SECONDARY EVIDENCE  Whatever is not found in the writing is
understood to have been waived and abandoned
Section 5. When original document is unavailable. —
When the original document has been lost or destroyed,
or cannot be produced in court, the offeror, upon proof
of its execution or existence and the cause of its
unavailability without bad faith on his part, may prove
its contents by a copy, or by a recital of its contents in
some authentic document, or by the testimony of
witnesses in the order stated.
Section 6. When original document is in adverse party's
custody or control. — If the document is in the custody
or under the control of adverse party, he must have
reasonable notice to produce it. If after such notice and
after satisfactory proof of its existence, he fails to
produce the document, secondary evidence may be
presented as in the case of its loss.
Section 7. Evidence admissible when original document
is a public record. — When the original of document is
in the custody of public officer or is recorded in a public
office, its contents may be proved by a certified copy
issued by the public officer in custody thereof.
PAROL EVIDENCE RULE
Section 9. Evidence of written agreements. — 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.
However, a party may present evidence to modify,
explain or add to the terms of written agreement if he
puts in issue in his pleading:
(a) An intrinsic ambiguity, mistake or imperfection
in the written agreement.
(b) The failure of the written agreement to express
the true intent and agreement of the parties thereto.
(c) The validity of the written agreement; or
(d) The existence of other terms agreed to by the
parties or their successors in interest after the
execution of the written agreement.
The term "agreement" includes wills.
 A contract is a meeting of the minds between
two or more persons.
 The term “parol” evidence means something
“oral” or verbal but, with reference to contracts,
it means extraneous evidence.
 Parol evidence is designed to give certainty to
written transactions, preserve the reliability and
protect the sanctity of written agreements.
 Application of the rule applies only to the parties
and successors-in-interest.
 Prior and contemporaneous agreements are
inadmissible.
 Prior: before the written agreement was
executed
 Contemporaneous: on the same date of
the execution of the written agreement
 Subsequent agreement would be admissible
 After
 Parol evidence particularly refers only to an
intrinsic ambiguity in the writing
 Intrinsic ambiguity or latent
ambiguity: one which is not apparent
on the face of the document, but which
lies in the person or thing that is the
subject of the document or deed.
 Extrinsic/Latent ambiguity: one which
appears on the very face of the
instrument, and arises from the
defective, obscure, or insensible
language used.
 There is meeting of the minds but true intention
is not expressed: one of the parties may ask for
the reformation of the instrument
 There is no meeting of the minds: action for
annulment is the proper remedy.
TESTIMONIAL EVIDENCE
 Evidence elicited from the mouth of the witness.
 Viva voce evidence which means “living voice”
or by word of mouth
 The person who gives the testimony is called a
“witness.”
 Competence means a witness is qualified to take
the stand and testify. He is fit and eligible to
testify on a particular matter in a judicial
proceeding.
QUALIFICATIONS OF WITNESSES
Section 20. Witnesses; their qualifications. — Except as
provided in the next succeeding section, all persons who
can perceive, and perceiving, can make their known
perception to others, may be witnesses. Religious or
political belief, interest in the outcome of the case, or
conviction of a crime unless otherwise provided by law,
shall not be ground for disqualification.
 The examination of a witness in a trial or
hearing shall be done under oath or affirmation.
  Ability to perceive.
 The witness must have personal
knowledge of the facts surrounding the
subject matter of his testimony (which
are derived from his own perception)
 Ability to make known the perception to
others.
 Involves 2 factors:
 (a) ability to remember what has
been perceived
 (b) ability to communicate the
