2019 AMENDMENTS TO THE 1989 REVISED RULES ON

EVIDENCE Evidence is also not required on matters of Judicial Notice and on

(A.M. No. 19-08-15-SC) matters judicially admitted in open court.

Evidence is likewise dispensed with when a rule presumes the truth of

RULE 128 a fact. Under Rule 131, two kinds of presumptions, conclusive and
GENERAL PROVISIONS disputable have been established.
✓ For example, a tenant is not permitted to deny the title of
SECTION 1 Evidence defined — Evidence is the means, his landlord at the time of the commencement of the
sanctioned by these rules, of ascertaining in a judicial relationship of landlord and tenant between them. This
proceeding the truth respecting a matter of fact. presumption is conclusive against the tenant under Section
2[b], Rule 131, Rules of Court.
GENERAL CONCEPT OF EVIDENCE; TRUTH AS A PURPOSE ✓ It is disputably presumed that official duty has been
Evidence is the means, sanctioned by the rules, of ascertaining in a regularly performed under Section 3[m], Rule 131, Rules
judicial proceeding the truth respecting a matter of fact. The object of of Court
evidence is to establish the truth by the use of perspective and reasoning
faculties. PROOF VERSUS EVIDENCE
The term “evidence” is sometimes used interchangeably with “proof”,
The definition provided for under Section 1 of Rule 128, significantly however, there is a distinction between the two. The proof is the result,
considers “evidence” not as an end but merely as a “means” of or perfection of evidence, while the term evidence is the means by which
ascertaining the truth of a matter of fact. proof is established. The proof is the end result – evidence is the means
to the end.
The object of evidence is to establish the truth using perspective and
reasoning faculties. It is well-settled that a question of fact is to be PROOF EVIDENCE
determined by the evidence offered to support the contention. Every Proof is not evidence itself. There is Evidence is the means,
piece of evidence, regardless of its nature, requires certain processes of proof only because of evidence. It is sanction by these rules, of
presentation for its admissibility. merely the probative effect of ascertaining in a judicial
evidence and is the conviction or proceeding the truth
The four (4) component elements of evidence are: persuasion of the mind resulting respecting a matter of fact
1. Means of ascertainment – includes not only the procedure or from a consideration of the evidence
manner of ascertainment but also the evidentiary fact from which The proof is the effect or result of Evidence is the medium of
the truth respecting a matter of fact may be ascertained evidence proof
2. Sanctioned by the rules – not excluded by the Constitution, the law
of the Rules of Court.
FACTUM PROBANDUM AND FACTUM PROBANS
3. In a judicial proceeding – contemplates an action or proceeding
Evidence signifies a relationship between two facts, namely:
filed in a court of law
1. FACTUM PROBANDUM – It is the ultimate facts or the facts to
4. The truth respecting a matter of fact – refers to an issue of fact
be proved, a fact which is in issue, and to which evidence is to be
and is both substantive (determines the facts needed to be
directed.
established) and procedural (governs the manner of proving said
facts).
Ultimate facts are defined as those facts that the expected evidence
will support and prove at the trial. It is also the essential and
Not every circumstance which affords an inference as to the truth or
determinative facts on which the court’s conclusion rests and
falsity of a matter alleged is considered evidence. To be considered
without which the judgment would lack support in essential
evidence, the same must be “sanctioned” or allowed by the Rules of
particulars.
Court.
2. FACTUM PROBANS –It is the probative or evidentiary facts; it is
It is not evidence if it is excluded by law or by the Rules of Court even
a subsidiary or connected facts tending to prove the principal fact
if it proves the existence or non-existence of a fact in an issue.
in issue.
✓ For example, hearsay evidence, a coerced extrajudicial
confession of the accused, and evidence obtained in
Evidentiary facts are the facts necessary to establish the ultimate
violation of constitutional rights even if ultimately shown to
facts; they are the premises that lead to the ultimate facts as a
correspond to the truth do not fall within the definition of
conclusion. They are facts supporting the existence of some other
Section 1 of Rule 128 of the 2019 Amendments to the
alleged and unproven fact.
Revised Rules on Evidence
In a criminal complaint or information, the prosecution must state only
WHEN EVIDENCE IS REQUIRED
the ultimate facts. Thus, an information only needs to state the ultimate
The basic rule is that a mere accusation is not evidence and is not
facts constituting the offense; the evidentiary and other details can be
equivalent to proof. As the definition says, it is offered in court to
provided during the trial.
ascertain the truth “respecting a matter of fact.” Evidence is required
because of the presumption that the court is not aware of the veracity
RULE-MAKING POWER OF THE SUPREME COURT
of the fact in a case.
Evidence is a branch of procedural or remedial law. Thus, the Supreme
Court promulgated our law on evidence whose power to promulgate
While the purpose of evidence is to know the truth, the truth referred
rules is based on the provision of the 1987 Philippine Constitution under
to in the definition is not necessarily the “actual truth” but one aptly
Article VIII, Section 5(5).
referred to as the “judicial truth” or the “legal truth.” The limitations of
human judicial systems cannot always guarantee knowledge of the
NO VESTED RIGHT IN THE RULES OF EVIDENCE
actual or real truth. Actual truth may not always be achieved in judicial
There is no vested right in the rules on evidence because evidence is a
proceedings because the findings of the court would depend on the
branch of procedural or remedial law, and it is a well-settled rule that
admissible evidence presented in court.
there is no vested right in the laws of procedures.
For instance, while it may be the actual truth that it was Mr. X who shot
Procedural laws are adjective laws which prescribe rules and forms of
Mr. Y, if the available evidence presented and admitted in court points
procedure of enforcing rights or obtaining redress for their invasion;
to Mr. Z as the culprit or the perpetrator, then the judicial truth or legal
they refer to rules of procedure by which courts applying laws of all
truth is that it was Mr. Z, not Mr. X, who shot Mr. Y.
kinds can properly administer justice. They include rules of pleadings,
practice, and evidence.
WHEN EVIDENCE IS NOT REQUIRED
In certain instances, evidence is no longer required to prove an
The general rule that statutes are prospective and not retroactive does
ascertion.
not ordinarily apply to procedural laws. However, the change in the rules
on evidence is subject to the constitutional limitation on the enactment
The parties to any action are allowed by the Rules to agree in writing
of ex post facto laws (Section 22, Article III, Bill of Rights, Constitution
upon the facts involved in the litigation and to submit the case for
of the Philippines). An ex post facto law includes that which alters the
judgment upon the facts agreed upon without introduction of evidence.
rules on evidence and receives less or different testimony than that
Thus, presentation of evidence may be dispensed with by agreement of
required at the time of the commission of the offense in order to convict
parties involve in a case.
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the accused.
WAIVER OF THE RULES ON EVIDENCE
The rules on evidence may be waived. When otherwise objectionable
evidence is not objected to, the evidence becomes admissible because
of waiver. Thus, when a party fails to object to hearsay evidence, then
the same becomes admissible.
As long as no law or principle of morality, good customs, and public
policy are transgressed or no rights of third persons are violated, the
rules on evidence may be waived by the parties (Article 6, Civil Code of
the Philippines)
SECTION 2 Scope — the rules of evidence shall be the
same in all courts and in all trials and hearings, except as
otherwise provided by law or these rules.
UNIFORRMITY OF THE RULES OF EVIDENCE
The rules on evidence in the Rules of Court are guided by the principle
of uniformity. As a general policy, the rules on evidence shall be the
same in all courts and in all trials and hearings. This does not mean,
however, that the rules recognize no differences between civil and
criminal proceedings, for there are material differences that must not be
overlooked.
The rules on evidence, being a component of the Rules of Court, apply
only to judicial proceedings and not to administrative government
agencies.
The general rule is that administrative agencies are not bound by the
technical rules on evidence. It can accept documents that cannot be
admitted in a judicial proceeding where the Rules of Court are strictly
observed. It can choose to give weight or disregard such evidence,
depending on its trustworthiness.
In this connection, the technical rules of evidence are not strictly applied
to:
✓ Labor Arbiter and the National Labor Relations Commission;
Employees Compensation Commission;
✓ Securities and Exchange Commission (SEC);
✓ Commission on Election (COMELEC);
✓ Agrarian cases; Immigration proceedings;
✓ Court of Tax Appeals (CA);
✓ Probation Court;
✓ Board of Transportation;
✓ National Police Commission (NAPOLCOM); and
✓ Other similar bodies not herein provided for.
Therefore, as far as the “administrative agencies” of the government is
concerned, they are not bound by the technical rules on evidence
because these administrative agencies are the not court. It can accept
documents that cannot be admitted in a judicial proceeding where the
Rules of Court are strictly observed. It can choose to give weight or
disregard such evidence, depending on its trustworthiness.
APPLICATION ON ELECTRONIC EVIDENCE
The application of the rules on evidence in the Rules of Court contrasts
with the application of the Rules on Electronic Evidence. While the
definition of “evidence” under the Rules of Court makes reference only
to judicial proceedings, the provisions of the Rules on Electronic
Evidence apply as well to quasi-judicial bodies and administrative cases.
Ephemeral communications are now admissible evidence, subject to
certain conditions. Ephemeral electronic communication refers to:
✓ Telephone conversations,
✓ Text messages,
✓ Chat room sessions and private messages on Facebook
✓ Streaming audio,
✓ Streaming video, and
✓ Other forms of communication.
In the case of People v. Enojas, where the Regional Trial Court (RTC)
admitted the text messages against the accused in conformity with the
Court’s earlier resolution expanding Rules on Electronic Evidence in
criminal cases.
In the latest ruling of the Supreme Court, it has ruled that photos and
messages obtained by private individuals from a Facebook messenger
account are admissible as evidence in court. (Christian Cadajas y Cabias
v. People of the Philippines, G.R. No. 247348. November 16, 2021)
SOURCES OF EVIDENCE
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The sources of the rules of evidence are:
✓ The 1987 Constitution
✓ Rules 128 to 134 of the 2019 Amendment to 1989 Revised Rules
on Evidence (A.M. No. 19-08-15-SC)
✓ Resolution of the Supreme Court
✓ Substantive and remedial statutes
✓ Judicial decisions
✓ Rule on DNA Evidence
SECTION 3 Admissibility of evidence —Evidence is
admissible when it is relevant to the issue and is not
excluded by the Constitution, the law, or these Rules
NOTES
Relevant Evidence + Competent Evidence = Admissible Evidence
REQUISITES FOR THE ADMISSIBILITY OF EVIDENCE
The requisites of admissibility of evidence are based on the following
formula:
RELEVANT EVIDENCE
+
COMPETENT EVIDENCE
=
ADMISSIBLE EVIDENCE
Thus, for evidence to be admissible, two elements must concur, namely:
1. The evidence is RELEVANT; and
2. The evidence is COMPETENT when it is not excluded by the
Constitution, the law, or these rules
These two elements correspond to Wigmore’s two axioms of
admissibility, thusly:
First Axiom of Admissibility. None but facts having rational probative
value are admissible (relevance); and
Second Axion of Admissibility. Any fact having a rational probative
value is admissible unless some specific rule herein forbids
(competence)
The formula for the admissibility of evidence is a simple one. To be
admissible, the evidence must be both relevant and competent.
Evidence is relevant when it has such relation to the fact in issue as to
induce belief in its existence or non-existence. On the other hand,
evidence is material when it is directed to prove a fact in issue as
determined by the rules of substantive law and pleadings. The relevance
or materiality of evidence is a matter of logic since it is determined
simply by ascertaining its logical connection to the fact in the issue.
Evidence is considered competent when it is not excluded by the
Constitution, by law, or by the rules on evidence. Some examples of
incompetent evidence are those obtained in violation of the
constitutional rights of persons. Those are the following:
✓ Right against unreasonable searches and seizures;
✓ Right to privacy of communication and correspondence;
✓ Right to the custodial investigation; and
✓ Right against self-incrimination.
SOME ILLUSTRATIONS OF INCOMPETENT EVIDENCE BECAUSE
OF PROHIBITION UNDER EXISTING LAWS
1. THOSE SECURED IN VIOLATION OF THE ANTI-
WIRETAPPING ACT
The privacy of communication and correspondence shall be inviolable
except upon lawful order of the court, or when public safety or order
requires otherwise, as prescribed by law. Any evidence obtained in
violation thereof shall be inadmissible for any purpose in any proceeding.
The right of every individual to privacy of communication and
correspondence is the reason of the enactment of the Legislature of the
Anti-Wiretapping Act (R.A. No. 4200).
2. THOSE OBTAINED IN VIOLATION OF THE CHAIN OF
CUSTODY RULE UNDER R.A. 9165
Chain of custody means the duly recorded, authorized movement, and
custody of the seized drugs at each stage, from the moment of
confiscation to the receipt in the forensic laboratory for examination until
it is presented to the court.
Lapses in the chain of custody and the lack of compliance will result in
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the acquittal of the accused. In effect, the prosecution has no evidence
against the accused given that the circumstances surrounding the
handling of the seized item cast doubt on their source, identity, and
integrity. Thus, any evidence obtained in violation of the Chain of
Custody Rule in inadmissible for being incompetent.
3. CONFESSION OBTAINED IN VIOLATION OF THE MIRANDA
DOCTRINE OR THE RIGHT AGAINST SELF-INCRIMINATION
Our fundamental law provides how a confession can legally be obtained,
a procedure that is very important that any violation thereof renders any
evidence obtained inadmissible for being incompetent. The
inadmissibility of evidence also results from the violation of the right
against self-incrimination.
In the constitution embodies what jurisprudence has termed as the
“Miranda Rights.” The Miranda doctrine requires that:
✓ Any person under custodial investigation has the right to
remain silent;
✓ Anything he or she says can and will be used against him or
her in a court of law;
✓ He or she has the right to talk to an attorney before being
questioned and to have his or her counsel present when being
questioned; and
✓ If he or she cannot afford an attorney, one will be provided
before any questioning if he or she so desires.
The said rights are guaranteed to preclude the slightest use of coercion
by the state as would lead the accused to admit something false, not to
prevent him or her from freely and voluntarily telling the truth.
The investigation mentioned pertains to “Custodial Investigation.”
Custodial investigation commences when a person is taken into custody
and is singled out as a suspect in the commission of a crime under
investigation and the police officers begin to ask questions on suspect’s
participation therein and which tend to elicit an admission.
The right against self-incrimination includes the right to refuse to take
the witness stand and the right to refuse to answer an incriminatory
question. The right against self-incrimination is found in Art. III, Sec. 17
of the 1987 Philippine Constitution which states that “No person shall be
compelled to be a witness against himself”. This is based on the grounds
of public policy and humanity because if the party were required to
testify, it would place the witness under the strongest temptation to
commit the crime of perjury, and of humanity, because it would prevent
the extorting of confessions by duress
The right against self-incrimination covers testimonial compulsion only
and the compulsion to produce real or physical evidence using the body
of the accused. The physical or moral compulsion to extort
communication.
4. THOSE OBTAINED WITHOUT A SEARCH WARRANT OR NOT
THROUGH A VALID WARRANTLESS SEARCH
As a rule, a search and seizure operation conducted by the authorities
is reasonable only when a court issues a warrant after it has determined
the existence of probable cause through the personal examination under
oath or affirmation of the complainant and the witnesses presented
before the court, with the place to be searched and things to be seized
particularly described. Thus, any evidence obtained from the violation
of the constitutional provision renders it inadmissible in evidence for
being incompetent.
A valid warrantless search can only be done in the following ways:
✓ Warrantless search incidental to lawful arrest
✓ Seizure of evidence in plain view
✓ Search of moving vehicle
✓ Consented search
✓ Custom search
✓ Stop and frisk
✓ Exigent and emergency circumstances
5. HEARSAY TESTIMONY
In a prosecution for homicide, the witness swears that the accused killed
the victim because his ever-truthful friend told him so. The testimony,
although relevant, is not admissible because the witness was not
testifying based on his personal knowledge of the event. It is hearsay
and therefore incompetent.
6. PRIVILEGE COMMUNICATION RULE
The wife of the accused testified that the husband admitted to her in
confidence that it was he who killed their neighbor. If the testimony is
offered as evidence against the husband and is objected to by the latter,
the testimonial evidence will be inadmissible by virtue of a particular
provision of the Rules on Evidence. Thus, the testimony is incompetent.
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ADMISSIBILITY AND WEIGHT (PROBATIVE VALUE) OF THE
EVIDENCE
Admissibility of evidence refers to the question of whether or not the
evidence is to be considered at all. On the other hand, the probative
value or weight of the evidence refers to the question of whether or not
it proves an issue. Thus, a particular item of evidence may be admissible,
but its evidentiary weight or probative value depends on judicial
evaluation within the guidelines provided by the rules on evidence.
The admissibility of evidence should not be equated with the weight of
evidence. The admissibility of evidence depends on its relevance and
competence while the weight of evidence pertains to its tendency to
convince and persuade.
DIFFERENT TYPE OF ADMISSIBILITY
1. MULTIPLE ADMISSIBILITY
Under the doctrine of multiple admissibility, evidence may be admissible
for one purpose and not for another. The purpose for which evidence is
offered must be specified because such evidence may be admissible for
several purposes and not for another.
Example, the admission by the accused. It may not be competent as
against his or her co-accused because it violates the rule on res inter
alios acta. Nevertheless, such admission by the accused may be
admitted as evidence against him or her.
Another example, the declaration of a dying person may be admissible
for several purposes:
➢ It may be offered as a dying declaration (Section 37, Rule 130,
Rules of Court), part of res gestae (Section 42, Rule 130, Rules
of Court), or declaration against interest (Section 38, Rule 130,
Rules of Court)
➢ The statement by a bus driver immediately after the collision,
that he dozed off in the wheel driving, maybe admissible as an
admission under Section 26 of Rule 130 or as part of the res
gestae.
2. CONDITIONAL ADMISSIBILITY
Conditional admissibility refers to the admission of evidence by the court
conditionally, provided that a connection may be made later on the
missing facts.
It happens frequently enough that the relevance of a piece of evidence
is not apparent at the time when it is offered, but the relevance of which
will readily be seen when connected to other pieces of evidence not yet
offered.
The opponent of the evidence may ask the court that the evidence be
conditionally admitted in the meantime, subject to the condition that he
is going to establish its relevancy and competency later. 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.
3. CURATIVE ADMISSIBILITY
The doctrine of curative admissibility allows a party to introduce
otherwise inadmissible evidence to answer the opposing party’s previous
introduction of inadmissible evidence.
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 subject matter.
Conversely, the doctrine should not be involved where evidence was
properly admitted. If hearsay evidence prejudicial to the defendant is
erroneously admitted despite the objection, under the principle of
curative admissibility, the court should allow hearsay evidence favorable
to the same defendant.
SECTION 4 Relevancy; collateral matters —Evidence
must have such a relation to the fact in issue as to induce
belief in its existence or non-existence. Evidence on
collateral matters shall not be allowed, except when it tends
in any reasonable degree to establish the probability or
improbability of the fact in issue.
RELEVANT EVIDENCE
Evidence to be relevant must have a relation to the fact in issue as to
induce belief in its existence or non-existence. It deals with the rational
relationship between the evidence and the fact to be proved.
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The matter of relevance under the Rules of Court requires the existence
of a fact in issue. Necessarily, this fact in issue must be a disputed fact.
Since relevant evidence necessarily relates to a disputable fact, it is
obvious that evidence offered to prove an undisputed fact is irrelevant
and, as such, inadmissible. Where there is no issue as to the matter of
fact, there exists no purpose for an item of evidence.
It is the relation to the fact in the issue which makes evidence either
relevant or irrelevant. If the evidence induces belief as to the existence
or non-existence of the fact in issue, the evidence is relevant or
irrelevant. If it does not induce such belief, it is irrelevant
When an advocate offers a piece of evidence for the court’s
consideration, he offers the evidence to prove a fact. This fact may
either be the immediate fact in the issue or the ultimate fact in the issue.
Take the case of the standard car accident as an example. Lawyer of
the victim presents the testimony of another car driver to testify that the
accused driver was driving at a speed of 120 km per hour at the time
victim was sideswiped and injured by the accused driver.
Whether or not such testimony meets the test of relevance will depend
upon what the lawyer wants to prove by the testimony. Initially, the
lawyer would want to prove that, at the time of the accident, the
accused driver was driving beyond the speed limit. This is the immediate
fact sought to be established.
Since there is a traceable connection between the substance of the
testimony and the fact to be proved, the testimony is relevant. On the
other hand, if the testimony is offered to prove that the defendant is a
thief, the testimony has no logical connection at all to the fact sought to
be proved. The testimony is, hence, irrelevant.
Relevance further requires that the immediate fact proved must have a
connection to the ultimate issue.
For example, the usual ultimate issue in every automobile accident case
is whether or not the damage caused to the victim arose out of the
accused driver’s negligent operation of his car.
The question that should necessarily be asked is: is the immediate fact
proved, that the accused driver is driving beyond the speed limit, related
to the issue of negligence? If it is, then the fact proved is relevant
evidence. If it is not related to the issue of negligence, it is irrelevant.
TEST FOR DETERMINING THE RELEVANCY OF EVIDENCE
Relevance is a matter of the relationship between the evidence and the
fact in the issue. The determination of relevance is, thus, a matter of
inference and not of law. The test is, therefore, one of logic, common
sense, and experience.
According to the Supreme Court (SC), there is no precise and universal
test of relevance provided by law. However, the determination of
whether particular evidence is relevant rests largely at the discretion of
the court, which must be exercised according to the teachings of logic
and everyday experience.
EVIDENCE ON COLLATERAL MATTERS
A matter is collateral when it is on a “parallel or diverging line” merely
“additional” or “auxiliary.” This term connotes an absence of a direct
connection between the evidence and the matter in dispute. Collateral
matters are matters other that the facts in the issue and which are
offered as a basis for inference as to the existence or non-existence of
the facts in the issue.
For instance, the motive of a person and, in some instances, his
reputation are matters that may be considered collateral to the subject
of 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
absolutely no motive to kill could be the culprit.
Evidence of the bad reputation of the accused for being troublesome
and aggressive does not make the evidence admissible to prove his guilt.
After all, the culprit could have been the person with the most endearing
reputation.
Generally, evidence on collateral matters is not allowed. It is not allowed
because it does not have direct relevance to the issue of the case. They
draw away the mind of the court from the point at issue and excite
prejudice and mislead it.
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However, the general rule is subject to an exception. There exists an
occasion when evidence on a collateral matter may be allowed. While
collateral evidence may not bear directly on the issue, it will be admitted
if it has the tendency to induce belief as to the probability or
improbability of the issue of the case as when it would have the effect
of corroborating or supplementing facts previously established by direct
evidence.
RELEVANCE OF EVIDENCE ON THE CREDIBILITY OF A WITNESS
Evidence on the credibility of a witness or the lack of it, is always
relevant because it has the inherent tendency to prove or disprove the
truthfulness of his assertion and, consequently, the probative value of
the proffered evidence.
Every type of evidence sought to be admitted, whether it be an object
or document, requires the testimony of a witness who shall identify,
testify, and affirm or deny the authenticity of the evidence. Thus, when
the credibility of the sponsoring witness is found wanting, Section 11 of
Rule 132 authorizes his impeachment:
a) By evidence that, in the past, he has made statements
inconsistent with his present testimony, or
b) By evidence that his general reputation for truth, honesty, or
integrity is bad
There is no test of the truth of human testimony except its conformity
to our knowledge, observation, and experience. Whatever is repugnant
to these belongs to the miraculous, and is outside of judicial cognizance
The importance of the credibility of a witness in a judicial proceeding is
highlighted by rules which allow the adverse party to test such credibility
through a process called cross-examination.
Not only on matters taken up in the direct examination. It includes
questions designed to grant the cross-examiner sufficient fullness and
freedom to test the accuracy and truthfulness of the witness, his
freedom from interest or bias, or the reverse.
Instances provided in the rules where the questions of the cross-
examiner are circumscribed by the matters taken up in the direct
examination. An accused may testify as a witness on his own behalf “but
is subject to cross-examination on matters covered by direct
examination. A hostile witness may be impeached and cross-examined
by the adverse party, but such cross-examination “must only be on the
subject matter of his “examination-in-chief.”
COMPETENT EVIDENCE
One that is not excluded by the Constitution, law, or rules in a particular
case. If the test of relevance is logic and common sense, the test of
competence is the constitution, law or rules.
If the Constitution, law, or a particular rule excludes the evidence, it is
incompetent. Competence is primarily, therefore, a matter of law or rule.
