left with one and that her
co-defendant with her knowledge made some
of the arrangements and paid all the bills.
“ EVIDENCE
Is the physician’s testimony admissible? The
testimony is admissible. The same is not
information necessary for the proper treatment
of the patient. The matters stated are nothing
but causal information of the witnesses which
are not included in the privilege.
Problem:
Husband filed a petition for legal separation
from his wife on the ground that she suffers
from schizophrenia before, during and after
their marriage up to the present. During the
trial, the husband’s attorney sought to present
a doctor who is the chief of the National Mental
Hospital. The wife’s attorney opposed on the
ground of physician-patient privilege
communication. The doctor examined the wife
finding her to be suffering from schizophrenia.
The trial court allowed the doctor to testify but
only as an expert witness. After the doctor was
qualified, he was asked hypothetical
questions. The wife’s attorney filed a petition
for certiorari alleging grave abuse of discretion
on the part of the trial court when it allowed the
wife’s doctor to testify as an expert witness. Is
the doctor’s testimony privileged
communication and consequently
inadmissible?
The physician’s testimony is ADMISSIBLE. In
order that the privilege may be successfully
claimed, the following requisites must concur:
(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 in his professional
capacity; (4) the information was necessary to
enable him to act in that capacity; (5) the
information was confidential and if disclosed
would blacken the reputation of the patient. In
this case the physician was presented as an
expert witness. She did not disclose anything
REMEDIAL LAW REVIEW - BAR 2 0 2 3
obtained in the course of her examination
interview and treatment of the petitioner. All
the facts and conditions are merely
hypothetical. The physician’s testimony is
INADMISSIBLE. The information is
confidential and it would blacken the
reputation of the patient
Problem:
Dodo was knocked unconscious in a fist fight
with Dindo. He was rushed to the emergency
room of the Medical City where he was
examined and treated by Dr. Datu. As he was
being examined, a plastic sachet appearing to
contain shabu fell from Dodo’s jacket which
was on a chair beside him. Dodo was thus
arrested by the same policemen who assisted
him to the hospital. At Dodo’s trial, the public
prosecutor called Dr. Datu to the witness
stand. When the public prosecutor asked Dr.
Datu as to what he saw in the emergency
room, Dodo’s counsel objected claiming
doctor-patient rule. Rule on the objection.
The objection should be overruled. Dr. Datu is
being called to testify on what he saw in the
emergency room, which does not pertain to
any information he acquired in attending to
Dodo in a professional capacity. Dr. Datu was
simply being asked to testify as an ordinary
witness, and not as Dodo’s physician hence,
doctor-patient privilege under Rule 130,
Section 24 of the Rules of Court does not
apply
Problem:
The physician-patient privilege is to
encourage the patient to make full disclosure
to the physician of all facts to enable the latter
to prescribe and administer proper treatment.
Hence, physicians (expanded to include
psychotherapists and others reasonably
believed by the patient to be authorized to
“ EVIDENCE
practice medicine or psychotherapy) may not
disclose any advice given to the patient or any
treatment or other information acquired in
attending such patient. Question: Does this
privilege apply to information acquired by the
physician after the death of the patient,
information referred to as post mortem or
autopsical information? NO. A corpse cannot
be a patient. Facts disclosed by an autopsy or
post-mortem examination cannot be held to
have been acquired by the examining
physician in confidence. Hence, the
information is not privileged and the physician
may testify thereon
D. Priest -Penitent
(d) 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.
1. The person making the confession holds
the privilege
2. The priest or minister 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,
3. The confession or advice was given in his
or her professional character, int eh course of
discipline enjoined by the church to which the
minister or priest belongs.
E. Public Officers:
(e) A public officer cannot be examined during or
after his or her tenure as to communications made
REMEDIAL LAW REVIEW - BAR 2 0 2 3
to him or her in official confidence, when the court
finds that the public interest would suffer by the
disclosure.
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
3. Testimonial Privilige
A. Parental and Filial Privilege Rule
Section 25. Parental and filial privilege. – No
person shall be compelled to testify against his or
her parents, other direct ascendants, children or
other direct descendants, except when such
testimony is indispensable in a crime against that
person or by one parent against the other. (25a)
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
2. Filial Privilege: A child cannot be compelled
to testify against his parents or other direct
ascendants
Applicability The rule is applied to both civil
and criminal cases [Herrera] The privilege
“ EVIDENCE
cannot apply between stepmothers and
stepchildren because the rule applies only to
direct ascendants and descendants,
Problem:
A parent cannot be compelled to testify
against his or her child or other direct
descendants. • A child may not be compelled
to testify against his or her parents or other
direct ascendants.
Exception.
Descendants may be compelled to give his
testimony (Art
215, Family Code)
a. In a criminal case, and such testimony is
indispensable in a
crime committed against said defendant
b) If the testimony is indispensable in a crime
against that person or by one parent against
the other.
B. Trade Secrets
Section 26. Privilege relating to trade secrets. – A
person cannot be compelled to testify about any
trade secret unless the 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: Trade secrets are exempted from
compulsory disclosure.
