Professional Documents
Culture Documents
Riano Evidence
Riano Evidence
Riano Evidence
PRELIMINARY CONSIDERATIONS
Concept of "Evidence"
1. The term "evidence" is denned by Sec. 1 of Rule 128
of the Rules of Court as follows:
l
2 EVIDENCE
(The Bar Lectures Series)
rules of evidence shall be the same in all courts and in all tri-
als and hearings, is not to say however, that there are abso-
lutely no distinctions between a civil and a criminal proceed-
ing. Indeed, there are certain evidentiary differences between
these proceedings.
Bar 1994
Al was accused of raping Lourdes. Only Lourdes
testified on how the crime was perpetrated. On the other
hand, the defense presented Al's wife, son, and daughter
to testify that Al was with them when the alleged crime
took place. The prosecution interposed timely objection to
the testimonies on the ground of obvious bias due to the
witness close relationship with the accused.
If you were the judge:
(1) X X X
Suggested answer:
(1) xxx
(2) The corroboration of the version of the defense
by three witnesses is not sufficient for acquittal. Alibi is
one of the weakest defenses due to its being capable of
easy fabrication. It cannot prevail over the positive iden-
tification of the accused as perpetrator of the crime. For
an alibi to prevail, the defense must establish by positive,
clear and satisfactory proof that it was physically impos-
sible for the accused to have been at the scene of the crime
at the time of its commission, and not merely that the
accused was somewhere else. In the face of positive iden-
tification of the accused by the prosecution witness, such
alibi crumbles like a sand fortress (People v. Vargas, G.R.
No. 122765, October 13, 2003; People v. Adam, 413 SCRA
293).
In this case, the Court found that the delay was suffi-
ciently explained by the victim. T h e Court likewise found that
when the victim was still a young child and already subjected
to the revolting behavior of the accused, the latter threatened
her with physical harm should she divulge his misdeeds to
anyone else. W h e n she became pregnant, the accused resorted
to emotional blackmail by telling her that he would be impris-
PRELIMINARY CONSIDERATIONS 21
A. Miscellaneous Basic Principles
oned should she tell anyone about what he had been doing
to her. A n d when the wife of the accused wanted the latter
to move out of their house because of his appalling conduct,
the accused had the audacity to confront the victim and her
mother with the fact that he was the sole breadwinner of their
family. It is therefore clear, according to the Court, that the
accused used every scheme he could think of to dissuade the
family from going to the proper authorities. But more than
the appellant's actuations, the victim in her own words testi-
fied that she was discouraged by the public ridicule that she
expected to come her way. In her words:
B a r 2005
(a) xxx
(b) xxx
•Sic) May a private document be offered and admit-
ted in evidence both as documentary evidence and as ob-
ject evidence?
(d) xxx
(e) xxx
Suggested answer:
(a) xxx
(b) xxx
EVIDENCE
(The Bar Lectures Series)
Bar 1991
Two (2) hours after Lt. Yap of the 2nd Air Division,
PAF, at the Mactan Air Base in Lapu-Lapu City, was shot
with a .45 caliber pistol, his Division commander, Brig.
Gen. A, visited him at the Cebu Doctor's Hospital in Cebu
City where he was immediately brought before treatment
of the gunshot wound. Lt. Yap told A that it was Jose Co-
men who shot him. Forthwith, A, who is a law graduate,
took the initiative of taking down in long hand the state-
ment of Lt. Yap. The latter narrated the events surround-
ing and categorically stated that it was Jose Comen who
shot him. Lt. Yap signed the statement in the presence of
A and the attending nurse. Ten (10) days later, Lt. Yap
died as a consequence of the gunshot wound. An informa-
tion for murder was filed against Jose Comen.
At the trial, the above statement of Lt. Yap marked
as Exh. "X" was presented and identified by A who did not,
however, testify that Lt. Yap read it, or that it was read
to him before he (Yap) signed it. A, nevertheless, testified
that it was Jose Comen who shot him. The defense ob-
jected to the testimony of A and to the admission of Exh.
"X" on the ground that they are hearsay. The prosecution
contended that both are exceptions to the hearsay rule as
they are part of res gestae.
(a) Is the prosecution correct?
(b) If the statement cannot be admitted as part of
the res gestae, may it be considered as a dying declara-
tion?
PRELIMINARY CONSIDERATIONS 29
A. Miscellaneous Basic Principles
Suggested answers:
(a) The prosecution is not correct. The statement
of Lt. Yap is not part of the res gestae. To be part of the res
gestae, the statement should have been made by a person
while a startling occurrence is taking place or immedi-
ately prior to or subsequent to such startling occurrence
(Sec. 42, Rule 130, Rules of Court). The statement of Lt.
Yap was made two (2) hours after he was allegedly shot,
not neither while he was being shot nor immediately prior
to or immediately after being shot.
B a r 1984
Suggested answer:
The testimony could be admitted either as a dying
declaration or as part of the res gestae.
Assuming that A was under the consciousness of
an impending death when he stated that C had stabbed
him, the declaration may be admitted as a dying declara-
tion pursuant to Sec. 37 of Rule 130. If the statement was
made without such consciousness, it could be admissible
as part of the res gestae under Sec. 42 of Rule 130, since
the same was made immediately after a startling event,
i.e. the stabbing.
30 EVIDENCE
(The Bar Lectures Series)
Conditional Admissibility
It happens frequently enough that the relevance of a
piece of evidence is not apparent at the time it is offered, but
the relevance of which will readily be seen when connected to
o^her pieces of evidence not yet offered. The proponent of the
evidence may ask that the evidence be conditionally admit-
ted in the meantime subject to the condition that he is going
to establish its relevancy and competency at a later time. If
the connection is not shown as promised, the court may, upon
motion of the adverse party, strike out from the record the
evidence that was previously conditionally admitted.
For instance, M r . P files an action for recovery of owner-
ship of a parcel of land against M r . D. The complaint alleges
that Mr. P is the owner of the property. During the trial, M r .
P testifies and adduces evidence that sometime in 1995, the
property subject of the action was bought by M r . O from a cer-
tain Mr. M. The defendant, M r . D, objects on the ground that
the evidence is irrelevant to support the claim of ownership of
Mr. P. The problem presented in such a situation is whether or
not to interrupt the examination of the witness to first present
the connecting evidence or to admit the testimony condition-
ally, subject to presentation of the said connecting evidence
later in the trial. M r . P may ask the court to conditionally
allow the testimony with the undertaking to show later that
he bought the property from M r . O who in turn bought it from
Mr. M .
Curative Admissibility
1. The doctrine of curative admissibility allows a party
to introduce otherwise inadmissible evidence to answer the op-
posing party's previous introduction of inadmissible evidence if
it would remove any unfair prejudice caused by the admission
of the earlier inadmissible evidence (Adams v. Burlington N.
R.R. Co., 865 S.W.2d 748, 751 [Mo. App. 1993]). Thus, a party
who first introduces either irrelevant or incompetent evidence
into the trial cannot complain of the subsequent admission of
similar evidence from the adverse party relating to the same
PRELIMINARY CONSIDERATIONS 31
A. Miscellaneous Basic Principles
One American case puts it: "A breach of the rules of evi-
dence by one party does not suspend those rules with respect
to the other party" (See United States v. Young, 470 U.S. 1
[1985]).
[^Eecland^CinxumstariliaLEyid^nce
Bar_199g
A was accused of having raped X. Rule on the admis-
sibility of the following pieces of evidence:
1. xxx
2. A pair of short pant&allegedly left by A at the
cdTne_scene x x x .
Suggested answer:
The evidence may be admissible as a circumstantial
evidence of his liability although not sufficient in itself to
support a conviction.
(8) when he was informed by his wife that the victim's cadaver
was found near their house, he showed no surprise and he did
nothing; and (9) on two occasions, when he was informed by
the police that someone was killed in their barangay and that
he is a suspect in the killing, he did not bother to ask who the
victim was.
The Supreme Court agreed with accused that the trial
court erred in convicting him based on circumstantial evi-
dence. Declared by the Court:
of W that he could not have fired the gun because he was not
armed during the incident, is a negative evidence.
Positive and negative evidence may likewise refer to the
presence or absence of something. Thus, the presence of fin-
gerprints of a person in a particular place is positive evidence
of his having been in said place although absence of his fin-
gerprints does not necessarily mean he was not in the same
place.
B. Admissibility of Evidence
Sui generis means "of its own kind or class, i.e., the only
one of its own kind; peculiar" (Black's Law Dictionary, 5th
Ed., 1286). If an impeachment proceeding in the Philippines
is a class of its own, it is certainly not a judicial, quasi-judicial,
legislative or administrative hearing or investigation. If the
nature of impeachment proceedings as described by Chief Jus-
tice Puno is to be adopted by the Supreme Court, there would
seem to be no reason therefore, to prevent the admissibility of
illegally procured recordings in an impeachment case.
2. T h e evidences considered inadmissible if obtained in
violation of R . A . N o . 4200 are spelled out clearly in the law,
thus: ( a ) any communication or spoken word, ( b ) the existence,
contents, substance, purport, effect, or meaning of the commu-
nication or spoken word or any part thereof (Sec. 4, R.A. No.
4200). N o t e that even the "existence" of the communication is
inadmissible.
of looking around after getting off the bus was but natural as
he was finding his way to his destination. That he purportedly
attempted to run away as he was approached is irrelevant and
cannot by itself be construed as adequate for a tanod to have
personal knowledge that petitioner had just engaged in, was
actually engaging in or was attempting to engage in criminal
activity. It is not unreasonable to expect the petitioner, after
being approached by unknown persons at night to attempt to
flee at their approach. Flight is not a reliable indicator of guilt.
When petitioner was arrested without a warrant, he was nei-
ther caught in flagrante delicto committing a crime nor was
the arrest effected in hot pursuit. The Court in effect ruled on
the inadmissibility of the seized evidence.
Relevant Evidence
1. Under Sec. 4 of Rule 128, evidence to be relevant
must have such a relation to the fact in issue as to induce belief
in its existence or non-existence. T h e concept of relevance is
clearly one of logic. It deals with the rational relationship be-
tween the evidence and the fact to be proved. In other words,
the evidence adduced should be directed to the matters in dis-
pute and any evidence which has neither direct nor indirect
relationship to such matters must be set aside as irrelevant.
Bar 1981
M
S" is indebted to a bank. When the obligation falls
due, he fails to pay and the bank sues for collection. As
part of the evidence of the bank, the accountant of "S" is
placed on the stand and in the course of his examination
he is asked if he, in turn, is also indebted to the bank.
The lawyer of "S" interposes two objections to the
question: (a) that it is impertinent; (b) x x x
If you were the judge, how would you rule on the
objections.
Suggested answer:
(a) The objection of "S" that the_ question is im-
pertinent or irrelevant should be sustained. Thejssug.in
the case is the indebtedness of the defendant to the bank
and not the indebtedness of the accountant of "S" to the
bank^
(b) xxx
Competent Evidence
Collateral Matters
1. A matter is collateral when it is on a "parallel or di-
verging line," merely "additional" or "auxiliary" (Black's Law
Dictionary, 5th Ed., 237). This term connotes an absence of
a direct connection between the evidence and the matter in
dispute.
2. For instance, the motive of a person and in some in-
stances, his reputation are matters that may be considered
collateral to the subject of a controversy. A very strong motive
to kill the victim does not ipso facto make motive relevant to
the issue of guilt or innocence because the person with abso-
lutely no motive to kill could be the culprit. Evidence of the
bad reputation of the accused for being troublesome and ag-
gressive does not make the evidence admissible to prove his
guilt. After all, the culprit could have been the person with the
most endearing reputation.
- oOo —
Chapter II
A . J u d i c i a l Notice
78
JUDICIAL NOTICE AND ADMISSIONS 79
A. Judicial Notice
"In said case, the Court held that the terms of the
judgment in Civil Case No. R-1881 were clear and un-
equivocal. It granted title over the expropriated land to
the Republic of the Philippines in fee simple without any
condition that it would be returned to the owners or that
the owners had a right to repurchase the same if the pur-
pose for which it was expropriated is ended or abandoned
or if the property was to be used other than as the Lahug
airport. When land has been acquired for public use in
fee simple, unconditionally, either by the exercise of emi-
nent domain or by purchase, the former owner retains no
rights in the land, and the public use may be abandoned,
or the land may be devoted to a different use, without any
impairment of the estate or title acquired, or any rever-
sion to the former owner.
B a r 1980
A resident American, who came here from Massa-
chusetts, made a will where he stated that, in form, it is
executed in accordance with Massachusetts law. The will,
instituting his Filipino widow as his sole heir, would not
be valid in form under Philippine law. Upon his death, the
widow presented the will to the Court of First Instance of
Manila. Probate was objected to by distant relatives of the
testator in California. The Judge had studied in Harvard,
and was familiar with Massachusetts law. Without the
introduction of formal evidence, he granted probate, stat-
ing that the will was, indeed, executed in accordance with
Massachusetts law.
How should the matter be resolved on appeal? Ex-
plain your answer.
Suggested answer:
The judgment should be reversed on appeal. The
trial judge erred when he took judicial notice of Massa-
chusetts law on the basis of his personal knowledge of the
said law. The mere personal knowledge of the judge is not
the judicial knowledge of the court, and the judge is not
88 EVIDENCE
(The Bar Lectures Series)
Bar 2005
Explain briefly whether the Regional Trial Court
may motu propio, take judicial notice of the following:
(a) xxx
(b) xxx
(c) Foreign Laws.
(d) xxx
Suggested answer:
(a) xxx
(b) xxx
(c) Please refer to pars. 1, 2, and 3 of the preceding
topic for answers.
(d) xxx
Bar 1997
(a) Give three instances when a foreign court can
take judicial notice of a foreign law.
(b) Suppose a foreign law was pleaded as part of
the defense of the defendant but no evidence was present-
ed to prove the existence of said law, what is the presump-
tion to be taken by the court as to the wordings of the
law?
Suggested answers:
B a r 2005
Explain briefly whether the Regional Trial Court
may, motu proprio, take judicial notice of the following:
(a) xxx
(b) Ordinances approved by municipalities under
its territorial jurisdiction;
(c) xxx
(d) xxx
Suggested answer:
(a) xxx
(b) A Court of First Instance (now RTC), should
take judicial notice of municipal ordinances in force in the
municipalities within their jurisdiction but only when so
required by law. For example, the charter of the City of
Manila requires all courts sitting therein to take judicial
notice of all ordinances passed by the city council (City of
Manila v. Garcia, 19 SCRA 413). Such court must take
judicial notice also of municipal ordinances on appeal to it
from the inferior court in which the latter judicial took no-
tice of (U.S. v. Hernandez, supra; U.S. v. Blanco, supra).
92 EVIDENCE
(The Bar Lectures Series)
(c) XXX
(d) xxx
B. Judicial Admissions
Bar 2008
Bembol was charged with rape. Bembol's father, Ra-
mil, approached Artemon, the victim's father, during the
preliminary investigation and offered P I million to Arte-
mon to settle the case. Artemon refused the offer.
(a) xxx
(b) During the pre-trial, Bembol personally offered
to settle the case for P I million to the private prosecutor,
who immediately put the offer on record in the presence
of the trial judge. Is Bembol's offer a judicial admission of
his guilt?
Suggested answers:
(a) xxx
(b) Bembol's offer is a judicial admission. A judi-
cial admission is one that is verbal or written, made by
a party in the course of the proceedings in the same case
(Sec. 4, Rule 129, Rules of Court). Bembol is a party to
the case. The offer was made in the course of a judicial
proceeding.
An admission is judicial if made not only in the
pleadings, or by verbal or written manifestations in the
trial but also in a pre-trial of the case (Programme, Inc.
v. Province of Bataan, G.R. No. 144635, June 26, 2006).
Under Sec. 27 of Rule 130, the judicial admission could be
considered as an implied admission of guilt.
Bar 1984
Through his lawyer plaintiff A sent to defendant B,
through B's counsel, a request for admission of certain
facts stated therein material to the case pending between
them. B did not reply at all.
On appeal from an adverse decision, A assigned as
error the trial court's disregard of the facts, the admission
of which was the subject of his unanswered request. A
contended that as his request for admission forms part of
the records of the case, although not formally submitted
in evidence, and the records do not show that the defen-
dant ever replied thereto, there was a clear judicial ad-
108 EVIDENCE
(The Bar Lectures Series)
Suggested answer:
The plaintiff is correct. Sec. 2 of Rule 26 of the Rules
of Court requires the other party to file and serve a sworn
statement either denying specifically the matter of which
an admission or requested or setting forth in detail the
reasons why he cannot truthfully either admit or deny
those matters. Under the same section, failure to do so
will result into an implied admission of each of the mat-
ters of which an admission is requested. Since the defen-
dant failed to comply with the requirements of the Rules,
he is deemed to have made an implied admission of the
matters subject of the request for admission.
Admissions by Counsel
1. Admissions by a counsel are generally conclusive
upon a client (De Garcia v. Court of Appeals, 37 SCRA 129).
Even the negligence of counsel binds the client (Sarraga v.
Banco Filipino Savings & Mortgage Bank, 393 SCRA 566).
This rule is not however, without exception. In cases where
reckless or gross negligence of counsel deprives the client of
due process of law, or when its application will result in out-
right deprivation of the client's liberty or property, or when
the interests of justice so require, relief is accorded the client
who suffered by reason of the lawyer's gross or palpable mis-
take or negligence (Salazar v. Court of Appeals, 376 SCRA
459; Silot v. De la Rosa, G.R. No. 159240, February 4, 2008).
2. Admissions made for the purpose of dispensing with
proof of some facts are in the nature of judicial admissions.