remembered perception
 Deaf-mutes are not necessarily incompetent as
witnesses. They are competent where they can:
 Understand and appreciate the sanctity
of an oath.
 Comprehend facts they are going to
testify to
 Communicate their ideas through a
qualified interpreter.
Factors that do not affect the competency of the
witness (do not constitute a disqualification of a
witness)
 Religious belief
 Political belief
 Interest in the outcome of the case
 Conviction of a crime, unless otherwise
provided by law.
DISQUALIFICATION BY MEANS OF MENTAL
INCAPACIPTY OR IMMATURITY
The following persons cannot be witnesses:
(a) Those whose mental condition, at the time of their
production for examination, is such that they are
incapable of intelligently making known their perception
to others.
(b) Children whose mental maturity is such as to render
them incapable of perceiving the facts respecting which
they are examined and of relating them truthfully.
 A “child witness” is any person who, at the time
of giving testimony, is below the age of 18 years
old.
 Child includes one over 18 years but is found by
the court as unable to fully take care of himself
or protect himself from abuse.
 Every child is presumed qualified to be a
witness.
 The competency examination of a child shall
only be conducted by the judge and is not open
to the public.
 The court may order the testimony of the child
by live-link television if there is a substantial
likelihood that the child would suffer trauma
from testifying in the presence of the accused,
his counsel, or the prosecutor as the case may be.
DISQUALIFICATION OF MARRIAGE
During their marriage, neither the husband nor the wife
may testify for or against the other without the consent
of the affected spouse, except in a civil case by one
against the other, or in a criminal case for a crime
committed by one against the other or the latter's direct
descendants or ascendants.
 basis of the prohibition: based on society’s intent
to preserve the marriage relations and promote
basic peace.
 the prohibition extends not only to a testimony
adverse to the spouse but also to a testimony in
favor of the spouse.
 extends to both criminal and civil cases.
 in order that the husband or wife may claim the
privilege, it is essential that they are validly
married.
 It explicitly refers to a testimony “during their
marriage”, hence, the rule does not prohibit a
testimony for or against the other after the
marriage is dissolved.
Annulment of marriage
 It does not matter if the facts subject of the
testimony occurred or came to the knowledge of
the witness-spouse before the marriage, as long
as it is offered during the marriage the rule may
still be invoked.
 The testimony is prohibited only over the
objection of the other spouse. The testimony is
admissible where no objection is interposed by
the spouse who has the right to invoke the
prohibition.
EXCEPTIONS TO THE MARITAL
QUALIFICATIONS RULE:
A spouse may testify for or against the other even
without the consent of the latter: (a) in a civil case by
one against the other, (b) in a criminal case for a crime
committed by one against the other, or the latter’s direct
descendants or ascendants.
 The prohibition would cover a testimony by the
estranged spouse because a separation de facto
does not sever the marriage bonds and the
spouses legally married to each other.
 Rejected by the SC: 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.
 Disqualification by reason of death or insanity of
adverse party (DEAD MAN’S STATUTE /
SURVIVORSHIP DISQUALIFICATION RULE)
Parties or assignor of parties to a case, or persons in
whose behalf a case is prosecuted, against an executor or
administrator or other representative of a deceased
person, or against a person of unsound mind, upon a
claim or demand against the estate of such deceased
person or against such person of unsound mind, cannot
testify as to any matter of fact occurring before the death
of such deceased person or before such person became
of unsound mind.
 Applies only to a civil case or special
proceeding over the estate of a deceased or
insane person.
Witness:
 Party/Plaintiff
 Is the person who has a claim against
the estate or the person of unsound