EXPN:
1. Its disclosure will conceal fraud; or
2. It is to work injustice
REMEDIAL LAW REVIEW - BAR 2 0 2 3 “ EVIDENCE

Jurisprudence has consistently acknowledged the

private character of trade secrets. There is a
privilege not to disclose
one's trade secrets. Foremost, this Court has
declared that trade secrets and banking
transactions are among the recognized
restrictions to the right of the people to information
as embodied in the Constitution. The drafters of the
Constitution also unequivocally affirmed that, aside
from national security matters and intelligence
information, trade or industrial secrets
(pursuant to the Intellectual Property Code and
other related laws) as well as banking transactions
A. ADMISSION BY A PARTY
Section 27. Admission of a party. – The act,
declaration or omission of a party as to a relevant
fact may be given in evidence against him or her.
Requisites of admission to be admissible:
1. Must involve matters of fact, and not of law:
2. Must be categorical and definite:
3. Must be knowingly and voluntarily made;
4. Be adverse to the admitter's interests,
otherwise it would be self-serving and
inadmissible.

4. Admissions and Confessions RULE: Self-serving declarations which are

unsworn statements made by the declarant
out of court and which are favorable to his
1. ADMISSIONS interest are not admissible.

An admission is an act, declaration or Admission Confession

omission of a party as to a relevant fact. It is a Any statement of facts A declaration of an
voluntary acknowledgment made by a party of made by a party accused
against his interest or acknowledging
the existence of the truth of certain facts which
unfavorable to the guilt for the offense
are inconsistent with his claims in an action.
conclusion for which charged, or for any
he contends or is offense necessarily
FORMS OF ADMISSIONS
inconsistent with the included therein.
facts alleged by him.
1.Judicial Admissions
2.Extrajudicial Admissions
May be made by third Can be made only by
persons the party himself
Judicial Extrajudicial
Applies to civil Acknowledgment of
transactions and to guilt only to criminal
An admission, verbal Admission made out
matters Cases
or written, made by a of court or
of fact in criminal
party in the course of even in the
cases not involving
the proceedings in proceeding other
criminal intent.
the than the one under
same case, does not consideration.
May be expressed or Always express
require proof. The
implied.
admission may be
contradicted only by
showing that it was
B. EFFECTS OF OFFER OF COMPROMISE BY
made through
A PARTY
palpable
mistake or that no
Section 28. Offer of compromise not admissible. –
such admission was
****Possible exam question
made
1. In civil cases,
(Rule 129, Sec. 4).
REMEDIAL LAW REVIEW - BAR 2 0 2 3
a. an offer of compromise is not an admission
of any liability, and is not admissible in evidence
against the offeror.
Note the exceptions however. An offer is
admissible in evidence in the following
instances: 1. When the offer contains an
admission of an independent fact.
Examples: a). X writes Y demanding payment
of a debt. Y answers and offers to pay half and
the other half within an extended period plus
an additional interest, if X foregoes suing him
because he also has to pay off his debt to Z.
In a suit by Z against Y, such offer of Y to X
may be used in favor of Z if Y denies liability.
2. When the offer contains an admission of
liability, such as the existence and
correctness of the amount.
b. Neither is evidence of conduct nor
statements made in compromise negotiations
admissible, except
• 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.
2. In criminal cases, except
• those involving quasi-offenses (criminal
negligence) or
• those allowed by law to be compromised,
a) Those cases covered by the
CourtAnnexed Mediation under R.A.
9285 (Alternative Dispute Resolution
Act
i) The civil aspect of a prosecution for
B.P. 22 (ii) The civil aspect of
quasioffenses (iii) Estafa, physical
injuries, theft, crimes covered by the
Rules on Summary Procedure and all
others which are not expressly
declared by law as not subject of
compromise such as any act
constituting violence against women
“ EVIDENCE
and their children. b) Prosecutions
under the NIRC where payment of the
compromise penalty will be a ground
for the non filing of a criminal case. c)
Genuine Offers to Marry by the
accused in crimes against chastity.
a. an offer of compromise by the accused may
be received in evidence as an implied
admission of guilt.
But as to his civil liability, the parties may
compromise.
b. A plea of guilty later withdrawn or an
unaccepted offer of a plea of guilty to a lesser
offense is not admissible in evidence against
the accused who made the plea or offer.
c. Neither is 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, admissible.
d. 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. (27a)
Cases where compromise is not valid
1. The civil status of a person
2. The validity of marriage or a legal separation
3. Any ground for legal separation
4. Future support
5. The jurisdiction of courts
6. Future legitime
7. Habeas Corpus
8. Election
C. RES INTER ALIOS ACTA RULE
General Rule:
The rights of a party cannot be prejudiced by
an act, declaration, or omission of another
REMEDIAL LAW REVIEW - BAR 2 0 2 3 “ EVIDENCE

Applies only to extrajudicial confessions and contracted debts

not to statement made in open court. with various persons
in the past and had
EXPN: Vicarious Admissions:
not paid such debts,
1. Admission by a co-partner or agent joint owner
despite demand, is
or debtor or one
jointly interested
“not admissible” to
2. Admission by a conspirator show that the debtor
3. Admission by privies did not pay his
4. Admission by silence obligation to the
plaintiff.