Such admissions are frequently those of counsel or of the
attorney of record, who is, for the purpose of the trial, the
110 EVIDENCE
(The Bar Lectures Series)
agent of his client. When such admissions are made for the
purpose of dispensing with proof of some fact, they bind
the client, whether made during, or even after, the trial. A
stipulation of facts entered into by the prosecution and defense
counsel during trial in open court is automatically reduced
into writing and contained in the official transcript of the
proceedings had in court. The conformity of the accused in the
form of his signature affixed thereto is unnecessary in view of
the fact that an attorney who is employed to manage a party's
conduct of a lawsuit has prima facie authority to make relevant
admissions by pleadings, by oral or written stipulation, which
unless allowed to be withdrawn, are conclusive (Silot v. De la
Rosa, G.R. No. 159240, February 4, 2008).
C. A d m i s s i o n s , Confessions a n d the
Res Inter Alios Acta R u l e
Effects of Admissions
1. An admission by a party may be given in evidence
against him (Sec. 26, Rule 132, Rules of Court). H i s admission
is not admissible in his favor, because it would be self-serv-
ing evidence. Declarations of a party favorable to himself are
not admissible as proof of the facts asserted (Cole v. Ralph,
252 US 286, 64 L Ed 567, 40 SC Ct 312, USTC 312a, 3 AFTR
3051; State v. Warren, 242 Iowa 1176, 47 NW2d 221; Jones v.
Dugan, 124 Md. 346, 350, 92 A. 775).
Bar 2006
What are the requirements in order that an admis-
sion of guilt of an accused during a custodial investigation
be admitted in evidence?
Suggested answer:
(1) Any extrajudicial confession made by a person
arrested, detained, or under custodial investigation shall
be in writing and signed by such person in the presence of
his counsel or in the latter's absence, upon a valid waiver,
and in the presence of any of the parents, older brothers
and sisters, his spouse, the municipal mayor, the munici-
pal judge, district school supervisor, or priest or minister
of the gospel as chosen by him; otherwise, such extraju-
dicial confession shall be inadmissible as evidence in any
proceeding (Sec. 2[d], RA. No. 7438).
(2) The confession must be corroborated by evi-
dence of corpus delicti (Sec. 3, Rule 133, Rules of Court).
Bar 2008
The mutilated cadaver of a woman was discovered
near a creek. Due to witnesses attesting that he was the
last person seen with the woman when she was still alive,
JUDICIAL NOTICE AND ADMISSIONS
C. Admissions, Confessions and the Res Inter Alios Acta Rule
Carlito was arrested within five (5) hours after the discov-
ery of the cadaver and brought to the police station. The
crime laboratory determined that the woman had been
raped.
While in police custody, Carlito broke down in the
presence of an assisting counsel and orally confessed to
the investigator that he had raped and killed the woman,
detailing the acts he had performed up to his dumping of
the body near the creek. He was genuinely remorseful.
During the trial, the state presented the investigator to
testify on the oral confession of Carlito. Is the oral confes-
sion admissible as evidence of guilt?
Suggested answer:
The oral confession is not admissible as evidence of
guilt. The confession is in the nature of an extrajudicial
confession before an investigator while under custodial
investigation. Hence, the statutory provisions under R.A.
No. 7438 (Sec. 2[d]) will have to be complied with. Under
said law, any extrajudicial confession made by a person
arrested, detained, or under custodial investigation shall
be in writing and signed by such person in the presence of
his counsel. An oral confession does not comply with the
mandatory provisions of the law. Under R.A. No. 7438,
the confession is inadmissible in evidence in any proceed-
ing (Sec. 2[d], R.A. No. 7438).
that the accused had waived his right to counsel, hence, his
admissions are inadmissible against him. A suspect's confes-
sion, whether verbal or non-verbal, when taken without the
assistance of counsel without a valid waiver of such assistance
regardless of the absence of such coercion, or the fact that it
had been voluntarily given, is inadmissible in evidence, even
if such confession were gospel truth (People v. Ador, 432 SCRA
1).
Admission by Silence
1. Admission by silence as expressed in Sec. 32 of Rule
130 of the Rules of Court provides:
2. The res inter alios acta rule has two branches, name-
ly:
( a ) The rule that the rights of a party cannot be
prejudiced by an act, declaration, or omission of another
(Sec. 28, Rule 130, Rules of Court).
JUDICIAL NOTICE AND ADMISSIONS
C. Admissions, Confessions and the Res Inter Alios Acta Rule
Bar 2003
X and Y were charged of murder. Upon application
of the prosecution, Y was discharged from the information
to be utilized as a state witness. The prosecutor presented
Y as witness but forgot to state the purpose of his testimo-
ny much less offer it in evidence. Y testified that he and X
conspired to kill the victim but it was X who actually shot
the victim. The testimony of Y was the only material evi-
dence establishing the guilt of X. Y was thoroughly cross-
examined by the defense counsel. After the prosecution
rested its case, the defense filed a motion for demurrer to
evidence based on the following grounds:
(a) xxx
(b) Ys testimony is not admissible against X pur-
suant to the rule on res inter alios acta.
Rule on the motion for demurrer.
Suggested answer:
(a) xxx
(b) The demurrer should be denied. The reliance
on the rule on res inter alios acta is misplaced. The rule
applies only to extrajudicial declarations and not to state-
ments made in open court. Y testified as a witness and
was in fact, cross-examined.
Admissions by a Co-conspirator
Bar 1991
During custodial investigation at the Western Police
District, Mario Margal was informed of his constitutional
right to remain silent and to have competent and inde-
pendent counsel. He decided to waive his right to counsel
and proceeded to make a statement admitting commis-
sion of a robbery. In the same statement, he implicated
Antonio Carreon, his co-conspirator in the crime.
(a) xxx
(b) Is it (the testimony of Mario Margal) admis-
sible against Carreon as an exception to the res inter alios
acta rule?
Suggested answer:
It is not admissible against Carreon. To be admis-
sible against Carreon, the following requisites must con-
cur:
(i) The declaration or act be made or done during
the existence of the conspiracy;
(ii) The declaration or act must relate to the con-
spiracy; and
(iii) The conspiracy must be shown by evidence oth-
er than the declaration or act (Sec. 30, Rule 130, Rules of
Court).
Assuming that the conspiracy may be shown by evi-
dence other than the extrajudicial statement of Margal,
the same was made by him after the conspiracy had al-
ready ceased.
Admission by Privies
1. "Privies" are persons who are partakers or have
an interest in any action or thing, or any relation to another
(Black's Law Dictionary, 5th Ed., 1077). E x a m p l e s : (a) A les-
sor and his lessee, a grantor and a grantee; an assignor and an
assignee are privies in an estate or a contract; (b) An executor
or an administrator and the estate of the deceased are privies
in representation; or (c) An heir and his ascendant are privies
in blood or succession.
136 EVIDENCE
(The Bar Lectures Series)
B a r 1989
Pedro was charged with homicide for having hacked
Ramon to death. Before the case could be tried, the heirs
of Ramon sought out Pedro and discussed with him the
possibility of settlement of the case. Pedro agreed to a
settlement. When the heirs asked how much he was will-
ing to pay, Pedro offered P30.000 which the heirs accept-
ed. Is the agreement to settle, as well as the offer to pay
P30,000 by Pedro, admissible in evidence against him as
an implied admission of guilt?
Suggested answer:
The evidence is admissible. Under the Rules of Evi-
dence, except those involving quasi-offenses or those al-
lowed by law to be compromised, an offer of compromise
in a criminal case may be received in evidence as an ad-
mission of guilt. Homicide is neither a quasi-offense nor
one of those cases allowed by law to be compromised (Sec.
24, Rule 130, Rules of Court).
B a r 2008
Bembol was charged with rape. Bembol's father, Ra-
mil, approached Artemon, the victim's father, during the
preliminary investigation and offered P I million to Arte-
mon to settle the case. Artemon refused the offer.
(a) During the trial, the prosecution presented Ar-
temon to testify on Ramil's offer to settle admissible in
evidence?
(b) xxx
Suggested answers:
(a) The offer of Artemon is not admissible in evi-
dence against Bembol as an implied admission of guilt.
138 EVIDENCE
(The Bar Lectures Series)
(d) plan;
(e) system;
(f) scheme;
(g) habit;
(h) custom;
(i) usage; and the like (Sec. 34, Rule 130, Rules of
Court).
2. Evidence of similar acts may frequently become rel-
evant, especially in actions based on fraud and deceit, because
it sheds light on the state of mind or knowledge of a person,
his motive or intent, or they may uncover a scheme, design or
plan (Cruz v. Court of Appeals, 293 SCRA 239).
3. The admissibility of similar acts or previous conduct
would depend on the purposes for which such acts or conduct
are offered.
For example, evidence of the other similar crimes, acts or
wrongs previously committed by the accused are admissible
to show that the offense for which he is currently charged and
his prior similar acts show the "signature" or "handiwork" of
the accused, or because of identical modus operandi. In other
words, the similar acts may be offered to show that they share
distinctive features as the offense for which the accused is
currently charged with but the evidence cannot be offered to
show that the accused is likely to be guilty of the charge for
having committed the same or similar acts before his pres-
ent indictment. The rule is: T h e past acts of the accused are
inadmissible to prove that he acted in conformity with such
previous acts.
- oOo —
Chapter III
I — Object Evidence
( R u l e 130)
143
144 EVIDENCE
(The Bar Lectures Series)
Chain of Custody
1. T h e third category refers to those objects which are
not readily identifiable, were not made identifiable or cannot
be made identifiable like drops of blood or oil, drugs in powder
form, fiber, grains of sand and similar objects. Under this situ-
ation, the proponent of the evidence must establish a chain of
custody.
2. T h e purpose of establishing a chain of custody is to
guaranty the integrity of the physical evidence and to prevent
the introduction of evidence which is not authentic (Lester v.
State, 82 Md App 391, 571 A2d 897 cited in 29A Am Jur 2d,
Evidence, §946) but where the exhibit is positively identified
the chain of custody of physical evidence is irrelevant (29A
Am Jur 2d, Evidence, §946 citing State v. Clifford [Mo App]
815 SW2d3).
3. Since it is called a chain, there must be links to the
chain. The links are the people who actually handled or had
150 EVIDENCE
(The Bar Lectures Series)
custody of the object. Each of the link in the chain must show
how he received the object, how he handled it to prevent sub-
stitution and how it was transferred to another. Each of the
handlers of the evidence is a link in the chain and must testify
to make the foundation complete. This is the ideal way to show
the chain of custody although the ideal way is not absolutely
required.
There is authority supporting the view that the prosecu-
tion is not required to elicit testimony from every custodian or
from every person who had an opportunity to come in contact
with the evidence sought to be admitted (Toney v. State [Alas-
ka App] 833 P2d 15; Lewis v. State, 307 Ark 260, 819 SW2d
689; Commonwealth v. Williams, 388 Pa Super 153, 565 A2de
160 all in 29A Am Jur 2d, Evidence, §946). As long as one of
the "chains" testifies and his testimony negates the possibil-
ity of tampering and that the integrity of the evidence is pre-
served, his testimony alone is adequate to prove the chain of
custody (29A Am Jur 2d, Evidence, §947). Also, where an item
of evidence is possessed jointly by two people, it is not neces-
sary for both to testify as to the chain of custody. As long as one
of the joint possessors testifies and that testimony negates the
possibility of tampering, it alone is adequate to prove chain of
custody (Lester v. State, 82 Md, App 391, 571 A2d 897 in 29A
Am Jur 2d, Evidence, §947).
xxx
"A unique characteristic of narcotic substances is
that they are not readily identifiable as in fact they are
subject to scientific analysis to determine their composi-
tion and nature. The Court cannot reluctantly close its
eyes to the likelihood, or at least the possibility, that at
any of the links in the chain of custody over the same there
could have been tampering, alteration or substitution of
substances from other cases—by accident or otherwise—
in which similar evidence was seized or in which similar
evidence was submitted for laboratory testing. Hence, in
authenticating the same, a standard more stringent than
that applied to cases involving objects which are readily
identifiable must be applied, a more exacting standard
that entails a chain of custody of the item with sufficient
completeness if only to render it improbable that the orig-
inal item has either been exchanged with another or been
contaminated or tampered with.
152 EVIDENCE
(The Bar Lectures Series)
Illustrations:
very corpus delicti of the crime and the fact of its existence is
vital to a judgment of conviction. Thus, it is essential that the
identity of the prohibited drug be established beyond doubt.
The chain of custody requirement performs the function of en-
suring that the integrity and evidentiary value of the seized
items are preserved, so much so that unnecessary doubts as
to the identity of the evidence are removed (People v. Rivera,
G.R. No. 182347, October 17, 2008).
"To be admissible, the prosecution must show by records
or testimony, the continuous whereabouts of the exhibit at
least between the time it came into possession of the police of-
ficers and until it was tested in the laboratory to determine its
composition up to the time it was offered in evidence." (People
v. Rivera, G.R. No. 182347, October 17, 2008)
4. In People v. Dela Cruz (G.R. No. 177222, October
29, 2008), the Court found that the arresting officers failed
to strictly comply with the guidelines prescribed by the law
regarding the custody and control of the seized drugs. It also
found that while there was testimony regarding the marking
of the seized items at the police station, there was no mention
whether the same had been done in the presence of appellant
or his representatives. There was likewise no mention that
any representative from the media, D O J or any elected official
had been present during the inventory or that any of these
people had been required to sign the copies of the inventory.
Neither does it appear on record that the team photographed
the contraband in accordance with law. T h e prosecution justi-
fied the failure of the officers to comply with the requirements
of the law by stating that the integrity and evidentiary value
of the seized items were properly preserved in accordance with
law.
xxx
Demonstrative Evidence
1. Demonstrative evidence is not the actual thing but
it is referred to as "demonstrative" because it represents or
demonstrates the real thing. It is not strictly "real" evidence
because it is not the very thing involved in the case. A map,
a diagram, a photograph and a model, fall under this catego-
ry. This category of evidence is not separately defined in the
Rules of Court and appears to have been incorporated under
the general term "object" evidence.
EXAMPLE:
DNA Evidence
1. In a case in which the admissibility of D N A testing
as a means for determining paternity has become the focal
issue in controversy for the first time, the Supreme Court de-
scribed D N A in the following words:
Paraffin Tests
II — D o c u m e n t a r y E v i d e n c e
( R u l e 130)
B a r 1994
At the trial of Ace for the violation of the Dangerous
Drugs Act, the prosecution offers in evidence a photocopy
of the marked bills used in the "buy-bust" operation. Ace
objects to the introduction of the photocopy on the ground
that the Best Evidence Rule prohibits the introduction of
secondary evidence in lieu of the original.
(1) Is the photocopy real (object) evidence or docu-
mentary evidence.
(2) xxx
Suggested answer:
(1) The photocopy is real (object) evidence and not
a documentary evidence. Although it is conceded that the
178 EVIDENCE
(The Bar Lectures Series)
Bar 2005
(a) xxx
(b) xxx
(c) May a private document be offered and admit-
ted in evidence both as documentary evidence and as ob-
ject evidence?
(d) xxx
(e) xxx
Suggested answer:
(a) xxx
(b) xxx
(c) A private document may be offered and ad-
mitted in evidence both as documentary evidence and
as object evidence depending on the purpose for which
the document is offered. If offered to prove its existence,
condition or for any purpose other than the contents of a
document, the same is considered as an object evidence.
When the private document is offered as proof of its con-
tents, the same is considered as a documentary evidence
(Sec. 2, Rule 130, Rules of Court). The document may be
offered for both purposes under the principle of multiple
admissibility.
(d) xxx
(e) xxx
OBJECT AND DOCUMENTARY EVIDENCE 179
II — Documentary Evidence
Bar 2003
(a) State the rule on admissibility of electronic
documents.
(b) xxx
Suggested answer:
(a) Electronic documents are admissible in evi-
dence. Whenever the rules of evidence refer to the terms
of a writing, document, record, instrument, memorandum
or any other form of writing, such term shall be deemed
to include an electronic document as defined in the Rules
on Electronic Evidence (Sec. 1, Rule 3, Rules on Electronic
Evidence). If it is a private electronic document offered
as authentic, its authenticity need to be proven by the
person introducing the document before it is admitted in
evidence (Sec. 1 and 2, Rule 5, Rules on Electronic Evi-
dence).
b) xxx
involved, the best evidence rule, the parol evidence rule and
the hearsay rule, or anyone of these rules may come into play.
On the other hand, where the evidence is offered as an object
evidence, the best evidence rule, the parol evidence rule, and
the hearsay rule find no application.
B a r 1988
(a) State or explain briefly, the Best Evidence
Rule.
(b) xxx
Suggested answer:
(See Sec. 3 of Rule 130, Rules of Court).
B a r 1998
Give the reasons underlying the adoption of the fol-
lowing rules of evidence:
(a) xxx
(b) xxx
(c) Best Evidence Rule
Suggested answer:
(c) The underlying purpose of the best evidence
rule is the prevention of fraud or mistake in the proof
of the contents of a writing (29A Am Jur 29, Evidence,
§1049).
B a r 1994
(1) Why is the Best Evidence Rule described as a
misnomer?
(2) xxx
Suggested answer:
The rule has been described as a misnomer because
it has often been misunderstood and given a meaning it
does not deserve. Despite the word "best," the rule does
not proclaim itself as the highest and most reliable evi-
dence in the hierarchy of evidence. The term "best" has
nothing to do with the degree of its probative value in
relation to other types of evidentiary rules. It is not in-
tended to mean the "most superior" evidence. More accu-
rately, it is the "original document" rule, or the "primary
evidence" rule.
188 EVIDENCE
(The Bar Lectures Series)
Illustration N o . 1
In a case where counsel wants to show that a marriage
ceremony took place between H and W, the following questions
were asked:
Illustration N o . 2
Q: After the wedding ceremony Mr. Witness, what hap-
pened if any?
A The priest asked all sponsors to sign a document.