The question as to competence is: Is the evidence allowed by the
Constitution, law or rules?
However, when applied to a witness, the term competent refers to the
qualifications of the witness. Competence refers to his eligibility to take
the stand and testify. It is in this context that the term is normally
associated with
If the evidence offered is objected to on the ground that it is
incompetent, such objection is not an accepted form of objection
because it is a general objection.
The objection should specify the ground for its incompetence such as
leading, hearsay, or parol evidence. Thus, for purposes of trial
objections, evidence is never incompetent. It is people who are. It is
sloppy usage to object to testimony or document as incompetent
Such term more appropriately describes a witness who, under
evidentiary rules does not possess the qualification of a witness or
suffers from a disqualification to be one
COMPETENCY OF A WITNESS DISTINGUISHED FROM HIS
CREDIBILITY
The competency of a witness differs from his credibility. A witness may
be competent and yet give incredible testimony; he may be
incompetent, and yet his evidence, it received, is perfectly credible.
The term “credibility” refers to the worthiness of belief, that quality
which renders a witness worthy of belief (believability)
ADMISSIBLE EVIDENCE AND CREDIBLE EVIDENCE
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Admissible evidence is not necessarily credible evidence. They are
entirely two different matters and involve different concepts.
The term “admissible” means that the evidence is of such a character
that the court, pursuant to the rules of evidence, is bound to receive it
or to allow it to be introduced at the trial.
Admissibility, however, does not guarantee credibility
DELAY AND INITIAL RELUCTANCE IN REPORTING THE CRIME
Delayed reporting by witnesses of what they know about a crime does
not render their testimonies false or incredible, for the delay may be
explained by the natural reticence of most people and their abhorrence
to get involved in a criminal case.
But more than this, there is always the inherent fear of reprisal, which
is quite understandable, especially if the accused is a man of power and
influence in the community. The natural reluctance of a witness to get
involved in a criminal case, as well as to give information to the
authorities, is a matter of judicial notice.
Even the victim may choose to keep quiet rather than expose a
defilement to the harsh glare of public scrutiny. Only when the delay is
unreasonable or unexplained may it work to discredit the complainant.
FLIGHT OR NON-FLIGHT OF THE ACCUSED
Flight per se is not synonymous with guilt. However, when a flight is
unexplained, it is a circumstance from which an inference of guilt may
be drawn. Flight betrays a desire to evade responsibility and is,
therefore, a strong indication of guilt.
Example case: The fact that the accused never fled the locality where
the crime was committed is not, by itself, a valid defense against the
prosecution’s allegation because non-flight does not significantly
innocence.
Non-flight is simply inaction, which may be due to several factors. It
cannot be singularly considered as evidence or a manifestation
determinative of innocence. There is no law or principle holding that
non-flight per se is proof, let alone conclusive proof, of innocence. Much
like the defense of alibi, the defense of non-flight cannot prevail against
the weight of positive identification of the appellants.
CLASSES OF EVIDENCE
There are many classes of evidence, but the main classification are the
following:
A. Relevance and Competent
B. Object, Documentary, and Testimonial
C. Direct and Circumstantial
D. Positive and Negative
E. Cumulative and Corroborative
F. Prima Facie, Probable Cause, and Conclusive
G. Rebuttal and Sure rebuttal
A. RELEVANT AND COMPETENT EVIDENCE
RELEVANT – evidence is relevant when it has a tendency in reason to
establish the probability or improbability of a fact in an issue. Relevant
evidence “that a reasonable mind might accept as adequate to support
a conclusion.”
COMPETENT– evidence is competent when it is not excluded by law in
a particular case.
B. OBJECT, DOCUMENTARY, AND TESTIMONIAL EVIDENCE
OBJECT as evidence is that addressed to the senses of the court, that
is, by vision, hearing, taste, touch, or smell. It is also called real or
demonstrative evidence, or as Wigmore put it, evidence by autoptic
preference.
Object or physical evidence is evidence of the highest order. It speaks
more eloquently than a hundred witnesses. They have been
characterized as the mute but eloquent manifestation of truth which rate
high in our hierarchy of trustworthy evidence.
DOCUMENTS as evidence consist of writings, recordings, photographs,
or any material containing letters, words, sounds, numbers, figures,
symbols or their equivalent, or other modes of written expressions
offered as proof of their contents. Photographs include still pictures,
drawings, stored images, x-ray films, motion pictures, or videos.
TESTIMONIAL evidence is the testimony of a witness, usually on oath
or affirmation given by his or her word of mouth, on the witness stand.
C. DIRECT AND CIRCUMSTANTIAL EVIDENCE
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DIRECT – evidence which proves a challenged fact in dispute without
the aid of any inference or presumption.
CIRCUMSTANTIAL – indirectly proves a fat in issue, such that the
factfinder must draw an inference or reason from circumstantial
evidence.
D. POSITIVE AND NEGATIVE EVIDENCE
POSITIVE EVIDENCE when a witness affirms that a fact did or did not
occur. In this case a witness affirms in the witness stand that a certain
state of facts does not exist or that a certain event happens.
NEGATIVE EVIDENCE when a witness state he did not see or know
the occurrence of the fact. In this case, the witness states that an event
did not occur or that the state of facts alleged to exist does not actually
exist.
Positive evidence is, as a general rule, more credible than negative
evidence. The reason for this rule is because the witness who testifies
to negative evidence may have forgotten what actually occurred, while
it is impossible to remember what never existed. Thus, it is axiomatic
that negative assertions cannot prevail over the positive testimonies of
credible witnesses.
DENIALS DO NOT PREVAILS OVER POSITIVE EVIDENCE
Denials, which are essentially negations of a fact, do not prevail over an
affirmative assertion of such fact. Trial and appellate courts have
generally viewed such defense in criminal cases with considerable
caution, if not with outright rejection.
Denials are inherently weak and unreliable by virtue of their being
excuses that are too easy and too convenient for the guilty to make.
Denials, as a defense, can only prosper when substantiated by clear and
convincing evidence.
ALIBI
The defense of an alibi is inherently weak and must be rejected when
the identity of the accused is satisfactorily and categorically established
by eyewitnesses to the offense, especially when such eyewitnesses have
no ill motive to testify falsely.
Denial, which the usual refuge of offenders, is an inherently weak
defense, and must be buttressed by other persuasive evidence of non-
culpability to merit credibility.
Positive identification prevails over alibi since the alibi can easily
fabricated and is inherently unreliable
While the defense of alibi is by nature a weak one, it assumes
significance and strength where the evidence for the prosecution is also
intrinsically weak
The rule that alibi is a weak defense has never been intended to change
the burden of proof in criminal cases. The burden of proof still lies in the
prosecution to establish the guilt of the accused
But to be exonerating the defense of alibi must be so airtight that it
would admit of no exception. It must be demonstrated that the person
charged with the crime was not only somewhere else when the offense
was committed but was so far away that it would be physically
impossible to be at the place of the crime or its immediate vicinity at the
time of its commission.
✓ The reason is that no person can be in two places at the same
time
✓ Physical impossibility refers to distance and facility of access
between the situs criminis and the location of the accused
when the crime was committed.
• He must demonstrate that he was so far away and could
not have been physically present at the scene of the
crime and its immediate vicinity when the crime was
committed.
FRAME-UP
Allegations of a frame-up by police officers are common and standard
defenses in most dangerous drug cases
For the claim to prosper, the defense must adduce clear and convincing
evidence to overcome the presumption that government officials have
performed their duties in a regular and proper manner
The defense of frame-up is not looked upon with favor due to its being
conveniently concocted
Sample case: The accused did not assail the integrity of the drug
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confiscated from him except by insisting on being framed-up by the
policeman
The Court considered the defense as in insincere because the accused
did not bother to formally charge the policemen for the supposed frame-
up and extortion. Such failure can only be regarded according to the
Court, as his tacit admission that the evidence had not been tampered
or meddled with. The Court observed that the accused did not even
adduce evidence to substantiate his story of being falsely incriminated.
E. CUMULATIVE AND CORROBORATIVE EVIDENCE
CUMULATIVE EVIDENCE is of the same kind and character tending
to prove the same point.
CORROBORATIVE EVIDENCE is when additional evidence is of a
different kind tending to prove the same point.
F. PRIMA FACIE, PROBABLE CAUSE, AND CONCLUSIVE
EVIDENCE
PRIMA FACIE EVIDENCE is defined as evidence good and sufficient
on its face. Such evidence which, in the judgment of the law, is sufficient
to establish a give fact, or the group or chin of facts constituting the
party’s claim or defense and which if not rebutted, or contradicted, will
remain sufficient. Prima facie evidence requires a degree or quantum of
proof greater than probable cause.
PROBABLE CAUSE as a requirement for the filing of an information
merely means reasonable ground for belief in the existence of facts
warranting the proceedings complained of, or an apparent state of facts
found to exist upon reasonable inquiry which induce a reasonably
intelligent and prudent man to believe that he accused person has
committed a crime. What is needed to bring an action in court is simply
probable cause, not prima facie evidence.
CONCLUSIVE EVIDENCE is type of evidence which is incontrovertible.
G. REBUTTAL AND SUR REBUTTAL EVIDENCE
REBUTTAL EVIDENCE is the evidence that which is given to explain,
repel, counteract, or disprove facts given in evidence by the adverse
party.
SUR-REBUTTAL is when the plaintiff in rebuttal is permitted to
introduce new matter, defendant should be permitted to introduce
evidence in sur-rebuttal, and to decline to permit him to do so is error
especially where the evidence offered in sur-rebuttal is for the first time
made competent by the evidence introduced by plaintiff in rebuttal but
defendant may ask for the right to meet the new matter.
∞∞∞∞∞∞∞∞∞∞∞∞∞∞∞∞∞∞∞∞∞
RULE 129
WHAT NEED NOT BE PROVED
SECTION 1. Judicial notice, when mandatory — A
court shall take judicial notice, without the introduction of
evidence, of the existence and territorial extent of states,
their political history, forms of government and symbols of
nationality, the law of nations, the admiralty and maritime
courts of the world and their seals, the political constitution
and history of the Philippines, the official acts of the
legislative, executive and judicial departments of the
National Government of the Philippines, the laws of nature,
the measure of time, and the geographical divisions.
GENERAL RULES:
Before evidence can serve as proof, it is important that it is
presented, offered, and admitted as such evidence. A formal offer
is necessary since judges are required to base their findings of
fact and judgment only and strictly upon the evidence offered by
the parties at the trial.
All facts must be proved by sufficient evidence. However, there
are certain matters in litigation which must be admitted without
need for evidence and require no proof, namely, (a) judicial
notice; (b) judicial admissions (c) conclusive presumptions.
JUDICIAL NOTICE
Judicial notice is the cognizance of certain facts that judges may
properly take and act on without proof because these facts are
already known to them. It is the assumption by a court of a fact
without need of further traditional evidentiary support.
Judicial notice is based on the maxim, “what is known need not be
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proved;” hence when the rule is invoked, the court may dispense with
the presentation of evidence on judicially-cognizable facts. It is a matter
of expediency and convenience.
Judicial notice is equivalent to proof. Examples of matters which are
admitted without proof:
✓ That there is a place called Iloilo City in Panay Island
✓ That a statute exists
✓ That there are 24 hours a day
✓ The sun rises in the east and sets in the west
When the court takes judicial notice, the court accepts and recognizes
the same without the necessity of formal proof. Evidence shall be
dispensed with because the matter of so well-known and is of common
knowledge not be disputable.
The object of judicial notice is to save time, labor and expense in
securing and introducing evidence on matters which are not ordinarily
capable of dispute and are not actually bona fide disputed, and the tenor
of which can safely be assumed from the tribunal’s general knowledge
or from a slight search on its part.
Judicial notice, is therefore, based upon convenience and expediency. It
displaces evidence since, being equivalent to proof, it fulfills the object
which evidence is intended to achieve.
THE FUNCTION OF JUDICIAL NOTICE
Judicial Notice takes the place of proof and is of equal force. It makes
evidence unnecessary as its common knowledge is not disputable.
It should be pointed out, however, that judicial notice is not synonymous
with judge’s personal knowledge. The mere personal knowledge of the
judge is not the judicial knowledge of the court, and he is not authorized
to make his individual knowledge of a fact, not generally or
professionally known, as the basis of his action.
MANDATORY TAKING OF JUDICIAL NOTICE
A matter of judicial notice may either mandatory or discretionary. When
the matter is subject to a mandatory judicial notice, no motion or
hearing is necessary for the court to take judicial notice of such matter.
A court shall take judicial notice, without the introduction of
evidence for the following matters:
✓ Existence and territorial extent of states
✓ Forms of government and symbols of the nationality of states
✓ Law of nations
✓ Admiralty and maritime courts of the world and their seals
✓ Political constitution and history of the Philippines
✓ Official acts of the legislative, executive, and judicial
departments of the National Government of the Philippines
✓ Laws of nature involving physical sciences
✓ Measure of time; and
✓ Geographical divisions
Amendment to the Rules of Court is one of the cases of mandatory
judicial because it is an official act of the judicial department.
One of the things that a court can take judicial notice of is the law of
nations. The laws of nations being referred to where the court can take
judicial notice of are treaties, conventions, generally accepted principles
of international laws and other agreements governing conduct and
relations of the state.
However, it does not apply to the domestic laws of particular states
because no sovereign nation is bound to give effect within its dominion
to a judgment rendered by a tribunal of another country.
This means that the foreign judgment and its authenticity must be
proven as facts under our rules on evidence, together with the alien’s
applicable national aw to show that effect of the judgment on the alien
himself or herself.
REQUISITES OF JUDICIAL NOTICE
There are three (3) requisites before a court can consider the propriety
of taking judicial notice. The three (3) material requisites are the
following:
1. The matter must be one of common and general knowledge;
2. It must be well and authoritatively settled and not doubtful or
uncertain; and
3. It must be known to be within the limits of the jurisdiction of the
court.
The taking of judicial notice means that the court will dispense with the
traditional form of presentation of evidence. In so doing, the court
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assumes that the matter is so notorious that it would not be dispense.
Hence, it can be said that judicial notice is limited to facts evidence by
public records and facts of general notoriety.
SECTION 2 Judicial notice, when discretionary —A
court may take judicial notice of matters which are of public
knowledge, or are capable of unquestionable
demonstration, or ought to be known to judges because of
their judicial functions.
DISCRETIONARY TAKING OF JUDICIAL NOTICE
A court can also at its discretion, take judicial notice of the following:
1. Are of public knowledge, or
2. Are capable of unquestionable demonstration, or
3. Ought to be known to judges because of their judicial functions.
Things of common or public knowledge, which courts can take judicial
notice of, may be matter coming to the knowledge of persons generally
in the course of the ordinary experience of life, or they may be matters
which are generally accepted by mankind as true and are capable of
ready and unquestioned demonstration.
The principal guide in determining what facts may be assumed to be
judicially known is that of notoriety. Hence, it can be said that judicial
notice is limited to facts evidenced by public records and facts of general
notoriety.
Moreover, a judicially-noticed fact must be one not subject to reasonable
dispute in that it is either:
a) Generally known within the territorial jurisdiction of the trial
court; or
b) Capable of accurate and ready determination by resorting to
sources whose accuracy cannot reasonably be questionable.
Matters which are capable of unquestionable demonstration pertain to
field of professional and scientific knowledge. With respect to matters
which ought to be known to judges because of their judicial functions,
an example would be facts which are ascertainable from the record of
court proceedings, such as, as to when the court notices were received
by a party.
JUDICIAL NOTICE AND KNOWLEDGE OF THE JUDGE
Judicial notice may be taken of a fact which judges ought to know
because of their judicial functions. But judicial notice is not judicial
knowledge
Mere personal knowledge of the judge is not the judicial knowledge of
the court, and the judge is not authorized to make his individual
knowledge of a fact, not generally or professionally known, as the basis
of his action.
SECTION 3 Judicial notice when hearing necessary
— During the pre-trial and the trial, the court, motu proprio,
or upon motion, shall hear the parties on the propriety of
taking judicial notice of any matter.
Before judgment or on appeal, the court, motu proprio or
upon motion, may take judicial notice of any matter and
shall hear the parties thereon if such matter is decisive of a
material issue in the case.
THE STAGE WHEN JUDICIAL NOTICE BE TAKEN
A hearing may be necessary, not for the presentation of evidence, but
to afford the parties a reasonable opportunity to present information
relevant to the propriety of taking such judicial notice or to the tenor of
the matter to be noticed.
The court may take judicial notice of a fact motu proprio or upon motion
by any party and may allow the parties to be heard. During the trial, the
court, on its own initiative (motu proprio), or on request of a party, may
announce its intention to take judicial notice of any matter and allow the
parties to be heard thereon.
Before judgment or on appeal, the proper court, on its own initiative or
on request of the party, may take judicial notice of any matter and allow
the parties to be heard thereon if such matter is decisive of a material
issue in the case.
This provision is based upon basic notions of procedural due process
since judicial notice largely pre-empts the normal course of the fact-
finding procedure.
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JUDICIAL NOTICE OF FOREIGN LAWS; THE DOCTRINE OF
PROCESSUAL PRESUMPTION
As a rule, Philippine Courts cannot take judicial notice of the existence
and provisions/contents of foreign law, which matters must be alleged
and proven as a fact.
Under the Principle of Processual Presumption provides that if the
existence and provisions or contents of a foreign law were not properly
pleaded and proven, the foreign law will be presumed to be the same
as Philippine Laws and it will be Philippine Laws which will be applied to
the case.
It is well-settled in our jurisdiction that our courts cannot take judicial
notice of foreign laws. Before any court in the Philippines can consider
the domestic laws of the other states, they must be presented, offered,
and admitted in evidence in accordance with procedures outlines in the
Rules on Evidence. Like any other facts, they must be alleged and
proved.
For example, Australian or Singaporean marital laws, are not among
those matters that judges are supposed to know by reason of their
judicial functions. In the absence of proof, foreign law will be presumed
to be the same as the laws of the jurisdiction hearing the case under
the doctrine of processual presumption. Thus, when a party fails to
prove foreign law, there arises a presumption that such foreign law is
similar to Philippine law.
The court cannot determine whether there is a divorce law in Singapore.
Failure to prove the divorce law of Singapore, Philippine courts do not
take judicial notice of foreign law. In the absence of the law of the
foreign country, Philippine laws should be applied.
However, when foreign law refers to the “law of nations”, the said law
is subject to mandatory judicial notice under Section 1, Rule 129 of the
Rules of Court and under the 1987 Philippine Constitution, we adopt the
generally accepted principles of international law as part of the law of
the land.
EXCEPTIONS WHEN THE COURT MAY TAKE JUDICIAL NOTICE
OF FOREIGN LAW
The following are the exceptions or when the Court may take judicial
notice of a foreign law:
1. When there is no controversy among the parties as to the existence
and provision of foreign law;
2. When the foreign law has been previously ruled upon the court as
to have acquired actual knowledge of it. For example: Knowledge of
the Texan law on succession based on the Christiansen cases; notice
of the existence of the Nevada Divorce Law
3. Foreign law has been previously applied in the Philippines e.g., the
Spanish Codigo Penal
4. The foreign law is the source of the Philippine Law e.g., the
California Law on Insurance, the Spanish Civil Code
5. When the foreign law is a treaty in which the Philippines is a
signatory, it is part of the Public International Law
JUDICIAL NOTICE OF MUNICIPAL ORDINANCES AND
ADMINISTRATIVE RULES AND REGULATION
As regards municipal or city ordinances, it is the courts of the first level
or the municipal trial court that should take judicial notice of those
ordinances that are in force in the municipality or city where they sit;
and if the case is appealed to a second level court, the second level
court shall take judicial notice of such municipal or city ordinances that
have already become part of the record of the case.
Even the Court of Appeals or the Supreme Court can take judicial notice
of such a city or municipal ordinances, although the ruling of the Court
indicates that this is no longer a matter of mandatory judicial notice but
only discretionary, such knowledge is now been categorized as matter
capable of unquestionable demonstration.
As to administrative laws, rules and regulations of national applications,
their passage and effectivity and provisions are governmental matters
which must be noticed mandatorily.
DECISION OF THE COURT; NO JUDICIAL NOTICE OF RECORDS
OF OTHER CASES; EXCEPTION
Decisions of appellate courts must be taken notice of mandatorily by
trial courts.
With respect to records of a different case filed in another court, it is a
general rule that courts are not authorized to take judicial notice of the
contents of the record of such other case.
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While the court will take judicial notice of its own acts and records in the
same case, as a rule, courts are not authorized to take judicial notice of
the contents of records of other cases.
Even when such cases have been tried or are pending in the same court,
and notwithstanding the fact that both cases may have been heard or
are actually pending before the same judge, no judicial notice of such
records if such belong to other cases.
The exception to the rule of judicial notice of court cases records:
✓ When, in the absence of any objection and with the knowledge
of the opposing party, the contents of said other case are clearly
referred to by title and number in a pending action and adopted
or read into the record of the pending case.
✓ When the original record of the other case or any part of it is
actually withdrawn from the archives at the court’s discretion
upon request, or with consent, of the parties, and admitted as
part of the record of the pending case.
Thus, to reiterate, the exception is applicable only when, in the absence
of objection, with the knowledge of the opposing party, or at the request
or with the consent of the parties, the case is clearly referred to, or the
original or part of the records of the case is actually withdrawn from,
the archives and admitted as part of the record of the pending case.
COMMERCIAL USAGE AND PRACTICES
Those pertaining to business, occupation, or profession. Notice may be
taken only of those which are well known and established. Examples:
1. The closure of banks on Saturdays and Sundays and of the banking
hours being until 3:00 P.M.
2. Practice considering checks as stale check if not presented within 6
months
3. The establishment of ATM machines to facilitate the opening of
accounts and withdrawal of money
4. The practice of requiring tickets for persons to enter theaters and
movie houses or to ride in public transports
5. The holding of graduation exercises by schools and universities
every end of the semester
6. The public auction of unredeemed articles by pawn shops
7. Courts take judicial notice that before a bank grants a loan secured
by land, it first undertakes a careful examination of the title, as well
as a physical and on-the-spot investigation of the land offered as
security. Hence it cannot claim to be a mortgagee in good faith as
against the actual possessor of the land
8. That no official receipts are issued by sidewalk or market vendors
CUSTOMS, HABITS, AND PRACTICE OF PEOPLE
Notice may be taken only of those which are generally known and
established and uniformly acted upon. Particular customs, and those
peculiar only to certain people must be established as a fact. Examples:
1. Variations in handwriting
2. The instinct of self-preservation
3. Sleeping habits of people in the barrios
4. Rituals of digging and cleansing of bones of buried loved ones
among certain tribes and other tribal practices, must be proved as
a fact
5. What about the natural shyness of the Filipina woman?
RELIGIOUS MATTERS
Courts may take notice of the general tenets or beliefs of a particular
group including their organizational structures, but not of specific
practices, tenets, and dogmas. Examples:
1. Thus, notice maybe taken of the belief Catholics consider Jesus as
God, whereas the INC does not but as a man, and the Muslims
regard Him merely as a prophet lesser in stature to Mohammed
2. That the Pope is the titular head of the Catholic Church while the
Dalai Llama is the head of the Tibetan Monks.
3. Mecca is the Holiest City of the Muslims; the Muslim belief in
Ramadan; the belief in reincarnation among the Hindus and
Buddhists while the Christians believe in resurrection after death;
whereas Christians believe in heaven the Buddhists have their
Nirvana. Notice is proper of the Christian Bible and the Muslim Koran
as their respective Holy Books.
MANNER OF TAKING JUDICIAL NOTICE
The power to take judicial notice is to be exercised by court with caution.
Care must be taken that the requite notoriety exists, and every
reasonable doubt on the subject should be promptly resolve in the
negative. To say that a court will take judicial notice of a fact is merely
another way of saying that the usual form of evidence will be dispensed
with if knowledge of the fact can be otherwise acquired.
The doctrine of judicial notice rests on the wisdom and discretion of the
courts. The power to take judicial notice is to be exercised by courts
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with caution; care must be taken that the requisite notoriety exists; and
every reasonable doubt upon the subject should be promptly resolved
in the negative.
Courts should be permitted to give a liberal interpretation to the law
permitting them to take judicial notice of the facts of public knowledge,
especially if a technical interpretation would have the effect of defeating
the very purpose and object of the law.
