HEARSAY

The old Section 36 was replaced as the foundational provision

on hearsay. Now, we have Section 37.

1 2
What is hearsay?
“Hearsay is a statement other
than one made by the declarant
while testifying at a trial or
hearing, offered to prove the
truth of the facts asserted
therein” It is going to be a
statement made by a witness,
but the witness is not the
source of the information. It is
still to be looked at in that
regard, when you talk about
hearsay and what statements
are to be considered as hearsay
and not hearsay.
How can we say that a
statement is hearsay?
(a) inconsistent with the
declarant’s testimony, and was
given under oath subject to the
penalty of perjury at a trial,
hearing, or other proceeding, or
in a deposition; (b) consistent
with the declarant’s testimony
and is offered to rebut an
express or implied charge
against the declarant of recent
fabrication or improper
influence or motive; or (c) one
of identification of a person
made after perceiving him or
her.

Amendments and
3 4
effects
With the amendments, the old
Section 22 (on marital
disqualification) was renumbered
to Section 23 (still on marital
disqualification). • It is practically
the same provision. In addition,
the former Section 23 (on
disqualification by reason of
death or insanity of adverse
party or the Deadman’s Statute)
was moved to a new placement
and has a new form under
Section 39. It is now an exception
to the hearsay rule.
Is it necessary to know
when the amendment took
effect?
There is a need to know when the
amendments took effect for Bar
purposes. They took effect in
May 2020. In Bar exam
questions, dates will be given.
And on the basis of those dates,
it is important to be able to
determine whether or not the
Survivorship Disqualification Rule
applies as a rule of exclusion
under the old rules, or a rule of
inclusion under the amendments.

5 What are the exceptions to

the hearsay rule?
The following are the exceptions to the hearsay rule:
SEC. 38. Dying declaration SEC. 44. Part of the res gestae.
SEC. 39. Statement of SEC. 45. Records of regularly
decedent or person of unsound conducted business activity.
mind. SEC. 46. Entries in official
SEC. 40. Declaration against records.
interest. SEC. 47. Commercial lists and the
SEC. 41. Act or declaration like.
about pedigree SEC. 48. Learned treatises.
SEC. 42. Family reputation or Sec. 49. Testimony or deposition
tradition regarding pedigree. at a former proceeding.
SEC. 43. Common reputation Sec. 50. Residual exception.
 SECTION 38:
DYING
DECLARATION

WHAT IS DYING REQUISITES

DECLARATION? For a dying declaration
to constitute an
A dying declaration
exception to the
is one of the oldest
hearsay evidence rule,
exceptions to the
4 conditions must
hearsay rule. In fact,
concur:
as early as 1928, the
1. The declaration
Supreme Court ruled
must concern the
anent the object of
cause and surrounding
dying declarations
circumstances of the
that:
declarant’s death;
2. That at the time the
A dying declaration
declaration was made,
is admitted of
the declarant is
necessity in order
conscious of his
“to reach those man
impending death;
slayers who
3. The declarant was
perpetrate their
competent as a
crimes when there
witness (had he or she
are no other
survived); and
eyewitnesses.”
4. The declaration is
(People v. Toledo,
offered in a criminal
G.R. No. L-28655,
case for Homicide,
August 6, 1928)
Murder, or Parricide
where the declarant is
Other terms that are
the victim.
synonymous to a
dying declaration EXAMPLE
are: Ante Mortem Before Gerald died,
Statement and he told Matteo that it
Statement in Articulo was Rayver who shot
Mortis. him. Thus, there was
no other witness.
 SECTION 39:
STATEMENT OF
DECEDENT OR PERSON
OF UNSOUND MIND