Q: Did you and the other sponsors sign the document?
A- We all did, Sir.
Q: How about H and W?
A They also signed, Sir.
Q: How about the priest?
A He signed the document, Sir.
Q: By the way, what document did all of you sign?
A The marriage contract, Sir.
Illustration N o . 3
Assume that we are continuing the hypothetical involving
the testimony of a sponsor of the wedding:
B a r 1994
At the trial of Ace for the violation of the Dangerous
Drugs Act, the prosecution offers in evidence a photocopy
of the marked bills used in the "buy-bust" operation. Ace
objects to the introduction of the photocopy on the ground
that the Best Evidence Rule prohibits the introduction of
secondary evidence in lieu of the original.
(1) xxx
(2) Is the photocopy admissible in evidence?
Suggested answer:
(1) xxx
(2) The photocopy of the bills being object evidence,
is admissible in evidence without violation of the best evi-
dence rule. The rule applies only to documentary evidence
and not to object evidence.
B a r 1998
Give the reasons underlying the adoption of the fol-
lowing rules of evidence:
(a) xxx
(b) xxx
(c) Best Evidence Rule
Suggested answer:
(c) The underlying purpose of the best evidence
rule is the prevention of fraud or mistake in the proof
of the contents of a writing (29A Am Jur 29, Evidence,
§1049; Please refer to the above discussion).
B a r 1992
Ajax Powder Corporation, a utility company, sued
in the Regional Trial Court to enforce a supposed right of
way over a property owned by Simplicio. At the ensuing
trial, Ajax presented its retired field auditor who testified
that he knows for a fact that a certain sum of money was
periodically paid to Simplicio for some time as consider-
ation for a right of way pursuant to a written contract.
The original contract was not presented. Instead, a pur-
ported copy, identified by the retired field auditor as such,
was formally offered as part of his testimony. Rejected by
the trial court, it was finally made the subject of an offer
of proof by Ajax.
Can Ajax validly claim that it has sufficiently met
its burden by proving the existence of the contract estab-
lishing its right of way? Explain.
Suggested answer:
Ajax cannot validly make the claim. When the sub-
ject of the inquiry is the contents of a writing, as in the
instant case, the original document must be presented in
evidence. If secondary evidence is to be offered like a copy
thereof, the proponent has to lay the basis for the admis-
sion of the copy of the document. This Ajax failed to do.
Bar 1997
When A loaned a sum of money to B, A typed a sin-
gle copy of the promissory note, which they both signed.
A. made two photocopies of the promissory note, giving
one copy to B and retaining the other copy. A entrusted
the typewritten copy to his counsel for safekeeping. The
copy with A's counsel was destroyed when the law office
was burned.
(a) As counsel for A, how will you prove the loan
given by A to B?
Suggested answer:
(a) The loan may be proved by the photocopy as
long as A lays the foundation or lays the basis for the in-
troduction of secondary evidence, to wit: (a) the existence
and due execution of the original, and (b) the loss of the
original without bad faith on his part (Sec. 5, Rule 130,
Rules of Court).
Meaning of Original
B a r 2001
Pedro filed a complaint against Lucio for the recovery
of a sum of money based on a promissory note executed
by Lucio. In his complaint, Pedro alleged that although
the promissory note says that it is payable within 120
days, the truth is that the note is payable immediately
after 90 days but that if Pedro is willing, he may, upon
request of Lucio give the latter up to 120 days to pay the
note. During the hearing, Pedro testified that the truth
is that the agreement between him and Lucio is for the
latter to pay immediately after 90 days. Also, since the
original note was with Lucio and the latter would not
surrender to Pedro the original note which Lucio kept in
a place about one day's trip from where he received the
notice to produce the note and inspite of such notice to
produce the same within six hours from receipt of such
notice, Lucio failed to do so. Pedro presented a copy of the
note which was executed at the same time as the original
with identical contents.
(a) xxx
(b) Over the objection of Lucio, can Pedro present a
copy of the promissory note and have it admitted as valid
evidence in his favor?
Suggested answer:
Pedro will be allowed to present the note it being also
an original under the Rules. When a document is in two
or more copies executed at or about the same time, with
identical contents, all such copies are equally regarded as
originals (Sec. 4[b], Rule 130, Rules of Court).
204 EVIDENCE
(The Bar Lectures Series)
Bar 1997
When A loaned a sum of money to B, A typed a sin-
gle copy of the promissory note, which they both signed.
A made two photocopies of the promissory note, giving
one copy to B and retaining the other copy. A entrusted
the typewritten copy to his counsel for safekeeping. The
copy with A's counsel was destroyed when the law office
was burned.
(a) In an action to collect the promissory note,
which is deemed to be the "original" copy for the purpose
of the "Best Evidence Rule"?
(b) Can the photocopies in the hands of the parties
be considered "duplicate" originals?
(c) xxx
Suggested answers:
Bar 2003
(a) xxx
(b) When is an electronic evidence regarded as be-
ing the equivalent of an original document under the Best
Evidence Rule?
Suggested answer:
Under the Rules on Electronic Evidence, the original
of the electronic document is its printout or output read-
able by sight or other means, shown to reflect the data
accurately (Sec. 1, Rule 4, Rules on Electronic Evidence).
The copies of the printout or output readable by
sight referred to in the immediately preceding paragraph
are also deemed originals where the copies were executed
at or about the same time with identical contents, or is
a counterpart produced by the same impression as the
original, or from the same matrix, or by mechanical or
electronic re-recording, or by chemical reproduction, or
by other equivalent techniques which accurately repro-
duces the original (Sec. 2, Rule 4, Rules on Electronic Evi-
dence).
Illustration
Mr. Seller and Mr. Buyer entered into a written contract
for the sale of a house and lot. The deed of sale mentions a pur-
chase price of P25 million, a down payment of seventy percent
(70%), and the balance payable within one (1) year from the
tender of the downpayment although the actual period agreed
upon orally was two (2) years. The oral agreement between
OBJECT A N D DOCUMENTARY EVIDENCE 215
B — Parol Evidence Rule
B a r 1978
X was hired by Philoil Co. as General Manager for
its oil exploration venture in Palawan. The employment
contract expressly provided that X was to receive salary
of PIO.OOO.OO a month plus representation and traveling
expenses of P5,000.00 a month. Philoil Co. failed to pay
and so X filed an action for specific performance of the em-
ployment contract. At the trial, Philoil Co. attempted to
prove, by oral testimony, that the payment of salary to X
was subject to the condition that Philoil Co.'s exploration
in Palawan was already successful.
Is such oral testimony admissible? Reasons.
Suggested answer:
The oral testimony is not admissible. Under the par-
ol evidence rule, no evidence of the terms of a writing are
admissible other than the contents of the written agree-
ment. Such contents cannot be modified, altered or ex-
plained by extrinsic or parol evidence like oral testimony
(Sec. 9, Rule 130, Rules of Court).
Bar 1981
"Q" and "R" entered into a contract covering the
processing and refining of "R's" products. As part of their
written contract, the parties agreed that "Q" could sell the
216 EVIDENCE
(The Bar Lectures Series)
Suggested answer:
The evidence of "R" should not be allowed. Under
the parol evidence rule, no evidence of the terms of a writ-
ing are admissible other than the contents of the written
agreement (Sec. 9, Rule 130, Rules of Court).
Bar 1983
Civil Case No. 8265 entitled "Pedro Calvo v. Hi-Pow-
ered Industries, Inc." is an action for rescission of a deed
of sale over a piece of land that the plaintiff sold to the
defendant. The deed of sale (copy of which was attached
to the complaint) read in full:
"For and in consideration of the sum of P2.5
million, receipt of which is hereby acknowledged,
Pedro Calvo hereby sells, transfers and conveys, as
it is hereby sold, transferred and conveyed unto Hi-
Powered Industries, Inc., that piece of land contain-
ing an area of 24 hectares, more or less, covered by
Transfer Certificate of Title No. 193798 of the Reg-
istry of Deeds of Batangas and more particularly de-
scribed in Annex "A" hereof."
In its answer, the defendant denied all the mate-
rial allegations of the complaint. During the trial, Pedro
Calvo testified on his behalf. While he was testifying, the
following incident took place.
Suggested answer:
The question is objectionable under the parol evi-
dence rule. When an agreement is reduced into writing,
it is considered to contain all the terms agreed upon by
the parties, and there can be no evidence of such terms
other than the contents of the written agreement. Hence,
a party cannot introduce any evidence as to the terms of
the agreement other than those found in the deed of sale
(Sec. 9, Rule 130, Rules of Court).
B a r 1988
State or explain briefly the Parol Evidence Rule.
Suggested answer:
When the terms of an agreement have been reduced
to writing, it is considered as containing all the terms
agreed upon and there can be, between the parties and
their successors in interest, no evidence of such terms
other than the contents of the written agreement (See
Sec. 9 of Rule 130, Rules of Court).
stitute parol evidence. But assume that the same parties en-
tered into another agreement on January 5, 2009 which modi-
fies some of the terms of the December 22 agreement, would
the January 5 agreement be admissible without violating the
parol evidence rule? Under traditional rules, the agreement
would be admissible because subsequent agreements were not
barred by the parol evidence rule.
Examples:
Bar 2001
Pedro filed a complaint against Lucio for the recovery
of a sum of money based on a promissory note executed by
Lucio. In his complaint, Pedro alleged that although the
promissory note says that it is payable within 120 days,
the truth is that the note is payable immediately after 90
days but that if Pedro is willing, he may, upon request
of Lucio, give the latter up to 120 days to pay the note.
During the hearing Pedro testified that the truth is that
the agreement between him and Lucio is for the latter to
pay immediately after 90 days. Also, since the original
note was with Lucio and the latter would not surrender to
Pedro the original note which Lucio kept in a place about
one day's trip from where he received the notice to pro-
duce the note and inspite of such notice to produce the
same within six hours from receipt of such notice, Lucio
failed to do so. Pedro presented a copy of the note which
was executed at the same time as the original with identi-
cal contents.
(a) Over the objection of Lucio, will Pedro be al-
lowed to testify as to the true agreement or contents of the
promissory note? Why?
(b) xxx
Suggested answer:
Pedro may be allowed to testify as to the true agree-
ment between Lucio and him. Under the parol evidence
rule, a party may present evidence to show that the writ-
ten agreement failed to express the true intent of the par-
ties provided such matter was put in issue in the plead-
ing. Pedro complied with this requirement by putting the
matter in issue.
OBJECT A N D DOCUMENTARY EVIDENCE 229
B — Parol Evidence Rule
Probative Value
1. Even if parol evidence is admitted, such admission
would not mean that the court would give probative value to
230 EVIDENCE
(The Bar Lectures Series)
C — Authentication a n d P r o o f of D o c u m e n t s
( R u l e 132)
Concept of Authentication
1. The concept of "authentication" occupies a vital place
in the presentation of evidence. N o t only documents but also
objects introduced in evidence need to be authenticated. It is
the preliminary step in showing the admissibility of an evi-
dence.
For example, a weapon, let us say, a .38 revolver, is found
in the crime scene. To be admissible in evidence, it must be
authenticated. This means that it must be shown to the satis-
faction of the court that the weapon in court is the very same
weapon found in the crime scene. To convince the court, the
proponent of the evidence must call someone to identify the
weapon and affirm: "This is the weapon I found in the crime
scene." This someone could be the police investigator or some-
one else who handled the evidence. W h e n he affirms it is the
same weapon, then the evidence is authenticated.
Concept of a Document
The Philippine Supreme Court has defined a document as
a "deed, instrument or other duly authorized paper by which
something is proved, evidenced or set forth" (Bermejo v. Bar-
rios, 31 SCRA 764; People v. Camacho, 44 Phil. 484; U.S. v.
Orera, 11 Phil. 596). However, for documents to be considered
as documentary evidence, it must be "offered as proof of their
contents" (Sec. 2, Rule 130, Rules of Court). If the document
is not offered for that purpose, the document is a mere object
evidence as when the purpose is merely to prove its existence.
Hence, not every document is to be received as a documentary
evidence.
232 EVIDENCE
(The Bar Lectures Series)
Church Registries
dition, one who denies the due execution of a deed where one's
signature appears has the burden of proving that contrary to
the recital in the jurat, one never appeared before the notary
public and acknowledged the deed to be a voluntary act. Deni-
als without clear and convincing evidence to support the claim
of fraud and falsity are not sufficient to overthrow the above-
mentioned presumption (Spouses Santos v. Spouses Lumbao,
G.R. No. 169129, March 28, 2007).
"Notarized documents may be presented in evidence
without further proof, the certificate of acknowledgment be-
ing prima facie evidence of the execution of the instrument
or document involved (Sec. 30, Rule 132, Rules of Court). To
overcome the presumption, there must be sufficient, clear and
convincing evidence as to exclude all reasonable controversy
as to the falsity of the certificate. In the absence of such proof,
the document must be upheld. Notarization converts a pri-
vate document into a public document, making it admissible
in court without further proof of its authenticity" (St. Mary's
Farm, Inc. v. Prime Real Properties, Inc., G.R. No. 158144,
July 31, 2008, citing Mallari v. Alsol, 484 SCRA 148).
Sec. 30 of Rule 130 affirms the above principles, thus:
Ancient Documents
There is an exception to the rule requiring proof of the
genuineness and due execution of a private document. T h e
exception is in the case of a private "ancient document." A
private document is considered ancient when it is more than
thirty (30) years old, is produced from a custody in which it
would naturally be found if genuine, and is unblemished by
any alterations or circumstances of suspicion (Sec. 21, Rule
132, Rules of Court).
B a r 1990
In the trial of a case on July 5,1990, plaintiff offered
in evidence a receipt dated July 7, 1959 issued by defen-
dant company which was found in a cabinet for receipts
of payment. It is without any blemish or alteration. As
no witness testified on the execution and authenticity of
the document, defendant moved for the exclusion of this
receipt notwithstanding that it is a private writing.
Should the said motion be granted?
Suggested answer:
The motion should not be granted. There is no need
for a witness to testify as to its execution and authentic-
ity. The testimony will only be for the purpose of identify-
ing the document and not to prove its authenticity. There
is an exception to the rule requiring proof of the genuine-
ness and due execution of a private document. The excep-
tion is in the case of a private "ancient document" as in
the instant case. When this is done, there is no need to
prove its authenticity.
242 EVIDENCE
(The Bar Lectures Series)
Registration of Contracts
1. W h e r e a contract is required by law to be registered,
the same must be, as a rule, in a public instrument. For ex-
ample, for purposes of registration and convenience, acts and
contracts which have for their object the creation, transmis-
sion, modification or extinguishment of real rights over im-
movable property must appear in a public instrument (Art.
1358, Civil Code of the Philippines).
2. Public documents are evidence, even against a third
person, of the fact which gave rise to their execution and of
the date of its execution. In the case of public documents con-
sisting of public records, they are also prima facie evidence of
the facts stated in the document (Sec. 23, Rule 132, Rules of
Court).
3. Certain contracts must be embodied in a public in-
strument in order to be valid. Examples: ( a ) A donation of an
immovable (Art. 749, Civil Code of the Philippines); (b) A dona-
tion of a movable with a value exceeding five thousand pesos
(Art. 748, ibid.); (c) A partnership where immovable property
or real rights are contributed (Art. 1771, ibid.).
- oOo -
Chapter IV
TESTIMONIAL EVIDENCE
A — Qualifications of Witnesses
244
TESTIMONIAL EVIDENCE 245
A — Qualifications of Witnesses
Qualifications of a Witness
1. As to the qualifications of a witness, the relevant
provision provides:
Oath or Affirmation
1. While the taking of an oath or of an affirmation is
either rarely mentioned and is merely glossed over by com-
mentators in discussing the qualifications of a witness to take
the stand, the rule clearly requires that the examination of a
witness in a trial or hearing shall be done xxx under oath or
affirmation (Section 1, Rule 132, Rules of Court). T h e willing-
ness to take an oath or affirmation is an essential qualification
of a witness. No court would and should allow the testimony of
someone who desires to testify but who refuses to swear or to
make an affirmation.
Ability to Perceive
A witness must be able to perceive an event. Thus, it
would be absurd to ask a blind man what he saw, or a deaf
person what he heard. Corollary to this capacity to perceive is
248 EVIDENCE
(The Bar Lectures Series)
Bar 2004
Distinguish clearly but briefly between:
1. xxx
2. Competency of the witness and credibility of
the witness.
250 EVIDENCE
(The Bar Lectures Series)
Suggested answer:
Competency of a witness has reference to the basic
qualifications of a witness as his capacity to perceive and
his capacity to communicate his perception to others. It
also includes the absence of any of the disqualifications
imposed upon a witness (Sees. 20-24, Rule 130, Rules of
Court). Credibility of the witness refers to the believabil-
ity of the witness and has nothing to do with the law or
the rules. It refers to the weight and the trustworthiness
or reliability of the testimony.
In deciding the competence of a witness, the court
will not inquire into the trustworthiness of the witness.
Accordingly, a prevaricating witness or one who has given
contradicting testimony is still a competent witness (U.S.
v. Cook, 949 F2d 289 [10th Cir. 1991]).
Bar 1994
Al was accused of raping Lourdes. Only Lourdes
testified on how the crime was perpetrated. On the other
TESTIMONIAL EVIDENCE 253
A — Qualifications of Witnesses
Suggested answer:
(1) I would overrule the objection. Interest in the
outcome of a case which also includes close relationship,
is not a ground to disqualify a witness (Section 20, Rule
132, Rules of Court).
(2) xxx
B a r 1994
Louise is being charged with the frustrated murder
of Roy. The prosecution's lone witness, Mariter, testi-
fied to having seen Louise prepare the poison which she
later surreptitiously poured into Roy's wine glass. Louise
sought the disqualification of Mariter as witness on ac-
count of her previous conviction of perjury.