SECTION 4 Judicial admissions — An admission, oral or
written, made by the party in the course of the proceedings
in the same case, does not require proof. The admission
may be contradicted only by showing that it was made
through palpable mistake or that the imputed admission
was not, in fact, made
BASIC CONCEPT OF JUDICIAL ADMISSION
A judicial admission is an admission, verbal or written, made by a party
in the course of the proceedings in the same case, which dispenses with
the need for proof with respect to the matter of fact admitted. It is a
formal statement, either by party or his or her attorney, in the course of
judicial proceeding which removes an admitted fact from the filed or
controversy.
Judicial admission is voluntary concession of fact by a party or his or her
lawyer during judicial proceedings. It is also characterized as deliberate,
clear, and unequivocal statement of a party about a concrete fact within
that party’s peculiar knowledge, not a matter of law. Judicial admissions
are used as a substitute for legal evidence at trial.
A judicial admission requires no proof. They are binding on the party
making the admission.
To be judicial admission, certain elements must be considered:
1. First, the same must be made by a party to the case. Admission of
a non-party do not fall within the definition of judicial admission
2. Second, the admission, to be judicial, must be made in the course
of the proceedings in the same case. Thus, an admission made in
another judicial proceeding will not be deemed a judicial admission
in another case where the admission was not made. Instead, it will
be considered as extrajudicial admission for purposes of the other
proceeding where such admission is offered.
3. Third, the rule does not require a particular form for an admission.
Such form is immaterial because the provision recognizes either
verbal or written admission.
Stipulations of facts at the pre-trial of a case constitute judicial
admissions and are conclusive upon them
ADMISSION DURING PRE-TRIAL AND TRIAL IN CRIMINAL
CASE
There must be a distinction between a judicial admission made during
the pre-trial and during the trial proper. During pre-trial, the admission
must be made in writing and signed by the accused and his or her
counsel.
Although admission made during the pre-trial is deemed to have been
made in the course of a judicial proceeding and is necessarily a judicial
admission, an admission made by the accused in the pre-trial of a
criminal case is not necessarily admissible against him.
To be admissible, the admission during the pre-trial conference must be
reduced in writing and signed by the accused and counsel. Failure to
comply the conditions, they cannot be used against the accused who
made the judicial statement.
JUDICIAL ADMISSION AND EXTRA-JUDICIAL ADMISSION
Judicial admission is distinguished from extra-judicial admission because
extra-judicial admission is one made outside of the court or outside the
court statement.
The most important distinction between judicial and other admissions is
that judicial admissions are conclusive upon the party making the
statement in open court while other admissions are, as rule and where
the elements of estoppel are not present, is disputable as evidence in
court.
FORMS OF JUDICIAL ADMISSION
Judicial admissions are divided into formal and informal.
Formal judicial admissions are those which are usually made in writing
such as in pleadings, stipulations of facts, answer to the complaint and
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the like.
Informal judicial admissions are those which in general are made orally
in the course of the trial or proceeding, an affidavit, or while on the
witness stand.
Thus, a judicial admission may be in writing, oral as a verbal waiver of
proof made in open court.
EFFECT OF JUDICIAL ADMISSION
It is a well-settled rule that a judicial admission conclusively binds the
party making the admission.
It cannot thereafter take a position contradictory to, or inconsistent with
his pleadings. Absent of any showing that was made through palpable
mistake, no amount of rationalization can offset it.
EXCEPTION TO THE GENERAL RULE OF CONCLUSIVITY OF
JUDICIAL ADMISSION
The general rule is that judicial admission made by a party is conclusive
is not however, absolute. The rules provide for some exceptions. Section
4 of Rule 129 provides for two ways to contradict a judicial admission,
namely:
1. By showing that the admission was made through a palpable
mistake.
2. By showing that the imputed admission was not, in fact, made.
The mistake that would relieve a party the effects of his admission is
not mistake. It must be one that is “palpable”, a mistake that is “clear
to the mind or plain to see”. It is a mistake that is “readily perceived by
the senses of the mind.”
A party may also argue that he made “no such admission” and the
admission was in fact a mistake on his part.
∞∞∞∞∞∞∞∞∞∞∞∞∞∞∞∞∞∞∞∞∞∞∞∞∞∞∞∞∞∞∞
RULE 130
RULES OF ADMISSIBILITY
A. OBJECT (REAL) EVIDENCE
SECTION 1. Object as evidence. – Objects as
evidence are those addressed to the senses of the
court. When an object is relevant to the fact in issue, it
may be exhibited to, examined or viewed by the court.
NATURE OF OBJECT (REAL) EVIDENCE
Among the three (3) classes of evidence (Object, Documentary and
Testimonial), it is the object or physical evidence that has a greater
weight. Physical evidence is a mute but eloquent manifestation of truth,
and it ranks higher in our hierarchy of trustworthy evidence.
Object or real evidence refers to the senses of the court. Real or object
evidence is not a verbal description of something. It is not a replica or a
mere representation of something. It is a real thing itself. It consists of
tangible things like a gun, broken glass, a piece of bloody clothing, or
the defective ladder that caused the fall of the complainant, the knife
used to slash the victim’s throat or the bullet extracted from the victim’s
chest.
Object or real evidence is not limited to that which may be known by
the sense of vision; it extends to what is perceived by the senses of
hearing, taste, smell, or touch. This is the reason why the object as
evidence is addressed to the senses of the court.
The definition covers any material that may be seen, heard, smelled,
felt, or touched. They are the “sensual evidence” and are grouped into:
A. Those exhibited to the Court or observed by it during the trial
1. The weapons used, the articles recovered or seized as subjects
of an offense, the effects of the crime, clothing apparels
2. The wound or scars in the body in physical injury cases
3. Inspection of the body of the accused and his personal
appearance to determine his body built, physique, height,
racial characteristics, and similarities with another, in paternity
suits
4. Observations as to the demeanor of witnesses
5. Re-enactment or demonstrations of actions
B. Those which consists of the results of inspections of things or places
conducted by the court (ocular inspections) outside the court
1. The observations made by the parties are duly recorded,
pictures and other representations may be made such as
sketches and measurements
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2. Examples: inspection of the crime scene; disputed
boundaries; objects which cannot be brought to court
C. Those which consist of the results of experiments, tests, or
demonstrations, which may be scientific tests/experiments, or
practical tests/demonstrations provided the conduct of
experiments/tests is subject to the discretion of the court.
1. Forensics or Microanalysis: the application of scientific
principles to answer questions of interest in the legal system.
Applied most often in the examination of Trace Evidence to
solve crimes based on the Principle of Contact
a) Trace Evidence - evidence found at a crime scene in
small but measurable amounts such as hairs, fibers,
soils, botanical materials, explosive residue
b) Principle of Contact: every person who is physically
involved in a crime leaves some minute trace of his/her
presence in the crime scene or in the victim and often
takes something away from the crime scene and/or
victim
Objects which are offensive to man’s sensibilities or repulsive objects
1. Waste matters, human excreta
2. Carcasses of dead animals
3. Killing of an animal to prove a substance is poison
CLASSIFICATION OF OBJECT EVIDENCE
Object evidence is classified into:
1. Actual, physical, or autoptic evidence, or those which have relation
or part in the fact or incident sought to be proven, and those brought
to the court for personal examination; and
2. Demonstrative evidence, or those which represent the actual or
physical object being offered to support or draw an inference or to
aid in comprehending the verbal testimony of a witness.
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 category.
REQUISITES FOR ADMISSIBILITY OF OBJECT EVIDENCE
The admissibility of an object or real evidence, like any other evidence,
requires that:
1. The object or real evidence be both relevant and competent. To be
relevant, the evidence must have a relationship to the fact in the
issue and to be competent, it must not be excluded by the
Constitution, the rules, or by the law.
2. The object or real evidence must be authenticated. The
authentication must be made by a competent witness
3. The object or real evidence must be formally offered in evidence.
AUTHENTICATION OF THE OBJECT OR REAL EVIDENCE BY A
WITNESS
To authenticate the object, there must be someone who should identify
the object to be the actual thing involved in the litigation. This someone
is the witness.
The object evidence being inanimate, cannot speak for itself. It cannot
present itself to the court as an exhibit. Even supposedly ancient
document requires a witness to testify on the characteristics of the
document even it is no longer requires authentication. Every evidence,
whether it be a document or an object, needs a witness. Testimonial
evidence provides the foundation for all types of evidence. In layman’s
term, the object evidence must be “sponsored” by a witness.
The witness must have actual and personal knowledge of the exhibit he
is representing. This is because a witness can only testify to those facts
which he knows of his personal knowledge that is, which are derived
from his own perception.
It must be emphasized that every piece of evidence whether it be a
document or an object, needs a witness. Even object evidence requires
statements from a witness to make its way into the admissible evidence.
Object evidence, when offered in accordance with the requisites for its
admissibility, becomes evidence of the highest order and speaks more
eloquently than witness put together.
VIEW OF AN OBJECT OR SCENE; AUTOPTIC EVIDENCE
When an object is relevant to the fact in issue, it may be exhibited to,
examined, or viewed by the court, the object evidence has been referred
to as “autoptic evidence.”
Courts have recognized that there are times when a party cannot bring
to the court for viewing in the courtroom. In such situation, the court
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may take a view of an object. The court may take ocular inspection of a
contested land to resolve questions of fact raised by the parties.
The inspection may be made inside or outside the courtroom. An
inspection or view outside the courtroom should be made in the
presence of the parties or at least with previous notice to them.
It is error for the judge, to go alone to the land in question, or to the
place where the crime was committed and take a view without the
previous knowledge of the parties.
CATEGORIES OF OBJECT EVIDENCE
For the purposes of authentication of object evidence, it may be
classified into the following:
1. Unique Object – object that has readily identifiable marks;
2. Object Made Unique – objects that are made readily identifiable;
and
3. Non-Unique Object – objects with no identifying marks.
The object has a unique characteristic, like the serial number of a caliber
.45 pistol, it becomes readily identifiable.
So long as the witness testifies that the object has a unique
characteristic, the object on the relevant date, remembers its
characteristics, asserts that the object shown in court is the same or
substantially in the same condition, and alleges those characteristics are
those of the object identify in court, the authentication requirement is
satisfied.
If the object does not have a unique characteristic, like the typical
kitchen knife that has no serial number and is identical with a lot of
knives of the same kind and qualify, the witness may be able to identify
the same in court if he claims that he made the thing require a unique
characteristic like placing identifying marks on it.
The witness is to testify in court as to what he did to make the object
identifiable and that the object presented to him for identification in
court has the characteristics he made an object.
CHAIN IN CUSTODY
The third category of object evidence refers to those which are not
readily identifiable, like drops of blood or oil, drugs in powder form, fiber,
and grains of sand and similar objects.
Under this situation, the proponent of the evidence must establish a
chain of custody
The purpose of establishing a chain of custody is to ensure that the
integrity and evidentiary value of the seized item are preserved, so much
so that unnecessary doubts as to the identity of the evidence are
removed. Such record of movements and custody of seized items
include the identity and signature of the person who held temporary
custody of the seized item, the date and time when such transfer of
custody was made in the course of safekeeping and use in court as
evidence.
PARAFFIN TEST
Paraffin tests, in general, have been considered as inconclusive by the
court because scientific experts concur in the view that paraffin tests
have proved extremely unreliable in use.
The tests can only establish the presence or absence of nitrates or nitrite
on the hand, but the tests alone cannot determine whether the source
of the nitrates or nitrites was the discharge of a firearm.
The presence of nitrates should be taken only as an indication of a
possibility, or even a probability, but not of infallibility that a person has
fired a gun. Since nitrates are also admittedly found in substances other
than gunpowder. Possible for one to fire a gun and yet be negative for
the presence of nitrates as when the hands are washed before the test
A person who tests positive may have handed one or more substances
with the same positive reaction for nitrates such as explosives,
fireworks, fertilizers, pharmaceuticals, tobacco and leguminous plants.
A person who uses tobacco may also have nitrates or nitrite deposits in
his hands since these substances are present in the products of
combustion of tobacco.
The argument that the negative result of gunpowder nitrates from the
paraffin test conducted, shows an absence of physical evidence that one
fires a gun, is untenable as it is possible for one to fire a gun and yet be
negative for the presence of nitrates as when the hands are washed
before the test or if he fired a gun with a glove on.
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Besides paraffin test is not conclusive owing to several factors like wind
direction, firing at and object using a long barrel or a low caliber gun
and profuse perspiration.
POLYGRAPH TEST (LIE DETECTOR TEST)
A polygraph test operates on the principle that stress causes
physiological changes in the body which can be measured to indicate
whether the subject of the examination is telling the truth.
During an examination in which a polygraph is used, sensors are
attached to the subject so that the polygraph can mechanically record
the subject’s physiological responses to a series of questions.
Courts, accordingly and uniformly, reject the results of polygraph tests
when offered in evidence for the purpose of establishing the guilt or
innocence of one accused of a crime because it has not yet attained
scientific acceptance as a reliable and accurate means of ascertaining
truth or deception.
B. DOCUMENTARY EVIDENCE
SECTION 2 Documentary evidence — Documents as
evidence consist of writings, recordings, photographs or any
material containing letters, words, sounds, numbers,
figures, symbols, or their equivalent, or other modes of
written expression offered as proof of their contents.
Photographs include still pictures, drawings, stored images,
x-ray films, motion pictures or videos.
MEANING OR DOCUMENTARY EVIDENCE
Documents as evidence do not exclusively refer to writings. They may
refer to recordings, photographs, include still pictures, drawings, stored
images, x-ray films, motion picture or videos, any other material
containing letters, words, sounds numbers, figures, symbols or their
equivalent or other modes of written expression offered as proof of their
contents.
PHOTOGRAPHS
Photographs of persons, things, and places, when instructive to the
understanding of the case, will be admitted in evidence.
Photographs present evidence to courts just as witness present evidence
through testimony.
Often, presentations are quicker more accurate, more detailed and more
convincing when photographs, rather than testimony, are used.
Photograph standing alone, however, cannot become part of the
evidence unless the picture is qualified for admission by the testimony
of the witness and the same must be relevant and competent.
It is competent when it is properly authenticated by a witness who is
familiar with the scene or person portrayed, and who testifies that the
photograph faithfully represents what is depicts.
The admissibility of photographs is within the discretion of the trial court
as material and relevant to the issues being tried. That is, the contents
of the photographs must not only relate to the issues, but the probative
value of the photographic evidence must outweigh the policy
considerations against its admission.
MOTION PICTURES AND TAPE RECORDINGS
The rules that apply to photographs generally apply to motion pictures
and recordings. Because of the possibility of tampering and distortion,
courts have traditionally required a stricter standard for laying the
foundation for motion pictures and tape recordings.
Modern courts, however, have taken judicial notice of how motion
cameras and tape recorders work and their general reliability and
prevalent use.
In case of tape recordings, the witness should identify the speakers,
state how he recognizes their voices and that the recording was not
taken in violation of the Anti-Wire-Tapping Law (R.A. 4200)
The modern approach to motion pictures and recordings is reflected in
local rules. Under the Rules on Electronic Evidence, the authentication
process need not involve the person who actually made the recording.
The audio, photographic and video evidence of events, acts or
transactions shall be admissible provided it shall be shown, presented
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or displayed to the court and shall be identified, explained or
authenticated by the person who made the recording or by some other
person competent to testify on the accuracy thereof.
DIAGRAPMS, MODELS AND MAPS
These types of demonstrative evidence are presented to indicate the
relative locations or positions of objects and persons.
Aside from the requirement of relevance, a diagram, model or map must
be identified by a witness who is familiar with what the evidence depicts,
and that the same is an accurate representation of the scene it portrays.
X-RAY PICTURES
X-ray pictures, also referred to as “skiagraphs” or “radiographs” are
admissible when shown to have been made under circumstances as to
assure their accuracy and relevancy to a material issue in the case.
Authenticated x-rays are normally involved in personal injury cases to
show the location and extent of the injury. X-rays are properly
authenticated by the x-ray technician or the physician who testifies to
the competence of the person taking it, the procedure taken and that
the x-ray picture shown is that of the person, the anatomical part or the
object involved in the case.
SCIENTIFIC TESTS, DEMONSTRATIONS AND EXPERIMENTS
The issue of refusing or granting requests for demonstrations,
experiments, and tests in open court is a matter subject to judicial
discretion.
TEXT MESSAGES AND MESSENGER
Text messages are to be proved by the testimony of a person who was
a party to the same or has personal knowledge of them. This rule applies
to telephone conversations and other ephemeral electronic
communication.
In the absence or unavailability of the required witnesses, other
competent evidence may be admitted.
REQUISITES FOR THE ADMISSIBILITY OF DOCUMENTARY
EVIDENCE
The following are the requisites for the admissibility of documentary
evidence:
1. The document must be relevant and competent;
2. The evidence must be authenticated by a competent witness; and
3. The document must be formally offered in evidence.
Documentary evidence is also subject to general exclusionary rules such
as the rule on hearsay, original document rule, and parol evidence rule.
However, where the evidence is offered as an object evidence, original
document rule, parol evidence rule, and hearsay rule find no application.
1. ORIGINAL DOCUMENT RULE
SECTION 3. Original document must be produced;
exceptions. – When the subject of inquiry is the contents
of a document, writing, recording, photograph or other
record, no evidence is admissible other than the original
document itself, except in the following cases:
(a) When the original is lost or destroyed, or cannot be
produced in court, without bad faith on the part of the
offeror;
(b) When the original is in the custody or under the control
of the party against whom the evidence is offered, and
the latter fails to produce it after reasonable notice, or
the original cannot be obtained by local judicial
processes or procedures;
(c) When the original consists of numerous accounts or
other documents which cannot be examined in court
without great loss of time and the fact sought to be
established from them is only the general result of the
whole;
(d) When the original is a public record in the custody of
a public officer or is recorded in a public office; and
(e) When the original is not closely-related to a controlling
issue.
MEANING OF ORIGINAL DOCUMENT
The layman’s concept refers to the original as the first one written and
from which mere copies are made, transcribed or imitated. From this
perspective, there can only be one original.
This is not, however, so. Under the Rules of Court, there are instances
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when subsequent documents are also regarded as originals. One
example is when an entry is repeated in the regular course of business,
one being copied from another at or near the time of the transaction,
all the entries are equally regarded as originals.
The writing with identical contents made by printing, mimeographing,
lithography and other similar methods executed at the same time. Thus,
each newspaper sold in the stand is an original in itself.
A signed carbon copy or duplicate of a document executed at the same
time as the original is known as a “duplicate original and may be
introduced in evidence without accounting for the non-production of the
original
Where a document is executed in duplicate or multiplicate form, each
one of the parts is primary evidence of the contents of the document,
each is deemed an original.
It is the document itself or any counterpart intended to have the same
effect by a person executing or issuing it. An original of a photograph
includes the negative or any print therefrom. If data is stored in a
computer or similar device, any printout or other output readable by
sight or other means, shown to reflect the data accurately is an original.
When the rule speaks of an original it obviously does not refer to the
original of the object evidence but an original of documentary evidence.
APPLICATION OF ORIGINAL DOCUMENT RULE
The original document rule does not apply to all types of evidence. The
rule only covers situations in which the subject of inquiry is the contents
of the document. Subject to certain exceptions, under the original
document rule, when the subject of inquiry relates to the contents of a
document, no evidence shall be admissible other than the original itself.
Where the issue is only as to whether such document was actually
executed, or existed, or on the circumstances relevant to or surrounding
its execution, the original document rule does not apply and even
testimonial evidence is admissible.
Photocopy of certain documents to prove the contents thereof violate
the original document rule. They are mere scraps of paper. Because
inquiry as to the contents of the documents is inevitable to prove the
deficiency.
When a document and its contents are the subject of the inquiry, the
original document rule applies and must, therefore, be complied with.
So long as the original is available, no other evidence can be substituted
for the original because the original is the “best evidence” and not the
mere copies or substitutes thereof.
The first step in applying the original document rule is to determine the
matter inquired into. If the inquiry involves a document and its contents
are the subject of the same inquiry, the original document rule applies
and must, therefore, be complied with.
The procedural compliance of the rule requires the presentation of the
original document, and not a copy of the document. So long as the
original is available, no other evidence can be substituted for the original
because the original is the “best evidence” and not the mere copies or
substitutes thereof.
ILLUSTRATIVE APPLICATION OF THE ORIGINAL DOCUMENT
RULE
ILLUSTRATION 1:
The lawyer wants to show that a marriage ceremony took place. When
his witness says that she was in the marriage ceremony and what
happened there, the opposing lawyer objects on the ground of the
original document rule that the marriage certificate is the best evidence
of the marriage.
Is the original document rule applicable in this case?
NO. The original document rule does not apply. The subject of the
inquiry and response in the illustration does not even involve a
document. The evidence is purely testimonial.
The illustration merely involves an inquiry into an activity that occurred
in the presence of the witness. Thus, a witness may testify as to an
event perceived. A wedding ceremony is an event or fact with an
existence independent of anything.
ILLUSTRATION 2:
The lawyer asks the witness if he sign any document after the wedding
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ceremony and opposing lawyer objects that marriage contract should be
present the marriage contract.
Is the original document rule applicable in this case?
NO. The original document rule does not apply. While it is conceded
that a document is involved in the question and response, the inquiry
involved the existence and execution of the marriage contract. The
original document rule applies only when the subject of the inquiry is
the contents of a document.
ILLUSTRATION 3:
The lawyer asks the witness what did the marriage contract contain as
to the name of the officiating priest, the opposing lawyer objected that
counsel should present the marriage contract.
Is the original document rule applicable in this case?
YES. The original document rule will apply in this illustration. The
original document rule is properly invoked. Here, the lawyer is trying to
prove some contents of the marriage contract through oral testimony
without producing the original document.
To reiterate, the original document rule applies only when the contents
of the document is the subject of inquiry. Where the issue is only as to
whether such document was actually executed or exists, the original
document rule does not apply. In fact, testimonial evidence may be
admissible.
EXCUSES FOR NOT PRESENTING THE ORIGINAL DOCUMENT
The excuses for the non-production of the original document refer to
the instances when the original does not have to be produced even
when the contents of the document are the subject of inquiry. These
instances are those mentioned in Section 3, Rule 130 of the Rules of
Court, namely:
1. When the original is lost or destroyed, or cannot be produced in
court, without bad faith on the part of the offeror;
2. When the original is in the custody or under the control of the party
against whom the evidence is offered, and the latter fails to produce
it after reasonable notice, or the original cannot be obtained by local
judicial processes or procedures;
3. When the original consists of numerous accounts or other
documents which cannot be examined in court without great loss of
time and the fact sought to be established from them is only the
general result of the whole;
4. When the original is a public record in the custody of a public officer
or is recorded in a public office; and
5. When the original is not closely related to a controlling issue
2. SECONDARY EVIDENCE
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 or her part, may prove its contents
by a copy, or by recital of its contents in some authentic
document, or by the testimony of witnesses in the order
stated.
WHEN THE ORIGINAL DOCUMENT IS LOST
Before a party is allowed to adduce secondary evidence to prove the
contents of the original document, the offeror must prove through the
testimony of his or her witnesses the following:
1. The existence or due execution of the original;
2. The loss and destruction of the original or the reason for its non-
production in court; and
3. On the part of the offeror, the absence of bad faith to which the
unavailability of the original can be attributed.
Secondary evidence, like a copy of the original, is admissible as an
exception if the original writing has been lost, destroyed, or cannot be
produced in court without bad faith on the part of the party offering the
secondary evidence.
This exception does not only cover loss or destruction but also other
reasons for the failure to produce the original in court even if the original
is not lost or destroyed, as when the original is beyond the territorial
jurisdiction of the court
Accordingly, the correct order of proof is as follows: existence,
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execution, loss and contents, although, at the sound discretion of the
court, this order may be changed if necessary.
After complying with the requirements for laying the basis for the
introduction of secondary evidence, the offeror may now be allowed to
prove the content of the documents by secondary evidence
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 the adverse party, he or she
must have reasonable notice to produce it. If after such
notice and after satisfactory proof of its existence, he or she
fails to produce the document, secondary evidence may be
presented as in the case of its loss.
ORIGINAL COPY OF THE DOCUMENT IN CUSTODY OF ADVERSE
PARTY
If the document is in the custody or under the control of the adverse
party, he or she must have reasonable notice to produce it. If after such
notice and after satisfactory proof of its existence, he or she fails to
produce the documents, secondary evidence may be presented as in the
case of its loss.
A showing that the original is in the custody or under the control of the
adverse party does not ipso facto authorize the introduction of
secondary evidence to prove its contents.