1st Branch: 2nd Branch
ADMISSIONS BY A SIMILAR ACTS AS Exceptions:
THIRD PARTY EVIDENCE Evidence of similar
acts is admissible for
any of the following
Important note: This General Rule: The
purpose: (especially
admission applies previous conduct or
in actions based on
only to similar acts at one
fraud or deceit) a)
extrajudicial time is not
Specific intent b)
declarations. admissible to prove
Knowledge c)
that one did or did
Identity d) Plan e)
Judicial admissions not do the same act
System f) Scheme
are admissible as at another time.
g) Habit
declarations against (2011 Bar)
the other.
h) Custom i) Usage
The rule prohibits
j) And the like e.g.
the admission of the
show not his guilt but
e.g. X makes a so-called propensity
to prove signature or
statement to the evidence.
handiwork or
media admitting his
because of identical
participation in a
modus operandi or
murder, his e.g. X is accused of
share distinctive
statement is physical injuries.
features as the
admissible against The evidence, in the
offense for which the
him but the rest of past, that he
accused is currently
his statements are committed several
charged with
not admissible acts constituting
against his co- physical injuries “is
participant not admissible” for
the purpose for
which it is offered. Exceptions to Res Inter Alios Acta Rule where
The rights of a party cannot be prejudiced by
an act, declaration, or omission of another
e.g. An action to
collect a sum of
money, evidence 1. Admission by a copartner or agent:
that the debtor had
REMEDIAL LAW REVIEW - BAR 2 0 2 3
Requisites:
1. The partnership, agency, or joint interest is
established
by evidence other than the act or declaration;
2. The act or declaration is within the scope of
the
partnership, agency or joint interest;
3. The act or declaration must have been made
during
the existence of the partnership, agency, or
joint
interest.
Rationale; Art. 1868 and 1883 (NCC), The
agent, is in legal contemplation, a mere
extension of the personality of the principal.
Thus, whatever is said by an agent to a third
person, during the course of the agency and
within the scope of his authority, is for legal
purposes also the statement of the principal.
2. Admission by a conspirator
The rule on admission by
conspirator applies only to an extrajudicial
act or admission but not to testimony given
on the witness stand where the defendant
has the opportunity to cross-examine the
declarant.
(Does not apply when the co-accused takes
the witness stand and his statements become
judicial admissions)
Requisites: a) Declaration or act be made or
done “DURING” the existence of the
conspiracy; b) Declaration or act must relate
to the conspiracy; c) The conspiracy must be
shown by evidence other than such
declaration or act.
3. Admission by privies
Privies means persons who are partakers or
have an interest in any action or thin, or any
relation to another. e.g. a) lessor and lessee
“ EVIDENCE
b) grantor and grantee c) executor and
administrator and the estate of the deceased
A sold his lot to B. In the sale but
before delivery, A said that there are
squatters in the lot. B perfected the
contract still. B, now, instituted a
Forcible Entry case against the
squatters.
4. Admission by silence
General Rule: The statement contains
assertion which, if untrue, would be sufficient
cause for the party to make a denial. His
failure to speak against that statement is
admissible as an admission
. e.g. Upon seeing a policeman, a bystander,
in the presence of other people, points to a
man and accuses him as the killer. The man
pointed did not respond. His failure to respond
may be given in evidence against him.
e.g. The police caught
Abe in a pawnshop robbery. At
the behest of the police, Abe
reenacted how he committed
the crime.
Requisites:
1. He must have heard or observed the act or
declaration of
the other person;
2. He must have had the opportunity to deny
it;
3. He must have understood the statement;
4. He must have an interest to object, such
that he would
naturally have done so, if the statement was
not true;
5. The facts were within his knowledge; and
6. The fact admitted or the inference to be
drawn
7. from his silence.
REMEDIAL LAW REVIEW - BAR 2 0 2 3
Exception: A person under custodial
investigation pursuant to the constitutional
provisions over the rights of the accused.
5. Adoptive admissions¨
By adoptive admission, a third person’s
statement becomes the admission of a party
embracing or espousing it. The statement or
conduct by the third person is evidence
against the party concerned. Thus, in Estrada
vs. Arroyo, G.R. No. 146710-15, 2 March
2001, Estrada’s lack of objection or comment
to the statements and proposals by Sen.
Angara concerning Estrada's leaving
Malacanang,
Adoptive admission may occur when a party:
a. Expressly agrees to or concurs in an oral a
statement made
by another;
b. Hears a statement and later on essentially
repeals it;
c. Utters an acceptance or builds upon the
assertion of
another;
d. Replies by way of rebuttal to some specific
points raised by
another but ignores further points which he or
she has
heard the other make; or
e. Reads and signs a written statement made by
another
Problem:
Ben testified that Jaime, charged with robbery,
has committed bag-snatching three times on
the same street in the last six months. Can the
court admit this testimony as evidence against
Jaime?
D. No, since evidence of guilt of a past crime
is not evidence of guilt of a present crime
“ EVIDENCE
Problem:
During custodial investigation at the Baguio
City Police Station, Accused was informed of
his constitutional right to remain silent and to
have competent and independent counsel. He
decided to waive his right and proceeded to
make a statement admitting commission of the
robbery. In the same statement, he implicated
B, his coconspirator in the crime. Is the
testimony of the Accused admissible against
B?
NO. The statement is not shown to relate to
the conspiracy;
NO. The statement was made after the
conspiracy had already ceased;
NO. The conspiracy must first be shown by
evidence other than such declaration or act
All of the options given.