(1) Rule on Louise's contention.
(2) xxx
Suggested answers:
(1) The contention of Louise has no legal basis.
Basic is the rule that previous conviction is not a ground
for disqualification of a witness, unless otherwise provided
by law. Mariter's conviction is not sufficient to have her
disqualified to testify. Her situation is not one of the
exceptions provided for by law.
(2) xxx
254 EVIDENCE
(The Bar Lectures Series)
B — Disqualifications of Witnesses
B a r 2005
(a) xxx
(b) xxx
(c) xxx
(d) xxx
(e) When may the trial court order that the testi-
mony of a child be taken by live-link television?
Suggested answer:
(e) The court may order that the testimony of the
child be taken by live-link television if there is a likeli-
26S EVIDENCE
(The Bar Lectures Series)
B a r 2001
Maximo filed an action against Pedro, the adminis-
trator of the estate of the deceased Juan, for the recovery
of a car which is part of the latter's estate. During the
trial, Maximo presented witness Mariano who testified
that he was present when Maximo and Juan agreed that
the latter would pay a rental of P20,000 for the use of
Maximo's car for one month after which Juan should im-
mediately return the car to Maximo. Pedro objected to the
admission of Mariano's testimony.
Suggested answer:
The objection of Pedro should not be sustained. The
testimony is admissible because the witness is not dis-
qualified to testify. Those disqualified under the dead
man's statute or the survivorship disqualification rule
are parties or assignors of parties to a case, or persons in
whose behalf a case is prosecuted. The witness is not one
of those enumerated under the rule (Section 23, Rule 130,
Rules of Court).
Bar 2007
True or False.
(a) The surviving parties rule bars Maria from tes-
tifying for the claimant as to what the deceased Jose had
said to her, in a claim filed by Pedro against the estate of
Jose.
Suggested answer:
(a) False. The rule bars only a party plaintiff, or
his assignor or a person in whose behalf a case is pros-
ecuted (Section 23, Rule 130, Rules of Court). Maria is
merely a witness and is not one of those enumerated as
barred from testifying.
TESTIMONIAL EVIDENCE 265
B — Disqualifications of Witnesses
both criminal and civil cases because the rule does not distin-
guish.
4. In order that the husband or wife may claim the
privilege, it is essential that they be validly married. If they
are not, there is no privilege (Moran, Comments on the Rules of
Court, Vol. 5,176 citing state v. Hancock, 28Nev. 300, 32, Pac.
95). The rule therefore, does not cover illicit cohabitation.
Section 22 of Rule 130 requires not only a valid marriage
but the existence of that valid marriage at the moment the
witness-spouse gives the testimony.
5. The rule applies whether the witness-spouse is a
party to the case or not but the other spouse must be a party.
That the other spouse must be a party is evident from the
phrase " . . .neither the husband nor the wife may testify for or
against the other..."
battered wife and to get even with H, she decided to report the
murder to the police, ( a ) M a y she testify against H over the
latter's objection even if the murder took place before the mar-
riage? Answer: She cannot testify over the objection of H. The
situation is covered by the marital disqualification rule, (b)
Suppose a year after the marriage, the marriage is annulled,
may W now testify despite the objection of H? Answer: She can
now testify after the marriage is annulled. The prohibition no
longer applies since the testimony is to be offered after, not
during the marriage.
In Ordoho, the Court ruled that the correct rule is the one
laid down in Cargill v. State (35 ALR 133, 220 Pac 64, 25 Okl.
314), which held that:
Bar 2000
Vida and Romeo are legally married. Romeo is
charged in court with the crime of serious physical in-
juries committed against Selmo, son of Vida, step-son of
Romeo. Vida witnessed the infliction of the injuries on
Selmo by Romeo. The public prosecutor called Vida to the
witness stand and offered her testimony as eyewitness.
Counsel for Romeo objected on the ground of the marital
disqualification rule under the Rules of Court.
(a) Is the objection valid?
(b) Will your answer be the same if Vida's testimo-
ny is offered in a civil case for recovery of personal prop-
erty filed by Selmo against Romeo?
Suggested answers:
(a) The objection is not valid. While the rule pro-
vides that neither the husband nor the wife may testify
270 EVIDENCE
(The Bar Lectures Series)
B a r 2006
Leticia was estranged from her husband Paul for
more than a year due to his suspicion that she was having
an affair with Manuel, their neighbor. She was temporar-
ily living with her sister in Pasig City.
For unknown reasons, the house of Leticia's sister
was burned, killing the latter. Leticia survived. She saw
her husband in the vicinity during the incident. Later he
was charged with arson in an Information filed with the
Regional Trial Court, Pasig City.
During the trial, the prosecutor called Leticia to the
witness stand and offered her testimony to prove that her
husband committed the arson.
274 EVIDENCE
(The Bar Lectures Series)
Suggested answer:
Leticia cannot testify. Section 22, of Rule 130 bars
her testimony without the consent of the husband during
the marriage. The separation of the spouses has not oper-
ated to terminate their marriage (Note: This is an answer
based on the tenor of the Rules of Court).
The following answer should also be considered:
Leticia may testify over the objection of her hus-
band. Where the marital and domestic relations between
her and the accused-husband have become so strained
that there is no more harmony, peace or tranquility to
be preserved, there is no longer any reason to apply the
Marital Disqualification Rule (People v. Castaneda, 271
SCRA 504; Alvarez v. Ramirez, 473 SCRA 72 [October 14,
2005).
B a r 2004
XYZ, an alien, was criminally charged of promot-
ing and facilitating child prostitution and other sexual
abuses under Rep. Act No. 7610. The principal witness
against him was his Filipina wife, ABC. Earlier, she had
complained that XYZ's hotel was being used as a center
for sex tourism and child trafficking. The defense counsel
for XYZ objected to the testimony of ABC at the trial of
the child prostitution case and the introduction of the af-
fidavits she executed against her husband as a violation
of espousal confidentiality and marital privilege rule. It
turned out that DEF, the minor daughter of ABC by her
first husband who was a Filipino, was molested by XYZ
earlier. Thus, ABC had filed for legal separation from
XYZ since last year.
Suggested answer:
If the testimony and affidavit of the wife are evidence
of the case against her husband for child prostitution in-
volving her daughter, the evidences are admissible. The
marital privileged communication rule under Section 24
of Rule 130 as well as the marital disqualification rule un-
der Section 22 of Rule 130 do not apply to and cannot be
invoked in a criminal case committed by a spouse against
the direct descendants of the other.
A crime committed by the husband against the
daughter of his wife is considered a crime committed
against the wife and directly attacks or vitally impairs the
marital relations (Ordono v. Daquigan, 62 SCRA 270).
278 EVIDENCE
(The Bar Lectures Series)
B a r 1995
Allan and Narita were married on August 1, 1989.
After two months, Narita told Allan in confidence that the
10-year old Liza whom she claimed to be her niece was ac-
tually her daughter by a certain Basilio, a married man.
In 1992, Narita obtained a judicial decree of nullity
of her marriage with Allan on the latter's psychological
incapacity to fulfill his marital obligations. When the de-
cree became final, Liza, assisted by Narita, filed 10 cases
of rape against Allan purportedly committed in 1991.
During the trial, Narita was called to the witness stand
to testify as a witness against Allan who objected thereto
on the ground of marital disqualification.
1. As public prosecutor, how would you meet the
objection?
2. Suppose Narita's testimony was offered while
the decision nullifying her marriage to Allan was pending
appeal, would your answer be different?
3. Suppose Narita died during the pendency of the
appeal, and soon after, the legal wife of Basilio sued for
legal separation on sexual infidelity in view of Basilio's
love affair with Narita. At the trial Allan was called by
Basilio's wife to testify that Narita confided to him (Al-
lan) during their marriage that Liza was her love child
by Basilio. As counsel for Basilio, can you validly object
to the presentation of Allan as witness for the plaintiff?
Explain.
280 EVIDENCE
(The Bar Lectures Series)
Suggested answers:
(1) I would ask the court to overrule the objection.
Under the marital disqualification rule, the objection to
the testimony of one spouse against the other may be
invoked only during the marriage. At the time the tes-
timony of Narita was offered, the marriage was already
dissolved. Besides, the crime was committed against a di-
rect descendant of Narita (Section 22, Rule 130, Rules of
Court).
(2) The answer would not be different and the
court may likewise be asked to overrule the objection.
The marital disqualification rule may not be invoked in a
criminal case for a crime committed against the direct de-
scendant of the other spouse. Here, Liza is the daughter
of Narita.
(3) Suggested answer of U.P. Law Center: Yes. I
could validly object to the presentation of Allan as a wit-
ness on the ground that the communication of Narita was
a privileged communication which could be invoked dur-
ing or after the marriage. Moreover, the testimony of Al-
lan would be hearsay.
Writer's Comment: It is submitted that the testimo-
ny could not be validly objected upon by Basilio's counsel
on the basis of the marital privileged communication rule.
Basilio does not own the privilege. The prerogative to ob-
ject to a confidential communication between spouses is
vested upon the spouses themselves, particularly the com-
municating spouse, not a third person. This is clear from
the provision: "...cannot be examined without the consent
of the other..." (Section 24, Rule 130, Rules of Court). The
proper objection should be on hearsay grounds, not on
privileged communications.
Bar 1998
C is the child of the spouses H and W. H sued his wife
for judicial declaration of nullity of marriage under Art.
36 of the Family Code. In the trial, the following testified
over the objection of W: C, H and D, a doctor of medicine
who used to treat W. Rule on Ws objection which are the
following:
TESTIMONIAL EVIDENCE 281
B — Disqualifications of Witnesses
Suggested answer:
The objection should be overruled. The rule invoked
by W, i.e., the rule on marital privilege, does not apply to
a civil case by one against the other. The suit between the
spouses is a civil case against the other.
Attorney-Client Privilege
B a r 2008
A tugboat owned by Speedy Port Service, Inc. (SPS)
sank in Manila Bay while helping tow another vessel,
drowning five (5) of the crew in the resulting shipwreck.
At the maritime board inquiry, the four (4) survivors tes-
tified. SPS engaged Atty. Ely to defend against potential
claims and to sue the company owning the other vessel
for damages to the tug. Ely obtained signed statements
from the survivors. He also interviewed other persons, in
some instances making memoranda. The heirs of the five
(5) victims filed an action for damages against SPS. Plain-
tiffs counsel sent written interrogatories to Ely, asking
whether statements of witnesses were obtained; if writ-
ten, copies were to be furnished; if oral, the exact provi-
sions were to be set forth in detail. Ely refused to comply,
arguing that the documents and information asked are
privileged communication. Is the contention tenable? Ex-
plain.
Suggested answer:
The contention is not tenable. The documents and
information sought to be disclosed are not privileged.
They are evidentiary matters which will eventually be
disclosed during the trial. What is privileged under Sec-
tion 24(b) of Rule 130, is (a) the communication made by
the client to the attorney, or (b) the advice given by the
attorney, in the course of, or with the view to professional
employment. The information sought is neither a commu-
nication by the client to the attorney nor is it an advice by
the attorney to his client.
Physician-Patient Privilege
1. The privileged communication between a physician
and his patient is stated as follows in Section 24 of Rule 130:
(b) xxx
(c) A person authorized to practice medicine,
surgery or obstetrics cannot in a civil case, without the
consent of the patient, be examined as to any advice or
treatment given by him or any information which he may
have acquired in attending such patient in a profession-
al capacity, which information was necessary to enable
him to act in that capacity, and which would blacken the
reputation of the patient; x x x"
Bar 1998
C is the child of the spouses H and W. H sued his wife
for judicial declaration of nullity of marriage under Art.
36 of the Family Code. In the trial, the following testified
over the objection of W: C, H and D, a doctor of medicine
who used to treat W. Rule on Ws objection which are the
following:
(a) xxx
(b) xxx
(c) D cannot cannot testify against her because of
the doctrine of privileged communication.
TESTIMONIAL EVIDENCE 293
B — Disqualifications of Witnesses
Suggested answer:
(a) xxx
(b) xxx
(c) D cannot testify over the objection of W where
the subject of the testimony is the advice or treatment
given by him or any information which he may have ac-
quired in attending to W in his professional capacity (Sec-
tion 24[c], Rule 130, Rules of Court).
Priest/Minister-Penitent Privilege
1. Another privileged communication under the Rules
is as follows:
est must not be divulged (Guong v. U.S., 860 F.2d 1063 [Fed
Cir 1988]).
their military posts and were made to face court martial pro-
ceedings for defying the President's executive order),various
government officials failed to appear in Senate hearings.
The Court, in resolving the issues involved, gave recogni-
tion to the power of inquiry of congress in aid of legislation
in accordance with its duly published rules of procedure, de-
scribing such power as being broad enough to cover officials
of the executive branch and co-extensive with the power to
legislate. It held that the matters which may be a proper sub-
ject of legislation and of investigation are one and because the
operation of government could be a subject of legislation, it
could also be the subject of investigation. Since Congress has
the authority to inquire into the operations of the executive
branch, "it would be incongruous to hold that the power of
inquiry does not extend to executive officials who are the most
familiar with and informed on executive operations."
T h e Neri case reiterated the rule that for the claim of ex-
ecutive privilege to be invoked, there must be a formal claim
of the privilege, lodged by the head of the department which
has control of the matter, and that a formal and proper claim
of the privilege requires a "precise and certain reason" for
preserving confidentiality, but Congress must not require the
executive to state the reasons for the claim with such par-
ticularity as to compel the disclosure of the information which
the privilege is meant to protect. This is a matter of respect
for a coordinate and co-equal department. It was ruled that
the letter of Secretary Ermita to the respondents satisfies the
requirement.
Chief Justice Puno's dissenting opinion is of profound le-
gal interest. In substance, the venerable Chief Justice opines
that there must be a "sufficient showing or demonstration of
specific need" for the withheld information on the part of the
branch of government seeking its disclosure.
"Two standards must be met to show the specific need;
one is evidentiary; the other is constitutional."
xxx
"In the case at bar, we cannot assess the validity of
the claim of the Executive Secretary that disclosure of
306 EVIDENCE
(The Bar Lectures Series)
Bar 1998
C is the child of the spouses H and W. H sued his wife
for judicial declaration of nullity of marriage under Art.
36 of the Family Code. In the trial, the following testified
over the objection of W: C, H and D, a doctor of medicine
who used to treat W. Rule on W's objection which are the
following:
(a) xxx
(b) C cannot testify against her because of the doc-
trine on parental privilege.
(c) xxx
308 EVIDENCE
(The Bar Lectures Series)
Suggested answer:
(a) xxx
(b) W cannot invoke the privilege which belongs to
the child. C may testify if he wants to although he may
not be compelled to do so (Section 25, Rule 130, Rules of
Court).
C — E x a m i n a t i o n of W i t n e s s e s
Oath or Affirmation
1. The witness must take either an oath or an affirma-
tion but the option to take an oath or an affirmation (Section
1, Rule 132, Rules of Court) is given to the witness and not to
the court.
2. An oath is an outward pledge made under an imme-
diate sense of responsibility to God or a solemn appeal to the
Supreme Being in attestation of the truth of some statement
(Black's Law Dictionary, 5th Ed., 966). An affirmation is a
substitute for an oath and is a solemn and formal declaration
that the witness will tell the truth (Ibid., 55).
310 EVIDENCE
(The Bar Lectures Series)
Bar 1978
After the accused himself had testified in his defense
in a murder case, the trial judge, over the objection of the
fiscal, allowed the defense counsel to file and merely sub-
mit the affidavits of the other witnesses of the accused
in lieu of their direct testimony but subject still to cross-
examination by the prosecution. The fiscal thus filed with
the Supreme Court a petition for certiorari and prohibi-
tion to nullify the order of the trial court judge allowing
such a procedure.
Should said petition be granted?
TESTIMONIAL EVIDENCE 311
C — Examination of Witnesses
Suggested answer:
The petition should be granted. The provisions of
the Rules of Court require that the examination of the
witnesses shall be done in open court and their answers
be given orally, not in writing unless the exceptions men-
tioned therein apply, to wit: (a) the witness is incapacitat-
ed to speak, or (b) the questions calls for a different mode
of answer (Section 1, Rule 132, Rules of Court). None of
the exceptions apply to the case under consideration. The
court therefore, acted in excess of jurisdiction amounting
to lack of jurisdiction when it allowed the presentation
of the affidavits without an oral examination of the wit-
ness.
Bar 2005
" x x x Under Republic Act No. 8353, one may be
charged with and found guilty of qualified rape if he knew
on or before the commission of the crime that he is af-
flicted with Human Immuno Deficiency Virus (HRO/Ac-
quired Immune Deficiency Syndrome (AIDS) or any other
sexually transmissible disease and the virus or disease is
transmitted to the victim.
Suggested answer:
The rights of the accused are not violated by such
testings. This is a settled rule. There is no testimonial
compulsion involved by extracting blood from the accused
for testing purposes (Tijing v. Court of Appeals, 354 SCRA
17). There is hence, no violation of the right to privacy
and the right to be presumed innocent.
B a r 2004
At the scene of a heinous crime, police recovered a
man's shorts with blood stains and strands of hair. Shortly
afterwards, a warrant was issued and police arrested the
suspect, A A . During his detention, a medical technician
extracted blood sample from his finger and cut a strand
from his hair, despite AA's objections.
During AA's trial for rape and murder, the prosecu-
tion sought to introduce D N A evidence against A A , based
on forensic matching of the materials found at the crime
scene and AA's hair and blood samples. AA's counsel ob-
jected, claiming that D N A evidence is inadmissible be-
cause the materials taken from AA were in violation of
his constitutional right against self-incrimination as well
as his right of privacy and personal integrity.
Should the D N A evidence be admitted or not?