The party that seeks to present secondary evidence must first lay the
basis for its introduction. Laying the basis requires proof of the following:
1. That the original exists;
2. That said document is under the custody or control of the adverse
party;
3. That the proponent of secondary evidence has given the adverse
party reasonable notice to produce the original document; and
4. That the adverse party failed to produce the original document
despite the reasonable notice or the original cannot be obtained by
local judicial processes or procedures.
After the foundational requirements for the introduction of secondary
evidence have been complied with, secondary evidence may now be
presented as in the case of loss. This means that the contents of the
document may now be proven by a copy of the document, a recital of
its contents in some authentic document, or by the testimony of
witnesses in the order stated.
SECTION 7. Summaries. — – When the contents of
documents, records, photographs, or numerous accounts
are voluminous and cannot be examined in court without
great loss of time, and the fact sought to be established is
only the general result of the
whole, the contents of such evidence may be presented in
the form of a chart, summary, or calculation.
The originals shall be available for examination or copying,
or both, by the adverse party at a reasonable time and
place. The court may order that they be produced in court.
VOLUMINOUS DOCUMENT RULE
When the contents of documents, records, or photographs, or numerous
accounts are voluminous and cannot be examined in court without great
loss of time, and the fact sought to be established is only the general
result of the whole, the contents of such evidence may be presented in
the form of a chart, summary, or calculation.
The main reason for this exception lies in the determination by the court
that the production of the original writing and their examination in court
would result in great loss of time considering that the evidence desired
from the voluminous accounts is only the general result of the whole like
summary of accounts. The rule does away with the item-by-item court
identification of the voluminous exhibits which would only be
burdensome and tedious for the parties and the court.
For example, an account’s written summary of some 150,000 sales
invoices for goods sold by the plaintiff (complainant) may be allowed
under exception despite the objection of the defendant that the sales
invoices constitute the original documents and should be presented.
SECTION 8. Evidence admissible when original
document is a public record. – When the original of a
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 document is in the custody of a 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
DOCUMENT IS IN THE PUBLIC RECORD
There are instances when the original is a public record or is recorded
in a public office. Public records are generally not to be removed from
the places where they are recorded and kept.
For this reason, the proof of the contents of a document, which forms
part of a public record, may be done by the secondary evidence. This
evidence is a certified true copy of the original. This certified copy is to
be issued by the public officer in custody of public records.
SECTION 9. Party who calls for document not bound
to offer it. – A party who calls for the production of a
document and inspects the same is not obliged to offered
as evidence.
EFFECT OF NOT OFFERING A DOCUMENT IN EVIDENCE AFTER
INSPECTION
If a party who calls for the production of a document does not offer the
same in evidence, no unfavorable inference may be drawn from such
failure. This is because under Section 9 of Rule 130, a party who calls
for the production of a document is not required to offer it.
4. PAROL EVIDENCE RULE
SECTION 10. 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, as 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 the written agreement if he or she
puts in issue in a verified 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.
PAROL EVIDENC RULE AND ITS APPLICATION
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,
as between the parties and their successors in interest, no evidence of
such terms other than the contents of the written agreement. It forbids
or prohibits any attempt to vary, contradict, or modify the terms of a
written agreement by the use of testimonial/oral evidence. The term
agreement includes will.
The term “parol” evidence means something “oral” or verbal but, with
reference to contracts, it means extraneous evidence or evidence
aliunde. As used in the Rules of Court, the term refers not only to oral
but also to written evidence which are outside of the written contract
between the parties. The parol evidence rule becomes operative when
the issues in the litigation are terms of a written agreement.
In general, the parol evidence rule is designed to give certainty to
written transactions, preserve the reliability and protect the sanctity of
written agreement. Being the final agreement, any extraneous or “parol”
evidence is inadmissible for any modification, explanation and add to
the term of the written agreement.
The parol evidence rule, therefore, forbids any addition to or
contradiction of, the terms of a written agreement by the testimony or
other evidence purporting to show that different terms were agreed
upon by the parties.
PURPOSE OF PAROL EVIDENCE RULE
To give stability and permanence to written agreements otherwise they
can be changed anytime by mere testimony, then written agreements
would serve no useful purpose and to remove the temptation and
possibility of perjury which would be rampant if oral/parol evidence were
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allowed as a party may resort to such testimony in order to either escape
compliance with his obligation or to create fictitious terms favorable to
him.
CONTRACT AND THE PAROL EVIDENCE RULES
Among various evidentiary rules, it is the parol evidence rule that has
direct application to the law on contracts. The rule, however, applies
only to contracts that the parties have decided to set forth in writing.
Hence, when the agreement is merely oral, the parol evidence rule
should not be applied
A contract is the meeting of the mind between two or more persons.
The civil code of the Philippines does not define a contract as a
document, a deed, or as an instrument. The document, deed, or
instrument is merely the tangible evidence of a contract.
The decision of the parties to reduce the agreement in written form is
critical to the application of the parol evidence rule. When they execute
a written contract, the parol evidence rule ipso facto comes into play.
ILLUSTRATION:
Mr. seller and Mr. Buyer entered into a written contract for the sale of a
house and lot. The deed of sale mentions the balance to be payable
within 1 year from the tender of the down payment although the actual
period agreed upon orally was 2 years. The oral agreement between
them also considered the air conditioners inside each room of the house
as part of the purchase price, but this fact was inadvertently not
mentioned in the written agreement.
Under the parol evidence rule, Mr. Buyer would not be allowed to show
that the purchase price include the air conditioners and that the payment
period for the balance was 2 years. He would not be allowed to do so
because of the parol evidence rule that the only evidence of the terms
of the agreement between the parties shall be the contents of the
written agreement itself.
APPLICATION OF THE PAROL EVIDENCE RULE AND THEIR
SUCCESSOR IN INTEREST
The parol evidence rule does not apply to persons who are not parties
to a deed and do not base their claim on it. The rule that the terms of
an agreement are to be proven only by the contents of the writing itself
refers to suits between “parties and their successor in interest”
Thus, the rule does not bind suits involving strangers to the contract
and a stranger is allowed to introduce extrinsic or parol evidence against
the efficacy of the writing.
APPLICATION OF THE PAROL EVIDENCE TO WILL
The parol evidence rule applies to contractual obligations. However, by
the explicit provision of Section 9 of Rule 130, the term “agreement”
includes wills. There can, therefore, be no evidence of the terms of the
will other than the contents of the will itself.
WHEN AND HOW TO INTRODUCE PAROL EVIDENCE
The rule prohibiting parol evidence is not absolute. A party may present
evidence when he desires to modify, explain, or add to the terms of the
written agreement by putting in issue in the pleadings any of the
following:
1. An intrinsic ambiguity, mistake, or imperfection in the written
agreement;
2. The failure of the written agreement to express the true intent and
agreement of the parties thereto;
3. The validity of the written agreement; or
4. The existence of other terms agreed to by the parties or their
successors-in-interest after the execution of the written agreement.
Parol evidence rule may only be allowed if, any of the matters mentioned
is put in issue in the pleading. Without complying with the requirement,
parol evidence cannot be introduced.
ILLUSTRATION
The seller sues the Buyer for ₱300,000.00, an amount representing
unpaid balance of the price of a car bought by and duly delivered to the
buyer. Although the deed of sale stipulated a contract price of
₱700,000.00, the actual oral agreement was only for buyer to pay a
price of ₱400,000.00, an amount already paid. The amount as written
in the deed of sale was a result of mere inadvertence.
If buyer wants to prove during the trial that the true price as agreed by
the parties is ₱400,000.00, Buyer must allege in his answer to the
complaint that there was a mistake in the writing and it does not reflect
the true agreement of the parties. Such allegations would put such
matters in issue in the pleading, opening the door to the introduction of
parol evidence.
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INTRINSIC OR LATENT AMBIGUITY
Ambiguity refers to an uncertainty or doubt in the document or
something in its provisions is not clear, or of being susceptible to various
interpretations or meanings. They are either (a) latent or intrinsic (b)
patent or extrinsic and (c) intermediate ambiguity
FAILURE TO EXPRESS THE TRUE INTENT OF THE PARTIES
Another exception to the Parol Evidence Rule is the failure of the parties
to express their true intent on the agreement. When one of the parties
may ask for the reformation of the instrument to the end that such true
intention may be expressed.

Intrinsic ambiguity refers to uncertainty or doubt in the document or
something in its provisions is that not clear, or of being susceptible to
various interpretations or meanings.
The exception to the Parol Evidence Rule is limited to intrinsic and not
extrinsic ambiguity of a contract. There is latent or intrinsic ambiguity
when the writing on its face appears clear and unambiguous but there
are collateral matters or circumstances which make the meaning
uncertain, or where writing admits of two constructions both of which
are in harmony with the language used.
Reformation if instrument is the remedy in equity by means of which a
written instrument is made or construed so as to express or conform to
the real intention of the parties when some error or mistake has been
committed.
Hence, if one of the parties to a contract successfully files an action for
the reformation of instrument, he or she can introduce evidence other
than what has been appearing in their written agreement because it falls
under one of the exceptions to the Parol Evidence Rule.

For examples:
1. The donee is described as “My uncle Tom” but the donor has several
uncles named Tom
2. The thing sold is “my house and lot in Iloilo City” but the vendor has
three houses and lots in Iloilo City
3. The money shall be for the tuition fee of my son “who is enrolled in
UI-PHINMA” but it is the daughter who is enrolled in UI-PHINMA
while the son is enrolled in UP Visayas
4. The subject of the sale is the vendor’s “two-storey house in
Guimaras” but what he has in Guimaras is a grocery store and it is
his house in Antique which is two stories.
Mistake or imperfection of the writing may be a reason for the failure of
the instrument or writing to embody the intention of the parties. This
does not mean, however, that the mistake or imperfection prevented
the meeting of the minds between or among the parties. This only
means that, despite the meeting of the minds, the true agreement of
the parties is not reflected in the document or instrument.
VALIDITY OF WRITTEN AGREEMENT
The question on the validity of the written agreement of the parties is
also one of the exceptions to the Parol Evidence Rule. This applies when
the contract is considered either as voidable or void.

EXTRINSIC OR PATENT AMBIGUITY (AMBIGUITAS PATENTS)
The uncertainty is very clear and apparent on the face of the document
and can easily be seen by simply reading the terms/contents of the
document. Aside from being clear and apparent, the ambiguity is
permanent and incurable. It cannot be removed or explained even with
the use of extrinsic aids or construction or interpretation.
Patent or extrinsic ambiguity is such ambiguity that is apparent on the
face of the writing itself and requires something to be added in order to
ascertain the meaning of the words used. Extrinsic means the term
applies to the uncertainty in a contract that comes from outside the
contract.
Parol evidence is not admissible in extrinsic or patent ambiguity because
the court in admitting the same would not thereby be construing the
contract but would be creating another one between the parties.
For examples:
1. A promissory note or memorandum of indebtedness which does not
specify the amount of the obligation
2. sale of property without the property being described or
3. where the description is “one of several properties” or one of several
persons is mentioned but he is not specifically identified e.g. “I leave
my cash to my favorite son.”
INTERMEDIATE AMBIGUITY
Where the ambiguity consists in the use of equivocal
words/terms/phrases or descriptions of persons or property. Parol
evidence is admissible to ascertain which sense or meaning or
interpretation was intended by the parties.
For examples:
1. The use of the word “dollar”
2. The use of the term sugar
3. Where in a deed of mortgage it was uncertain which amount of loan
was being secured
MISTAKE IN THE WRITING
A mistake exists when a person, under some erroneous conviction of
law or fact, or omits to do, some act which, but for erroneous conviction,
he or she would not have done or omitted. It may refer to either a
mistake of fact or a mistake of law and it can be mutual. To justify
application of the exception to the Parol Evidence Rule, it is required
that the mistake be factual and mutual to the parties.
Hence, to justify the reformation of a written instrument on the ground
of mistake and in the process allowing the presentation of the particular
exception to the Parol Evidence Rule, the concurrence of three (3) things
is necessary:
9. The mistake should be of facts
10. The mistake should be mutual or common to both parties to the
instrument
11. The mistake should be alleged and proved by clear and convincing
evidence.
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Thus, those instances, the evidence presented and offered by one of the
parties to a contract that is either void or voidable is admission in
evidence.
WAIVER OF PAROL EVIDENCE RULE
The parol evidence rule can be waived by failure to invoke the benefits
of the rule. This waiver may be made by failure to object to the
introduction of evidence aliunde. Inadmissible evidence may be
rendered admissible by failure to object the parol evidence presented by
the adverse party.
PROBATIVE VALUE OF PAROL EVIDENCE
Even if parol evidence is admitted, such admission would not mean that
the court would give probative value to the parol evidence. Admissibility
is not the equivalent of probative value or credibility.
DISTINCTIONS BETWEEN ORIGINAL DOCUMENT AND PAROL
EVIDENCE RULE
The following are the distinctions between the Parol Evidence Rule and
the Original Document Rule:
1. As to the original document, the Parol Evidence Rules presupposes
availability of the original documents. On the other hand, under the
Original Document Rule, the original of the document is unavailable
2. As to the purpose of the rule, the Parol Evidence Rule disallows the
presentation of evidence that is not part of the terms of the written
agreement. The Original Documents Rule, on the other hand,
prohibits the presentation of a mere copy of the document or other
secondary evidence
3. As to the parties concerned, the Parol Evidence Rule binds only the
parties to the contract or their successor-in-interest. On the other
hand, any party, regardless of his or her participation in the
document, can invoke the Original Document Rules provided that he
or she is a party to the action.
5. INTERPRETATION OF DOCUMENT
SECTION 11. Interpretation of a writing according to
its legal meaning. – The language of a writing is to be
interpreted according to the legal meaning it bears in the
place of its execution, unless the parties intended
otherwise.
SECTION 12. Instrument construed so as to give
effect to all provisions. – In the construction of an
instrument, where there are several provisions or
particulars, such a construction is, if possible, to be adopted
as will give effect to all.
SECTION 13. Interpretation according to intention;
general and particular provisions. – In the construction
of an instrument, the intention of the parties is to be
pursued; and when a general and a particular provision are
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 inconsistent, the latter is paramount to the former. So a
particular intent will control a general one that is
inconsistent with it.
SECTION 14. Interpretation according to
circumstances. – For the proper construction of an
instrument, the circumstances under which it was made,
including the situation of the subject thereof and of the
parties to it, may be shown, so that the judge may be placed
in the position of those whose language he or she is to
interpret.
SECTION 15. Peculiar signification of terms. – The
terms of a writing are presumed to have been used in their
primary and general acceptation, but evidence is admissible
to show that they have a local, technical, or otherwise
peculiar signification, and were so used and understood in
the particular instance, in which case the agreement must
be construed accordingly.
SECTION 16. Written words control printed. – When
an instrument consists partly of written words and partly of
a printed form, and the two (2) are inconsistent, the former
controls the latter.
SECTION 17. Experts and interpreters to be used in
explaining certain writings. – When the characters in
which an instrument is written are difficult to be deciphered,
or the language is not understood by the court, the evidence
of persons skilled in deciphering the characters, or who
understand the language, is admissible to declare the
characters or the meaning of the language.
SECTION 18. Of two constructions, which preferred.
– When the terms of an agreement have been intended in
a different sense by the different parties to it, that sense is
to prevail against either party in which he or she supposed
the other understood it, and when different constructions of
a provision are otherwise equally proper, that is to be taken
which is the most favorable to the party in whose favor the
provision was made.
SECTION 19. Construction in favor of natural right.
– When an instrument is equally susceptible of two (2)
interpretations, one (1) in favor of natural right and the
other against it, the former is to be adopted.
SECTION 20. Interpretation according to usage. – An
instrument may be construed according to usage, in order
to determine its true character.
INTERPRETATION OF CONTRACTS
Rules for the interpretation of contracts are provided by Articles 1370-
1379 of the Civil Code of the Philippines.
For the rules on the interpretation or construction of wills, refer to
Articles 788 to 794 of the Civil Code of the Philippines.
C. TESTIMONIAL EVIDENCE
NATURE OF TESTIMONIAL (ORAL EVIDENCE)
All persons who can perceive and perceiving, can make known their
perception to others, may be witness. Hence, it is not only important
that a witness can perceive; it is also important that a witness can
convey to others what he or she has perceived before he or she can
qualify as a witness.
But not all persons who can perceive and can make known their
perception to others can testify in court. Another qualification provided
by the Rules on Evidence is that a witness can testify only those facts
which he or she knows of his or her personal knowledge which are
derived from his or her own perception.
Thus, if the foregoing requirements are satisfied, a person can testify
regardless of religious or political belief, interest in the outcome of the
case, or conviction of a crime, unless otherwise provided by law, shall
not be a ground for disqualification.
Testimonial or oral evidence is evidence elicited from the mouth of a
witness as distinguished from object and documentary evidence. It
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sometimes called viva voce evidence which literally means “living voice”
or by word of mouth. In this kind of evidence, a human being is called
to the stand, is asked questions, and answers the questions asked of
him. The person who gives the testimony is called a “witness”
Recall that competent evidence means evidence that is not excluded by
the law or rules. It, therefore, means the eligibility of an evidence to be
admitted by the court. When applied to a witness, competence means
that the witness is qualified to take the stand and testify.
If the witness has no personal knowledge of an event, he is incompetent
to testify. Competence of a witness therefore refers to his personal
qualifications to testify. Competence also includes the absence of any
factor that would disqualify him from being a witness.
A prospective witness must show that he has the following abilities:
1. To Observe – the testimonial quality of perception;
2. To Remember – the testimonial quality of memory;
3. To Relate – the testimonial quality of narration; and
4. To Recognize a duty to tell the truth – the testimonial quality
of sincerity.
A. QUALIFICATION OF WITNESS
SECTION 21. Witnesses; their qualifications. – All
persons who can perceive, and perceiving, can make known
their 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 a ground for disqualification.
WITNESS DEFINED
A witness is a natural person who testifies in a case or one who gives
oral evidence under oath before a judicial tribunal.
QUALITIES OF A WITNESS
1. Testimonial Quality of Perception
a. Capacity to perceive means to be able to observe using the
senses including the ability to receive impressions from the
outside world and to grasp or understand these impressions.
b. This must exist at the time of the occurrence of the event to
which the witness is testifying even if it is lost at the time of
testifying.
2. Testimonial Quality of Memory
a. The ability to retain the impressions received or observations
made and to recollect them in court
b. This must exist at the time of testifying
c. Selective memory or lapses in memory affect merely
credibility
3. Testimonial Quality of Narration or Communication
a. The ability to interpret, explain, relate, or communicate in a
manner which can be understood by the court, either through
spoken words, writings, or sign language.
b. It must exist at the time of testifying
4. Testimonial Quality of Sincerity
a. The awareness of both a duty to tell the truth and to be liable
in case of intentional lies, or the recognition of the obligation
of an oath
b. The willingness to be placed under oath or affirmation
PRESUMPTION IN FAVOR OF THE COMPETENCE OF A WITNESS
Generally, a person who takes the stand as a witness is presumed to be
qualified. A party who desires to question the competence of a witness
must do so by making an objection as soon as the facts tending to show
incompetency are apparent.
QUALIFICATION OF WITNESS
1. He can perceive
2. He can make known his perception to others
Additional qualification of a witness
3. He must take an oath or an affirmation
4. He must not possess any of the disqualification imposed by law,
Constitution, or the rules.
OATH OR AFFIRMATION
The willingness 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 refuses to swear or make an affirmation.
An oath or affirmation is necessary for the witness to recognize the duty
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to tell the truth. The oath of a witness signifies that he is swearing to
the Creator “to tell the truth and nothing but the truth” and that if he
does not, he will later on answer for all the lies he is guilty of.
Not all may want to take an oath for reasons of religion or lack of it.
Thus, the rule in the Philippine jurisdiction affords the courts the
flexibility to deal with those who refuse to being sworn by requiring the
witness to make an affirmation instead of an oath.
ABILITY TO PERCEIVE
A witness must be able to perceive an event. Thus, it would be absurd
to ask a blind what he saw or a deaf person what he heard.
The capacity to perceive is the requirement that the witness must have
personal knowledge of the facts surrounding the subject matter of his
testimony.
Corollary is the requirement that the witness must have personal
knowledge of the facts surrounding the subject matter of his testimony.
A witness can testify only to those facts which he knows of his personal
knowledge.
When the witness takes an oath or an affirmation to tell the truth, he
cannot live up to that oath or affirmation without his ability to show that
his testimony is based on his personal knowledge. Without this personal
knowledge, the witness lacks the competence to testify.
ABILITY TO MAKE KNOWN PERCEPTION TO OTHERS
The ability of the witness to make known his perception to the court
involves two factors:
1. Ability to remember what has been perceived; and
2. Ability to communicate the remembered perception.
It is of the common reason to realize that a witness is presented to
testify on a matter he has perceived. If he cannot remember what he
perceived, he cannot be a competent witness.
Deaf-mutes are not necessarily incompetent as witnesses. They are
competent where they can:
1. Understand and appreciate the sanctity of an oath;
2. Comprehend facts they are going to testify to; and
3. Communicate their ideas through a qualified interpreter.
RULE ON EXAMINATION OF A CHILD WITNESS (A.M. 004-07-
SC)
CHILD WITNESS; MEANING
A “child witness” is any person who, at the time of giving testimony, is
below the age of eighteen (18) years. In child abuse cases, a child
includes one over 18 years old but is found by the court as unable to
fully take care of himself or protect himself from abuse, neglect, cruelty,
exploitation, or discrimination because of a physical or mental disability
or condition.
That the witness is a child cannot be the sole reason for disqualification.
The dismissiveness with which the testimonies of child witness were
treated in the past has long been erased. Under the Rule on Examination
of a Child Witness (A.M. No. 004-07-SC), every child is now presumed
qualified to be a witness.
COMPETENCY OF A CHILD WITNESS; PRESUMPTION
Every child is presumed qualified to be a witness. This is the
presumption established by the Rule on Examination of a Child Witness
and to rebut the presumption of competence enjoyed by a child. The
burden of proof lies on the party challenging his competence.
When the court finds that substantial doubt exists regarding the ability
of the child to perceive, remember, communicate, distinguish truth from
falsehood, or appreciate the duty to tell the truth in court, the court shall
conduct a competency examination of the child. The court may do so on
its own initiative (motu proprio) or the motion of a party
A party who seeks a competency examination must present proof of
necessity grounded on reasons other than the age of the child
The competency examination of a child witness is not open to the public.
Only the following are allowed to attend the examination:
1. The judge and necessary court personnel;
2. The counsel of the parties;
3. The guardian ad litem;
4. One or more support persons for the child; and
5. The defendant, unless the court determines the competence can be
fully evaluated in his absence.
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The competency examination of the child shall be conducted only by the
judge. If the counsel of the parties’ desire to ask questions, they cannot
do so directly. Instead, they are allowed to submit questions to the judge
which he may ask the child in his discretion. The question shall not be
related to the issues at the trial but shall focus on the ability of the child
to remember, communicate, distinguish between truth and falsehood
and appreciate the duty to testify truthfully.
The assessment of the competency of the child is designed to be a
continuing one. The court has the duty of continuously assessing the
competence of the child through his testimony.
The court may order that the testimony of the child be taken by live-link
television or any on-line platform if there is 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. The trauma
must be of a kind which would impair the completeness or truthfulness
of the testimony of the child.
SECTION 22. Testimony confined to personal
knowledge. – A witness can testify only to those facts
which he or she knows of his or her personal knowledge;
that is, which are derived from his or her own perception
TESTIMONIAL KNOWLEDGE
A witness can testify only to those facts which he knows of his personal
knowledge. Those which are derived from his own perception, except
as otherwise provided in these rules.
Thus, the testimony of a witness regarding a statement made by another
person, if intended to establish the truth of the facts asserted in the
statement is clearly hearsay evidence. The statement made by another
person is not confined with the personal knowledge of the witness.
The testimony of a witness on the confession made to him by the
accused is not hearsay. In this case, the witness is testifying to a fact
which he knows of his personal knowledge based on the confession of
the accused and not to the truth of the statement of the accused.
DISQUALIFICATION OF WITNESS
There are persons who, despite having the qualifications to become a
witness, i.e., can perceive and can make known their perception to
others or have personal knowledge of the event, are still disqualified to
testify. Their disqualification to testify is based on public policy or the
information that they received is considered privileged. Thus, the
following persons are therefore disqualified to become a witness:
1. Those who are disqualified by reason of marriage; and
2. Those who are disqualified by reason of privileged communication
such as:
a. Marital Privilege Rule
b. Attorney-Client Privilege Rule
c. Those received by a Physician or Psychotherapist in
confidence
d. Those confidence obtained by a minister or priest
e. Confidence obtained by a public officer
SECTION 23. Disqualification by reason of marriage.