DEADMAN’S EXAMPLE
STATUTE
Under the Dead Before Gerald died, he
Man's Statute Rule, obtained a loan from
"if one party to the Matteo but there is no
alleged transaction other evidence of their
is precluded from transaction. He simply
testifying by death, told Matteo that he will
insanity, or other pay the next month. To
mental disabilities, recover, Matteo will
the other party is not about the loan. Why is
entitled to the undue it hearsay? It is a
advantage of giving statement or conduct
his own of an out-of-court
uncontradicted and declarant (Gerald) who
unexplained account cannot be cross-
of the transaction." examined (because
he's dead) and the
The situation will be witness (Matteo) will
the same except that testify about the
now, the Section 39 existence of the loan
that we see is and assert that it is
already a rule of true. He cannot be
inclusion. It is now cross-examined
an exception to the anymore. The source
hearsay rule of information is
already dead making it
hearsay but it is
admissible hearsay
 SECTION 40:
STATEMENT OF
DECEDENT OR PERSON
OF UNSOUND MIND

GENERAL Now, necessity and

DECLARATION trustworthiness, where
AGAINST can we find that?
INTEREST There is no other
evidence making it
The general rule, the necessary. There’s no
general declaration other evidence other
against interest which than his declaration.
is an exception to the And then where is the
hearsay rule. And the trustworthiness? Go
second sentence back to the difference
which is actually the between the
so-called “declaration admission per se
against penal under Section 27 and
interest”. self-serving
admission. We will
EXAMPLE believe in someone
Before Gerald died, he who advocates against
told Matteo that he is not his interest not to
really the owner of his someone who
own house and the land advocates for him
on which it stood. In a making it self-serving.
case for recovery of We believe if the
ownership, Matteo will admission is adverse
testify for the plaintiff to the interest of the
against the heirs of admitter, and not if the
Gerald admission is self-
HEARSAY WHY? It is a serving.
statement made by an
out-of-court declarant
[Gerald] who cannot be Q: Why is it trustworthy?
A: No person in his right
cross-examined [because
mind, dying or not, will
he’s dead] and the
say something that would
witness [Matteo] will
lead to liability on his
testify about what Gerald part
told him [Gerald is a
usurper] and assert that
it is true.
 SECTION 41:
ACT OR DECLARATION
ABOUT PEDIGREE.
WHAT IS THE
SITUATION
COVERED BY
SECTION 41?
There is an out-of-
court declaration that
seeks to establish that
a person is a member
of the family. It could
be included for
paternity filiation and
similar matters. It
includes matters like
birth, adoption or
marriage and even
death because that is
something that affects
the pedigree of a
person.
EXAMPLE
Sharon at her death bed,
told Gabby that X, her
informally adopted child,
is illegitimate child of her
daughter KC. Sharon died
seconds later. Note that
X, being informally
adopted, is not a legal
heir of Sharon but he
would have successional
rights if he were really
KC’s son. Assume that
KC also died.
During the settlement
of KC’s estate, X
wanted to present
Gabby to testify as to
what Sharon said
about the filiation of X.
Note that Gabby’s
testimony would be
hearsay. (It is made by
out-of-court declarant
and it talks about the
pedigree, the
relationship of X to the
family of Sharon and
KC.)
Why is it HEARSAY? o
It is a statement made
by an out-of-court
declarant (Sharon)
who cannot be cross-
examined (because
she’s already dead)
and the witness
(Gabby) will testify
about what the
deceased (the out-of-
court declarant) told
him (that X is the son
of KC) and assert that
it is true. o So, it
squarely falls within
the concept of hearsay
 SECTION 42:
FAMILY REPUTATION
OR TRADITION
REGARDING PEDIGREE

WHAT IS Assume that there is

REPUTATION? no remaining written
WHAT IS record of their
TRADITION? marriage. Years later,
When we say reputation their estates remain
or reputation by undistributed. Julia’s
pedigree, we are talking surviving
about the belief of a grandchildren cannot
family on whether a prove that she ever
particular person is a married Gerald except
relative. When you say for the testimony of
family tradition their relatives who will
regarding pedigree, it testify that, insofar as
talks about information the family is
which is handed down concerned, Gerald and
from generation to Julia were married.
generation such that the Again, this is hearsay
subject of that and the best evidence
information, that belief, of their marriage is a
lingered in the family. marriage certificate.
So, ever since the belief HEARSAY WHY?
of that family is that The relatives will
that person is really a testify about their
relative. belief on the family
relationship of
EXAMPLE persons who cannot
On April 16, 1918, Gerald
themselves testify.
died, followed by his wife
The source of
Julia ten seconds later.
information cannot be
Thus, for the ten seconds
pinpointed and cross-
that Julia was alive
examined. In all
longer than Gerald, she
probability, because
was Gerald’s heir and
the event subject of
that part of Gerald’s
the reputation or
estate that went to Julia
tradition happened a
can be inherited by her
long
own heirs
 SECTION 43:
COMMON REPUTATION.