Suggested answer:
The D N A evidence should be admitted. The right
against self-incrimination applies only to testimonial evi-
dence. Extracting blood samples and cutting strands of
hair do not involve testimonial compulsion but purely me-
chanical acts which neither requires discretion or reason-
ing (Tijing v. Court of Appeals, 354 SCRA 17).
Bar 1998
A was accused of having raped X. Rule on the admis-
sibility of the following pieces of evidence:
(1) xxx
314 EVIDENCE
(The Bar Lectures Series)
Suggested answer:
The pair of short pants may be considered as circum-
stantial evidence when taken with other circumstances.
No valid objection may be interposed over the order of the
court to put on the pair of pants. The right against self-in-
crimination does not apply to a physical and mechanical
act. It applies only to testimonial compulsion which is not
the case under the facts.
and the charges have been dropped, all the records of the case
shall be considered as privileged and may not be disclosed di-
rectly or indirectly to anyone for any purpose whatsoever. If
he is charged and acquitted or the case is dismissed, the re-
cords are also privileged as a rule (Section 31[g], ibid.).
11. The youthful offender who fails to acknowledge the
case against him or to recite any fact related thereto in re-
sponse to any inquiry made to him for any purpose, shall not
be held under any provision of law to be guilty of perjury or of
concealment or misrepresentation (Section 31[g], ibid.).
Kinds of Examinations
1. Direct examination — This is the examination-in-
chief of a witness by the party presenting him on the facts
relevant to the issue (Section 5, Rule 132, Rules of Court). It is
actually a procedure for obtaining information from one's own
witness in an orderly fashion. It is information which counsel
wants the court to hear. The purpose is to elicit facts about the
client's cause of action or defense.
Recalling a Witness
If a witness has been examined by both sides, the witness
cannot be recalled without leave of court. Recalling a witness
is a matter of judicial discretion. In the exercise of its discre-
tion, the court shall be guided by the interests of justice (Sec-
tion 9, Rule 132, Rules of Court).
Leading Questions
1. A leading question is one that is framed in such a
way that the question indicates to the witness the answer de-
sired by the party asking the question. In the words of Section
10 of Rule 132, it is a question "which suggests to the witness
the answer which the examining party desires."
2. Leading questions are not appropriate in direct and
re-direct examinations particularly when the witness is asked
to testify about a major element of the cause of action or de-
fense. Leading questions are allowed in cross and re-cross ex-
aminations. In fact, leading questions are the types of ques-
tions that should be employed in a cross-examination. Such
questions enable the counsel to get the witness to agree with
his client's version of the facts. Most lawyers will agree that
a "why" question should not be asked in cross-examination.
This kind of question allows a witness to explain his or her po-
sition, emphasize key points of harmful testimony and control
TESTIMONIAL EVIDENCE 321
C — Examination of Witnesses
Illustrations
The following examples of leading questions in a direct
examination may be illuminating:
Illustration No. 1
The case is a collection case. The defendant contends that
the debt has been paid. He calls a witness to testify to the fact
of payment.
Q: While the plaintiff and the defendant were engaged
in a conversation on the date and time you men-
tioned, did you see the defendant deliver fifty thou-
sand pesos to the plaintiff?
322 EVIDENCE
(The Bar Lectures Series)
Illustration N o . 2
The fact situation is a robbery case. The accused claims
innocence and that a couple of hours after the alleged robbery,
he is arrested by the police while in the park with his children.
The defense counsel calls the accused to the stand.
Q: What were you doing in the park?
A: I was taking a stroll with my two adolescent chil-
dren.
Q: While you were in the park with your children, the
police officers arrived to arrest you, is that true?
The question is leading. It suggests the next event which
the witness should testify to. The attorney could convert the
question into a non-leading one by taking the suggestive ele-
ment out of the question. Thus, "What happened if any, while
you and your children were at the park?"
Misleading Questions
1. A misleading question is one which assumes as true
a fact not yet testified to by the witness, or contrary to that
which he has previously stated. It is not allowed (Section 10,
Rule 132, Rules of Court) in any type of examination.
2. Consider this illustration:
D — I m p e a c h m e n t of a W i t n e s s
( a ) By contradictory evidence;
(b) By evidence that his general reputation for
truth, honesty and integrity is bad; or
Illustration
Witness A testifies on direct that he was barely five me-
ters away from where the accused D fired a shot at the victim,
V. The defense counsel has reliable information that at the
time the shooting took place, Witness A was standing as a wit-
ness in a wedding of his friend, Witness B in a place a hundred
miles away. The defense counsel now asks:
Q: You testified that you were present when D shot V,
is that right?
A: Perfectly right, Sir!
Q. Isn't it true that at the time of the alleged shooting
of V by D, you were in a wedding of your friend miles
and miles away?
A: That isn't true. Sir. Absolutely not.
326 EVIDENCE
(The Bar Lectures Series)
Illustration No. 1
The case is a robbery case. The accused has Oriental fea-
tures and is five feet and three inches tall. The prosecution
328 EVIDENCE
(The Bar Lectures Series)
witness is one who allegedly saw the culprit come out of the
crime scene.
At this point the witness gets boxed in, and his credibility
starts crumbling no matter how he responds to the question
asking him to affirm or deny the prior inconsistent statement.
If the witness admits the prior inconsistent statement, the
rule requires that he be allowed to explain them. Often, it is
difficult to explain inconsistent statements and would require
TESTIMONIAL EVIDENCE 327
D — Impeachment of a Witness
Illustration No. 1
The case is a robbery case. The accused has Oriental fea-
tures and is five feet and three inches tall. The prosecution
330 EVIDENCE
(The Bar Lectures Series)
E — Character Evidence
"Section 51 x x x
(a) In Criminal Cases:
(1) xxx
(2) xxx
(3) The good or bad moral character of the
offended party may be proved if it tends to estab-
lish in any reasonable degree the probability or im-
probability of the offense charged."
F — Opinion Evidence
Bar 2005
Dencio barged into the house of Marcela, tied her to
a chair and robbed her of assorted pieces of jewelry and
money. Dencio then brought Candida, Marcela's maid, to
a bedroom where he raped her. Marcela could hear Can-
dida crying and pleading: "Huwag! Maawa ka sa akin!"
TESTIMONIAL EVIDENCE 343
F — Opinion Evidence
Suggested answer:
(a) xxx
(b) The testimony would be admissible even if it
would be an opinion. The opinion of an ordinary witness
is admissible when such testimony refers to his impres-
sions of the emotion, behavior, condition or appearance of
a person (Section 50, Rule 130, Rules of Court).
- oOo -
Chapter V
HEARSAY EVIDENCE
Hearsay Evidence
1. The Philippine version of the hearsay rule is embod-
ied in Sec. 36 of Rule 130. It provides:
344
HEARSAY EVIDENCE 345
Bar 2007
(a) What is the hearsay rule?
(b) In relation to the hearsay rule, what do the fol-
lowing rules of evidence have in common?
1. The rule on statements that are parts of
the res gestae;
2. The rule on dying declarations;
3. The rule on admissions against interest.
Suggested answers:
(a) See Sec. 36 of Rule 130.
(b) They are exceptions to the rule that hearsay
evidence is inadmissible. They are in other words, admis-
sible hearsay.
Illustration:
Let us have Jose, a witness testifying in court as to what
his friend, Juan wrote him. In a letter dated August 5, his
friend wrote Jose that it was a street bum who shot the cop,
not Jose's uncle. Jose's friend, Juan, the eyewitness is not in
court. It is Jose who is in court but we hear Jose presenting a
statement that is not his own. It is a statement made outside
the court by his friend, Juan. His friend's statement is an out-
of-court statement because when it was made, the friend who
made it was in Cebu and he is not the witness in court. We
clearly have an out-of-court statement from Jose's friend whom
we shall call an outside declarant. We have the first part of our
formula: An out-of-court statement from an out-of-court declar-
ant. Is Jose's testimony therefore, hearsay? Answer: We still do
not know. We do not know because we do not know the purpose
of the testimony. Is it offered to prove that it was indeed a bum
who shot the cop? Or is it offered to prove something else? We
are not sure. If we are not sure, then we do not know if it is
hearsay. How can we then be sure? To be sure we must know
what it is the proponent wants to prove. After knowing what
HEARSAY EVIDENCE 349
who shot the cop and not Jose's uncle" is offered to prove the
very matter asserted in the statement: that "it was a street
bum who shot the cop... etc... etc...etc..." The first response is
different. It is not hearsay because it was not offered to prove
the truth of the assertion in the letter of Jose's friend. It was
offered to prove a different purpose.
Bar 2004
Distinguish clearly but briefly between:
(1) xxx
(2) xxx
(3) xxx
(4) Hearsay evidence and opinion evidence.
(5) xxx
Suggested answer:
(1) xxx
(2) xxx
(3) xxx
(4) Hearsay evidence is one that is not based on
one's personal perception but based on the knowledge of
others to prove the truth of the matter asserted in an out-
of-court declaration (Sec. 36, Rule 130, Rules of Court).
352 EVIDENCE
(The Bar Lectures Series)
"Did you hear what Mr. A tell this court about what
he said he saw on the day the victim was killed?"
"Yes, sir," comes the confident reply.
"What can you say about his testimony?"
"The things he said in court were not what he told
me about the incident!"
"What did he tell you?"
"Objection. Hearsay," barks the prosecutor.
If the judge is awake, and judges are always awake
even if sometimes you think they aren't, he will ask before
ruling on the objection, "What is the purpose of your ques-
tion, counsel?"
"To show that Mr. A's testimony is inconsistent with
what he told Mr. B one day after the incident, Your Hon-
or."
"Objection overruled. Witness may answer."
"Sir he told me: I did not see with my own eyes when
the accused drew a pistol from his waist and aimed it at
the victim. I was not there when he fired. I was not there
when the victim fell to the ground. I was not there... I was
not there. I was somewhere."
B a r 2003
" x x x The prosecution presented in evidence a news-
paper clipping of the report to the reporter who was pres-
ent during the press conference stating that X admitted
the robbery, x x x "
(a) Is the newspaper clipping admissible against
X?
(b) xxx
Suggested answer:
The newspaper clipping is admissible as non-hear-
say if offered for the purpose of showing that the state-
ment of X was made to a reporter regardless of the truth
or falsity of the statement. The admissibility depends now
on whether the fact that the statement was made is rel-
evant to the case. If it is relevant, it is admissible as an
independent relevant statement (a non-hearsay declara-
tion). It would be hearsay if offered to prove the truth that
X was the robber.
Note: The statement of X to a reporter may be ad-
mitted as an admission under Sec. 26 of Rule 130. This
answer should also be considered by the examiner be-
cause it has a clear legal basis.
Dying Declarations
1. A famous exception to the hearsay evidence rule
called "dying declarations" is described in Sec. 37 of Rule 130
as follows:
HEARSAY EVIDENCE 363
ing death (29A Am Jur 2d 217 citing People v. House, 141 III
2d 323 and Duke v. State, 205 Ga 106).
A dying declaration must be uttered under the fixed be-
lief and moral conviction of the person that his or her death is
impending and certain to follow almost immediately (People v.
House, 141 III 2d 323, 152 III Dec 572, 566 Ne2d 259 cited in
29A Am Jur 2d 217). To admit a dying declaration in evidence,
it must be shown that the declarant believed at the time the
statement was made, that he was in a dying condition and
had given up the hope of surviving (People v. Brioso, 37 SCRA
336; People v. De Garcia, 18 SCRA 197).
7. A central question that is frequently asked is one
concerning the kind of facts which would lead to an inference
that the declarant was conscious of his impending death. Do
we arrive at this inference solely from the words of the declar-
ant himself ? M a y it be established by other means? Authori-
ties are in agreement that apart from the statements of the
declarant, consciousness of an impending death may be estab-
lished by other circumstances such as the nature of the injury
and the conduct of the declarant. In any event, it is conceded
that the attendant circumstances should be carefully weighed
in determining the consciousness of the impending death and
the sincerity of such belief (29A Am Jur 2d 219, 220). T h e
declarant's belief that he is going to die soon may be shown
circumstantially by the obvious fatal quality of the wound, by
the statements made to the victim by the physician that his
condition is hopeless, or by some other circumstances (People
v. Silang Cruz, 53 Phil. 636; People v. Chan Lin Watt, 50 Phil.
182).
ble, where death in fact resulted from the same injury (People
v. Lara, 54 Phil. 96).
Now, let us assume that the declaration of the deceased
was made under the consciousness of an impending death. L e t
us also assume that the witness died immediately after utter-
ing his last words and these words were: "I do not know... I
do not know... the one who stabbed me." The declarant then
expired. M a y these words be admitted to favor the accused? It
will. There is nothing in the rules which prohibits the admis-
sion of a dying declaration that is favorable to the accused.
Certainly, the interest of the state in convicting an ac-
cused is as strong as its interest in acquitting a man falsely
and erroneously charged. The Supreme Court had long rec-
ognized the rule that dying declarations which exculpate or
exonerate an accused may be introduced by him and are ad-
missible in his favor.
store at the street corner the day before. Would the other dec-
larations aside from "Joaquin stabbed me...!" be admissible
as a dying declaration? While the inclusion of the declaration
that he was stabbed because of an argument while dividing
the loot, may be argued to be part of the circumstances sur-
rounding the declarant's death, other portions of the declara-
tion like the admission that he and Joaquin had been robbing
tourists in the past and that they recently robbed a conve-
nience store, do not come within the purview of the exception.
They are distinct matters not related to the killing.
Comments:
B a r 1991
(a) xxx
(b) What are the requisites to the admissibility of
a dying declaration?
Suggested answer:
(Please refer to the immediately preceding para-
graph).
B a r 1991
One evening at 9:00 o'clock, just as he reached the
gate of his house in Apas, Cebu City, and as soon as he
alighted from his car to open the gate, Carlos was shot by
Tito, who had been waiting behind a coconut tree nearby,
with a .38 caliber revolver. Carlos was hit at the sternum
of the second rib. Hearing the shot, Marilyn, Carlos' wife
ran out toward the gate and found Carlos lying on the
ground, with blood splattered on his chest. With her son,
Y, she brought Carlos to the Cebu Doctor's Hospital. In
the car, although he was in a semi-conscious state, Carlos
told Marilyn that it was Tito who shot him. Carlos was
brought to the emergency room. However, two (2) hours
later, he expired. Tito was then charged with murder be-
372 EVIDENCE
(The Bar Lectures Series)
Suggested answer:
The ruling is correct. While the declaration of Car-
los is hearsay evidence, the declaration is admissible as a
dying declaration and hence, admissible as an exception.
The declaration of Carlos contains all the elements of a
dying declaration (The examinee should enumerate the
elements).
Bar 1985
Fallen by a bullet upon being fired at, Santos before
expiring told Romero, a passerby who came to his rescue,
"I was shot by Pablo, our neighbor."
May Romero's testimony on what was told him by
Santos be offered and admitted in evidence in the sepa-
rate civil action for damages brought by the heirs against
Pablo Cruz? Discuss.
Suggested answer:
The statement is admissible. A dying declaration, as
in the facts in the case at bar, may be offered in a civil
case provided that the cause and circumstances of the
death of the declarant are the subjects of inquiry.
Note: in 1985, when the question was asked, a dy-
ing declaration cannot be offered in a civil case. However,
since the statement was made after a startling occur-
rence, the same could be admitted under a different rule,
i.e. as part of the res gestae.
tion either of the term, and uses instead, phrases like 'spon-
taneous statements' and 'contemporaneous statements' (Sees.
1240-1241). A l l these are concepts derived from the original
res gestae doctrine. These concepts now have their own des-
ignated names and are recognized as distinct exceptions with
identities of their own.
In the old days, in the infancy of the exceptions to the
hearsay rule, when courts had no names for them, they were
all piled up under the heap, res gestae. It has been said that
some courts have advocated for the elimination of the term
from the language of the law because it only tends to confuse
the reasoning why a hearsay statement should be admissible
(Horton v. State [Wyo] 764 P2d 674; Commonwealth v. Black-
well, 343 Pa Super 201, 494 A2d 426; Cited in 29A Am Jur 2d
279).
T h e judicial dislike for the use of the term res gestae is
clearly expressed in an American case when it considered the
phrase as "accountable for so much confusion that it had best
be denied any place whatever in legal terminology; if it means
anything but an unwillingness to think at all, what it cov-
ers cannot be put in less intelligible terms" (United States v.
Matot, 146 F.2d 197 [2d Cir. 1944]).
and (2) verbal acts. While the term remains in our rules, its
application is restrictive and no other statement, act or evi-
dence may qualify as part of the res gestae.
It has been held that in spontaneous exclamations or
statements, the res gestae is the startling occurrence, whereas
in verbal acts, the res gestae are the statements accompany-
ing the equivocal act (Talidano v. Falcom Maritime & Allied
Services, Inc., G.R. No. 172031, July 14, 2008).
A. Spontaneous Statements
1. Spontaneous statements (spontaneous exclamations
or excited utterances) to be admitted in evidence must have
the following characteristics:
( a ) that there is a startling event or occurrence tak-
ing place;
(b) that while the event is taking place or imme-
diately prior to or subsequent thereto, a statement has
been made;
(c) the statements were made before the declarant
had the time to contrive or devise a falsehood (Talidano
v. Falcom Maritime & Allied Services, Inc., ibid.).
( d ) that the statement relates to the circumstances
of the startling event or occurrence (Sec. 42, Rule 130,
Rules of Court), or that the statements must concern the
occurrence in question and its immediate attending cir-
cumstances (Talidano v. Falcom Maritime & Allied Ser-
vices, Inc., supra). W h e n all these conditions are met, we
have a spontaneous statement constituting an exception
to the rule barring hearsay statements. E v e n if the de-
clarant is unavailable and thus, cannot be cross-exam-
ined, the evidence may be received in evidence.