– During their marriage, the husband or the wife cannot
testify against the other without the consent of the affected
spouse, except in a civil case by one against the other, or
in a criminal case for a crime committed by one against the
other or the latter’s direct descendants or ascendants.
1. DISQUALIFICATION BY REASON OF MARRIAGE (MARITAL
DISQUALIFICATION RULE)
During the marriage, the husband or the wife cannot testify against the
other without the consent of the affected spouse, except in a criminal
case for a crime committed by one against the other or the crime against
direct descendants or ascendants or in a civil case by one against the
other.
The reason for the rule forbidding one spouse to testify against the other
is to foster family peace not only for its own benefit but for the benefit
of the public as well.
The rule is also based on the common-law doctrine that husband and
wife are but one person, and consequently, their interests are identical,
and partly upon the ground that public policy demands that those living
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in the marriage relationship should not be compelled or allowed to
betray the mutual trust and confidence which such relation implies.
But in order that the Marital Disqualification Rule to apply, it is necessary
that the marriage is valid and existing at the time of the offer of
testimony.
EXCEPTION TO THE DISQUALIFICATION BY REASON OF
MARRIAGE (MARITAL DISQUALIFICATION RULE)
The rule that the husband or the wife cannot be examined against his
or her other spouse without his or her consent recognizes the following
exception:
1. The case in which the husband or the wife is called to testify is a
civil case instituted by one against the other.
2. It is a criminal case for a crime committed by one against the other
or the latter’s direct ascendants or descendants.
The reason for the rule is because the identity of interest disappears and
the consequent danger of perjury based on that identity is non-existent.
In order for a spouse to be allowed to testify against the other in a civil
case, the case must be a “civil case by one against the other”. Thus, if
the wife is sued for adultery, the husband cannot be barred or prevented
from testifying against the wife. Also, in a suit for annulment of
marriage, each spouse can testify against each other. Marital
disqualification rule does not apply when the husband sued by the wife
for bigamy.
all the accused?
ANSWER:
As far the accused husband is concerned, the testimony of the wife must
be disregarded since the husband timely objected thereto under the
marital disqualification rule. The case does not involve between direct
descendants or ascendants. However, the wife could testify against the
brother of her husband in a parricide case.
ILLUSTRATION No. 3
Gizelle was estranged from her husband Mico for more than a year.
Gizelle was temporarily living with her sister in Pasig City. For unknown
reasons, the house of Ivy’s sister was burned, killing the latter. Gizelle
survived.
Gizelle saw her Mico in the vicinity during the incident. Later, Mico was
charged with arson. During the trial, the prosecutor called Gizelle to the
witness stand and offered her testimony to prove that her husband
committed arson. Can Gizelle testify over the objection of her husband
on the ground of marital privilege?
ANSWER:
Yes. The marital disqualification rule is aimed at protecting the harmony
and confidence of marital relations. Hence, where the marital and
domestic relations are so strained that there is no more harmony to be
preserved nor peace and tranquility which may be disturbed, the marital
disqualification no longer applies.

The rule is different in a criminal case. In a criminal case, the privilege
of one to testify against the other is not confined to crimes committed
by one against the other. But covers crimes committed by one against
the other’s direct descendants or ascendants of the latter like the other’s
children or parents. However, crimes committed by the spouse against
other spouse collateral relatives like uncles, aunties, cousins or
nephews, and nieces are not covered by the exception because they are
neither direct ascendants nor descendants.
Thus, the rule does not preclude the wife from testifying when it involves
other parties or accused. Hence, the wife could testify in the murder
case against the brother who were jointly tried with her husband
TESTIMONY BY THE ESTRANGE SPOUSE
Like the rule itself, the exceptions are backed by sound reasons, which,
in exceptional cases, outweigh those in support of the general rule.
The act of Mico in setting fire to the house of his sister-in-law, knowing
that his wife was there, is an act totally alien to the harmony and
confidences of marital relation which the disqualification primarily seeks
to protect. The criminal act complained of had the effect of directly and
vitally impairing the conjugal relation.
WAIVER TO THE DISQUALIFICATION BY REASON OF
MARRIAGE (MARITAL DISQUALIFICATION RULE)
Like any other right, one spouse’s right to object to the qualification of
his or her spouse to testify can be waived in the following instances:
1. The accused is deemed to have his or her privilege by calling the
other spouse as a witness for him or her, thereby making the spouse
subject to cross-examination in the usual manner.
2. It can also be waived by failure of the spouse to object to the
competency of his or her spouse to testify when the latter’s
testimony is offered.

For instance, where the marital and domestic relations are so strained
that there is no more harmony to be preserved nor peace and tranquility
fails. In such a case, identity of interests disappears and the consequent
danger of perjury based on that identity is non-existent. Likewise, in
such a situation, the security and confidence of private life, which the
law aims at protecting, will be nothing but ideals, which through their
absence, merely leave a void in the unhappy home.
SAMPLE ILLUSTRATION
ILLUSTRATION No. 1
Before the marriage of Wife to Husband, Wife witnessed the murder of
X by Husband but she never reported what Wife witnessed to the
authorities. A year after the murder, Husband and Wife married. Barely
six months after the marriage, Wife became a battered wife and to get
even with Husband, Wife decided to report the murder to the police.
(a) May Wife testify against Husband over the objection of
Husband even if the murder took place before the marriage?
(b) Suppose a year after the marriage, the marriage is annulled,
may Wife now testify despite the objection of Husband?
ANSWER:
(a) Wife cannot testify over the objection of Husband. The
situation is covered by the marital disqualification rule
(b) Wife can testify after the marriage is annulled. The prohibition
no longer applies since the testimony is to be offered after, not
during the marriage.
Be it noted that the affected spouse or the spouse against whom the
testimony is offered has the right to object the competency of the
spouse-witness. However, when there is no objection is interposed by
the affected spouse, the benefit of the rule was waived and may be
done so impliedly or expressly and therefore, the testimony is
admissible.
ILLUSTRATION No. 2
The husband and his brother were jointly accused with parricide for the
allege killing of their own father. One of the witnesses presented is the
wife of the accused husband. May the wife testify in the court against
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SECTION 24. Disqualification by reason of privileged
communications. – The following persons cannot testify
as to matters learned in confidence in the following cases:
(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.
(b) An attorney or person reasonably believed by the
client to be licensed to engage in the practice of law
cannot, without the consent of the client, be examined
as to any communication made by the client to him or
her, or his or her advice given thereon in the course
of, or with a view to, professional employment, nor can
an attorney’s secretary, stenographer, or clerk, or
other persons assisting the attorney be examined,
without the consent of the client and his or her
employer, concerning any fact the knowledge of which
has been acquired in such capacity, except in the
following cases:
A. 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;
B. Claimants tough 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;
C. 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;
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 D. Document attested by the lawyer. As to a
communication relevant to an issue concerning
an attested document to which the lawyer is an
attesting witness; or
E. Joint clients. As to a communication relevant to a
matter of common interest between two [(2)] or
more clients if the communication was made by
any of them to a lawyer retained or consulted in
common, when offered in an action between any
of the clients, unless they have expressly agreed
otherwise
(c) 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.
A “psychotherapist” is:
(a) A person licensed to practice medicine engaged
in the diagnosis or treatment of a mental or
emotional condition, or
(b) A person licensed as a psychologist by the
government while similarly engaged.
(d) A minister, priest or person reasonably believed to be
so cannot, without the consent of the affected person,
be examined as to any communication or confession
made to or any advice given by him or her, in his or
her professional character, in the course of discipline
enjoined by the church to which the minister or priest
belongs.
(e) 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.
The communication shall remain privileged, even in the
hands of a third person who may have obtained the
information, provided that the original parties to the
communication took reasonable precaution to protect
its confidentiality
2. DISQUALIFIACTION BY REASON OF PRIVILEGE
COMMUNICATION
A. MARITAL PRIVILEGE COMMUNATION RULE
The Rules state the Marital Privilege Rule provides that the husband or
the wife 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 civil cases 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 purpose of the rule is to protect the accused person against
statements made in confidence engendered by the marital relation and
to relieve the husband or wife to whom such confidential
communications might have been made from the obligation of revealing
them to the prejudice of the other spouse.
But before the disqualification by reason of marital privilege to apply, it
requires that there must have the following elements:
1. There must be a valid marriage between the husband and the wife
2. There is communication received in confidence by one from the
other; and
3. The confidential communication was received during the marriage
The ensure the absolute freedom of communication between the
spouses by making it privilege. Neither the husband nor the wife may
be examined without the consent of the other as to any communication
received in confidence by one from the other during the marriage, save
for specified exceptions.
WAIVER TO THE MARITAL PRIVILEGE RULE
The marital privilege rule, being a rule of evidence, may be waived by
failure of the claimant to object timely to its presentation or by any
conduct that may be construed as implied consent.
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Since the application of the rule requires confidential received by one
spouse from the other during the marriage, information acquired by a
spouse before the marriage, even if received confidentially, will not fall
squarely with the provision.
However, divulging the same may be objected to under the Spousal
Immunity Rule upon proper objection as long as the information is
sought to be revealed during the marriage thorough a testimony against
the affected spouse.
Notes that Marital Privilege requires that the information received in
confidence during the marriage between the husband and the wife. The
implication is clear; confidential information received from a third person
is not covered by the privilege
For the information to be confidential, it must be made during and by
reason of marital relations and is intended not to be shared with others.
Without such intention, common reason suggests that the information
is not confidential
DISTINCTIONS BETWEEN THE MARITAL DISQUALIFICATION
RULE AND MARITAL PRIVILEGE RULE
The distinctions between the two are the following:
1. In the marital disqualification rule, the subject of the prohibition is
anything; while in the Marital Privilege Rule, the subject of the
prohibition is any communication made in confidence by one against
the other.
2. In the marital disqualification rule, the disqualification exists only
during the time of the marriage; while in the Marital Privilege Rule,
the prohibition exists even after the marriage provided that the
privileged communication is made during the validity of the
marriage.
B. ATTORNEY CLIENT PRIVILEGE
An attorney or person reasonable 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 an
attorney or the advice given to client in the course of professional
employment, nor can an attorney’s secretary, stenographer, or clerk, or
other persons assisting the attorney without the consent of the client
and his or her employer, concerning the fact the knowledge of which
has been acquired in such capacity.
Before the privilege communication can be invoked on the basis of
attorney-client privilege the following requisites must be present:
1. A person is authorized to practice law or reasonably believed by
the client to be authorized to engage in the practice of law
2. The client must have given information, or the lawyer, or the
one reasonably believed by the client to be engaged in the
practice of law must have given advice, in the course of or with
the view to a lawyer-client relationship.
This public policy is also the very why a lawyer is also enjoined to
maintain inviolate the confidence, and at every peril to himself or herself,
to preserve the interests of his or her client. A lawyer is also expected
to preserve the confidences and secrets of his or her client even after
the termination of attorney-client privilege.
EXCEPTIONS TO THE ATTORNEY-CLIENT PRIVILEGE
Attorney-client privilege is not absolute. Like any other kind of privileged
communication, the attorney-client privilege is subject to the following
exceptions:
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.
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
3. Breach of duty by Lawyer or Client – as to communication
relevant to an issue or breach of duty by the lawyer to his or her
client, or by the client to his or her lawyer.
This particular exception to the attorney-client privilege is meant to
strengthen the claim that a client can make against his or her
lawyer, usually in cases of professional malpractice or negligence
such as disbarment proceedings and criminal and civil cases in
relation to this or her performance of duties as a member of the bar.
4. Document attested by the lawyer – as to a communication
relevant to an issue concerning an attested document to which the
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 lawyer is an attesting witness.
5. Joint client – as to 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.
C. PHYSICIAN-PATIENT PRIVILEGE
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.
The purpose of the physician-patient privilege is to encourage the
patient to make full disclosure to the physician of all facts which are
requisite to enable the physician to prescribe and administer proper
treatment by removing fear of the publication of such facts on the
witness stand. Also, to prevent the disclosure of that which may be
humiliating, embarrassing, or degrading to the patient.
PSYCHOTHERAPIST-PATIENT PRIVILEGE
A psychotherapist is a person licensed to practice medicine engaged in
the diagnosis or treatment of a mental or emotional condition or a
person licensed as a psychologist by the government while similarly
engaged as such a psychologist.
The psychotherapist has a special need to maintain confidentiality. His
or her capacity to held his or her patients is completely dependent upon
their willingness and ability to talk freely. Confidentiality is a condition
sine qua non for a successful psychiatric treatment.
EXCEPTION TO THE PHYSICIAN-PATIENT PRIVILEGE
The privilege does not apply to shield the commission of a crime or when
the purpose is unlawful one as to obtain narcotics or prohibited drugs in
violation of law because there is no treatment involved.
Similarly, where the purpose is to ask a physician to have one’s
appearance disguised by cosmetic or plastic surgery to escape
apprehension, the privilege does not apply.
D. PRIEST (CLERGY) – PENITENT PRIVILEGE
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.
The person making the confession holds the privilege, and the priest or
minister hearing the confession in his professional capacity is prohibited
from making a disclosure of the confession without the consent of the
person confessing.
The privilege also extends not only to a confession made by the penitent
but also to any advice given by the minister or priest. The confession
and the advice must be made or given pursuant to the course of
discipline of the denomination or sect to which the minister or priest
belongs. Thus, the minister or priest must be duly ordained or
consecrated by the sect.
EXCEPTION TO THE PRIEST/MINISTER-PENITENT PRIVILEGE
Not every communication made to a minister or priest is privileged. The
communication must be made pursuant to confessions of sins.
Accordingly, where the penitent discussed business arrangement with
the priest, the privilege does not apply. The advice given is not a result
of the confession made in the minister’s “professional character or his
spiritual capacity.
E. CONFIDENTIAL INFORMATION OBTAINED BY PUBLIC
OFFICER
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.
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The privilege may be invoked not only during the term of office of the
public officer but also afterward or after the tenure of office of the public
officer.
There is a need to balance the constitutional right of every citizen to
information on matters of public concern and the right of the State to
keep such information that is considered necessary for national security
or public interest. National security matters and State secrets are
confidential and a court will most likely uphold the privilege. A society
may not always be able to conduct its business with total openness and
matters affecting national interest must not be divulged.
PRIVILEGE COMMUNICATION IN THE HANDS OF THIRD
PERSON
Even if the communication is later obtained or overheard by a third
person, the communication shall remain privileged, even in the hands of
a third person who may have obtained the information, provided that
the original parties to the communication took reasonable precautions
to protect its confidentiality.
EXECUTIVE PRIVILEGE; PRESIDENTIAL COMMUNICATION
PRIVILEGE
The privilege has been described as “the power of the government to
withhold information from the public, the courts and the Congress. The
court acknowledged that there are certain types of information which
the government may withhold from the public like military, diplomatic
and national security secrets.
OTHER WITNESSES NOT BE COMPELLED TO TESTIFY
The following may NOT be compelled to testify as witnesses:
1. The President while in Office
2. Justices of the Supreme Court
3. Members of Congress while Congress is in Session
4. Foreign Ambassadors to the Philippines
5. Consuls and other foreign diplomatic officials if exempted by a treaty
6. The accused in a criminal case
SECOND PERIODIC COVERAGE
TESTIMONIAL PRIVILEGE
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.
TESTIMONIAL PRIVILEGE
There are kinds of communications which, although does not disqualify
a person concern to testify, he or she cannot be compelled to testify on.
They are called testimonial privilege, that is, the discretion to testify is
on the person holding such kinds of information. These are:
1. Parental and Filial Privilege
2. Privilege Relating to Trade Secrets.
PARENTAL AND FILIAL PRIVILEGE
The two privileges are embodied in Section 25 of Rule 130 of the Rules
of Court, namely:
1. The parental privilege rule – a parent cannot be compelled to testify
against his child or other direct descendants
2. The filial privilege rule – a child may not be compelled to testify
against his parent or other direct ascendants
Thus, a stepmother can be compelled to testify against stepdaughter,
they have no common ancestry, privilege applies only to direct
ascendants and descendants
This rule is based on consideration of the solidarity of the Filipino family
and the traditional Filipino respect for his or her ancestors, for the
absence of this rule would certainly do violence to the most sacred
sentiments by the members of the same family.
The privilege is not strictly a rule on disqualification because a
descendant is not incompetent or disqualified to testify against an
ascendant. This refers to a privilege not to testify which can be invoked
or waived like other privileges.
A person, however, may testify against his parents or children voluntarily
but if refuses to do so, the rule protects him from compulsion. The rule
applies to both criminal and civil cases since the rule makes no
distinction.
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Under the Family Code of the Philippines, no descendant shall be
compelled, in a criminal case, to testify against his parents and
grandparents. However, the descendant may be compelled to give the
testimony in the following instances:
1. When such testimony is indispensable in a crime committed against
said descendant, or
2. In a crime committed by one parent against the other.
SECTION 26. Privilege relating to trade secrets. – A
person cannot be compelled to testify about any trade
secret unless the non-disclosure will conceal fraud or
otherwise work injustice. When disclosure is directed the
court shall take such protective measure as the interest of
the owner of the trade secret and of the parties and the
furtherance of justice may require
PRIVILEGE RELATING TO TRADE SECRETS
A trade secret is defined as a plan or process, tool, mechanism, or
compound known only to its owner and those of his employees to whom
it is necessary to confide.
The definition was held to extend to a secret formula or process not
patented, but known only to the certain individual using it in
compounding some article of trade having a commercial value.
Trade secrets may consist of any formula, pattern, device, or
compilation of information that is used in one’s business, and gives the
employer an opportunity to obtain an advantage over competitors who
do not possess the information
The trade secrets are of privileged nature are beyond quibble. A person
cannot be compelled to testify about any trade secret unless the non-
disclosure will conceal fraud or otherwise work injustice.
OTHER PRIVILEGE COMMUNICATIONS NOT FOUND IN THE
RULES OF COURT
There are other privilege matters that are not mentioned in the Rules of
Court, among them are the following:
1. Journalist source privilege (RA 1477, as amended by RA 11458).
2. Editors, publishers, or duly accredited reporters may not be
compelled to disclose the source of public news.
3. Voters may not be compelled to disclose for whom they voted;
4. Information contained in tax census returns.
5. Bank deposits are confidential in nature except upon written
permission of the depositor, in cases of impeachment, or upon
lawful order of a competent court (R.A. 1405, Bank Secrecy Law).
6. Informers, for the protection of their identity, cannot be compelled
to testify by the prosecutor when their testimony would merely be
cumulative and corroborative
ADMISSIONS AND CONFESSIONS
SECTION 27. Admission of a party. – The act,
declaration, or omission of a party as to a relevant fact may
be given in evidence against him or her.
CONCEPT OF ADMISSION
Admission is an act, declaration, or omission of a party as to a relevant
acknowledgment made by a party of the existence of the truth of certain
facts which are inconsistent with his claims in an action.
An admission is any statement of fact made by a party against his
interest or unfavorable to the conclusion for which he contends or is
inconsistent with the facts allegedly by him.
CLASSIFICATION OF ADMISSION
An admission may be express or implied, judicial, or extrajudicial.
An express admission is a positive statement or act. It is made in a
definite, certain, and unequivocal language
An implied admission is one which may be inferred from the declarations
or acts of a person. Those that may be inferred from the act, conduct,
declaration, silence or omission of a party.
An admission is judicial when made during a judicial proceeding. Judicial
admissions are 2 kinds either formal or those made in writing or informal
or those made orally
An admission is extrajudicial when made outside of the court statement
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or even in a proceeding other than the one under consideration.
EFFECT OF ADMISSION
The act, declaration, or omission of a party as to a relevant fact may be
given in evidence against him. The rule is based on the notion that no
man would make any declaration against himself, unless it is true.
SECTION 28. Offer of compromise not admissible. –
In civil cases, an offer of compromise is not an admission of
any liability and is not admissible in evidence against the
offeror. Neither is evidence of conduct nor statements made
in compromise negotiations admissible, except evidence
otherwise discoverable or offered for another purpose, such
as proving bias or prejudice of a witness, negativing a
contention of undue delay, or proving an effort to obstruct
a criminal investigation or prosecution.
In criminal cases, except those involving quasi-offenses
(criminal negligence) or those allowed by law to be
compromised, an offer of compromise by the accused may
be received in evidence as an implied admission of guilt.
A plea of guilty later withdrawn or an unaccepted offer of a
plea of guilty to a lesser offense is not admissible in
evidence against the accused who made the plea or offer.
Neither is any statement made in the course of plea
bargaining with the prosecution, which does not result in a
plea of guilty or which
results in a plea of guilty later withdrawn, admissible.
An offer to pay, or the payment of medical, hospital or other
expenses occasioned by an injury is not admissible in
evidence
as proof of civil or criminal liability for the injury.
OFFER OF COMPROMISE
Compromised is a contract whereby the parties, by making reciprocal
concessions, avoid a litigation or put an end to one already commenced.
A. OFFER OF COMPROMISE IN CIVIL CASES
In civil cases, an offer of compromise is not an admission of any liability
and is not admissible in evidence against the offeror.
The rule is not absolute, if a party denies the existence of debt but offers
to pay the same for the purpose of buying peace and avoiding litigation,
the offer of settlement is inadmissible.
If in the course, the party making the offer admits the existence of an
indebtedness combined with a proposal to settle the claim amicably,
then, the admission is admissible to prove such indebtedness.
OFFER TO PAY THE PAYMENT OF MEDICAL, HOSPITAL, OR
OTHER EXPENSES
An offer to pay or the payment of medical, hospital or other expenses
occasioned by an injury is not admissible in evidence as proof of civil or
criminal liability for the injury.
The act of rendering aid is sometimes called the “good Samaritan rule”.
The phrase is used to refer to the rendering of voluntary aid to a
suffering person.
B. OFFER OF COMPROMISE IN CRIMINAL CASES
An offer of compromise by the accused may be received in evidence as
an implied admission of guilt.
For example, although the marriage of the accused in a rape case
extinguishes the penal action, an offer of marriage is an admission of
guilt.
Act of pleading for forgiveness, through letters from detention,
analogous to an attempt to compromise. Offer must be made under a
consciousness of guilt, NOT merely to avoid the inconvenience of
imprisonment.
Not admissible in evidence against the accused who made a plea of
guilty later withdrawn or an unaccepted offer of a plea of guilty to a
lesser offense, or any statement during plea bargaining and no guilty
plea results or plea of guilty later withdrawn.
SECTION 29. Admission by third party. – The rights of
a party cannot be prejudiced by an act, declaration, or
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 omission of another, except as hereinafter provided.
ADMISSION BY A THIRD PARTY
On the principle of good faith and mutual convenience, a man’s own
acts are binding upon himself and are evidence against him. So are his
conduct and declarations.
It would not only be rightly inconvenient, but also manifestly unjust, that
a man should be bound by the acts of mere unauthorized strangers; and
if a party ought not to be bound by the acts of the stranger, neither
ought their acts or conduct be used as evidence against him.
THE RULE ON RES INTER ALIOS ACTA
The expression if fully express reads: res inter alios acta alteri nocere
debet which literally means that “things done between strangers ought
not to injure those who are not parties to them”.
The rule of res inter alios acta states that the right of a party cannot be
prejudiced by an act, declaration, or omission of another.
The res inter alios acta rule has two (2) branches, namely:
1. The rights of a party cannot be prejudiced by an act, declaration, or
omission of another
2. The evidence of previous conduct or similar acts at one time is not
admissible to prove that one did or did not do the same act at
another time.
FIRST RULE ON RES INTER ALIOS ACTA
The first branch is a very simple and logical rule which holds that
whatever one says or does or omits to do should only affect him and
should not affect or prejudice others.
In other words, both common reason and fairness demand that a man’s
actions and declarations should affect him alone and should not affect
others.
ILLUSTRATION: If X makes a statement before the media admitting
his participation in a previous murder, his statement is admissible
against him. The rest of his statement pointing to Y and Z as co-
participants in the murder are not admissible against Y and Z under the
first branch of the res inter alios acta rule. Under the rule, the statement
of X should not affect or prejudice Y and Z.
The rule has reference only to extrajudicial declarations. Hence, an
admission made in judicial proceedings by a witness implicating person
is admissible as a declaration from one who has personal knowledge of
the facts testified to.