!!!!!!!!!!
Problem:
Ricky, while driving his Maserati, smashes into
the Toyota Vios of Dante. Immediately after
the incident, Ricky offers to pay the value of
the Toyota Vios. Dante still sued Ricky
criminally for Reckless Imprudence because
of Ricky’s wayward and speedy driving.
During trial, Dante was called as witness to
testify on Ricky’s offer to compromise as an
admission of guilt. Ricky’s counsel objected. If
you were the judge, how would you rule on the
objection? Explain briefly. (5 points)
SUGGESTED ANSWER
REMEDIAL LAW REVIEW - BAR 2 0 2 3
If I were the judge, I would sustain the
objection of Ricky’s counsel.
Under the Rules of Evidence, one of the
exceptions to the rule that an offer of
compromise may be received in evidence as
an implied admission of guilt in criminal cases
is in cases involving quasi-offenses.
Here, when Ricky offered to pay the value of
damage made to Dante’s Toyota Vios, his
offer of compromise cannot be received in
evidence as an implied admission of guilt as
the case instituted by Dante is one for
Reckless Imprudence.
D. CONFESSIONS
A confession is a voluntary acknowledgement
by a person of his guilt of the offense charged
or of any offense included therein, may be
given in evidence against him. (Section 33,
Rule 130).
It is different from an admission. Confessions
are admissible against the confessant. They
are evidence of a high order because no
person in his right senses would admit his guilt
or participation in the commission of a crime,
knowing that it would subject him to
punishment. He must be prompted by truth. To
convict, the confession must be corroborated
by evidence of corpus delicti (body of the
crime) pursuant to Section 3 of Rule 133.
FORMS OF CONFESSIONS
1.Judicial Confession
2.Extrajudicial Confession
RULE:
Effect of extrajudicial confession of guilt
“ EVIDENCE
• Not sufficient for conviction
• Requires to be corroborated by evidence
corpus delicti (body of the crime)
Extrajudicial confession without a counsel is
not valid.
Persons Bound by A Valid Confession:
General Rule:
An extrajudicial confession is binding only on
the confessant and is not admissible against
his or her co-accused because it is considered
as hearsay against them.
As a rule the confession binds only the
confessant following the res inter alios acta
rule. The following constitute the exceptions:
(RaCI)
1. When it was confirmed or ratified by the co-
accused.
2. When the extra-judicial confession is
judicially confirmed.
3. In case of interlocking confessions i.e.,
confessions made by two or more accused
independently of each other and without
collusion which are identical in their essential
details. Interlocking confessions. Thus, the
identical confessions of 3 accused are
admissible against X who was mentioned by
all 3 as the master mind. It may also gauge the
credibility of the testimony of another accused
and of witnesses. Thus, each confession is
evidence against all confessants.
Requisites for the admissibility of
extrajudicial confession: These requisites
apply to a person the extrajudicial confession
of a person arrested, detained or is under
custodial investigation.
1. Shall be in writing;
REMEDIAL LAW REVIEW - BAR 2 0 2 3
2. 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, judge, district
school supervisor or priest or minister
Exception: A person in private meeting, fully
and voluntarily confessing to the commission
of his crime need not comply with the
constitutional requirements in a custodial
investigation.
E. HEARSAY RULE
Section 37. Hearsay. - Hearsay is a statement
other than one made by the declarant while
testifying at a trial or hearing, offered to prove the
truth of the facts asserted therein. A statement is
(1) an oral or written assertion or (2) a non-verbal
conduct of a person, if it is intended by him or her
as an assertion. Hearsay evidence is inadmissible
except as otherwise provided in these Rules.
Two-tiered meaning:
A. A statement other than one made by the
declarant while testifying at the trial or hearing;
B. Such statement is offered to prove the truth
of the facts asserted therein.
b. Reason for exclusion of hearsay evidence •
• No opportunity to cross-examine the
person to whom statements or writings
are attributed
• Absence of Demeanor Evidence
• Absence of Oath
“ EVIDENCE
Forms:
1. Oral or Written
Assertion
2. Non-verbal conduct
RULE: An affidavit is merely hearsay evidence
if the maker did not take the witness stand.
Q: When is a statement
not considered as Hearsay?
A statement is not hearsay if the declarant testifies
at the trial or hearing and is subject to cross-Â-
examination concerning the statement and the
statement is
(a) inconsistent with the declarant's testimony, and
was given under oath subject to the penalty of
perjury at a trial. hearing, or other proceeding, or in
a deposition:
(b) consistent with the declarant's testimony and is
offered to rebut an express or implied charge
against the declarant of recent fabrication or
improper influence or motive: or
(c) one of identification of a person made after
perceiving him or her
Exception to the Hearsay Rule
1. Dying declaration
2. Statement of Decedent or Person of Unsound
Mind
3. Declaration against interest
4. Act or declaration about pedigree
5. Family reputation or tradition regarding
pedigree
6. Common reputation
7. Part of Res Gestae
8. Records of regularly conducted business
activity
9. Entries on official record
10. Commercial list and the like
11. Learned Treaties
12. Testimony or deposition at a former
proceeding
13. Residual Exception
REMEDIAL LAW REVIEW - BAR 2 0 2 3
15.Independently relevant statements (2003,
2009, 2011)
NON-HEARSAY
This is a non-hearsay out of court statement.