WHAT ARE THE

REQUISITES?
EXAMPLE
1. The facts must be of Those S.I.R., there’s
public or general no more S.I.R.
interest as to nowadays. There’s no
boundaries of or place such as S.I.R.
customs affecting lands right now. That’s a
in the community and reclamation area here
reputation as to events in Davao, going to
of general history Ecoland. It’s now
important to the called Guillermo E.
community, or Torres Street. It has a
respecting marriage or new name now.
moral character;

2. The reputation must

have been one formed
among a class of
persons who were in a
position to have some
sources of information
and to contribute
intelligently to the
formation of the
opinion; and

3. The common
reputation must have
been existing previous
to the controversy (or
ante litem motam).
 SECTION 44:
PART OF THE RES
GESTAE.

PARTS IN RES
GESTAE
EXAMPLE
1st part - Statements Example: Matteo saw
made by a person while Gerald being stabbed
a startling occurrence by Rayver. While still
taking place or shocked by what he
immediately prior or saw, he told Daniel
subsequent thereto, that Rayver stabbed
under the stress of Gerald. However,
excitement caused by Matteo became insane
the occurrence with and could not testify
respect to the against Rayver. The
circumstances thereof, prosecution now calls
may be given in Daniel to testify about
evidence as part of the what Matteo told him.
res gestae. Take note that
becomes HEARSAY.
2nd part - statements Why? Because it is a
accompanying an statement made by an
equivocal act material out-of-court declarant
to the issue, and giving (Matteo) who cannot
it a legal significance be cross-examined
may be received as part (because he’s nuts)
of the res gestate. and the witness
(Daniel) will testify
about what Matteo
told him (that Rayver
stabbed Gerald) and
assert that it is true.
 SECTION 45:
RECORDS OF REGULARLY
CONDUCTED BUSINESS
ACTIVITY

REQUISITES EXAMPLE
1. The record was made Gerald was the regular
at or near the time of accounts officer of
the transaction by, or Julia, who filed an
from information action for recollection
transmitted by, of the unpaid accounts
someone with of Maja. Julia's
knowledge of the evidence is the ledger
transaction; prepared and
2. The record was kept maintained by Gerald.
in the course of a However, Gerald died.
regularly conducted His replacement, Bea,
activity of a business, will now testify about
organization, the ledger.
occupation, or calling;
3. The making of the HEARSAY WHY? It is a
record was a regular statement made by an
practice of that activity; out-of-court declarant
4. All these conditions (Gerald) who cannot
are shown by the be cross-examined
testimony of the (because he's dead)
custodian or another and the witness (Bea)
qualified witness; and will testify about
5. The opponent does information collated
not show that the by Gerald (Maja's
source of the unpaid account) and
information or the assert that it is true.
method or But it is an admissible
circumstances of hearsay.
preparation of the
record indicate a lack of
trustworthiness
 SECTION 46:
ENTRIES IN OFFICIAL
RECORDS

REQUISITES EXAMPLE
1. The entry was made In a rape case, part of
by a public officer or by the evidence as a
another person semen sample. DNA
specially enjoined by analysis was
law to do so; conducted by Dr. Bea,
2. The entry was made the NBI's DNA
by the public officer in specialist, who also
the performance of his signed the report
duties, or by such other identifying Gerald as
person in the the source of the
performance of a duty semen. Before trial,
specially enjoined by Dr. Bea disappeared.
law; and In her stead, the
3. The public officer or replacement, Dr. Julia,
other person had will testify about the
sufficient knowledge of report. HEARSAY
the facts by him stated, WHY? It is a statement
which must have been made by an out-of-
acquired by him court declarant (Dr.
personally or through Bea) who cannot be
official information. cross-examined
(because she's gone)
and the witness (Dr.
Julia) will testify about
information secured
by Dr. Bea (i.e., it's
Gerald's) and assert
that it is true
 SECTION 47:
COMMERCIAL LISTS AND
THE LIKE