The rule on res inter alios acta provides that the rights of a party cannot
be prejudiced by an act, declaration, or omission of another.
Consequently, an extrajudicial confession is binding only on the
confessant, is not admissible against his or her co-accused and is
considered as hearsay against them.
An exception to the res inter alios acta rule is an admission made by a
conspirator. This rule prescribes that the act or declaration of the
conspirator relating to the conspiracy and during its existence may be
given in evidence against co-conspirators provided that the conspiracy
is shown by independent evidence aside from the extrajudicial
confession.
There are however exceptions to the rule. The exceptions are the
following:
1. Admission by a co-partner or agent;
2. Admission by a co-conspirator;
3. Admission by privies; and
4. Admission by silence
The basis for admitting the above admission is that the person making
the statement is under the same circumstances as the person against
whom it is offered. Such circumstances give him substantially the same
interest and the same motive to make a statement about certain
matters.
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
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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-PARTNER OR AGENT
An agent performs some service in representation of or on behalf of his
principal. In legal contemplation, a mere extension of the personality of
the principal and unless the agent acts in his own name, the principal
must comply with all the obligations which the agent may have
contracted within the scope of his authority.
Hence, whatever is said by an agent to a third person, during the agency
and within the scope of his actual or apparent authority, relative to the
business contemplated by the agency is, for legal purposes, also the
statement of the principal and is, therefore, admissible against said
principal.
Thus, the elements that must be present before the admission by a
partner or agent be used as evidence against the other co-partner or
agent are the following:
1. The declaration, statement or act of the partner or agent must be
made during the existence of a partnership or agency;
2. The declaration or act of the partner or agent be within the scope
of his or her authority or in case of the agent, must be authorized
by the principal to make a statement concerning the subject; and
3. The partnership or agency must also be shown by evidence other
than such act or declaration.
This rule on admission by a co-partner or agent extends to the act or
declaration of a joint owner, joint debtor, or other person jointly
interested with the party.
Any declaration made before the partnership or agency existed, or those
made after are not admissible against the other partners of the principal
but remain admissible against the partner or agent making the
declaration.
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.
ADMISSION BY CO-CONSPIRATOR
A conspiracy exists when two or more persons come to an agreement
concerning the commission of a felony and decide to commit it. Once
the conspiracy is proven, the act of one is the act of all.
The statement, therefore, one may be admitted against the other co-
conspirators, the responsibility is collective rendering them all equally
liable regardless of the extent of their participations.
For the admission by the co-conspirator to be admissible, the following
requisites must concur:
1. The declaration or act be made or done during the existence of the
conspiracy;
2. The declaration or act must relate to or in furtherance of the
conspiracy; and
3. The conspiracy must be shown by evidence other that such
declaration or act.
An extra-judicial confession is binding only upon the confessant and not
admissible against his co-accused. However, if the declarant/admitter
repeats in court his extra-judicial confession during trial and the other
accused is accorded the opportunity to cross-examine the admitter, such
confession or admission is admissible against both accused
When extrajudicial admission of a conspirator is confirmed at the trial,
it ceases to be hearsay. It becomes, instead, a judicial admission, being
a testimony of an eye-witness admissible in evidence against those he
implicates.
Also, if the statement relating to the conspiracy was made by a
conspirator during the existence of the conspiracy, for the statement to
be admitted, the extra-judicial statements of the co-conspirator must be
proven by evidence other than such admission.
If the only evidence of the conspiracy is the extra-judicial declaration of
the declarant, the statements are not admissible against the other
ILLUSTRATION:
Assume that two months after a successful bank robbery, A was arrested
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as a direct participation in the robbery. He also implicated B and C as
his other companions in planning and executing the robbery. Is his
statement admissible?
ANSWER:
The statement is admissible as to A, but not as to B and C it is not
admissible.
To be admissible against B and C, the following must concur:
1. The declaration or act be made or done during the existence of the
conspiracy;
2. The declaration or act must relate to the conspiracy; and
3. The conspiracy must be shown by evidence other than such
declaration or act.
SECTION 32. 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 PRIVIES
Privies are those who have mutual or successive relationship to the same
rights of property or subject matter such as personal representatives,
heirs’ devisees, legatees, assigns, voluntary grantees, or judgment
creditors or purchasers from them with notice of the facts.
For the admission by privies to be admissible, the following requisites
must concur:
1. There must be an act, declaration or omission by a predecessor-in-
interest
2. The act, declaration or omission of the predecessor must have
occurred while he was holding the title to the property; and
3. The act, declaration, or omission must be in relation to the property
Accordingly, when the former owner of the property made the
declaration after he ceased to be the owner of the property, the rule on
admission by privies does not apply
ILLUSTRATION:
Z inherited a house and lot from his father X. Assume that X, father of
Z, while the father was alive, sold the property and, thereafter, openly
told his acquaintances that the same lot where his house stood had
already been sold to Y. is the declaration by X (father) necessarily
admissible against Z (son)?
ANSWER:
It is not admissible because the statement was made after X (father)
held his title to the land. When the former owner of the property made
the declaration after he ceased to be the owner of the property, the rule
on admission by privies does not apply.
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
or her to do so, may be given in evidence against him or
her.
ADMISSION BY SILENCE
There is an admission by silence when a party does or says nothing
when he hears or observes an act or declaration made in his presence
when such 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.
Such may be given in evidence against him.
Admission by silence has been traditionally received even in common
law, as admissible evidence. The usual pattern for its admissibility
involves a statement by a person in the presence of a party to the action,
criminal or civil.
The statement contains assertions against the party which, if untrue,
would-be sufficient cause for the party to make a denial. His failure to
speak against the statement is admissible as an admission.
ILLUSTRATION:
Suppose, upon seeing a policeman, a bystander in the presence of other
people, points to a man and accuses him as the killer of another man
found dead the night before. The man pointed to does not respond. He
does not deny the accusation. His failure to respond may be given in
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evidence against him.
The rule on admission by silence does not apply to oral statement but it
applies as well to adverse statements in writing if the party was carrying
on a mutual correspondence with the declarant.
As for the publications, newspaper articles purporting to state what a
person has said are inadmissible against him or her since he or she
cannot be held responsible for the writings of third persons.
Not every silence is an implied admission. For instance, the silence of a
person under investigation for the commission of an offense should not
be construed as an admission by silence because of constitutional
reasons. Of the right to remain silent
For
silence to be deemed an admission, it is necessary that:
➢ He heard and understand the statement;
➢ He was at liberty to make a denial;
➢ The statement was about a matter affecting his right or in which he
was interested and which naturally calls for a response;
➢ The facts were within his knowledge; and
➢ The fact admitted from his silence is material to the issue.
ADOPTIVE ADMISSION
Relative to the admission by silence is the doctrine of adoptive
admission. An adoptive admission is a party’s reaction to a statement or
action by another person when it is reasonable to treat the party’s
reaction as an admission of something stated or implied by the other
person. By adoptive admission, a third person’s statement becomes the
admission of the party embracing or espousing it.
A party may, by his words or conduct, voluntarily adopt or ratify
another’s statement. Where it appears that a party clearly and
unambiguously assented to or adopted the statement of another,
evidence of those statements is admissible against him
Adoptive admission is different form admission by silence in the sense
that, while adoptive admission requires a positive and express act on
the part of a party, in admission by silence, the admission is always
implied. It is also necessary that in the admission by silence, the
declaration was made in the presence or within the hearing or
observation of a person who did or said nothing. While it is not always
in the case in adoptive admission.
SECTION 34. Confession. – The declaration of an
accused acknowledging his or her guilt of the offense
charged, or of any offense necessarily included therein, may
be given in evidence against him or her.
CONCEPT OF CONFESSION
A confession is a categorical acknowledgment of his guilt made by an
accused in a criminal case. Similar with admission, confession may either
be oral or written, and judicial or extra judicial. But unlike admission,
confession must always be express and categorical.
Hence, when a person declares in his counter-affidavit that he
performed an act like shooting the victim but denies that he did so with
criminal intent because the shooting was done in self-defense, the
declaration is merely an admission and not a confession.
In judicial confession, when the accused pleads guilty to the offense
charged, it does not mean that the court can any time impose the
penalty for the offense committed. The action of the court depends on
whether the imposable penalty is a capital punishment or not. When
imposable penalty is not capital punishment, the courts to receive
evidence to determine the proper penalty to be imposed.
However, if the penalty involved capital punishment, the court shall
conduct a searching inquiry into the voluntariness and full
comprehension of the consequences of his or her pleas and shall require
the prosecution to prove his or her guilt and the precise degree of
culpability. The accused may present evidence in his or her behalf.
A plea of guilty to a capital offense without the benefit of a searching
inquiry or an ineffectual inquiry result to an improvident plea of guilty.
The failure of the court to inquire into whether the accused knows the
crime with which he or she is charged and to fully explain to him or her
the elements of the crime constitutes a violation of the accused’s
fundamental right to be informed of the precise nature of the accusation
against him or her and a denial of his or her right to due process
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CLASSIFICATION OF CONFESSION
The classification of confession may be judicial confession or
extrajudicial confession.
A Judicial confession is one made by the accused before a court in which
the case is pending and during legal proceedings therein and, by itself,
can sustain conviction.
An extrajudicial confession is one made in any other place or occasion
and cannot sustain a conviction unless corroborated by evidence of
corpus delicti. Corpus delicti has been defined as the body of the crime
and, in its primary sense, refers to the fact that a crime was actually
committed.
CUSTODIAL INVESTIGATION
A questioning initiated by the law enforcement officer after a person has
been taken into custody or otherwise deprived of his freedom of action
in any significant way.
PREVIOUS CONDUCT AS EVIDENCE
SECTION 35. Similar acts as evidence. – Evidence that
one did or did not do a certain thing at one time is not
admissible to prove that he or she did or did not do the
same or similar thing at another time; but it may be received
to prove a specific intent or knowledge, identity, plan,
system, scheme, habit, custom or usage, and the like.
SECOND RULE ON RES INTER ALIOS ACTA
The second branch prohibits the admission of the so-called “propensity
evidence” which is evidence that one did or did not do a certain thing at
one time is not admissible to prove that he did or did not do the same
or similar thing at another time.
EVIDENCE OF SIMILAR ACT (PROPENSITY EVIDENCE)
The general rule is that the law will not consider evidence that a person
has done a certain act a particular time as probative of a contention that
he has done a similar act at another time.
A similar conduct which does not even sufficiently establish a plan or
scheme is not admissible. The past acts of the accused are inadmissible
to prove that he acted in conformity with such previous acts.
The evidentiary rule guards the practical inconvenience of trying
collateral issues and protracting the trial and prevents surprise or other
mischief prejudicial to litigants. Evidence of collateral offenses must not
be received as substantive evidence of the offenses on trial.
ILLUSTRATION:
Assume than Mr. X is accused of physical injuries. Is the evidence that,
in the past, he committed several acts constituting physical injuries
admissible to prove his propensity for committing such acts or that he
acted in conformity with his past acts?
ANSWER:
The evidence is not admissible for the purpose for which it is offered.
The rule prohibits the admission of the so-called “propensity evidence”
which is evidence that tends to show that what a person has done at
one time is probative of the contention that he has done a similar act at
another time.
WHEN EVIDENCE OF SIMILAR ACTS OR PREVIOUS CONDUCT
IS ADMISSIBLE
Evidence of similar acts is admissible for any of the following purposes:
1) Specific intent; 2) Knowledge; 3) Identity; 4) Plan; 5) System; 6)
Scheme; 7) Habit; 8) Custom; 9) Usage; and 10) The like
Evidence of similar acts may frequently become relevant, 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.
The admissibility of similar acts or previous conduct would depend on
the purpose for which such acts or conducts 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 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
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distinctive features as 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.
The rule is: The past acts of the accused are inadmissible to prove that
he acted in conformity with such previous acts.
RAPE SHIELD RULE
Rape Victim Assistance and Protection Act of 1998 provides that in
prosecutions for rape, evidence of complainants past sexual conduct,
opinion thereof or of his/ her reputation shall not be admitted unless,
and only to the extent that the court finds, that such evidence is material
and relevant to the case.
SEXUAL ABUSE SHILED RULE
As a general rule, the following evidence is not admissible in any criminal
proceeding involving alleged child sexual abuse:
a. Evidence offered to prove that the alleged victim engaged in other
sexual behavior; and
b. Evidence offered to prove the sexual predisposition of the alleged
victim.
EXCEPTION: Evidence of specific instances of sexual behavior by the
alleged victim to prove that a person other than the accused was the
source of the semen, injury, or other physical evidence shall be
admissible.
SECTION 36. Unaccepted offer. – An offer in writing to
pay a particular sum of money or to deliver a written
instrument or specific personal property is, if rejected
without valid cause, equivalent to the actual production and
tender of the money, instrument, or property.
UNACCEPTED OFFER, LEGAL IMPLICATION
An offer in writing to pay a particular sum of money or to deliver a
written instrument or specific personal property is, if rejected without
valid cause, equivalent to the actual production and tender of the
money, instrument, or property.
This may be availed as a defense where the defendant is alleged to have
failed to tender payment or delivery. It may also be a basis for the
remedy of consignation. The tender of money must be unconditional
and for the whole amount otherwise this is a valid ground to reject the
tender.
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 Rules.
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 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.
HEARSAY RULE
Any evidence, whether oral or documentary and its probative value is
not based on personal knowledge of the witness but on the knowledge
of some other person.
It also includes all assertions where, though derived from personal
knowledge, the adverse party is not given an opportunity to cross-
examine.
BASIS FOR EXCLUDING HEARSAY EVIDENCE
There are three (3) reasons why hearsay evidence is excluded:
1. Absence of cross-examination
2. Absence of demeanor evidence
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3. Absence of oath.
It is settled rule that hearsay evidence, whether objected to or not, has
no probative value.
The hearsay rule bars the testimony of a witness who merely recites
what someone else has told him, whether orally or in writing. It is a
statement, other than the one made by the declarant while testifying at
the trial or hearing, offered in evidence to prove the truth of the matter
asserted.
An affidavit is merely hearsay evidence where its affiant/maker did not
take the witness stand.
For instance, an affidavit is merely hearsay evidence where its
affiant/maker did not take the witness stand. While affidavits that have
been notarized are public documents if they are acknowledged before a
notary public, these are still considered hearsay unless the affiants
themselves are placed on the witness stand to testify thereon.
The reason for the rule is that they are not prepared by the affiants, but
by another one who uses his own language in writing the statements,
parts of which may be either omitted or misunderstood by the one
writing them.
The reason for hearsay rule is that a witness can testify only to those
facts which he knows of based on his first hand or personal knowledge
or those which are derived from his own perception. This implies that
hearsay is a statement other than one made by the declarant while
testifying at a trial or court hearing which is offered to prove the facts
asserted therein.
HEARSAY EVIDENCE
The term “hearsay as used in the rules of evidence signifies all evidence
which is not founded upon the personal knowledge of the witness from
whom it is elicited and which consequently does not depend for its
credibility and weight upon the confidence which the court may have in
the witness.
Hearsay evidence is the information relayed from another person to the
witness before it reaches the ears of the court. It is a mere repetition of
what the witness has heard other say.
To be hearsay, the testimony of a witness, regarding statement made
by another person, is given for the purpose of establishing the truth of
the fact asserted in the statement.
HEARSAY MAY BE ORAL OR WRITTEN
Hearsay is not limited to oral testimony or statements. The rule that
excludes hearsay evidence applies to both written and oral statement.
DOUBLE HEARSAY
The testimony of a person with respect to what was told him by one
who was not an eyewitness to the crime but who obtained knowledge
thereof only from the alleged victim.
WHEN EVIDENCE IS HEARSAY
Although hearsay evidence presupposes lack of personal knowledge of
the truth of the fact asserted by a witness, the purpose for which the
evidence is offered is a vital element of hearsay evidence. It is the
purpose for which the evidence is offered which would determine
whether the same is hearsay or not.
ILLUSTRATION:
Brothers Billy & Luis were charged with murder for killing Vhong’s father.
Vhong, however, was charged with parricide for being a co-principal to
the crime. The two cases were tried jointly not until the two brothers
withdrew not guilty plea for murder. Thus, only Vhong’s case was tried
on the merits.
The prosecution offered in evidence the affidavits of Billy & Luis
containing their extra-judicial confessions. The two brothers were,
however, not presented by the prosecution on the witness stand.
Thereafter, the trial court convicted the accused. Is the trial court
correct?
ANSWER:
NO. The failure to present Billy and Luis gives the affidavits the character
of hearsay. Unless the affiants themselves take the witness stand to
affirm the averments in their affidavits must be excluded from the
judicial proceeding, being inadmissible hearsay. The voluntary
admission of an accused made extrajudicially is not admissible in
evidence against his co-accused when the latter had not been given an
opportunity to hear him testify and cross-examine him
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HEARSAY DISTINGUISHED FROM FIRST HAND KNOWLEDGE
First hand or personal knowledge is derived from the witness own
perception. Hearsay, on the other hand, refers to a statement other than
one made by the declarant while testifying at a trial or hearing which is
offered to prove the facts asserted therein.
HEARSAY DISTINGUISHED FROM INDEPENDENT RELEVANT
STATEMENT
Hearsay evidence is different from the independently relevant
statement. An Independent relevant statement refers to a statement
that is relevant independently of whether they are true or not. It is
admissible even if testified to by one who did not utter or hear it. In
such case, what is being offered is not the truth of the testimony but
the fact that the statement was made.
An independently relevant statement is not hearsay and is, therefore,
not banned under the hearsay evidence rule. Hence, a witness may be
asked questions concerning what the accused told him that other
persons were involved in the conspiracy if the purpose of the testimony
is not to prove that such persons were really involved in the conspiracy
but only to prove what the accused had mentioned.
If the purpose of the testimony is merely to establish the fact that the
statement was made, the hearsay rule does not apply. Evidence as to
the making of the statement is primary evidence where it is relevant to
the existence of a fact.
Newspaper accounts of an incident are hearsay if offered to prove the
truth of the accounts but are not hearsay if offered for a purpose other
than the truth of the matter asserted. The newspaper account is
admissible only to prove that there was a publication and merely the
tenor of the news, but not its truth.
ILLUSTRATION:
Ben was charged with robbery and was arrested by police operatives by
virtue of a warrant of arrest. In a press conference
called by the police, Ben admitted that he had robbed the victim.
The prosecution presented in evidence a newspaper clipping of the
report of the reporter who was present during the press conference
stating that Ben admitted the robbery. Is the newspaper clipping
admissible in evidence against Ben?
ANSWER:
YES. Regardless of the truth or falsity of a statement, the hearsay rule
does not apply and the statement may be shown where the fact that it
is made is relevant. Evidence as to the making of such statement is not
secondary but primary, for the statement itself may constitute a fact in
issue or be circumstantially relevant as to the existence of such fact
WHEN OUT-OF-COURT STATEMENTS IS NOT HEARSAY
If an out-of-court statement is offered for a non-hearsay purpose the
statement is admissible if it has relevance to the matter in issue. Also,
when the statement is not offered for the truth of the matter asserted
but it is offered to show the mental effect of the statement on the
hearer, the statement is not hearsay.
Non-hearsay occurs when the purpose for introducing the statement is
not to prove the truth of the facts asserted therein but only the making
of the statements and are admissible in evidence when the making of
the statement is relevant. These are the so-called independently
relevant statements.
The statement offered in evidence is not hearsay because it is the
hearer’s reaction to the statement which is sought to be proved. It is his
or her reaction to the statement that is relevant, not to the truth of the
assertion in the statement. Since the hearer is present in court, he or
she can be crossed-examined on whether or not he heard the statement
accurately, believed the statement to be true, and whether or not he
really acted in conformity with his belief.
PRIOR INCONSISTENT STATEMENT
With regard to the prior inconsistent statement, the reason why it is not
considered as hearsay is because the proponent of the statement or the
adverse party may show that on another occasion, the declarant gave
an account that different from, and was inconsistent with, his or her
statements on the witness stand. The purpose therefore is to impeach
his or her testimony in the court during cross-examination.
EXCEPTION TO THE HEARSAY RULE
The Rules of Court enumerates the following exception to the hearsay
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rule:
1. Dying Declarations (Section 38, Rule 130, Rules of Court)
2. Statement of decedent or person of unsound mind (Section 39, Rule
130, Rules of Court)
3. Declaration against interest (Section 40, Rule 130, Rules of Court)
4. Act or declaration about pedigree (Section 41, Rule 130, Rules of
Court)
5. Family reputation or tradition regarding pedigree (Section 42, Rule
130, Rules of Court)
6. Common reputation (Section 43, Rule 130, Rules of Court)
7. Part of the res gestae (Section 44, Rule 130, Rules of Court)
8. Records of regularly conducted business activity (Section 45, Rule
130, Rules of Court)
9. Entries in official records (Section 46, Rules 130, Rules of Court)
10. Commercial lists and the like (Section 47, Rule 130, Rules of Court)
11. Learned treatises (Section 48, Rule 130, Rules of Court)
12. Testimony or deposition at a former proceeding (Section 49, Rule
130, Rules of Court)
13. Residual exception (Section 50, Rule 130, Rules of Court)
It is not correct to assert that the exceptions of the hearsay rule are not
hearsay. They are hearsay evidence but they are deemed admissible
hearsay for certain reasons. The reason for the exception to the hearsay
rule are necessity and trustworthiness.
SECTION 38. Dying declaration. – The declaration of a
dying person, made under the consciousness of an
impending death, may be received in any case wherein his
or her death is the subject of inquiry, as evidence of the
cause and surrounding circumstances of such death.
DYING DECLARATION
A dying declaration is the evidence of the highest order; it is entitled to
the utmost credence on the premise that no person who knows of his
impending death would make a careless and false accusation. On the
brink of death, all thoughts of concocting lies disappear
Persons aware of impending death have been known to be genuinely
truthful in their extremely scrupulous in their accusations. A dying
declaration also known as an ante mortem statement or a statement in
articulo mortis.
The reason for its admissibility is necessity and trustworthiness.
Necessity, because the declarant’s death renders it impossible his taking
the witness stand, and it often happens that there is no other equally
satisfactory proof of the crime; allowing it, therefore, prevents a failure
of justice. Trustworthiness, because the declaration is made in
extremity, when the party is at the point of death when every motive to
falsehood is silenced and the mind is induced by the most powerful
considerations to speak the truth.
As presently worded, the declaration of a dying person, made under the
consciousness of an impending death, may be received in any case
wherein his death is the subject of inquiry, as evidence of the cause and
surrounding circumstances of such death. As long as the relevance is
clear, a dying declaration may now be introduced in a criminal and civil
action and the requirement of relevance is satisfied
A dying declaration is the ante mortem statement made by a person
after the mortal wound has been inflicted under the belief that the death
is certain, stating the fact concerning the cause of and the circumstances
surrounding the attack.
Dying declarations were admissible only in criminal cases, particularly
homicide cases. Homicide case is a generic term which includes murder
and parricide.
Under the rules, it is evident that a mere consciousness of death is not
enough because every one of us, at time or another, has become
conscious of death. The kind of death which the declarant should be
conscious of is a death that is impending. The declarant must be
conscious that “death is near at hand, and what is said must have been
spoken in the hush of its impending presence.
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.
If there is no showing in the records that the victim was under a
consciousness of an impending death at the time of his declaration, the
same is not admissible as a dying declaration but, because it was made
shortly after a startling occurrence and under the influence thereof, it
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is, nonetheless, admissible as part of the res gestae.
REQUISITES OF A DYING DECLARATION
A dying declaration, although generally inadmissible as evidence due to
its hearsay character, may, nonetheless, be admissible when the
following requisites concur, namely:
1. The declaration is one made by a dying person;
2. The declaration was made by said dying person under a
consciousness of his impending death;
3. The declaration refers to the cause and circumstances surrounding
the death of the declarant and not of anyone else;
4. The declaration is offered in a case where in the declarant’s death
is the subject of the inquiry; and
5. The declarant is competent as a witness had he survived.
After a dying declaration is proved with all the essential requisites to its
admissibility, the same rules that are used in testing the weight and
credibility of a living witness testimony.
As a general rule, when a person is at the point of death, every motive
to falsehood is silenced, and the mind is induced by the most powerful
considerations to speak the truth, and therefore his statement, under
such circumstances, deserve great weight.
The admission of dying declarations does not violate the constitutional
right of the accused to confront and cross-examine the witness against
him, because the person who testifies to the dying declaration is the
witness against the accused and the witness with whom the accused is
entitled to be confronted. The declarant is not testifying against him.