They are relevant because the statement itself
is either the very fact in issue or a
circumstantial evidence of a fact in issue.
Note. If the purpose is merely to establish the
fact that the statement or the tenor of such
statement was made, the testimony is not
hearsay
Dying declaration
Requisites for admissibility:
1. Consciousness by the declarant of his
impending death;
2. Communication by the declarant of the
cause and surrounding circumstances of
his looming death
3. Competence of the declarant to testify;
and
4. Declaration is offered in any case relative
to declarant’s death as the subject of
inquiry
Q Dying
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.
How to assail? 1. Prove that the declarant,
prior to the admitted declaration, made a
statement inconsistent with his supposedly
dying declaration.
Section 39. Statement of decedent or person of
unsound mind. - In an action against an executor
or administrator or other representative of a
deceased person, or against a person of unsound
mind, upon a claim or demand against the estate
“ EVIDENCE
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 person 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 the 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, is
inadmissible if made under circumstances
indicating its lack of trustworthiness.
Section 40. 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 the 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 the
trustworthiness of the statement.
Section 41. Act or declaration about pedigree. -
The act or declaration of a person deceased or
unable to testify, in respect to the pedigree of
another person related to him or her by birth[,]
adoption, or marriage or, in the absence thereof,
with whose family he or she was so intimately
associated as to be likely to have accurate
information concerning his or her pedigree, may be
received in evidence where it occurred before the
controversy, and the relationship between the two
[(2)] persons is shown by evidence other than such
act or declaration. The word "pedigree" includes
relationship, family genealogy, birth, marriage,
death, the dates when and the places where these
facts occurred, and the names of the relatives. It
embraces also facts
REMEDIAL LAW REVIEW - BAR 2 0 2 3
Section 42. Family reputation or tradition
regarding pedigree. - The reputation or tradition
existing in a family previous to the controversy, in
respect to the pedigree of anyone 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.
Section 43. Common reputation. - Common
reputation existing previous to the controversy, as
to boundaries of or customs affecting lands in the
community and reputation as to events of general
history important to the community, or respecting
marriage or moral character, may be given in
evidence. Monuments and inscriptions in public
places may be received as evidence of common
reputation.
Section 44. 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
Section 45. 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 by a person with
Problem:
A foreign dog trained to sniff dangerous drugs
from packages, was hired by FDP
Corporation, a door to door forwarder
company, to sniff packages in their depot at
the international airport. In one of the routinary
“ EVIDENCE
inspections of packages waiting to be send to
the United States of America (USA), the dog
sat beside one of the packages, a signal that
the package contained dangerous drugs.
Thereafter, the guards opened the package
and found two (2) kilograms of cocaine. The
owner objected of the package was arrested
and charges were filed against him. During the
trial, the prosecution, through the trainer who
was present during the incident and an expert
in this kind of field, testified that the dog was
highly trained to sniff packages to determine if
the contents were dangerous drugs and the
sniffing technique of their highly trained dogs
was accepted worldwide and had been
successful in dangerous drugs operations.
The prosecution moved to admit this evidence
to justify the opening of the package. The
accused objected on the grounds that : (i) the
guards had no personal knowledge of the
contents of the package before it was opened;
(ii) the testimony of the trainer of the dog is
hearsay; and (iii) the accused could not cross-
examine the dog. Decide. (2014 BAR EXAMS)
SUGGESTED ANSWER:
The objections of the accused should be
overruled. An evidence is admissible when it
is relevant to the issue and is not excluded by
the law or the rules (Section 3, Rule 128).
Under Section 36, Rules 130 of the Rules of
Court, a witness can testify only to those which
he knows of his personal knowledge and
derived from his own perception. The
contention that the guards had no personal
knowledge of the contents of the package
before it was opened is without merit. The
guards can testify as to the facts surround the
opening of the package since they have
personal knowledge of the circumstances
thereof, being physically present at the time of
its discovery. On the other hand, the testimony
of the trainer of the dog is not hearsay based
on the following grounds: a. He has personal
knowledge of the facts in issue, having
witnessed the same; b. Hearsay merely
REMEDIAL LAW REVIEW - BAR 2 0 2 3
contemplates an out-of-court declaration of a
person which is being offered to prove the
truthfulness and veracity of the facts asserted
therein; c. He is an expert witness, hence, his
testimony may constitute an exception to the
hearsay rule;
Problem:
Opinion Rule
General Rule: Opinion of a witness is not
admissible.
Section 51. General rule. - The opinion of a witness
is not admissible, except as indicated in the
following sections. (48)
Section 52. Opinion of expert witness. - 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. (49a)
Section 53. Opinion of ordinary witnesses. - The
opinion of a witness, for which proper basis is
given, may be received in evidence regarding -
(a) [T]he identity of a person about whom he or
she has adequate knowledge;
(b) A handwriting with which he or she has
sufficient familiarity; and
(c) 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. (50a)
Character Evidence
Section 54. Character evidence not generally
admissible; exceptions. - Evidence of a person's
character or a trait of character is not admissible for
“ EVIDENCE
the purpose of proving action in conformity
therewith on a particular occasion, except:
(a) In Criminal Cases:
(1) 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.