REQUISITES EXAMPLE

People who are playing

1) It is a statement of
in the stock market are
matters of interest to
used to determine, for
persons engaged in an
example, how much is
occupation;
the price of a stock.
2) Such statement is
You are presenting it as
contained in a list,
evidence, for example,
register, periodical or
that the proper price for
other published
that stock is a certain
compilation;
amount. Not the
3) Said compilation is
amount claimed, for
published for the use of
example, by the buyer
persons engaged in that
or what have you, or
occupation; and
something to that
4) It is generally used
effect. This commercial
and relied upon by
list is admissible
persons in the same
despite the fact that the
occupation.
persons who prepared
the commercial list,
compilation or
periodical are not
presented in the
witness stand.
Precisely because of
necessity and
trustworthiness.
 SECTION 48:
LEARNED TREATISES.

WHEN ARE
TREATIES EXAMPLE
ADMISSIBLE?
1. When the court can 1. Historical works;
take judicial notice of 2. Scientific treatises;
them; or or (e.g., medical books)
2. When an expert 3. Law (Francisco, pp.
witness testifies that 340-341, 1992 ed.)
the author of such is
recognized as expert in When you talk about
that profession. learned treatises, you
are trying to establish a
So, it is a case of a fact. But if it is a
learned treatise being treatise on law, what
admitted as a proof of a fact does it establish?
fact but there is prior Legal treatises
testimony that the establish what the law
author of such learned is, how the law is
treatise is an expert in interpreted? And how
that profession. This is did the SC or any other
something you can courts interpret the law.
encounter to medical Remember that the
negligence cases application of the law
will always depend on
the peculiar facts.
 SECTION 49:
TESTIMONY OR
DEPOSITION AT A FORMER
PROCEEDING

REQUISITES RATIONALE FOR

1. The witness whose ADMISSIBILITY
testimony is offered in
evidence is dead or out NECESSITY. The
of the Philippines or witness is deceased or
who cannot, with due out of the Philippines or
diligence, be found cannot, with due
therein, or is diligence, be found
unavailable or therein, or is
otherwise unable to unavailable or
testify; otherwise unable to
2. The testimony or testify.
deposition was given in
a former case or TRUSTWORTHINESS.
proceeding, judicial or The testimony or
administrative, between deposition is worthy of
the same parties or belief because
those representing the (1) it was made under
same interests; oath, and
3. The former case (2) there was an
involved the same opportunity for the
subject as that in the adverse party to cross-
present case, although examine the witness or
on different causes of deponent in that former
action; proceeding
4. The issue testified to
by the witness in the
former trial is the same
issue involved in the
present case; and
5. The adverse party
had an opportunity to
cross examine the
witness in the former
case. (most important
requisite)
 SECTION 50:
RESIDUAL EXCEPTION.

FIRST SECOND
PARAGRAPH PARAGRAPH

With the new Section The second paragraph

50, the Rules now has a is a provision on notice.
catchall exception to The notice provision
the hearsay rule. requires that the
• The rule therefore proponent should make
applies to hearsay not known to the adverse
specifically covered by party his intention to
the exceptions provided offer the statement and
under Sections 38 to the particulars of it,
49. including the name and
• This exception seems address of the
to indicate that, if the declarant. In short, it
proffered testimony requires the proponent
does not satisfy all the to disclose the
requirements of the SUBSTANCE AND
other exceptions SOURCE of the
provided under Title 6 statement
of Rule 130, the court
may still consider
admitting a statement
into evidence if it has
the equivalent
circumstantial
guarantee of
trustworthiness