ILLUSTRATION 1:
Supposed a man collapses on your front door, blood oozing from his
back where a knife is prominently planted. You rush to help him and you
notice the poor, hapless guy is your next-door neighbor, Allan. You have
long wanted to ask him whether or not he had something to do with the
death of Alex, another neighbor, six months ago. As he lay dying in your
arms, you ask him the question and, in a weak voice, he whispers: “It
was not me, it was Frank Santos”. In a couple of seconds, Allan died.
Is Allan’s (deceased) statement admissible as a dying declaration in a
prosecution against Frank Santos for the death of Alex?
ANSWER:
NO. The declaration was neither about the cause nor the circumstances
of the declarant’s death. It is not admissible because the subject of the
inquiry is the death of someone else.
ILLUSTRATION 2:
Supposed a doctor is responding to a call by the victim of a stubbing
incident. The doctor saw the victim in a dreadful condition. Blood was
all over the victim’s chest and stomach area. The victim was losing blood
as quickly as a drum of water because of the stub wounds. Then from
the bloody lips of the victim came the words: “Mario stubs me many
times, he stubs me, and Mario did this!” A few seconds after, the victim
died
Is victim’s (deceased) statement to the responding doctor admissible as
a dying declaration in a prosecution against Mario for the death of the
victim?
ANSWER:
YES. The declaration is a dying declaration is offered in a case in which
the subject of the inquiry involves the declarant’s death and not to
anyone else. Thus, the dying declaration is admissible in evidence for
prosecution against Mario.
SECTION 39. Statement of decedent or person of
unsound mind. – In an action against an executor or
administrator or other representative of a deceased person,
or against a person of unsound mind, upon a claim or
demand against the estate of such deceased person or
against such person of unsound mind, where a party or
assignor of a party or a person in whose behalf a case is
prosecuted testifies on a matter of fact occurring before the
death of the deceased person or before the person became
of unsound mind, any statement of the deceased or the
person of unsound mind, may be received in evidence if the
statement was made upon the personal knowledge of the
deceased or the person of unsound mind at a time when
the matter had been recently perceived by him or her and
while his or her recollection was clear. Such statement,
however, is inadmissible if made under circumstances
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 indicating its lack of trustworthiness.
STATEMENT OF DECEDENT OR PERSON OF UNSOUND MIND
The exception to the hearsay rule of the witness testifying on any matter
of fact occurring before the death of such deceased person or before
such person of unsound mind.
Hence, if the subject of the testimony is on some other matter, the
witness may testify when the subject of the testimony is on fact which
transpired after the death of such person. This is also known as “Dead
Person’s Statue.”
ILLUSTRATION:
Mr. D approaches Mr. C to borrow ₱100,000.00 to be paid exactly a year
after. Without any hesitation, Mr. C gives Mr. D the amount and does
not require Mr. D to execute a promissory note. A day after before the
agreed payment, Mr. D died. Mr. C then goes to the executor and claims
against the estate. Is Mr. C allowed to testify against the estate of Mr.
D a matter of fact occurring before Mr. D’s death?
ANSWER:
YES. Mr. C is allowed to testify against the estate a matter of fact
occurring before the death of the deceased person, in this case a loan,
before Mr. D died. However, the executor of Mr. D. is not precluded from
presenting in evidence statements made upon the personal knowledge
of D regarding the loan before he died.
STATEMENT OF UNSOUND MIND
Statement of person of unsound mind or insane applies only to civil case
or special proceeding. The subject of the testimony is as to any matter
of fact occurring before the such person became of unsound mind.
However, the statement of a decedent or person of unsound mind is still
inadmissible despite the presence of all elements if made under
circumstances indicating its lack of trustworthiness.
SECTION 40. Declaration against interest. –The
declaration made by a person deceased or unable to testify
against the interest of the declarant, if the fact asserted in
the declaration was at the time it was made so far contrary
to the declarant’s own interest that a reasonable person in
his or her position would not have made the declaration
unless he or she believed it to be true, may be received in
evidence against himself or herself or his or her successors
in interest and against third persons. A statement tending
to expose the declarant to criminal liability and offered to
exculpate the accused is not admissible unless
corroborating circumstances clearly indicate the
trustworthiness of the statement
DECLARATION AGAINST INTEREST
This exception refers to a declaration made by a person who, at the time
his declaration is presented in evidence, is already dead or unable to
testify.
Declaration against interest is that made by a person who is neither a
party nor in privity with a party to the suit, is secondary evidence, and
constitutes an exception to the hearsay rule. It is admissible only when
the declarant is unavailable as a witness.
This declaration must be one which, when made, was known to the
declarant himself to be against his interest, pecuniary or moral, and
which would not have been made unless he believed it to be true.
It is clear from the rule that it is not enough that a declaration against
interest was made. It is necessary that the declarant knew that the
statement was against his interest and which he would not have made
had it not been true.
This exception to the hearsay rule will not apply where the declarant is
available as a witness. The declarant must be dead or unable to testify.
Being outside of the territorial jurisdiction of the country may be a good
reason for unavailability if his exact whereabouts abroad are unknown.
If where about is known, his deposition may be taken and the exception
to the hearsay rule will not apply. Serious physical or mental
impairments may be a ground for considering a person unavailable.
The declaration contemplated by the rule is a declaration against the
interest. If the declaration is favorable to the interest of the declarant,
it is a mere self-serving statement and does not fall as an exception to
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the hearsay rule.
ILLUSTRATION:
A statement by the debtor before he died that he owes the creditor a
sum of money, or an oral acknowledgement by the principal that he
received the money previously entrusted to his agent, are clear
declarations against interest of the person making the statement.
QUESTION:
Harry was charged with the crime of kidnapping of Edward. One of the
testimonies presented by the prosecution was that of Emma, she
testified that Edward confided to her that he (Edward) and Harry’s wife
Bella were having an affair. Undoubtedly, his wife's infidelity was ample
reason for Harry to contemplate revenge. Consequently, the trial court
convicted Harry based on the testimonies of the witnesses. Was the
testimony of Emma admissible as evidence?
ANSWER:
Yes. Edward’s revelation to Emma regarding his illicit relationship with
Harry’s wife is admissible in evidence, declarations against interest. His
confession to Emma, a declaration against his own interest, since his
affair with Bella was a crime, is admissible in evidence because no sane
person will be presumed to tell a falsehood to his own detriment.
SECTION 41. Act or declaration about pedigree. –
The act or declaration of a person deceased or unable to
testify, in respect to the pedigree of another person related
to him or her by birth, adoption, or marriage or, in the
absence thereof, with whose family he or she was so
intimately associated as to be likely to have accurate
information concerning his or her pedigree, may be received
in evidence where it occurred before the controversy, and
the relationship between the two (2) persons is shown by
evidence other than such act or declaration. The word
“pedigree” includes relationship, family genealogy, birth,
marriage, death, the dates when and the places where
these facts occurred, and the names of the relatives. It
embraces also facts of family history intimately connected
with pedigree.
ACT OR DECLARATION ABOUT PEDIGREE
The word “pedigree” includes relationship, family genealogy, birth,
marriage, death, the dates when and the places where these facts
occurred, and the names of the relatives. It also embraces facts of family
history intimately connected with pedigree.
To be admissible as an exception to the hearsay rule, it must be shown
that:
1. The declarant is dead, or unable to testify;
2. The pedigree or relationship must be in issue;
3. The declarant is related by birth or marriage to the person whose
pedigree is in issue;
4. The declaration was made before the controversy; and
5. The relationship between the two persons is shown by evidence
other than such an act or declaration.
Be it noted that the declaration about pedigree may be received in
evidence if the relationship is shown by evidence other than the
declaration
ILLUSTRATION:
The declaration of Jose, already dead, prior to his death and prior to any
controversy, that Juan is his illegitimate son, is a declaration about
pedigree. Similarly, a statement from a mother while living, that her
daughters, Maria and Petro, were sired by the same father is admissible
in evidence.
SECTION 42. Family reputation or tradition
regarding pedigree. – The reputation or tradition existing
in a family previous to the controversy, in respect to the
pedigree of any one of its members, may be received in
evidence if the witness testifying thereon be also a member
of the family, either by
consanguinity, affinity, or adoption. Entries in family bibles
or other family books or charts, engraving on rings, family
portraits and the like, may be received as evidence of
pedigree.
FAMILY REPUTATION OR TRADITION
Entries in the family bibles or other family books or charts, engraving on
rings, family portraits, and the like, may be received as evidence of
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pedigree aside from family tradition or reputation.
The exception to the hearsay rule under family reputation or tradition
regarding pedigree involves:
1. A statement by a member of the family either by consanguinity or
affinity;
2. The statement is about the reputation or tradition of the family with
respect to the pedigree of any member of the family; and
3. The reputation or tradition is one existing before the controversy.
PROOF BY FAMILY REPUTATION OR TRADITION
This refers to the knowledge or beliefs of a certain family handed from
one generation to another, or to practices or customs which are
consistently observed or engaged in by said family. A member of the
said family is the one testifying to these matters.
A good example where the act or declaration concerning a pedigree of
a person, or a family reputation or tradition regarding pedigree can be
used as an exception to the hearsay rule is when one is trying to prove
his or her filiation by open and continued possession of the status of a
marital child or any other means allowed by the Rules of Court.
DISTINCTIONS BETWEEN DECLARATION ABOUT PEDIGREE
AND FAMILY REPUTATION OR TRADITION REGARDING
PEDIGREE
DECLARATION ABOUT FAMILY REPUTATION OR
PEDIGREE TRADITION REGARDING
PEDIGREE
Witness need NOT be a member Witness is a member of the
of the family family
Relation between the declarant The witness is the one to whom
and the person subject of the the fact relates, it is not
inquiry must be established by necessary for him to establish by
independent evidence independent evidence his
relationship to the family
Testimony is about what the Testimony is about family
declarant, who is dead or unable reputation or tradition covering
to testify, has said concerning matters of pedigree
the pedigree of the family.
SECTION 43. Common reputation. – Common
reputation existing previous to the controversy, as to
boundaries of or customs affecting lands in the community
and reputation as to events of general history important to
the community, or respecting marriage or moral character,
may be given in evidence. Monuments and inscriptions in
public places may be received as evidence of common
reputation.
COMMON REPUTATION
Common reputation is admissible in evidence as an exception to the
hearsay rule where the reputation refers to a matter of public or general
interest, or respecting marriage or moral character, and said matter is
more than thirty (30) years old.
Common reputation is hearsay, like any other exceptions to the hearsay
rule, but is admissible because of trustworthiness.
While common reputation in the community may establish a matter of
public or general interest, marriage, or moral character, it cannot
establish pedigree. This is established by reputation in the family and
not in the community.
SECTION 44. Part of the res gestae. – Statements made
by a person while a startling occurrence is taking place or
immediately prior or subsequent thereto, under the stress
of excitement caused by the occurrence with respect to the
circumstances thereof, may be given in evidence as part of
the res gestae. So, also, statements accompanying an
equivocal
act material to the issue, and giving it a legal significance,
may be received as part of the res gestae.
PART OF RES GESTAE
Res gestae is a Latin phrase that literally means "things done." It is
referred to the statement made by a participant or the victim of, or the
spectators to, a crime immediately before, during, or after its
commission.
In a general way, res gestate refers to the circumstances, facts, and
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declarations that grow out of the main fact and serve to illustrate its
character and are so spontaneous and contemporaneous with the main
fact as to exclude the idea of deliberation and fabrication of a false or
manufacture statements. Res gestae has two (2) parts. The first one
refers to impulsive exclamation, while the second one refers to verbal
acts.
1. IMPULSIVE EXCLAMATION – spontaneous statements or
exclamations or exited utterances made immediately after some
exciting occasion by a participant or spectator and asserting the
circumstances of that occasion as it is observed by him. The res
gestae is the startling occurrence. It may be prior to or
simultaneously with, or subsequent with the startling occurrence.
The admissibility of an impulsive exclamation is anchored on the theory
that the statement was uttered under circumstances where the
opportunity to fabricate is absent. Thus, the declaration was made under
conditions suggestive of the truth. The perceived event produces
nervous excitement, making the fabrications about that event unlikely.
To be admitted, the impulsive exclamation must have:
1. There is a startling event or occurrence taking place
2. A statement was made while the event is taking place, or
immediately, prior, or subsequent thereto
3. The statement was made under the stress of excitement caused by
the occurrence, and
4. The statement relates to the circumstances of the startling event or
occurrence or the statements must concern the occurrence in
question and its immediate attending circumstances.
When all these conditions are met, we have a spontaneous statement
constituting an exception to the rule barring the hearsay rule.
2. VERBAL ACT – utterances that accompany some act or conduct to
which it is desired to give legal effect. The res gestae is the equivocal
act material to the issue, giving it legal significance. It must be
contemporaneous with or must accompany the equivocal act in
order to be admissible.
A verbal act presupposes a conduct that is equivocal or ambiguous, one
which does not signify anything when taken separately. It only acquires
a meaning, specifically what the rules call a legal significance only
because of the statements that accompany the act.
It is the statement contemporaneous with the act that identifies or
indicates the character, purpose, or motive of the act. In order that the
verbal acts to be admissible:
1. The principal act to be characterized must be equivocal (ambiguous)
2. The equivocal act must be material to the issue
3. The statement must accompany the equivocal act
4. The statement gives a legal significance to the equivocal act.
The reason for the rule is human experience. It has been shown that
under certain external circumstances of physical or mental shock, the
state of nervous excitement which occurs in a spectator may produce a
spontaneous and sincere response to the actual sensations and
perceptions produced by the external shock.
As the statements or utterances are made under the immediate and
uncontrolled domination of the senses, rather than reason and
reflection, such statements or utterances may be taken as expressing
the real belief of the speaker as to the facts he just observed.
The spontaneity of the declaration is such that the declaration itself may
be regarded as the event speaking through the declarant rather than
the declarant speaking for himself
ILLUSTRATION 1:
Anthony raped Melissa. After raping Melissa, Anthony fled. Melissa then
rushed to the police station and told Police Officer Gilbert what had
happened. Anthony was charged with rape. During the trial, Melissa can
no longer be located. If the prosecution presents Police Officer Gilbert
to testify on what Melissa had told him, would such testimony of Gilbert
be hearsay?
ANSWER:
NO. It is part of res gestae. It is also an independently relevant
statement. Police Officer Gilbert testified based on his personal
knowledge; that is, he was testifying to the fact that Melisa told him that
she was raped by Anthony and not to the truth of Melissa’s statement.
ILLUSTRATION 2:
A guy casually strolling in an esplanade was suddenly clubbed by a man
from behind. The hapless guy’s head was split open by the blow. He
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died almost instantly. He didn’t have the chance to speak. An elderly
lady, the witness to the event, let out a high-pitched shriek and while
pointing at a man in a white shirt, screamed, “He did it… he did it… he
hit him!” Let us assume that the elderly lady is nowhere to be found but
someone heard he utter words, her statement may, nevertheless, be
admissible under the res gestae doctrine as a description of the event
itself speaking through the word of the lady.
DISTINCTION BETWEEN RES GESTAE AND
DECLARATION
RES GESTAE DYING DECLARATION
It is the event itself that A sense of impending death takes
speaks the place of an oath and the law
regards the declarant as testifying
May be made by the killer Can be made by the victim only
after or during the killing or
that of a third person
May precede, or accompany Confined to matters occurring after
or follow the principal act the homicidal act
Justification is the Justification is the trustworthiness,
spontaneity of the statement being given by the person who was
aware of his impending death
SECTION 45. Records of regularly conducted
business activity. – A memorandum, report, record or
data compilation of acts, events, conditions, opinions, or
diagnoses, made by writing, typing, electronic, optical or
other similar means at or near the time of or from
transmission or supply of information by a person with
knowledge thereof, and kept in the regular course or
conduct of a business activity, and such was the regular
practice to make the memorandum, report, record, or data
compilation by electronic, optical or similar means, all of
which are shown by the testimony of the custodian or other
qualified witnesses, is excepted from the rule or hearsay
evidence.
RECORDS OF REGULARLY CONDUCTED BUSINESS ACTIVITY
The exception is commonly encountered in the regular course of
business and such was the regular practice. The person who made the
entry is dead, outside the country, or unable to testify.
Before records of regularly conducted business activity could be
excepted from the hearsay rule, the concurrence of the following
requisites must be shown:
1. The hearsay evidence to be admitted is a memorandum, report,
record, or data compilation of acts, events, conditions, opinions, or
diagnoses
2. The record is made by writing, typing, electronic, optical, or other
similar means
3. It is a regular practice to make the record through such means
4. The record was made at or near the time of or from transmission or
supply of information by a person with knowledge thereof
5. The record is usually kept in the regular course of business
6. A custodian or other qualified witness testifies to all of these
Example: entries in the payroll; delivery receipts or accounting records.
SECTION 46. Entries in official records. – Entries in
official records made in the performance of his or her duty
by a public officer of the Philippines, or by a person in the
performance of a duty specially enjoined by law, are prima
facie evidence of the facts therein stated.
ENTRIES IN OFFICIAL RECORDS
Entries in official records made in the performance of his or her duty by
a public officer of the Philippines, or by a person in the performance of
a duty specially enjoined by law. The document’s trustworthiness
consists in the presumption of regularity of performance of official duty.
The necessity of this exception to the hearsay rule consists in the
convenience and difficulty of requiring the official’s attendance as a
witness to testify to the innumerable transactions during his or her duty.
The requisites for the admissibility in evidence of entries in official
records as an exception to the hearsay rule are:
1. The entry was made by a public officer or by another person
specially enjoyed by law to do so;
2. It was made by the public officer, or by such other person in the
performance of a duty specially enjoined by law; and
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3. The public officer or other person had sufficient knowledge of the
facts by him or her stated, which must have been acquired by the
public officer or other person personally or through official
information.
ILLUSTRATION: A Traffic Investigation Report cannot be given
probative weight when the investigating officer who prepared the same
was not presented in court to testify that he had sufficient knowledge
of the facts therein stated and that he acquired them personally or
DYING through official information.
SECTION 47. Commercial lists and the like. – Evidence
of statements of matters of interest to persons engaged in
an occupation contained in a list, register, periodical, or
other published compilation is admissible as tending to
prove the truth of any relevant matter so stated if that
compilation is published for use by persons engaged in that
occupation and is generally used and relied upon by them
therein
COMMERCIAL LISTS AND THE LIKE
Certain commercial lists and reports of matters of interest to persons
engaged in a particular occupation are admissible in evidence as
exceptions to the hearsay rule, provided, they are made by persons
engaged in that occupation and are generally used and relied upon by
them and those lists and reports are published.
Statement of matters contained in a periodical may be admitted only if
that compilation is published for use by persons engaged in that
occupation and is generally used and relied upon by them.
SECTION 48. Learned treatises. – A published treatise,
periodical or pamphlet on a subject of history, law, science,
or art is admissible as tending to prove the truth of a matter
stated therein if the court takes judicial notice, or a witness
expert in the subject testifies, that the writer of the
statement in the treatise, periodical or pamphlet is
recognized in his or her profession or calling as expert in
the subject
LEARNED TREATISES
History books and published findings of scientists fall within this
exception provided that an expert on the subject testifies to the
expertise of the writer or the court takes judicial notice of such facts.
Examples of learned treatises: 1) Historical works; 2) Scientific treatises;
or 3) Law books.
SECTION 49. Testimony or deposition at a former
proceeding. – The testimony or deposition of a witness
deceased or out of the Philippines or who cannot, with due
diligence, be found therein, or is unavailable or otherwise
unable to testify, given in a former case or proceeding,
judicial or administrative, involving the same parties and
subject matter, may be given in evidence against the
adverse party who had the opportunity to cross-examine
him or her
TESTIMONY OR DEPOSITION AT A FORMER HEARING
The testimony contemplated is one given in a previous case or
proceeding, judicial or administrative, involving the same parties and
subject matter.
The testimony is given by one who is now deceased or unable to testify.
The said testimony is given may be given in evidence against the
adverse party provided the latter had the opportunity to cross-examine
the witness who gave the previous testimony.
For the testimony or deposition of former proceedings to apply, the
following requisites must be satisfied:
1. The witness is dead or unable to testify;
2. His testimony or deposition was given in a former or previous case
of proceeding, judicial or administrative, between the same parties
or those representing the same interests;
3. The former case involved the same subject as that in the present
case, although on different causes of action;
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
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 in the former case. competency of the expert witness to testify.

Like any other exception to the hearsay rule, the reasons for its
admissibility are necessity and trustworthiness. SECTION 53. Opinion of ordinary witnesses. – The
opinion of a witness, for which proper basis is given, may
be received in evidence regarding –
SECTION 50. Residual exception. – A statement not (a) [T]he identity of a person about whom he or she has
specifically covered by any of the foregoing exceptions, adequate knowledge;
having equivalent circumstantial guarantees of (b) A handwriting with which he or she has sufficient
trustworthiness, is admissible if the court determines that familiarity; and
(a) the statement is offered as evidence of a material fact; (c) The mental sanity of a person with whom he or she is
(b) the statement is more probative on the point for which sufficiently acquainted.
it is offered than any other evidence which the proponent
can procure through reasonable eff orts; and (c) the general The witness may also testify on his or her impressions of
purposes of these [R]ules and the interests of justice will be the emotion, behavior, condition or appearance of a person.
best served by admission of the statement into evidence.
However, a statement may not be admitted under this OPINION OF AN ORDINARY WITNESS
exception unless the proponent makes known to the When the opinion is that of an ordinary witness, his testimony may be
adverse party, sufficiently in advance of the hearing, or by admitted in evidence provided that the proper basis of the opinion is
the pre-trial stage in the case of a trial of the main case, to given and the subject of the opinion is any of the following matters:
provide the adverse party with a fair opportunity to prepare 1. The identity of a person about whom the witness has adequate
to meet it, the proponent’s intention to off er the statement knowledge.
and the particulars of it, including the name and address of 2. The handwriting of a person with which the witness has sufficient
the declarant familiarity.
3. The mental sanity of a person with whom he is sufficiently
RESIDUAL EXCEPTION acquainted.
One of the amendments introduced in the Rules on Evidence as an
exception to the hearsay rules is the residual exception. The ordinary witness may also testify as to the impressions of the
emotion, behavior, condition, or appearance of a person.
This residual exception is the catch-all provision as an exception to the
hearsay rule being offered as evidence of the material facts in issue. DISTINCTIONS BETWEEN ORDINARY WITNESS AND EXPERT
WITNESS
The statement is more probative on the point for which it is offered than ORDINARY WITNESS EXPERT WITNESS
any other evidence that would have been presented. • The identity of a person • Has the required
about whom he has professional knowledge,
The general purpose of residual exception to the hearsay rule is the adequate knowledge learning, education, and skill
interest of justice to be served. • A handwriting with which he of the subject under inquiry
has sufficiently familiarity sufficient to qualify him to
• The mental sanity of a speak with authority on the
OPINION RULE person with whom he is subject; and
sufficiently acquainted; and • Is familiar with the standard
SECTION 51. General rule. – The opinion of a witness is • The impressions of the required of a professional
not admissible, except as indicated in the following sections. witness of the emotion, under similar circumstances
behavior, condition, or
appearance of a person
INADMISSIBILITY OF OPINION EVIDENCE
As a rule, the opinion of a witness is inadmissible. However, there are
certain instances where the opinion of the witness may be admissible in
evidence during trial. CHARACTER EVIDENCE

This is because when a witness testifies, a witness does so only with SECTION 54. Section 54. Character evidence not
respect to facts personally observed by him and it is for the court to generally admissible; exceptions. – Evidence of a
draw conclusions from the facts testified to. person’s character or a trait of character is not admissible
for the purpose of proving action in conformity therewith on
a particular occasion, except:
SECTION 52. Opinion of expert witness. – The opinion (a) In Criminal Cases:
of a witness on a matter requiring special knowledge, skill,
experience, training or education, which he or she is shown (1) The character of the off ended party may be proved if it
to tends to establish in any reasonable degree the probability
possess, may be received in evidence. or improbability of the offense charged.
(2) The accused may prove his or her good moral character,
OPINION OF EXPERT WITNESS pertinent to the moral trait involved in the offense charged.
An expert witness is one who belongs to the profession or calling to However, the prosecution may not prove his or her bad
which the subject matter of the inquiry relates, and who possesses moral character unless on rebuttal.
special knowledge on questions on which he or she proposes to express
an opinion. (b) In Civil Cases:

As a rule, any person who by study or experience has acquired Evidence of the moral character of a party in a civil case is
knowledge or experience may be allowed to give in evidence his opinion admissible only when pertinent to the issue of character
upon matters of technical knowledge and skill relating to such business involved in the case.
or employment.