But suppose the court rules that the event can qualify as
startling? Simple. Back off and proceed to the next element
of the foundation. If the excited utterance was made imme-
diately before or while the startling event was taking place,
you may have a tough time in your hands. It is likely that the
statement will be ruled as admissible. There are times though
that a declaration is not made simultaneously with the event
but made sometime after. This is a break for opposing counsel
who must zero in on the time interval between the event and
the making of the statement. We have to concede that there
has been no clear standard formulated so far as to when a
statement made after the event is one made under the influ-
ence of that event. There is no mathematical formula for this.
Everything hinges on the unique and particular circumstances
of each case. Hence, the determination as to the spontaneity of
the utterance is a matter of judicial discretion. It is however,
this matter of judicial discretion which presents a window of
HEARSAY EVIDENCE 381
Bar 2005
Dencio barged into the house of Marcela, tied her
to a chair and robbed her of assorted pieces of jewelry
and money. Dencio then brought Candida, Marcela's
maid, to a bedroom where he raped her. Marcela could
hear Candida crying and leading: "Huwag! Maawa ka sa
akin!" After raping Candida, Dencio fled from the house
with the loot. Candida then untied Marcela and rushed to
the police station about a kilometer away and told Police
Officer Roberto Maawa that Dencio had barged into the
house of Marcela, tied the latter to a chair and robbed her
HEARSAY EVIDENCE 383
Suggested answer:
(a) The testimony would be hearsay if offered to
prove the truth of the statement of Candida, but an admis-
sible hearsay as an exception to the hearsay rule. Under
the Rules of Court, statements made by a person while a
startling occurrence is taking place or immediately prior
or subsequent thereto with respect to the circumstances
thereof, may be given in evidence as part of the res gestae
(Sec. 42, Rule 130, Rules of Court). The statements made
by Candida to the police officer fall within the res gestae
rule.
If the statement of Candida is offered merely to
prove the tenor of the statement, i.e., what Candida told
the Police Officer without regard to whether the state-
ment is true or not, it may be considered as an indepen-
dently relevant statement and thus, not hearsay.
(b) xxx
B. V e r b a l Acts
1. The last sentence of Sec. 42 of Rule 130 defines a
verbal act as a "statement accompanying an equivocal act ma-
384 EVIDENCE
(The Bar Lectures Series)
Q: Mr. Witness, did you testify that you saw the plain-
tiff give money to the defendant?
A: I did, Sir.
Q: What if any, did anybody say at the time the money
was handed over by the plaintiff to the defendant?
A- As the plaintiff handed the money, he said to the de-
fendant: "This is the P10,000 you told me you were
borrowing from me."
Q: What did the defendant say if any?
A: The defendant said, "Thank you. I'll pay you after a
year."
Common Reputation
1. The exception as quoted declares:
Learned Treatises
— 0O0 -
Chapter VI
A — B u r d e n of P r o o f a n d B u r d e n of E v i d e n c e
Burden of Proof
1. The burden of proof, or "onus probandi," tradition-
ally refers to the obligation of a party to the litigation to per-
suade the court that he is entitled to relief.
The term is denned in Sec. 1, Rule 131 of the Rules of
Court, thus:
398
BURDEN OF PROOF, QUANTUM OF EVIDENCE 399
AND PRESUMPTIONS
A — Burden of Proof and Burden of Evidence
has the burden to prove that the fault or negligence of the de-
fendant was the proximate cause of the injuries he sustained.
On the other hand, the defendant has the burden to prove his
defense as when he claims that the injuries of the plaintiff
were caused not by his wrongful conduct, but by a third per-
son or by a caso fortuito.
of proof, under the clear terms of Sec. 1 of Rule 131, is the duty
of a party to present evidence not only to establish a claim but
also a defense. It will be observed that the rule does not define
burden of proof as the duty of the plaintiff but as the duty of
a "party." Hence, if a party alleges the existence of a fact, that
party has the burden of proof whether that party is the plain-
tiff or the defendant. If the plaintiff for example, alleges that
the defendant owes him a sum of money, the plaintiff has the
burden to prove the debt.
5. In suits against a common carrier, the passenger-
plaintiff does not have the burden of proving the defendant
carrier's negligence since common carriers are presumed to
have been at fault, or to have acted negligently in case of
death of or injuries to passengers (Article 1756, Civil Code
of the Philippines). On the contrary, under the same provi-
sion, the defendant has the burden of proof to show that it had
observed the extraordinary negligence required by law. T h e
plaintiff has to show however, the existence of a contract and
the breach of the contract of carriage (Calalas v. Court of Ap-
peals, G.R. No. 122039, May 31, 2000; FGU Insurance v. G.P.
Sarmiento Trucking, G.R. No. 141910, August 6, 2002). It is
the breach of the contract which the plaintiff has to prove, not
the negligence of the defendant-common carrier, the latter's
negligence being already presumed under A r t . 1756 of the Civ-
il Code of the Philippines.
The employer also has the burden of proving that the rate
of pay given to his employees is in accordance with the mini-
mum fixed by the law and that he had paid thirteenth month
pay, service incentive leave pay and other monetary claims
(Saberola v. Suarez, G.R. No. 151227, July 14, 2008).
10. In disbarment cases, the burden of proof is on the
complainant. Citing previously held doctrines as in Santos v.
Dichoso (Adm. Case No. 1825; 84 SCRA 622) and reiterated
in Noriega v. Sison (Adm. Case No. 2266; 125 SCRA 293) this
court ruled:
"In disbarment proceedings, the burden of proof
rests upon the complainant, and for the court to exercise
its disciplinary powers, the case against the respondent
must be established by clear, convincing and satisfactory
proof. Indeed, considering the serious consequences of the
disbarment or suspension of a member of the Bar, the Su-
preme Court has consistently held that clearly prepon-
derant evidence is necessary to justify the imposition of
the administrative penalty."
Burden of Evidence
1. The burden of evidence is the duty of a party to go
forward with the evidence to overthrow the prima facie evi-
dence against him (Bautista v. Sarmiento, 138 SCRA 587).
The burden of going forward with the evidence may shift from
one side to the other as the exigencies of the trial require
(Chamberlayne, Sec. 203, 108, 169), and shifts with alternat-
ing frequency (People v. Bickerstaff, 46 Cal. App. 764,190 Pac.
656; Chamberlayne, Modern Evidence, Vol. 2, §§930-125 cited
in Underhill, Criminal Evidence, 4th Ed., §50).
B a r 2004
Distinguish clearly but briefly between:
1. Burden of proof and burden of evidence
xxx
Suggested answer:
Burden of proof is the obligation of a party to pres-
ent evidence on the facts in issue necessary to establish
his claim or defense by the amount of evidence required
by law (Sec. 1, Rule 130, Rules of Court). Burden of evi-
dence is the duty of a party to go forward with the evi-
dence to overthrow any prima facie presumption against
him (Bautista v. Sarmiento, 138 SCRA 587).
410 EVIDENCE
(The Bar Lectures Series)
Bar 1995
Explain the equipoise doctrine in the law of evidence
and cite its constitutional basis.
412 EVIDENCE
(The Bar Lectures Series)
Suggested answer:
(Please refer to paragraphs 1 and 2 of the preceding
topic).
B — Q u a n t u m of E v i d e n c e
Preponderance of Evidence
1. Sec. 1 of Rule 133 provides:
Substantial Evidence
Bar 2003
Distinguish preponderance of evidence from sub-
stantial evidence.
Suggested answer:
The term, "preponderance of evidence" applies to
civil cases. It means the "greater or superior weight of
420 EVIDENCE
(The Bar Lectures Series)
xxx
BURDEN OF PROOF, QUANTUM OF EVIDENCE 421
A N D PRESUMPTIONS
B — Quantum of Evidence
xxx
"Conversely we have also ruled that the dismissal
of the criminal case is not per se a bar to administrative
sanctions... To paraphrase, dismissal of the criminal case
does not foreclose administrative action involving the
same facts" (Paredes v. Court of Appeals, G.R. No. 169534,
July 30, 2007).
C — Presumptions
Concept of Presumptions
Kinds of Presumptions
1. Presumptions are classified into presumptions of law
and presumptions of fact. Presumptions of law are, in turn,
either conclusive or disputable (In the Matter of the Intestate
Estates ofDelgado and Rustia, G.R. No. 175733, January 27,
2006).
This must be the reason for the trend to discard the dis-
tinction between a presumption of fact and a presumption of
law (Black's Law Dictionary, 5th Ed., 1067).
Effect of a Presumption
A party in whose favor the legal presumption exists may
rely on and invoke such legal presumption to establish a fact
in issue. One need not introduce evidence to prove the fact
for a presumption is prima facie proof of the fact presumed
(Diesel Construction Co., Inc. v. UPSI Property Holdings, Inc.,
G.R. No. 154937, March 24, 2008).
Estoppel
1. "Estoppel, an equitable principle rooted upon natu-
ral justice, prevents persons from going back on their own acts
and representations, to the prejudice of others who have relied
on t h e m . . . . T h e essential elements of estoppel in pais may be
considered in relation to the party sought to be estopped, and
in relation to the party invoking the estoppel in his favor.
Disputable Presumptions
1. A significant example of a disputable presumption
under the Rules of Court is the presumption that "official duty
has been regularly performed" (Sec. 3[m], Rule 131). This pre-
sumption has been consistently recognized by jurisprudence
in favor of police officers. Thus: "Settled is the rule that in cas-
es involving violations of the Dangerous Drugs Act, credence
is given to prosecution witnesses who are police officers for
they are presumed to have performed their duties in a regular
manner, unless there is evidence to the contrary suggesting ill
motive on the part of the police officers or deviation from the
regular performance of their duties" (People v. Bautista, G.R.
No. 169875, December 18, 2007).
The presumption of regularity in the performance of of-
ficial duties will stand if the defense failed to present clear
and convincing evidence that the police officers did not prop-
erly perform their duty or that they were inspired by an im-
proper motive (People v. Concepcion, G.R. No. 178876, June
27, 2008).
xxx
"The presumption of legitimacy proceeds from the sexual
union in marriage, particularly during the period of concep-
tion. To overthrow this presumption on the basis of Article
1 6 6 ( l ) ( b ) of the F a m i l y Code, it must be shown beyond reason-
able doubt that there was no access that could have enabled
the husband to father the child. Sexual intercourse is to be
presumed where personal access is not disproved, unless such
presumption is rebutted by evidence to the contrary.
"The presumption is quasi-conclusive and may be refut-
ed only by the evidence of physical impossibility of coitus be-
tween husband and wife within the first 120 days of the 300
days which immediately preceded the birth of the child.
"To rebut the presumption, the separation between the
spouses must be such as to make marital intimacy impossible.
This may take place, for instance, when they reside in differ-
ent countries or provinces and they were never together dur-
ing the period of conception. Or, the husband was in prison
during the period of conception, unless it appears that sexual
union took place through the violation of prison regulations'
442 EVIDENCE
(The Bar Lectures Series)
Presumptions of Death
1 • Absence of seven (7) years — If it is unknown wheth-
er or not the absentee is still alive, he is considered dead for
all purposes but not for the purpose of succession (Sec. 3[w],
Rule 131, Rules of Court).
-oOo-
Chapter VII
453
454 EVIDENCE
(The Bar Lectures Series)
Bar 2003
X and Y were charged of murder. Upon application
of the prosecution, Y was discharged from the information
to be utilized aB a state witness. The prosecutor presented
456 EVIDENCE
(The Bar Lectures Series)
Suggested answer:
The demurrer to evidence should be denied.
While under the Rules of Court, the court shall con-
sider no evidence which has not been formally offered
(Sec. 134, Rule 132, Rules of Court; Spouses Ragudo v. Fa-
bella Estates Tenants Association, Inc., 466 SCRA 136),
this is true only when the failure to offer an evidence has
been objected to. The failure to object to the omission of
the prosecutor and the cross-examination of the witness
by the adverse party, taken together, constitute a waiver
of the defect (People v. Libnao, G.R. No. 136860, January
20, 2003).
Bar 1983
Atty. Felipe Malang was the counsel for the plaintiff
in an action to collect the alleged purchase price of a trac-
tor. For his principal defense, the defendant alleged that
the true transaction between the parties was only a lease
of the tractor, not a sale thereof, and therefore the defen-
dant, being a mere lessee, was not liable for the alleged
purchase price.
In the course of the trial, Atty. Malang asked his
witnesses to identify certain documents which he marked
as: Exhibit "A," the delivery receipt signed by the defen-
dant acknowledging delivery of the tractor; Exhibits "B,"
"B-l," "B-2" and "B-3," duplicates of official receipts issued
by the plaintiff in favor of the defendant acknowledging
payments by the defendant of various sums of money; and
Exhibit "C," the demand letter Atty. Malang sent to the
defendant. After all of his witnesses had completed their
respective testimony, Atty. Malang made an offer of his
documentary evidence as follows:
"ATTY. MALANG:
Your Honor, I am now ready to make an offer of
my documentary evidence.
"COURT:
Proceed, Mr. Counsel.
"ATTY. MALANG:
I offer in evidence Exhibits "A," "B-l," "B-2,"
"B-3" and "C," Your Honor.
"COURT":
Counsel, do you have anything to say to the of-
fer of documentary evidence made by the plaintiff?
Did Atty. Malang commit any error in the man-
ner by which he made an offer of the documentary
evidence made by the plaintiff? Reasons.
462 EVIDENCE
(The Bar Lectures Series)
Suggested answer:
Atty. Malang committed errors in the manner by
which he offered his documentary evidence.
Under the Rules, when a party makes a formal offer
of his evidence, he must state the nature or substance of
the evidence, and the specific purpose for which the evi-
dence is offered (Sec. 34, Rule 132, Rules of Court). Atty.
Malang failed to do all these.
Purposes of Objections
Objections may be made for any of the following purpos-
es:
( a ) First, objections are made to keep out inadmis-
sible evidence that would cause harm to a client's cause.
The rules of evidence are not self-operating and hence,
must be invoked by w a y of an objection;
(b) Objections are interposed to protect the record,
i.e. to present the issue of inadmissibility of the offered
evidence in a w a y that if the trial court rules erroneously,
the error can be relied upon as a ground for a future ap-
peal;
B a r 1997
What are the two kinds of objections? Explain each
briefly. Give an example of each.
Suggested answer:
Please refer to the previous discussions.
evidence and pleadings . . ." (88 C.J.S. 231), or that the wit-
ness is disqualified by reason of marriage or filial relation.
Again, it would be helpful to nag ourselves with the reminder
that the lack of objection merely makes an incompetent evi-
dence admissible.
The Court once held: " . . . admissibility of evidence should
not be equated with weight of evidence" (People v. Valero, 112
SCRA 661; De la Torre v. Court of Appeals, 294 SCRA 196).
3. The rule of waiver by failure to object applies also
to the admission of documentary evidence. Failure to object
waives an objection that there was an irregularity in the tak-
ing of an affidavit or deposition, that the document is not what
it purports to be on its face, or that it is not relevant. Introduc-
ing a note in evidence without objection dispenses with the
necessity of proving the signatures on the note, or of its execu-
tion (88 C.J.S. 234).
Bar 2004
In a complaint for a sum of money filed before the
MM Regional Trial Court, plaintiff did not mention or
even just hint at any demand for payment made on defen-
OFFER OF EVIDENCE AND TRIAL OBJECTIONS 473
Suggested answer:
The admission of the evidence was correct. There
was no objection when Exh. "A" was offered in evidence.
It could have been objected to on the ground that is not
related to an issue raised in the pleadings. However, it
is a basic rule that inadmissibility of an evidence may be
waived.
Rulings on Objections
1. The ruling of the court must be given immediately
after the objection is made except when the court desires to
take a reasonable time to inform itself on the question pre-
sented. However, the court must give its ruling during the
trial and at such time as will give a party an opportunity to
meet the situation presented by the ruling (Sec. 38, Rule 132,
Rules of Court).
2. As early as Lopez v. Valdez (32 Phil. 644), the
Court had bewailed the erroneous manner by which courts
have ruled on an objection. Here, counsel for the defendant
objected to certain questions propounded by counsel for the
plaintiff. The questions were designed to elicit testimony that
would prove the contents of certain documents without laying
a proper foundation for the questions. Of course there was a
valid ground to object because the examining counsel was of-
fering secondary testimonial evidence without first establish-
ing the existence, due execution and eventual loss or destruc-
tion of the originals. The trial court, in ruling on the objection
merely in essence, said that the objection "will be taken into
consideration." The court nevertheless, allowed the witnesses
474 EVIDENCE
(The Bar Lectures Series)
To illustrate:
Counsel: Your Honor, if allowed to ask the question
objected to, the testimony would have been as follows:
Bar 1991
Distinguish formal offer of evidence from offer of
proof.
Suggested answer:
Formal offer of evidence refers either to the offer of
the testimony of a witness prior to the latter's testimony,
or the offer of the documentary and object evidence after
a party has presented his testimonial evidence.
Offer of proof, is the process by which a proponent of
an excluded evidence tenders the same. If what has been
excluded is testimonial evidence, the tender is made by
stating for the record the name and other personal cir-
cumstances of the proposed witness and the substance of
his proposed testimony. If the evidence excluded is docu-
mentary or of things, the offer of proof is made by having
the same attached to or made a part of the record.
- 0O0 -
APPENDICES
APPENDIX A
A M . N O . 01-7-01-SC.- RE: R U L E S O N
ELECTRONIC EVIDENCE
EN BANC
RESOLUTION
R U L E S O N ELECTRONIC EVIDENCE
RULE 1
COVERAGE
483
484 EVIDENCE
(The Bar Lectures Series)
RULE 2
DEFINITION OF TERMS A N D CONSTRUCTION
(o) "Public Key" refers to the key of a key pair used to verify
a digital signature.
Sec. 2. Construction. — These Rules shall be liberally construed
to assist the parties in obtaining a just, expeditious, and inexpensive
determination of cases.