(2) The accused may prove his or her good moral
character [.] pertinent to the moral trait involved in
the prove his or her bad moral character unless on
rebuttal.
(b) In 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.
(c) In Criminal and Civil Cases:
Evidence of the good character of a witness is not
admissible until such character has been
impeached.
In all cases in which evidence of character or a 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.
In cases in which character or a 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. (51 a;
14, Rule 132
Question:
WHEN MAY THE PROSECUTION
INTRODUCE EVIDENCE OF THE BAD
MORAL CHARACTER OF THE ACCUSED?
Answer: Pursuant to Section 54, Rule 130 -
only in rebuttal provided the accused
introduced evidence of his own good moral
character during the presentation of his
evidence-in-chief. This is to prevent the
accused from having a free hand and
fabricating evidenced of his good moral
character without fear of contradiction. On
cross-examination, if the accused testifies in
his own behalf, the prosecution may prove his
bad character as a witness i.e. that his veracity
REMEDIAL LAW REVIEW - BAR 2 0 2 3
for truth is bad. 13. The moral character of the
victim may be proved “ if it tends to establish
in any reasonable degree the probability or
improbability of the offense charged.” The
Prosecution may immediately introduce
evidence of the good moral character of the
victim if: (i). If it is an element of the offense
charged, such as good reputation in case of
seduction, or in libel and oral defamation; (ii) It
proves the probability of the offense charged
as in sex crimes such that the victim could not
have given consent due to her good moral
character. 14. The accused may prove the bad
moral character of the victim in the following
cases: (a) In assault or homicide cases where
he sets self-defense, or in cases of the
Battered Wife Syndrome defense, the
accused may prove the victim is of a violent
character, quarrelsome, trouble seeker or
pugnacious. This is to prove it was the victim
who was the aggressor. Likewise, to show the
state of mind of the accused in that bad
character of the victim produced a reasonable
belief of imminent danger on the mind of the
accused and a justifiable conviction that a
prompt action was necessary. (b) In sex
crimes involving unchaste acts of the accused,
where the willingness of the woman is
material, her character as to her chastity is
admissible to show whether or not she
consented to the man’s acts. (c) In murder and
in other heinous crimes, evidence of the bad
moral character of the victim is irrelevant 15.
In civil cases, evidence of the character of the
parties is not admissible unless the issue
involved is character i.e. character is of
particular importance in the case, or that the
good or bad moral character of a party will
affect the outcome of the case. Examples
include: a) Action for damages for injury to
plaintiff’s reputation as in libel cases; b)
Actions which impute moral turpitude such as
the employment of deceit, misrepresentation
or fraud; c) Actions for damages due to
seduction; d) Legal separation or annulment of
marriage based on reasons grounded on the
“ EVIDENCE
character of the spouses, such as
psychological incapacity; e) Action for
damages for breach of promise to marry
where the bad character of plaintiff maybe
used as a defense; f) As a defense in actions
for Alienation of Affection; g) In actions
involving custody of children; h) Opposition to
the appointment of a guardian, or
administrator of the property of another; 16. As
for witnesses, a witness enjoys the
presumption of good moral character hence it
is not necessary to introduce character
evidence. However, evidence of character is
necessary in order to rehabilitate the character
of the witness if the latter's character had been
impugned by the adverse party. The bad
moral character of a witness, his tendency to
lie or his improper motives may be shown by
the adverse party. 17. As for third parties,
evidence of character is inadmissible being
irrelevant as they are neither parties nor
witnesses. 18. However if relevant in that the
evidence may affect the issues of the case,
then evidence of character may be admitted.
Thus, in an action for legal separation based
on adultery by the wife with a man, evidence
that the man is a person of good moral
character may be introduced to prove that the
man could not have entered into the
adulterous relationship.
G. Burden of Proof and Presumptions (Rule
131)
H. Presentation of Evidence (Rule 132)
1. Examination of Witnesses
a) Rights and Obligations of a Witness
b) Leading and Misleading Questions
c) Impeachment of Witnesses
2. Authentication and Proof of Documents
a) Meaning of Authentication
b) Classes of Documents
c) Authentication of a Private Writing
REMEDIAL LAW REVIEW - BAR 2 0 2 3
d) Public Documents as Evidence; Proof of
Official Record
3. Offer and Objection
a) When to Make an Offer
b) When to Make an Objection
c) Tender of Excluded Evidence
1. Examination of Witnesses
Section 1. Examination to be done in open
court. - The examination of witnesses presented in
a trial or hearing shall be done in open court, and
under oath or affirmation. Unless the witness is
incapacitated to speak, or the question calls for a
different mode of answer, the answers of the
witness shall be given orally.
Section 3. Rights and obligations of a witness. -
A witness must answer questions, although his or
her answer may tend to establish a claim against
him or her. However, it is the right of a witness:
(1) To be protected from irrelevant, improper, or
insulting questions, and from harsh or insulting
demeanor;
(2) Not to be detained longer than the interests of
justice require;
(3) Not to be examined except only as to matters
pertinent to the issue;
(4) Not to give an answer which will tend to subject
him or her to a penalty for an offense unless
otherwise provided by law; or
(5) Not to give an answer which will tend to degrade
his or her reputation, unless it be to the very fact at
issue or to a fact from which the fact in issue would
be presumed. But a witness must answer to the
fact of his or her previous final conviction for an
offense
Section 10. Leading and misleading
questions. - A question which suggests to the
witness the answer which the examining party
desires is a leading question. It is not allowed,
except:
(a) On cross-examination;
(b) On preliminary matters;
(c) When there is difficulty in getting direct and
intelligible answers from a witness who is ignorant,
a child of tender years, is of feeble mind, or a deaf-
mute;
(d) Of an unwilling or hostile witness; or
“ EVIDENCE
(e) Of a witness who is an adverse party or an
officer, director, or managing agent of a public or
private corporation[.]or of a partnership or
association which is an adverse party.