mind.
 He is the survivor.
 Assignor of parties to a case.
 Person in whose behalf the case is prosecuted.
 Defendant: (the one who is entitled to invoke the
protection of the dead man’s statute)
 Executor
 Administrator
 Representative of the deceased or person
of unsound mind.
 Objection: to guard against the temptation to
give false testimony in regard to the transaction
on the part of the surviving party and thereby
puts the parties upon equal terms.
 Purpose: to remove from the plaintiff the
temptation to do falsehood and possibility of
fictitious claims against the deceased.
DISQUALIFICATION BY REASON OF
PRIVILEGED COMMUNICATION (MARITAL
PRIVILEGE COMMUNICATION)
(a) The husband or the wife, during or after the marriage,
cannot be examined without the consent of the other as
to any communication received in confidence by one
from the other during the marriage except in a civil case
by one against the other, or in a criminal case for a crime
committed by one against the other or the latter's direct
descendants or ascendants
 The law ensures absolute freedom of
communication between the spouses by
making it privileged. What is prohibited is
the examination of a spouse as to the
matters received in confidence.
WAIVER OF PROTECTION:
(a)Failure to object to presentation; or
(b)Through any conduct that may be construed as
implied consent (Lacurom v. Jacoba, A.C. No.
5921, 10 March 2006).
 The spouse affected by the disclosure may
object even after the dissolution of
marriage. The privilege does not cease just
because the marriage has ended.
WHEN IS INFORMATION IS CONSIDERED
CONFIDENTIAL?
 The general rule is that communications
between spouses is presumed confidential
unless shown otherwise.
 Communications made in the presence of third
person are not confidential.
ATTORNEY-CLIENT PRIVELEGE
An attorney or person reasonably believed by the client
to be licensed to engage in the practice of law cannot,
without the consent of the client, be examined as to any
communication made by the client to him or her, or his
or her advice given thereon in the course of, or with a
view to, professional employment, nor can an attorney’s
secretary, stenographer, or clerk, or other persons
assisting the attorney be examined without the consent
of the client and his or her employer, concerning any fact
the knowledge of which has been acquired in such
capacity. (Section 24(b), Rule 130).
WHAT ARE EXCEPTIONS TO THIS
PRIVELEGE?
1. Furtherance of crime or fraud. If the services or
advice of the lawyer were sought or obtained to enable
or aid anyone to commit or plan to commit what the
client knew or reasonably should have known to be a
crime or fraud. (Section 24(b), Rule 130).
2. Claimants through same deceased client. As to a
communication relevant to an issue between parties who
claim through the same deceased client, regardless of
whether the claims are by testate or intestate or by inter
vivos transaction; (Section 24(b), Rule 130).
3. Breach of duty by lawyer or client. As to a
communication relevant to an issue of breach of duty by
the lawyer to his or her client, or by the client to his or
her lawyer; (Section24 (b), Rule 130).
4. Document attested by the lawyer. As to a
communication relevant to an issue concerning an
attested document to which the lawyer is an attesting
witness; (Section24 (b), Rule 130)
5. Joint clients. As to a communication relevant to a
matter of common interest between two or more clients
if the communication was made by any of them to a
lawyer retained or consulted in common, when offered
in an action between any of the clients, unless they have
expressly agreed otherwise. (Section24 (b), Rule
130).
A public officer cannot be examined during or after his
or her tenure as to communications made to him or her
in official confidence, when the court finds that the
public interest would suffer by the disclosure. (Section
24(e), Rule 130).
PARENTAL AND FILIAL PRIVELEGE
Section 25. Parental and Filial Privilege. — No person
shall be compelled to testify against his or her parents,
other direct ascendants, children or other direct
descendants, except when such testimony is
indispensable in a crime against that person or by
one parent against the other.