The Interpretation of these Rules shall also take into consid-
eration the international origin of Republic Act No. 8792, otherwise
known as the Electronic Commerce Act.
RULE 3
ELECTRONIC D O C U M E N T S
RULE 4
BEST E V I D E N C E R U L E
RULE 5
AUTHENTICATION OF ELECTRONIC DOCUMENTS
RULE 6
ELECTRONIC SIGNATURES
RULE 7
EVIDENTIARY W E I G H T OF E L E C T R O N I C D O C U M E N T S
RULE 8
BUSINESS RECORDS AS EXCEPTION
TO THE HEARSAY R U L E
RULE 9
M E T H O D OF P R O O F
R U L E 10
E X A M I N A T I O N OF WITNESSES
R U L E 11
A U D I O , P H O T O G R A P H I C , VIDEO A N D
E P H E M E R A L EVIDENCE
RULE 12
EFFECTIVTTY
Section 1. Applicability to pending case. — These Rules shall
apply to cases pending after their effectivity.
492 EVIDENCE
(The Bar Lectures Series)
RULE ON EXAMINATION OF
A CHILD WITNESS
(A.M. NO. 004-07-SC)
493
494 EVIDENCE
(The Bar Lectures Series)
other place from which the child testifies may also be rearranged
to allow the child to see the opposing party and his counsel, if he
chooses to look at them, without turning his body or leaving the wit-
ness stand. The judge need not wear his judicial robe.
Nothing in this section or any other provision of law, except of-
ficial in-court identification provisions, shall be construed to require
a child to look at the accused.
Accommodations for the child under this section need not be
supported by a finding of trauma to the child.
SEC. 14. Testimony during appropriate hours. — The court
may order that the testimony of the child should be taken during a
time of day when the child is well-rested.
SEC. 15. Recess during testimony. —
The child may be allowed reasonable periods of relief while un-
dergoing direct, cross, re-direct, and re-cross examinations as often
as necessary depending on his developmental level.
SEC. 16. Testimonial aids. — The court shall permit a child
to use dolls, anatomically-correct dolls, puppets, drawings, man-
nequins, or any other appropriate demonstrative device to assist
him in his testimony.
SEC. 17. Emotional security item. — While testifying, a child
shall be allowed to have an item of his own choosing such as a blan-
ket, toy, or doll.
SEC. 18. Approaching the witness. — The court may prohibit a
counsel from approaching a child if it appears that the child is fear-
ful of or intimidated by the counsel.
SEC. 19. Mode of questioning. — The court shall exercise con-
trol over the questioning of children so as to (1) facilitate the as-
certainment of the truth, (2) ensure that questions are stated in a
form appropriate to the developmental level of the child, (3) protect
children from harassment or undue embarrassment, and (4) avoid
waste of time.
The court may allow the child witness to testify in a narrative
form.
SEC. 20. Leading questions. — The court may allow leading
questions in all stages of examination of a child if the same will fur-
ther the interests of justice.
500 EVIDENCE
(The Bar Lectures Series)
the child serious emotional trauma, he himself may apply for the
order.
The person seeking such an order shall apply at least five (5)
days before the trial date, unless the court finds on the record that
the need for such an order was not reasonably foreseeable.
(b) The court may motu proprio hear and determine, with
notice to the parties, the need for taking the testimony of the child
through live-link television.
(c) The judge may question the child in chambers, or in some
comfortable place other than the courtroom, in the presence of the
support person, guardian ad litem, prosecutor, and counsel for the
parties. The questions of the judge shall not be related to the issues
at trial but to the feelings of the child about testifying in the court-
room.
(d) The judge may exclude any person, including the accused,
whose presence or conduct causes fear to the child.
(e) The court shall issue an order granting or denying the
use of live-link television and stating the reasons therefor. It shall
consider the following factors:
(1) The age and level of development of the child;
(2) His physical and mental health, including any men-
tal or physical disability;
(3) Any physical, emotional, or psychological injury ex-
perienced by him;
(4) The nature of the alleged abuse;
(5) Any threats against the child;
(6) His relationship with the accused or adverse party;
(7) His reaction to any prior encounters with the ac-
cused in court or elsewhere;
(8) His reaction prior to trial when the topic of testifying
was discussed with him by parents or professionals;
(9) Specific symptoms of stress exhibited by the child in
the days prior to testifying;
(10) Testimony of expert or lay witnesses;
502 EVIDENCE
(The Bar Lectures Series)
511
512 EVIDENCE
(The Bar Lectures Series)
tion obtained from the DNA testing of biological samples for the pur-
pose of determining, with reasonable certainty, whether or not the
DNA obtained from two or more distinct biological samples origi-
nates from the same person (direct identification) or if the biological
samples originate from related persons (kinship analysis); and
f. "Probability of Parentage" means the numerical estimate
for the likelihood of parentage of a putative parent compared with
the probability of a random match of two unrelated individuals in a
given population.
SEC. 4. Application for DNA Testing Order. — The appropriate
court may, at any time, either motu proprio or on application of any
person who has a legal interest in the matter in litigation, order a
DNA testing. Such order 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 D N A
testing now requested; or
(ii) was previously subjected to D N A testing, but the re-
sults may require confirmation for good reasons;
c. The D N A testing uses a scientifically valid technique;
d. The D N A testing has the scientific potential to produce
new information that is relevant to the proper resolution of the case;
and
e. The existence of other factors, if any, which the court may
consider as potentially affecting the accuracy of integrity of the D N A
testing.
This Rule shall not preclude a D N A testing, without need of a
prior court order, at the behest of any party, including law enforce-
ment agencies, before a suit or proceeding is commenced.
SEC. 5. DNA Testing Order. - If the court finds that the re-
quirements in Section 4 hereof have been complied with, the court
shall -
and the reliability of the test results, including the condition that
the DNA test results shall be simultaneously disclosed to parties
involved in the case; and
c. If the biological sample taken is of such an amount that
prevents the conduct of confirmatory testing by the other or the ad-
verse party and where additional biological samples of the same kind
can no longer be obtained, issue an order requiring all parties to the
case or proceedings to witness the D N A testing to be conducted.
An order granting the D N A testing shall be immediately execu-
tory and shall not be appealable. Any petition for certiorari initiated
therefrom shall not, in any way, stay the implementation thereof, un-
less a higher court issues an injunctive order. The grant of DNA test-
ing application shall not be construed as an automatic admission into
evidence of any component of the DNA evidence that may be obtained
as a result thereof.
SEC. 6. Post-conviction DNA Testing. — Post-conviction DNA
testing may be available, without need of prior court order, to the
prosecution or any person convicted by final and executory judg-
ment provided that (a) a biological sample exists, (b) such sample is
relevant to the case, and (c) the testing would probably result in the
reversal or modification of the judgment of conviction.
SEC. 7. Assessment of probative value of DNA evidence. — In
assessing the probative value of the D N A evidence presented, the
court shall consider the following:
a. The chair of custody, including how the biological samples
were collected, how they were handled, and the possibility of con-
tamination of the samples;
b. The DNA testing methodology, including the procedure
followed in analyzing the samples, the advantages and disadvan-
tages of the procedure, and compliance with the scientifically valid
standards in conducting the tests;
c. The forensic DNA laboratory, including accreditation by
any reputable standards-setting institution and the qualification of
the analyst who conducted the tests. If the laboratory is not accred-
ited, the relevant experience of the laboratory in forensic casework
and credibility shall be properly established; and
d. The reliability of the testing result, as hereinafter pro-
vided.
514 EVIDENCE
(The Bar Lectures Series)
- A -
Abay, Jr. v. People, G.R. No. 165896, September 19, 2008 133
Abraham v. Kasten, 114 Phil. 239 471
Abuan v. People, 505 SCRA 799 61
Acabal v. Acabal, 454 SCRA 555 102, 399
ACI Philippines, Inc. v. Coquia, G.R. No. 174466,
July 14, 2008 212, 217
Adajar v. Develos, A . M . No. P-05-2056, November 18, 2005 405
Adams v. Burlington N. R.R. Co., 865 S.W. 2d 30, 31
Advincula v. Dicen, 458 SCRA 696 417, 420
Agagon v. Bustamante, A.C. No. 5510, December 20, 2007 235
Agustin v. Court of Appeals, 460 SCRA 315 166
Agustin v. People, G.R. No. 158788, April 30, 2008 15
Air Philippines v. Pennswell, Inc., G.R. No. 172835,
December 13, 2007 308
A K B A Y A N v. Aquino, G.R. No. 170516,
July 16, 2008 300, 302, 406
Alonso v. Cebu Country Club, Inc., G.R. No. 130876,
December 5, 2003 423
Alcuizar v. Carpio, A.M.-RTJ-07-2068, August 7, 2007 419
Alejandro v. Martin, A . M . No. P-07-2349, August 7, 2007 419
Alejo v. People, G.R. No. 173360, March 28, 2008 414
Alfelor v. Halasan, G.R. No. 165987, March 31, 2006 110
Allied Banking Corporation v. South Pacific Sugar
Corporation, G.R. No. 163692, February 4, 2008 405
Almonte v. Vasquez, 244 SCRA 286 295, 296
Alonte v. Savellano, Jr., 287 SCRA 245 136
Alvarez v. Ramirez, 473 SCRA 72 265, 273, 274
Alzua v. Johnson, 21 Phil. 308 80
Amora v. People, G.R. No. 154466, January 28, 2008 36, 38
Anchinges v. Albarillo, G.R. No. 151790, April 22, 2008 399
Anglo-American Packing etc., Co. v. Cannon, 31 Fed. 313 202
Anilao v. People, G.R. No. 149681, October 15, 2007 46
Aquino v. Paiste, G.R. No. 147782, June 25, 2008 124
517
518
EVIDENCE
(The Bar Lectures Series)
- B -
- C -
Calalas v. Court of Appeals. G.R. No. 122039, May 31, 2000 400
Calamba Steel Center, Inc. v. Commissioner of Internal
Revenue, G.R. No. 151857, April 28, 2005 70
Calamba Steel Center, Inc. v. Commissioner
of Internal Revenue, 457 SCRA 482 92
Camitan v. Fidelity Insurance Corporation,
G.R. No. 163684, April 16, 2008 99
Canada v. All Commodities Marketing Corporation,
G.R. No. 146141, October 17, 2008 Ill
Candido v. Court of Appeals, 253 SCRA 78 83, 456, 460
Canuto v. Mariano, 37 Phil. 840 221, 222
Cargill v. State, 35 A L R 133, 220 Pac 64, 25 Okl. 314 268
Casent Realty Development Corporation v. PhilBanking
Corporation, G.R. No. 150731, September 14, 2007 104
Catungal v. Hao, G.R. No. 134972, March 22, 2001 94
Cawaling v. Comelec, 368 SCRA 453 439
Cayabyab v. IAC, 232 SCRA 1 442
Ceballos v. Mercado, 430 SCRA 323 425
Cham v. PaitaMoya, A.C. No. 7494, June 27, 2008 402
Chavez v. Gonzales, G.R. No. 168338, February 15, 2008 406
Chavez v. PCGG, 299 SCRA 744 295
Chavez v. Public Estates Authority, 384 SCRA 152 295, 301
China Banking Corporation v. Ta Fa Industries, Inc.,
G.R. No. 160113, April 30, 2008 407
Chingv. Court of Appeals, 331 SCRA 16 100, 108
520 EVIDENCE
(The Bar Lectures Series)
- D -
- E -
- F -
- G -
- H -
- I -
th
Icard v. Masigan, 40 O.G., 13 Suppl., 215, 71 Phil. 419 264
In Re Estate of Rogelio Ong v. Diaz, G.R. No. 171713,
December 17, 2007 169
In Re Federal Grand Jury Proceedings 89-10 [ M I A ]
938 F2d 1578 [11th Cir. 1991] 283
In Re Grand Jury Proceedings [GJ90-2],
946 2d 746 [11th Cir. 1991] 284
In Re Young's Estate, 33 Utah 382, 94 P 731, 732 285
Interpacific Transit, Inc. v. Aviles, 186 SCRA 385 456
In the Matter of the Intestate Estates of Delgado and
Rusti, G.R. No. 155733, January 27, 2006 438
In the Matter of the Intestate Estates of Delgado
and Rustia, G.R. No. 175133, January 27, 2006 427, 428
Inciong, Jr. v. Court of Appeals, G.R. No. 96405,
June 26, 1996, 247 SCRA 578 214
Ingal v. People, G.R. No. 173282, March 4, 2008 11, 17, 72, 75
- J -
- K -
- L -
- M -
- N -
- o -
Office of the Court Adniinistrator v. Bernardino,
450 SCRA 88 126
Ong v. People, 342 SCRA 372 239
Ong Chia v. Republic, 328 SCRA 749 4
Ordofio v. Daquigan, 62 SCRA 270 268, 277
Ortanez v. Court of Appeals, 266 SCRA 561 212
Ortiz v. De Guzman, A . M . No. P-03-1708, February 16, 2005 126
- P -
- Q -
- R -
- S -
- T -
- u -
U.S. v. Analla, CA4 SC 975 F2d 119, cert den,
U.S. 123 L Ed 2d 476 113 S Ct 1853 161
U.S. v. Antipole-, 37 Phil. 726 276, 368
U.S. v. Arias-Villanueva, [CA9 Or] 998 F2d 1491 134
U.S. v. Aucoin, 964 F2d 1492 [5th Cir. 1992] 283
U.S. v. Behrens, 689 F2d 154 [10th Cir. 1982] 250
U.S. v. Blanco, 37 Phil. 126 90, 91
U.S. v. Cervantes-Pacheco, 826 F2d 310 [5th Cir. 1987] 250
U.S. v. Clemente, 22 Phil. 277 368
U.S. v. Cook, 949 F2d 289 [10th Cir. 1991] 249, 250
U.S. v. Enriquez, 1 Phil. 241 346
U.S. v. Fowler, 605 F. 2d 181 [5th Cir. 1979] 310
U.S. v. Gordon, 493 F. Supp. 822 [7th Cir. 1987] 294
U.S. v. Hernandez, 31 Phil. 342 91
U.S. v. Johnson, C.A. N . Y . , 343 F. 2d 5, 6 414
U.S. v. Kalaydjian, 784 F. 2d 53 [2d Cir. 1986] 310
U.S. v. Nerlinger [CA2 N Y ] 862 F2d 967 131
U.S. v. Norwood, 798 F. 2d 1094 [7th Cir. 1960] 355
U.S. v. Novo Sampol, 636 F2d 621 [D.C. Cir. 1980] 250
U.S. v. Orera, 11 Phil. 596 231
U.S. v. Salim, 855 F. 2d 944 [2nd Cir. 1988] 310
U.S. v. Straughter, 950 F. 2d 1223 [6th Cir. 1991] 295
U.S. v. Tedder, 801 F2d 1437 [4th Cir. 1986] 283
U.S. v. Ward, 989 F. 2d 1015 [9th Cir, 1992] 310
U.S. v. Wilson, 798 F2d 509 [1st Cir. 1986] 283
Ubales v. People, G.R. No. 175692,
October 29, 2008 65, 411, 414
Umpoc v. Mercado, 449 SCRA 220 412
United States v. Curtis [Ca3 Pa] 644 F2d 263 338
United States v. Landorf, 591 F2d 36 3d Cir. 1980 282
United States v. Matot, 146 F. 2d 197 [2d Cir 1944] 377
United States v. Nixon, 418 U.S. 813 303, 304
United States v. Tedder [CA4 SC] 801 F2d 1437 176
United States v. Young, 470 U.S. 1 33
Uniwide Sales Realty and Resources Corporation v.