A misleading question is one which assumes as
true a fact not yet testified to by the witness, or
contrary to that which he or she has previously
stated. It is not allowed.
Section 11. Impeachment of adverse
party s witness. - A witness may be impeached
by the party against whom he or she was called, by
contradictory evidence, by evidence that his or
her general reputation for truth, honesty, or
integrity is bad, or by evidence that he or she has
made at other times statements inconsistent with
his or her present testimony, but not by evidence of
particular wrongful acts, except that it may be
shown by the examination of the witness, or record
of the judgment, that he or she has been convicted
of an offense. (11a)
Section 12. Impeachment by evidence of
conviction of crime. - For the purpose of
impeaching a witness, evidence that he or she has
been convicted by final judgment of a crime shall
be admitted if (a) the crime was punishable by a
penalty in excess of one [(1)] year; or (b) 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. (n)
Section U. Party may not impeach his or her own
witness. - Except with respect to witnesses
referred to in paragraphs (d) and (e) of Section
10 of this Rule, the party presenting the witness is
not allowed to impeach his or her credibility.
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.
The unwilling or hostile witness so declared, or the
witness who is an adverse party, may be
impeached by the party presenting him or her in all
respects as if he or she had been called by the
adverse party, except by evidence of his or her bad
character. He or she may also be impeached and
cross-examined by the adverse party, but such
REMEDIAL LAW REVIEW - BAR 2 0 2 3
cross-examination must only be on the subject
matter of his or her examination-in-chief. (12a)
Section 14. How witness impeached by evidence
of inconsistent statements. - Before a witness can
be
Authentication and Proof of Documents
a) Meaning of Authentication
c) Authentication of a Private Writing
Authentication means the process of proving
the due execution and genuineness of a
document
b) Classes of Documents
Section 19. Classes of documents. - For the
purpose of their presentation in evidence,
documents are either public or private.
Public documents are:
(a) The written official acts, or records of the
sovereign authority, official bodies and tribunals,
and public officers, whether of the Philippines, or of
a foreign country;
(b) Documents acknowledged before a notary
public except last wills and testaments;
(c) Documents that are considered public
documents under treaties and conventions which
are in force between the Philippines and the
country of source; and
(d) Public records, kept in the Philippines, of private
documents required by law to be entered therein.
All other writings are private. (19a)
Documents are introduced in evidence
depending on whether public or private: A
private document may be considered as
evidence when its due execution and
authenticity must be proved sequentially: a)
marked, b) identified, c) authenticated, d)
formally offered in evidence, and e) subjected
to tender of excluded evidence, if rejected by
the Court. On the other hand, a public
document may be introduced in evidence
“ EVIDENCE
without such requirement of authentication
because it is a self-authenticating evidence.
What is meant by “self-authenticating”
evidence? Self-authenticating evidence
means an evidence that requires no further
authentication in order to be presented as
evidence in court. How are private documents
authenticated? Section 20-22 Section 20.
Proof of private document. — Before any
private document offered as authentic is
received in evidence, its due execution and
authenticity must be proved by any of the
following means: (a) By anyone who saw the
document executed or written; or (b) By
evidence of the genuineness of the signature
or handwriting of the maker. (c.) 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.
Offer and Objection
Section 34. Offer of evidence. - The court shall
consider no evidence which has not been formally
offered. The purpose for which the evidence is
offered must be specified. (34)
Section 35. When to make offer. - All evidence
must be offered orally.
The offer of the testimony of a witness in
evidence must be made at the time the witness is
called to testify.
The offer of documentary and object evidence shall
be made after the presentation of a party's
testimonial evidence. (35a)
Section 36. Objection. - Objection to offer of
evidence must be made orally immediately after
the offer is made.
Objection to the testimony of a witness for lack of a
formal offer must be made as soon as the witness
begins to testify. Objection to a question
propounded in the course of the oral examination
of a witness must be made as soon as the grounds
therefor become reasonably apparent.
The grounds for the objections must be specified.
(36a)
REMEDIAL LAW REVIEW - BAR 2 0 2 3
Tender of excluded evidence
Section 40. Tender of excluded evidence. - If
documents or things offered in evidence are
excluded by the court, the offeror may have the
same attached to or made part of the record. If the
evidence excluded is oral, the offeror may state for
the record the name and other personal
circumstances of the witness and the substance of
the proposed testimony. (40)
What is offer of proof? Upon rejection of
evidence, the option on tender of excluded
evidence in Section 40 can be availed by the
proponent of evidence. So what do you do if
you are the victim of an “objection sustained”
by the trial court or of a motion to strike
granted on a testimony that is crucial to you
cause of action or defense? Make a tender of
excluded evidence. Section 40 provides:
Tender of excluded evidence. — If documents
or things offered in evidence are excluded by
the court, the offeror may have the same
attached to or made part of the record. If the
evidence excluded is oral, the offeror may
state for the record the name and other
personal circumstances of the witness and the
substance of the proposed testimony. (n) Why
make a tender? 1. To allow the court to know
the nature of testimony or the documentary
evidence and convince the trial judge to permit
the evidence or testimony; 2. Even if he is not
convinced to reverse his earlier ruling, the
tender is made to create and preserve a
record for appeal.