PHYSICIAN-PRIVELEGE
A physician, psychotherapist or person reasonably
believed by the patient to be authorized to practice
medicine or psychotherapy cannot in a civil case,
without the consent of the patient, be examined as to any
confidential communication made for the purpose of
diagnosis or treatment of the patient’s physical, mental
or emotional condition, including alcohol or drug
addiction, between the patient and his or her physician or
psychotherapist. This privilege also applies to persons,
including members of the patient’s family, who have
participated in the diagnosis or treatment of the patient
under the direction of the physician or psychotherapist.
(Section 24(c), Rule 130).

APPLICABLE TO CIVIL CASES ONLY

The privilege applies only to a civil case. It cannot be
claimed in a criminal case presumably because the
interest of the public in criminal prosecution should be
deemed more important than the secrecy of the
communication.

PRIEST / MINISTER-PENITENT PRIVELEGE

A minister, priest or person reasonably believed to be so
cannot, without the consent of the affected person, be
examined as to any communication or confession made
to or any advice given by him or her, in his or her
professional character, in the course of discipline
enjoined by the church to which the minister or priest
belongs. (Section 24(d), Rule 130).

PRIVILEGED COMMUNICATION TO PUBLIC

OFFICERS

RES INTER ALIOS ACTA
The maxim res inter alios acta alteri nocere non
debet literally means “Things done between
strangers ought not to injure those who are not
parties to them”
Section 29. Admission by third party. — The rights of a
party cannot be prejudiced by an act, declaration, or
omission of another, except as hereinafter provided.
(Section 29, Rule 130).
ILLUSTRATION
If Roberto makes a statement before the media admitting
his participation in the murder of Carla, his statement is
admissible against him under Section 27, Rule 130. If he
made a statement implicating Lito and Carlos is not
admissible against Lito and Carlos applying the principle
of res inter alios acta.
ADMISSION BY A CO-PARTNER OR AGENT
Section 30. Admission by co-partner or agent. — The
act or declaration of a partner or agent authorized by the
party to make a statement concerning the subject, or
within the scope of his or her authority, and during the
existence of the partnership or agency, may be given in
evidence against such party after the partnership or
agency is shown by evidence other than such act or
declaration. The same rule applies to the act or
declaration of a joint owner, joint debtor, or other person
jointly interested with the party.
ADMISSION BY A CO-CONSPIRATOR
Section 31. Admission by conspirator. — The act or
declaration of a conspirator in furtherance of the
conspiracy and during its existence may be given in
evidence against the co-conspirator after the conspiracy
is shown by evidence other than such act of declaration.
A conspiracy exists when two or more persons come to
an agreement concerning the commission of a felony and
decide to commit it (Art. 8, RPC). Once the conspiracy
is proven, the act of one is the act of all. Thus, the
statement therefore of one may be admitted against the
other co-conspirators as an exception to the rule of res
inter alios acta.
ADMISSION BY PRIVIES
Section 31. Admission by privies. — Where one derives
title to property from another, the latter's act, declaration,
or omission, in relation to the property, is evidence
against the former if done while the latter was holding
the title.
ADMISSION BY SILENCE
Section 33. Admission by silence. — An act or
declaration made in the presence and within the hearing
or observation of a party who does or says nothing when
the act or declaration is such as naturally to call for
action or comment if not true, and when proper and
possible for him to do so, may be given in evidence
against him or her.
EVIDENCE OF SIMILAR CONDUCT
Section 35. Similar acts as evidence. — Evidence that
one did or did not do a certain thing at one time is not  All out of court statements of an “in trial”
admissible to prove that he or she did or did not do the witness is hearsay if it is offered to prove the
same or similar thing at another time; but it may be substance of such testimony or to prove the
received to prove a specific intent or knowledge; matters asserted by that statement.
identity, plan, system, scheme, habit, custom or usage,
and the like.

 The rule prohibits the admission of “propensity

evidence.”
 Propensity Evidence – evidence
that tends to show that what a
person has done at one time is
probative of the contention that he
has done a similar act at another
time.

HEARSAY
Section 37. Hearsay. — Hearsay is a statement other
than one made by the declarant while testifying at a trial
or hearing, offered to prove the truth of the facts asserted
therein. A statement is (1) an oral or written assertion or
(2) a non-verbal conduct of a person, if it is intended by
him or her as an assertion. Hearsay evidence is
inadmissible except as otherwise provided in these Rule.
A statement is not hearsay if the declarant testifies at the
trial or hearing and is subject to cross-examination
concerning the statement, and the statement is (a)
inconsistent with the declarant's testimony, and was Section 22. Testimony confined to personal knowledge.
given under oath subject to the penalty of perjury at a — A witness can testify only to those facts which he or
trial hearing, or other proceeding, or in a deposition; (b) she knows of his or her personal knowledge; that is,
consistent with the declarant's testimony and is offered which are derived from his or her own perception.
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.
ELEMENTS OF HEARSAY
 There must be an out of court statement which
was not made by the declarant in the hearing or
trial.
 The statement is offered by the witness-
declarant in court to prove the truth of the
matters asserted by the statement.