Titan-Ikeda Construction and Development
Corporation, G.R. No. 126619, December 20, 2006 27
US v. Bairds, 29 F 3d 647, D.C. Cir. 1994 352
US v. Canieso, 470 F2d 1224 2d Cir. 1972 352
US v. Monroe, 943 F 2d 1007, 9th Cir. 1991 352
CASE INDEX 539
- V -
- W -
- Y -
- Z -
Zarraga v. People, G.R. No. 162064, March 14, 2006 152
Zenith Radio Corp. v. Matsushita Electric Industrial
Co., [ED Pa] 505 F Supp 1190 193
Zulueta v. Court of Appeals, 253 SCRA 699 275
GENERAL INDEX
- A -
540
GENERAL INDEX 541
- B -
- C -
Chain of Custody
purpose and concept, 149
requirement of the rule, 150
definition for drug rases purposes, 156
Character (as Evidence)
"character" denned, 331, 335
inadmissibility as evidence, 335
exceptions, 336, 337
forbiddance in initiating evidence of bad moral character un-
less rebuttal, 337
inadmissible character evidence in sexual abuse cases, 339
Child Witness
denned, 255, 493
test of competency, 256-257
rules on the examination of child witness, 315
testimony through live-link television, 316-317
use of leading questions, 321
Circumstantial Evidence
defined, 33, 38
requisites for conviction based by an indirect evidence in a
criminal case, 34
542 EVIDENCE
(The Bar Lectures Series)
- D -
- E -
- F -
Facsimile Transmission
defined, 208
exclusion to the scope of electronic documents, 206
Factum Probandum
defined, 23
in civil and/or criminal cases, 24-26
Factum Probans, 23
Falsus in uno, falsus in omnibus Doctrine, 10
Filial Privilege Rule, 306-307
Formal Objection, 465
Formal Offer of Evidence
defined, 454, 480
exceptions to the formal offer rule, 455
time evidence is offered, 458
ways of offering an evidence, 460
Frame Up (as a defense in crime), 15
- G -
Good Samaritan Rule, 138
Government
546 EVIDENCE
(The Bar Lectures Series)
- H -
- I -
Immediate Fact, 63
Impeachment (of Witness)
defined, 323
guideposts, 323
manners of impeachment, 324-330
through contradictory evidence, 325
through prior inconsistent statements, 326-330
through showing bad reputation, 330
prohibition on impeachment by particular wrong acts, 333
Implied Admission, 117
Independently relevant statements
defined, 357
kinds, 360
Indirect Evidence (see Circumstantial Evidence)
Inference, 428
GENERAL INDEX 547
- J -
Judicial Admissions
denned, 99, 117
elements of a valid judicial admission, 99-100
effects of judicial admissions, 111
distinction with extrajudicial admission, 133
Judicial Notice
relevant provisions, 78
matters of judicial notice denned, 79
function, 79
matters subject to mandatory judicial notice, 80
other matters of judicial notice, 94-98
discretionary judicial notice requisites, 84
procedures on taking judicial notice, 88
Judicial Record
defined, 243
grounds for impeachment of record, 243
- L -
—M -
- N—
Negative Evidence, 44
Notarization of Documents
concepts, 234
overcoming legal presumption of notarized documents, 425
- O -
Oath, 309
Object Evidence
denned, 143
requisites for admissibility, 145-147
classifications, 148
Objections
purposes, 462
examples of general objection, 463
rule of preferring specific objection over general, 464
kinds, 465
earliest opportunity of objection and the manner of evidence,
465
waiver of failure of objection, 468
rulings of the court on objections, 473
Opinion Evidence
defined, 352
rules on the admissibility, 340
admissibility of ordinary witness' opinion, 342
distinguished from hearsay evidence, 351
Original Document
concepts of "original," 201
instances presentation of original document is excused, 194
Original Electronic Document, 204-205
Outside Declarant, 344
- P -
Palpable Mistake, 111
Paraffin Test, 175
Parental Privilege Rule, 306
Parol Evidence Rule
application of the rule, 209
provisions, 210
parol evidence (evidence aliunde) defined, 211
GENERAL INDEX 549
Private Document
conversion of private to public document, 234
ways of proving genuineness, 239
exception in requiring proof of genuineness, 240
Privies, 135
Privileged Communications, 308
Probative Value (of an evidence), 70
Proof beyond reasonable doubt, 413-414
Proof, 9
Propensity Evidence
denned, 140
purposes such evidence is admissible, 141
Propensity Evidence, 337
Public Document
documents categorized under public documents, 232
importance, 235
record of public document, 236
proving lack of record, 238
Public Official-Public Interest Privileged Communications Rule
cases public officials are disqualified to testify under the rule,
294
privileged communication under the rule, 294
- R -
- S -
Secondary Evidence
defined, 197
requisites for admission, 196
proving authenticity, 196
order of presentation, 197
Self-defense, 424
Spontaneous Statements
characteristics for admissibility as evidence, 378
basis for exception to hearsay rule, 379
requisite in the intent of objecting presentation of statement
as evidence, 380
Statement (defined under Federal Rules of Evidence), 347
Substantial Evidence
application to administrative cases, 417-419
proceedings involving charges against member of judi-
ciary, 419
Substantive Objection, 465
Sui generis, 51
Survivorship Disqualification Rule (Dead Man's Statute)
elements, 258
objectives, 260, 264
application of the rule, 260
- T -
Tape Recordings (admission as evidence), 162
Teleconferencing, 95
Tender of Excluded Evidence (Offer of Proof)
defined, 480
reasons and procedures of making "offer of proof," 477
traditional methods of making the tender, 478
erroneous way of making tender, 479
552 EVIDENCE
(The Bar Lectures Series)
Testimonial Evidence
denned, 244
basis of reliability, 344
- V -
Verbal Act
defined, 383
requisites for admissibility, 384
considerable question for objection of admissibility as evidence,
386
View (of an object or place by courts), 165
- W -
Witness
in delayed reporting and natural reticence involving crime, 16-
22
illustrative cases, 18-22
importance of credibility, 65
determining value and credibility, 76
competence, 244, 250
role in the authentication of evidence, 245
basic qualifications, 245
oath or affirmation, 246, 390
factors involving ability to make known his perception to court,
248
credibifity, 249-250
factors (in general) not regarded in the disqualification of wit-
ness, 252
test of mental capability/competence of a witness, 254
rules on disqualification of witness
due mental incapability, 254
due immaturity, 255
involving marriage, 265
importance of giving oral answers upon examination, 309
exceptions on giving oral answers, 310
rights and obligations, 311
death/absence of witness (before/pending cross examination),
319
recalling of witness, 320
impeachment of witness (see Impeachment), 323
GENERAL INDEX 553
- X -
By
W I L L A R D B. R I A N O
Bar Reviewer and Professorial Lecturer in
Civil Procedure, Evidence, Criminal Procedure, Contracts
Special Contracts and Commercial Laws
Executive Director, Recoletos Law Center
Lecturer, Institute of Judicial Administration,
U.P. Law Center
Dean, San Sebastian College Recoletos-Manila
Professorial Lecturer and Member of the Corps of
Professors, Philippine Judicial Academy
W I L L A R D B. R I A N O
ISBN 978-971-23-5311-6
N° 2541
Reprinted: February 2010 I S B N 978-971-23-5311-6
05-RL-00035 J
9
Printed by
To My Nina
PREFACE
V
of the fundamentals needed to squarely face the demands of the bar
examinations and the rigors of trial on the subject.
Like the previous work, this material is anchored on the practi-
cal principle that a bar candidate does not have to know everything
on each bar subject. Knowing everything has never been a man-
datory requirement for passing the bar. It will never be. Also, the
breadth and scope of bar examination topics yield to the conclusion
that a profound knowledge of every nook and cranny of each legal
principle is next to impossible. Hence, emphasis has been accorded
to those topics normally involved in the bar examinations for the
past thirty or so years. Those topics had been presented in this work
in accordance with the usual fact patterns in the bar and in a man-
ner consistent with the normal thought processes needed to give a
reasonable answer to a bar question.
This work would not have been possible without the assistance
of a lot of people like Atty. Ernesto C. Salao, Atty. Charm Nolasco
and Ria Cabayan of Rex Publications and others too many to men-
tion. They know who they are and the writer deeply owes them a
tremendous gratitude for the completion of this humble work. They
too know how the writer believes in that adage that "gratitude when
profound has a special way of being silent..."
Quezon City, Philippines
January 25, 2009
Willard B. Riano
vi
CONTENTS
Chapter I
Preliminary Considerations
vii
Bar 1998 34
Suggested answer 34
Flight or Non-flight of the Accused 41
Cumulative Evidence and Corroborative
Evidence 42
Corroboration of the Testimony of a Child
Witness 44
Positive and Negative Evidence 44
Liberal Construction of the Rules of Evidence 46
Absence of a Vested Right in the Rules
of Evidence 47
Waiver of the Rules of Evidence 47
B. Admissibility of Evidence 48
Requisites for the Admissibility of Evidence 48
Illustrations of the Requisites for Admissibility... 49
Inadmissible Evidence Under the Anti-
Wiretapping Law (R.A. No. 4200) 50
Surveillance of Suspects and Interception and
Recording of Communications Under the
Human Security Act of 2007
(R.A. No. 9372) 53
Inadmissible Evidence in Connection with
Arrests, Searches and Seizures 55
Relevant Evidence 62
Bar 1981 64
Suggested answer 64
Test for Determining the Relevancy if Evidence .. 64
Relevance of Evidence on the Credibility
of a Witness 65
Competent Evidence 66
Competence of Electronic Evidence 68
Collateral Matters 68
When Collateral Matters are Allowed 68
Admissible Evidence Distinguished from
Credible Evidence 69
Admissibility and Weight of the Evidence 70
Some Jurisprudential Tenets on Probative
Value and Credibility 70
Chapter II
Judicial Notice and Admissions
A. Judicial Notice 78
viii
Function of Judicial Notice 79
When Judicial Notice is Mandatory 80
When Judicial Notice is Discretionary 84
Judicial Notice and Knowledge of the Judge 86
Bar 1980 87
Suggested answer 87
Stage When Judicial Notice May be Taken..... 88
Judicial Notice of Foreign Laws; Doctrine of
Processual Presumption 88
Judicial Notice of the Law of Nations 89
Bar 2005 90
Suggested answer 90
Bar 1997 90
Suggested answers 90
Judicial Notice of Municipal Ordinances 90
Bar 2005 91
Suggested answer 91
Judicial Notice of a Court's Own Acts
and Records 92
No Judicial Notice of Records of Other Cases;
Exceptions 92
Rule on Judicial Notice of Post Office Practices.... 92
Judicial Notice of Banking Practices 93
Judicial Notice of Financial Condition of the
Government 93
Judicial Notice of Presidential Powers
Under the Law 93
Judicial Notice of Other Matters 94
B. Judicial Admissions 99
Admission in Drafted Documents 100
Admissions Made in Pleadings and Motions 100
Averments in Pleadings which are Not Deemed
Admissions 102
Implied Admissions of Allegations of Usury 102
Implied Admissions of Actionable Documents 102
Admissions in the Pre-trial of Civil Cases 104
Admissions in the Pre-trial of Criminal Cases 105
1 0 6
Bar 2008
Suggested answers 106
Implied Admissions in the Modes of Discovery 106
1 0 7
Bar 1984
Suggested answer 108
8
Admissions in Amended Pleadings 1°
ix
Nature of Admissions in Superseded Pleadings... 108
Admissions in Dismissed Pleadings 109
Hypothetical Admissions in a Motion
to Dismiss 109
Admissions by Counsel 109
Consequences of Judicial Admissions 110
C. Admissions, Confessions and the Res Inter
Alios Acta Rule 112
Concept of Admissions and Confessions 114
Admissions Distinguished from Declarations
Against Interest 115
Effects of Admissions 116
Classification of Admissions and Confessions 117
Effect of Extrajudicial Confession of Guilt;
Corpus Delicti 119
Bar 2006 122
Suggested answer 122
Bar 2008 122
Suggested answer 123
Admission by Silence 125
Res Inter Alios Acta; Branches 126
Bar 2003 128
Suggested answer 128
Exceptions to the Res Inter Alios Acta Rule
(first branch) 128
Admissions by a Co-partner or Agent 129
Admissions by a Co-conspirator 130
Bar 1991 132
Suggested answer 132
Admission by Privies 135
Offer of Compromise in Civil Cases 136
Offer of Compromise in Criminal Cases 136
Bar 1989 137
Suggested answer 137
Bar 2008 137
Suggested answers 137
Plea of Guilty Later Withdrawn 138
An Unaccepted Plea of Guilty to a Lesser
Offense 138
An Offer to Pay or the Payment of Medical,
Hospital or Other Expenses 138
Subsequent Remedial Measures 139
Evidence of Similar Conduct (second branch) 140
When Evidence of Similar Acts or Previous
Conduct is Admissible 141
X
Chapter III
Object and Documentary Evidence
xi
Bar 1994 191
Suggested answer 191
When Document is Merely Collaterally
in Issue 191
Reason for the Best Evidence Rule 192
Bar 1998 193
Suggested answer 193
Waiver of the Rule 193
What To Do To Apply the Best Evidence
Rule 194
Excuses for Not Presenting the Original
Document 194
Bar 1992 195
Suggested answer 195
Loss, Destruction or Unavailability of the
Original 195
Bar 1997 198
Suggested answer 198
Original is in the Custody or Control of the
Adverse Party 198
When the Original Consists if Numerous
Accounts 199
Original Document is a Public Record 200
Effect of Not Offering a Document in Evidence
After Calling for its Production
and Inspection 200
Meaning of Original 201
Bar 2001 203
Suggested answer 203
Bar 1997 204
Suggested answers 204
Originals Under the Rules on Electronic
Evidence 204
Bar 2003 206
Suggested answer 206
Original Printout of Facsimile Transmissions 206
B - Parol Evidence Rule 208
Contracts and the Parol Evidence Rule 208
Application of the Parol Evidence Rule 210
Application of the Rule Only to Parties and
Their Successors in Interest 214
Application of the Rule to Wills 214
Bar 1978 215
xii
Suggested answer 215
Bar 1981 215
Suggested answer 216
Bar 1983 216
Suggested answer 217
Bar 1988 217
Suggested answer 217
How to Introduce Parol Evidence 217
Prior, Contemporaneous and Subsequent
Agreements 220
Intrinsic Ambiguity in the Writing 222
Mistake or Imperfection in the Writing and
Failure to Express the True Agreement
of the Parties 224
Bar 2001 228
Suggested answer 228
Distinctions Between the Best Evidence
Rule and the Parol Evidence Rule 229
Waiver of the Parol Evidence Rule 229
Probative Value 229
C - Authentication and Proof of Documents 230
Concept of Authentication 230
Authentication under the Rules on Electronic
Evidence 231
Concept of a Document 231
Public and Private Documents 232
Church Registries 233
Importance of Knowing Whether a Document
is Public or Private 233
Evidence of Official Records of Official Acts;
Attestation 235
Special Power of Attorney Executed Abroad 236
Evidence of Public Record of a Private
Document 237
How to Prove the Lack of Record 237
Last Wills and Testaments 238
Proof of a Private Document 238
How to Prove Genuineness of a Handwriting 239
Ancient Documents 240
Bar 1990 241
Suggested answer 241
How to Explain Alterations in a Document 242
xiii
How to Prove Documents in an Unofficial
Language 242
Impeachment of Judicial Record 243
Registration of Contracts 243
Chapter I V
Testimonial Evidence
xiv
Testimony by the Estranged Spouse 271
Bar 2006 273
Suggested answer 274
Marital Privileged Communications 274
Bar 2004 277
Suggested answer 277
Explanation of Distinctions Between the Marital
Disqualification Rule and the Marital
Privileged Communication Rule 278
Bar 1995 279
Suggested answers 280
Bar 1998 280
Suggested answer 281
Attorney-Client Privilege 281
Bar 2008 289
Suggested answer 289
Physician-Patient Privilege 289
Bar 1998 292
Suggested answer 293
Priest/Minister-Penitent Privilege 293
Privileged Communications to Public Officers 294
Executive Privilege; Presidential Communications
Privilege 295
Privileged Communications under the Rules on
Electronic Evidence 306
Parental and Filial Privilege 306
Bar 1998 307
Suggested answer 308
Other Privileged Communications Not Found
in the Rules of Court 308
C - Examination of Witnesses 308
Open Court Examination 308
Oath or Affirmation 309
Examination of Witnesses and Record
of Proceedings 310
3 1 0
Bar 1978
Suggested answer 31.1.
Rights and Obligations of a Witness 311
3 1 2
Bar 2005
3 3
Suggested answer *
3 1 3
Bar 2004
3 3
Suggested answer *
3 1 3
Bar 1998
3
Suggested answer ^
XV
Examination of a Child Witness 314
Kinds of Examinations 318
Death or Absence of a Witness 319
Recalling a Witness 320
Leading Questions 320
Leading Questions to a Child Witness 321
Misleading Questions 322
D - Impeachment of a Witness 323
How to Impeach a Witness 324
Impeachment by Contradictory Evidence 325
Impeachment by Prior Inconsistent Statements 326
Impeachment by Showing Bad Reputation 330
No Impeachment by Evidence of Bad Character
but by Bad Reputation 331
Evidence of Good Character of the Witness 331
No Impeachment by Evidence of Particular
Wrongful Acts 332
Impeachment of the Adverse Party as a Witness 334
Exclusion and Separation of Witnesses 334
When the Witness May Refer to a Memorandum 334
E - Character Evidence 335
Inadmissibility of Character Evidence 335
Evidence of Bad Moral Character of the Accused 336
Evidence of Good Moral Character of the Accused 337
Evidence of Character of the Offended Party 338
Character Evidence in Child Abuse Cases (Sexual
Abuse Shield Rule) 339
Character Evidence in Civil Cases 340
Evidence of Good Moral Character of a Witness 340
F - Opinion Evidence 340
Admissibility of Opinion Evidence 341
When Opinion Evidence is Admissible; Expert
Testimony 341
Opinion of An Ordinary Witness; When Admissible 342
Bar 2005 342
Suggested answer 343
Chapter V
Hearsay E v i d e n c e
xvi
Suggested answers 345
Basis for Excluding Hearsay Evidence 345
When Evidence is Hearsay 346
Specific Elements of Hearsay Evidence 348
Bar 2004 351
Suggested answer 351
Examples of Non-hearsay Evidence 352
Out-of-Court Statements Offered to Prove Mental
State of the Declarant 353
Out-of-Court Statement Offered to Prove Its Effect
on the Listener/Hearer 354
Out-of-Court Statement Offered to Prove that the
Statement was Made 356
Independently Relevant Statements 357
Bar 2003 361
Suggested answer 361
Exceptions to the Hearsay Rule 361
Dying Declarations 362
Elements of a Dying Declaration 370
Bar 1991 371
Suggested answer 371
Bar 1991 371
Suggested answer 372
Bar 1985 372
Suggested answer 372
Rationale for the Admissibility of a Dying Declaration 372
Assailing a Dying Declaration 373
Parts of the Res Gestae 375
Res Gestae Under the Rules of Court 377
Bar 2005 382
Suggested answer 383
Entries in the Course of Business (Business
Records Rule) 387
Declarations Against Interest 388
Declaration About Pedigree 390
Family Reputation or Tradition Regarding Pedigree 391
Common Reputation 392
Entries in Official Records 393
Commercial Lists and the Like 394
Learned Treatises 394
Testimony or Deposition at a Former Proceeding 395
Exception to the Hearsay Rule Under the Rule on
Examination of a Child Witness 396
xvii
Chapter VI
Burden of Proof, Quantum of Evidence
and Presumptions
xviii
Chapter V I I
Offer of E v i d e n c e and T r i a l Objections
APPENDICES
Appendix A — Rules on Electronic Evidence 483
Appendix B — Rule on Examination of a Child Witness 493
Appendix C — Rule on D N A Evidence 511
Case Index 517
General Index 540
xix