I. Judicial Affidavit Rule (A.M. No. 12-8-8-
SC)
Are there exceptions to the rule that
examination shall be made in open court?
Enumerate these.
“ EVIDENCE
Judicial affidavit is a document that takes
place the direct testimony of witnesses in
court. Instead of conducting direct testimony in
court, attorneys will submit affidavits with
questions and answers that witnesses have
supplied while under oath.
• Summary procedure: Here, there is no trial to
speak of and only submission of position
papers.
• Judicial affidavit rule: The judicial affidavit
shall take the place of direct testimonies of
witnesses. Here, to reduce the time for
completing the testimonies of witnesses in
cases under litigation, the judicial affidavit rule
expects the filing by the parties, with service to
the adverse party, of judicial affidavits, which
shall serve as direct testimony, at least 5 days
before the hearing.
In a judicial affidavit rule: The parties’
documentary and object evidence are
expected to be marked and appended to their
judicial affidavits prior to filing in court, subject
to the retention of the original if so desired.
Section 9. Application of rule to criminal
actions. – (a) 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.
J. Weight and Sufficiency of Evidence (Rule
133)
K. Rules on Electronic Evidence (A.M. No.
01-7-01-SC)
ELECTRONIC DOCUMENTS
REMEDIAL LAW REVIEW - BAR 2 0 2 3
SECTION 1. Electronic documents as
functional equivalent of paper-based
documents. – Whenever a rule of evidence
refers to the term of writing, document,
record, instrument, memorandum or any
other form of writing, such term shall be
deemed to include an electronic document
as defined in these Rules.
SEC. 2. Admissibility. – An electronic
document is admissible in evidence if it
complies with the rules on admissibility
prescribed by the Rules of Court and
related laws and is authenticated in the
manner prescribed by these Rules.
SEC. 3. Privileged communication. –
The confidential character of a
privileged communications is not solely
on the ground that it is in the form of
an electronic document.
RULE 4
BEST EVIDENCE RULE
SECTION 1. Original of an electronic
document. – An electronic document shall
be regarded as the equivalent of an
original document under the Best Evidence
Rule if it is a printout or output readable
by sight or other means, shown to reflect
the data accurately.
SEC. 2. Copies as equivalent of the
originals. – When a document is in two
or more copies executed at or about
the same time with identical contents,
or is a counterpart produced by the
same impression as the original, or
from the same matrix, or by
mechanical or electronic re-recording,
or by chemical reproduction, or by
other equivalent techniques which is
accurately reproduces the original,
such copies or duplicates shall be
“ EVIDENCE
regarded as the equivalent of the
original.
Notwithstanding the foregoing, copies
or duplicates shall not be admissible to
the same extent as the original if:
(a) a genuine question is raised as to the
authenticity of the original; or
(b) in the circumstances it would be
unjust or inequitable to admit a copy in
lieu of the original.
RULE 5
AUTHENTICATION OF ELECTRONIC
DOCUMENTS
SECTION 1. Burden of proving
authenticity. – The person seeking to
introduce an electronic document in any
legal proceeding has the burden of proving
its authenticity in the manner provided in
this Rule.
SEC. 2. Manner of authentication. –
Before any private electronic document
offered as authentic is received in
evidence, its authenticity must be
proved by any of the following means:
(a) by evidence that it had been digitally
signed by the person purported to have
signed the same;
(b) by evidence that other appropriate
security procedures or devices as may
be authorized by the Supreme Court or
by law for authentication of electronic
documents were applied to the
document; or
(c) by other evidence showing its
integrity and reliability to the
satisfaction of the judge.
SEC. 3. Proof of electronically notarized
document. - A document electronically
notarized in accordance with the rules
promulgated by the Supreme Court shall
be considered as a public document and
proved as a notarial document under
the Rules of Court.
REMEDIAL LAW REVIEW - BAR 2 0 2 3 “ EVIDENCE

RULE 11
AUDIO, PHOTOGRAPHIC. VIDEO
AND EPHEMERAL EVIDENCE
****SECTION 1. Audio, video and
similar evidence. – Audio,
photographic and video evidence of
events, acts or transactions shall be
admissible provided is shall be shown,
presented or displayed to the court and
shall be identified, explained or
authenticated by the person who made
the recording or by some other person
competent to testify on the accuracy
thereof.
SEC. 2. Ephemeral electronic
communication. – Ephemeral
electronic communications shall be
proven by the testimony of a person
who was a party to the same or has
personal knowledge thereof. In the
absence or unavailability of such
witnesses, other competent evidence
may be admitted.
A recording of the telephone
conversation or ephemeral electronic
communication shall be covered by the
immediately preceding section.
If the foregoing communications are
recorded or embodied in an electronic
document, then the provisions of Rule
5 shall apply.