(c) In Criminal and Civil Cases:
There are no definite standards of determining the degree of skill or
knowledge that a witness must possess in order to testify as an expert. Evidence of the good character of a witness is not
It is sufficient that the following factors be present: admissible until such character has been impeached.
1. Training and education;
2. First hand familiarity with facts of the case; and In all cases in which evidence of character or a trait of
3. Presentation of authorities or standards upon which his or her character of a person is admissible, proof may be made by
opinion is based. testimony as to reputation or by testimony in the form of an
opinion. On cross-examination, inquiry is allowable into
The question of whether a witness is properly qualified to give an expert relevant specific instances of conduct.
opinion rest with the discretion of the court. Thus, it is important that
the proponent of expert testimony must first lay the foundation of the In cases in which character or a trait of character of a
person is an essential element of a charge, claim or defense,
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 proof may also be made of specific instances of that
person’s conduct.
CHARACTER EVIDENCE
A person’s character, generally, is not admissible in evidence. Similar
with opinion rule, the witness’ testimony in court proceedings, especially
if the same is based on personal knowledge, is all that matters to the
court for the resolution of the case.
character is the sum total of all the traits of a person which distinguishes
the person from others. They include the physical, mental, emotional
and psychological attributes of a person. These maybe genetically
acquired, or inherited or in-born, such as a person’s sex, height, physical
appearance. Or they may be acquired and developed such as personality
and behavioral characteristics due to virtues or vices, such as being bad,
immoral, honest, lazy, anti-social or friendly. Character is what a person
truly is.
INADMISSIBILITY OF CHARACTER EVIDENCE
Character is defined as the possession by a person of certain qualities
of mind and morals, distinguishing him or her from others. It is the
opinion generally entertained of a person derived from the common
report of the people who are acquainted with him or her, or his or her
reputation.
The rule is that the character or reputation of a party is regarded as
legally irrelevant in determining a controversy, so that evidence relating
to character or reputation is not admissible. After all, the business of the
court is to try the case, and not the man; and a very bad man may have
a righteous cause.
EVIDENCE OF GOOD OR BAD MORAL CHARACTER
The rule on evidence, however, provide for an exception to the general
rule that a party’s character is inadmissible in the case. Thus, the
accused may prove his or her good moral character which is pertinent
to the moral trait involved in the offense charged.
When the accused presents proof of his or her good moral character,
this strengthens the presumption of innocence; and where good
character and reputation are established, an inference arises that the
accused did not commit the crime charged. This view proceeds from the
theory that a person of good character and high reputation is not likely
to have committed the act charged against him or her.
The character of a person, if it is admissible, can be introduced as
evidence through a testimony as to reputation or by testimony in the
form of an opinion.
Character evidence, whether good or bad, may be proved if it tends to
establish in any reasonable degree of probability or improbability of the
offense charged. Such evidence is most commonly offered to support a
claim of self-defense in an assault or homicide case or a claim of consent
in a rape case.
REPUTATION
Reputation is the estimation of a person by other people, or what people
think a person is. Character is not always one’s reputation as people
may pretend and present a public face or image different from what
they are in private. One may have a good reputation but a bad character
and vice-versa.
EVIDENCE OF GOOD MORAL CHARACTER OF THE ACCUSED
Good moral character which includes all the elements necessary to make
up such a character as honesty, veracity in all professional, business,
commercial intercourse or dealings of a person; the virtue of chastity,
or those character which measures up as good among people, or that
which makes a person look upon as being up to the standards of good
behavior and upright conduct.
The accused may prove his good moral character when pertinent to the
moral trait involved in the offense charged. When the accused presents
proof of his or her good moral character, this strengthens the
presumption of innocence; and where good character and reputation
are established, an inference arises that the accused did not commit the
crime.
The rule likewise provide that the prosecution may not prove the bad
moral character of the accused except only in rebuttal and when such
evidence is pertinent to the moral trait involved in the offense charged.
This is intended to avoid unfair prejudice to the accused who might
otherwise be convicted not because he or she is guilty but because he
or she is a person of bad character.
The offering of character evidence of good moral character is a privilege
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of the defendant or accused, and the prosecution cannot comment on
the failure of the defendant to produce such evidence. Once the
defendant or accused raises the issue of his or her good character, the
prosecution may, in rebuttal, offer evidence of the defendant’s or
accused’ bad character.
EVIDENCE OF BAD MORAL CHARACTER OF THE ACCUSED
Bad moral character or those which defines a person’s tendency to be
of loose morals, evil, to be violent, dishonest, to disregard law and
authority and the welfare of the community.
In a criminal case, the prosecution cannot prove the bad moral character
of the accused in its evidence-in-chief. It can only do so in rebuttal.
This means that the prosecution may not offer evidence of the character
of the accused unless the accused himself has offered evidence of his
good character. The prosecution, therefore, must wait until the accused
puts his character in issue during the proceedings.
Where the accused proves his good moral character pertinent to the
moral trait involved in the offense charged, he opens the door to the
prosecution to prove that his moral character is, in fact bad. Then the
prosecution proves the bad moral character of the accused.
EVIDENCE OF CHARACTER OF THE OFFENDED (VICTIM)
The good or bad moral character of the offended party (victim) may be
proved by the accused if it tends to establish in any reasonable degree
the probability or improbability of the offense charged.
This means that the character evidence must be limited to the traits and
characteristics involved in the type of offense charged.
It will be readily observed that the provision pertains only to criminal
cases. The character evidence must be limited to the traits and
characteristics involved in the type of offense charged.
EVIDENCE OF GOOD MORAL OR BAD MORAL CHARACTER OF A
WITNESS
Evidence of the good character of a witness is not admissible until such
character has been impeached. It is only after his character has been
attacked that can he prove his good moral character. He or she must
first be discredited before his reputation or character can be bolstered.
A party calling a witness cannot initiate proof of his good moral
character. Any question to that effect can be validly objected to as
improper character evidence because a witness is presumed to be
truthful and of good moral character, the party presenting him does not
have to prove he is good because he is presumed to be one
It is an error for the counsel to offer evidence of the good character of
his witness who is presented in court for the first time since he could
not have previously been impeached.
As to witnesses to both criminal and civil actions, the bad moral
character of a witness may always be proved by either party but not
evidence of his good moral character, unless such character has been
impeached
SEXUAL ABUSE SHIELD RULE
The following evidence is not admissible in any criminal proceeding
involving alleged child sexual abuse under the sexual abuse shield rule:
1. Evidence to prove that the alleged victim engages in other sexual
behavior
2. Evidence offered to prove the sexual predisposition of the alleged
victim
Under this rule, the accused is not allowed to prove the bad moral
character of the offended party or the victim. However, evidence of any
of the sexual abuse shield rule is admissible to prove that a person other
than the accused was the source of semen, injury, or other physical
evidence.
RULE 131
BURDEN OF PROOF, BURDEN OF EVIDENCE AND
PRESUMPTIONS
SECTION 1. Burden of proof and burden of evidence.
– Burden of proof is the duty of a party to present evidence
on the facts in issue necessary to establish his or her claim
or defense by the amount of evidence required by law.
Burden of proof never shifts.
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 Burden of evidence is the duty of a party to present
evidence sufficient to establish or rebut a fact in issue to
establish a prima facie case. Burden of evidence may shift
from one party to the other in the course of the
proceedings,
depending on the exigencies of the case.
BURDEN OF PROOF
The burden of proof or “onus probandi,” traditionally refers to the
obligation or the duty of the prosecution to prove its accusation against
the accused. It is the duty of a party to present evidence not only to
establish a claim but also a defense. The burden of proof never shifts.
The burden of proof is not always with the complainant. It may also be
on the accused if he or she alleges, in his or her answer, an affirmative
defense, which is an avoidance of the accusation. Thus, in an action for
damages, the victim has the burden of proving that the fault or
negligence of the accused was the proximate cause of the injuries he
sustained. On the other hand, the accused has the burden to prove his
defense as when he or she claims that the injuries of the victim were
cause, not by the wrongful act of the accused but a caso fortuito or
fortuitous event.
BURDEN OF EVIDENCE
Burden of evidence is the duty of a party to present evidence sufficient
to establish or rebut a fact in issue to establish a prima facie case.
Burden of evidence may shift from one party to the other in the course
of the proceedings, depending on the exigencies of the case.
The burden of evidence is the duty of the party to go forward with the
evidence to overthrow the prima facie evidence against the other party.
As the trial progresses, one party may have presented evidence that
weighs heavily in his favor and sufficient to convince the court of the
justness of his claim. If this occurs, the other party has the burden to
come forward with his own evidence to counteract whatever positive
impression which the evidence of the other party may have created in
the mind of the court. This duty, is also called the burden of coming
forward with the evidence.
ILLUSTRATION:
In illegal possession of firearms, the prosecution has the burden of
proving the accused’s lack of authority to have a firearm. The
prosecution having proved that the accused was not issued license, the
burden of evidence was then shifted to the accused to prove his
authorization to possess a firearm.
Generally, the burden of proof lies upon the prosecution to prove the
guilt of the accused beyond reasonable doubt rather than upon the
accused that he was in fact innocent.
If the accused, however, admits killing the victim, but plead self-
defense, the burden of evidence is shifted to the accused to prove such
defense by clear, satisfactory, and convincing evidence that excludes
any vestige of criminal aggression on his part. To escape liability, it is
now becoming incumbent upon the accused to prove by clear and
convincing evidence all the elements of that justifying circumstance.
Where insanity is alleged, the burden of evidence rests upon him who
alleges insanity to establish that fact but where insanity is once proved
to exist, the burden of evidence is shifted to the prosecution who must
assert that the act was done while the person was sane or during lucid
intervals
DISTINCTIONS BETWEEN THE BURDEN OF PROOF AND
BURDEN OF EVIDENCE
BURDEN OF PROOF BURDEN OF EVIDENCE
It is the duty of a party to It is the duty of a party to
present proof on the facts in provide evidence at any stage of
issue necessary to establish his the trial until he has established
claim or defense by the amount a prima facie case, or the like
of evidence required by law duty of the adverse party to
meet and overthrow that prima
facie case thus established. In
both civil and criminal cases, the
burden of evidence lies on the
party who asserts an affirmative
allegation.
It does not shift the burden of It creates a prima facie case and
proof. However, the one who thereby sustains the said burden
has the burden of proof is of evidence on the point which it
relieved from the time being, covers, shifting it to the other
from introducing evidence in party. It relieves those favored
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support of his averment because thereby of the burden of proving
the presumption stands in the the fact presumed.
place of evidence.
EQUIPONDERANCE EVIDECNCE OR EQUIPONDERANCE
DOCTRINE
Equiponderance of evidence means that when the scale shall stand upon
as equipoise and there is nothing in the evidence which shall incline it
to one side or the other, the court will find for the defendant. Thus, the
accused’ evidence which equalizes the weight of the victim’s evidence.
As a result, the victim will have to go forward with the proof. Should it
happen that at the trial the weight of evidence is equally balanced or at
equilibrium and presumption operate against the victim who has the
burden of proof, he or she cannot prevail.
Thus, where the facts and circumstances are capable of two or more
explanations one of which is consistent with the innocence of the
accused and the other is consistent with his guilt, then the evidence
does not fulfill the test of moral certainty and is not sufficient to support
a conviction.
The equipoise rule however is not applicable where the evidence
presented is not equally weighty, such as where the evidence of the
prosecution is overwhelming.
DEGREE OF PROOF REQUIRED IN COURT CASES
The following are degrees of proof necessary to satisfy the burden of
proof:
1. CIVIL CASE – Preponderance of evidence
2. ADMINISTRATIVE CASE – Substantial evidence
3. CRIMINAL CASE – proof beyond reasonable doubt for conviction
(a) During preliminary investigation – Well-founded belief of the
fact of commission of a crime
(b) Issuance of warrant of arrest – Probable cause
4. CLEAR AND CONVINCING EVIDENCE – Accused claims
justifying/exempting circumstances
PREPONDERANCE OF EVIDENCE
In civil cases, preponderance of evidence is the weight, credit, and value
of the aggregate evidence on either side and is usually considered to be
synonymous with the term “greater weight of credible evidence.”
There is preponderance of evidence when the trier of facts is led to find
that the existence of the contested facts is more probable that its non-
existence. In short, the rule requires the consideration of all facts and
circumstances of the cases, regardless of whether they are, object,
documentary, or testimonial.
Preponderance of evidence is a phrase that, in the last analysis, means
probability of the truth. It is evidence that is more convincing to the
court as it worthier of belief that that which is offered in opposition
thereto.
SUBSTANTIAL EVIDENCE
In cases filed before administrative or quasi-judicial bodies, a fact may
be deemed established if it is supported by substantial evidence. In
administrative cases, substantial evidence is that amount of relevant
evidence which a reasonable mind might accept as adequate to justify
a conclusion.
PROOF BEYOND REASONABLE DOUBT
In criminal cases, the quantum of proof used is proof beyond reasonable
doubt. Proof beyond reasonable doubt does not mean such a degree of
proof as, excluding possibility of error, produces absolute certainty.
Moral certainty is the only one required, or that degree of proof which
produces conviction in an unprejudiced mind.
The test to determine the moral certainty of the identification is its
imperviousness to skepticism on account of its distinctiveness. To
achieve the distinctiveness, the identification of evidence should
encompass unique physical features or characteristics, like the face, the
voice, the dentures, the distinguishing marks or tattoos on the body,
fingerprints, DNA, or other physical facts that set the individual apart
from the rest of humanity. In other words, it suffices that the witness
recognized the accused through identifying marks which would make
the accused unmistakably stand out from other individual.
In relation to this, it has been held that the finding of guilt based on the
testimony of a lone witness is not uncommon. For although the number
f witness may be considered a factor in the appreciation of evidence,
conviction can still be had based on the credible and positive testimony
of a single witness.
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CLEAR AND CONVINCING EVIDENCE
Clear and convincing evidence is a standard of proof derived from the
American common law. It is less that proof beyond reasonable doubt
(for criminal cases) but greater than preponderance of evidence (for civil
cases). The degree of believability is higher than that used in an ordinary
civil case. The degree of believability is higher than that used in an
ordinary civil case.
The standard of proof can be used in cases of annulment of contracts
where that is allegation of fraud, and the party wants to prove the
existence of such fraud. Also, the same can be used in criminal cases by
the accused who wants to prove alibi and denial.
PRESUMPTION
A presumption is an assumption of the existence or non-existence of a
fact that courts are permitted to draw from proof of other facts. The
presumption must be anchored on a fact; therefore, it cannot arise from
a mere inference or from another presumption.
The presumption is an important part of the rules of evidence in that
they serve to relieve parties from the burden of presenting evidence to
prove certain facts in various circumstances.
A presumption is not evidence. They merely affect the burden of offering
evidence. In a sense, a presumption is an inference that is mandatory
unless rebutted. There are two (2) kinds of presumptions, it is either:
1. Presumptions of law; and
a. Conclusive presumption (juris et de jure) or
b. Disputable presumption (juris tantum)
2. Presumption of facts.
PRESUMPTION OF LAW
Presumptions of law are those which the law requires to be drawn from
the existence of established facts in the absence of contrary evidence
on the subject deductions which the law expressly directs to be made
from particular facts.
Most presumptions of law have their legal bases in the presumption of
fact, and or are founded upon the same principles.
For example, the presumption that an accused is innocent of the crime
charged until the contrary is proven is a presumption of law embodied
in the Constitution.
PRESUMPTION OF FACTS
Are those which the experience of mankind has shown to be valid,
founded on general knowledge and information
For instance, if A attacks B without provocation, the logical presumption
arises that A does not have tender feelings toward B. A presumption of
fact is, in effect, a mere inference because it does not necessarily give
rise to a legal effect.
DISTINCTIONS BETWEEN PRESUMPTION OF LAW AND
PRESUMPTION OF FACTS
PRESUMPTION OF LAW PRESUMPTION OF FACTS
It is a deduction that the law It is a deduction that reason
expressly directs to be made draws from the facts proved
from particular facts without an express direction
from law to that effect.
A certain inference must be Discretion is vested in the
made whenever the facts appear tribunal as to drawing the
which furnish the basis of the inference
inference
Reduced to fixed rules and form Derived wholly and directly from
a part of the system of the circumstances of the
jurisprudence particular case by means of the
common experience of mankind
Need not be pleaded or proved if Has to be pleaded and proved
the facts on which they are
based are duly averred and
established
EFFECT OF PRESUMPTIONS
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 that fact for a presumption is prima facie
proof of the presumed.
Prime facie means that which suffices for the proof of a particular fact
until contradicted and overcome by other evidence. It requires a degree
or quantum of proof greater than probable cause
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SECTION 2. Conclusive presumptions. – The
following are instances of conclusive presumptions:
(a) Whenever a party has, by his or her own declaration,
act, or omission, intentionally and deliberately led another
to believe a particular thing true, and to act upon such
belief, he or she cannot, in any litigation arising out of such
declaration, act or omission, be permitted to falsify it; and
(b) The tenant is not permitted to deny the title of his or
her landlord at the time of the commencement of the
relation of landlord and tenant between them.
CONCLUSIVE PRESUMPTION
A presumption is conclusive when the presumption becomes irrebuttable
upon the presentation of the evidence and any evidence tending to rebut
the presumption is not admissible.
Thus, conclusive presumptions are inferences that the law makes so
peremptory that will not allow to be overturned by any contrary proof
however strong.
The conclusive presumptions are based on the doctrine of estoppel.
Under the doctrine of estoppel, the person making the representation
cannot claim benefit from the wrong he himself committed.
ESTOPPEL
Under the doctrine of estoppel, an admission or representation is
rendered conclusive upon the person making it, and cannot be denied
or disproved as against the person relying thereon.
Whenever a party has, by his own declaration, act, or omission,
intentionally and deliberately led another to believe a particular thing
true and to act upon such belief, he cannot, in any litigation arising out
of such declaration, act, or omission, be permitted to falsify it.
The doctrine of estoppel is based upon the grounds of public policy, fair
dealing, good faith, and justice, and its purpose is to forbid one to speak
against his own act, representations, or commitment to the injury of one
to whom they were directed and who reasonably relied thereon.
The doctrine of estoppel springs from equitable principles and the
equities in the case. It is designed to aid the law in the administration
of justice where without its aid injustice might result.
Under the law, estoppel may either be in pais or by deed. From this
basic enumeration, jurisprudence had provided another kind of estoppel,
which is estoppel by laches.
The rule on estoppel in pais is a rule of equity that has been adopted by
the courts of law. For instance, A has, by his or her acts or
representations, or by his or her silence when he or she ought to speak
out, intentionally or through culpable negligence, induced B to believe
certain facts to exist, and B has rightfully acted on his or her belief so
that he or she will be prejudiced if A is permitted to deny the existence
of such facts, A is conclusively estopped to interpose a denial thereof.
Under estoppel by deed, on the other hand, a party to a deed and his
or her privies are precluded from denying any material fact stated in the
deed as against the other party and his or her privies.
Under the estoppel by laches, which is also known as equitable estoppel,
a person who has failed or neglected to assert a right for an
unreasonable and unexplained length of time is presumed to have
abandoned or otherwise decline to assert such right and cannot later on
seek to enforce the same, to the prejudice of the other party, who has
no notice or knowledge that the former would assert such right and
whose condition has so changed that the latter cannot, without injury
or prejudice, be restored to his or her former state.
SECTION 3. Disputable presumptions. – The following
presumptions are satisfactory if uncontradicted, but may be
contradicted and overcome by other evidence:
(a) That a person is innocent of crime or wrong;
(b) That an unlawful act was done with an unlawful intent;
(c) That a person intends the ordinary consequences of
his or her voluntary act;
(d) That a person takes ordinary care of his or her
concerns;
(e) That evidence willfully suppressed would be adverse if
produced;
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 (f) That money paid by one to another was due to the
latter;
(g) That a thing delivered by one to another belonged to
the latter;
(h) That an obligation delivered up to the debtor has been
paid;
(i) That prior rents or installments had been paid when a
receipt for the later one is produced;
(j) That a person found in possession of a thing taken in
the doing of a recent wrongful act is the taker and the
doer of the whole act; otherwise, that things which a
person possesses, or exercises acts of ownership over,
are owned by him or her;
(k) That a person in possession of an order on himself or
herself for the payment of the money, or the delivery
of anything, has paid the money or delivered the thing
accordingly;
(l) That a person acting in a public office was regularly
appointed or elected to it;
(m) That official duty has been regularly performed;
(n) That a court, or judge acting as such, whether in the
Philippines or elsewhere, was acting in the lawful
exercise of jurisdiction;
(o) That all the matters within an issue raised in a case
were laid before the court and passed upon by it; and
in like manner that all matters within an issue raised in
a dispute submitted for arbitration were laid before the
arbitrators and passed upon by them;
(p) That private transactions have been fair and regular;
(q) That the ordinary course of business has been
followed;
(r) That there was a sufficient consideration for a
contract;
(s) That a negotiable instrument was given or indorsed for
a sufficient consideration;
(t) That an indorsement of a negotiable instrument was
made before the instrument was overdue and at the
place where the instrument is dated;
(u) That a writing is truly dated;
(v) That a letter duly directed and mailed was received in
the regular course of the mail;
(w) That after an absence of seven [(7)] years, it being
unknown whether or not the absentee still lives, he or
she is considered dead for all purposes, except for
those of succession.
The absentee shall not be considered dead for the purpose
of opening his or her succession until after an absence of
ten [(10)] years. If he or she disappeared after the age of
seventy-five (75) years, an absence of five (5) years shall
be sufficient in order that his or her succession may be
opened.
The following shall be considered dead for all purposes
including the division of the estate among the heirs:
(1) A person on board a vessel lost during a sea voyage, or
an aircraft which is missing, who has not been heard of
for four [(4)] years since the loss of the vessel or
aircraft;
(2) A member of the armed forces who has taken part in
armed hostilities, and has been missing for four [(4)]
years;
(3) A person who has been in danger of death under other
circumstances and whose existence has not been
known for four [(4)] years; and
(4) If a married person has been absent for four (4)
consecutive years, the spouse present may contract a
subsequent marriage if he or she has well-founded
belief that the absent spouse is already dead. In case
of disappearance, where there is a danger of death[,
under] the circumstances hereinabove provided, an
absence of only two [(2)] years shall be sufficient for
the purpose of contracting a subsequent marriage.
However, in any case, before marrying again, the
spouse present must institute summary proceeding[s]
as provided in the Family Code and in the rules for
declaration of presumptive death of the absentee,
without prejudice to the effect of reappearance of the
absent spouse;
(x) That acquiescence resulted from a belief that the thing
acquiesced in was conformable to the law or fact;
(y) That things have happened according to the ordinary
course of nature and ordinary nature habits of life;
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(z) That persons acting as copartners have entered into a
contract of co-partnership;
(aa) That a man and woman deporting themselves as
husband and wife have entered into a lawful contract
of marriage;
(bb) That property acquired by a man and a woman who
are capacitated to marry each other and who live
exclusively with each other as husband and wife[,]
without the benefit of marriage or under a void
marriage, has been obtained by their joint efforts,
work or industry;
(cc) That in cases of cohabitation by a man and a woman
who are not capacitated to marry each other and who
have acquired property through their actual joint
contribution of money, property or industry, such
contributions and their corresponding shares, including
joint deposits of money and evidences of credit, are
equal;
(dd) That if the marriage is terminated and the mother
contracted another marriage within three hundred
[(300)] days after such termination of the former
marriage, these rules shall govern in the absence of
proof to the contrary:
(1) A child born before one hundred eighty (180) days
after the solemnization of the subsequent marriage is
considered to have been conceived during [the former]
marriage, [provided] it be born within the three
hundred [(300)] days after the termination of the
former marriage; and
(2) A child born after one hundred eighty (180) days
following the celebration of the subsequent marriage
is considered to have been conceived during such
marriage, even though it be born within the three
hundred (300) days after the termination of the former
marriage;
(ee) That a thing once proved to exist continues as long as
is usual with things of that nature;
(ff) That the law has been obeyed;
(gg) That a printed or published book, purporting to be
printed or published by public authority, was so printed
or published;
(hh) That a printed or published book, purporting to contain
reports of cases adjudged in tribunals of the country
where the book is published, contains correct reports
of such cases;
(ii) That a trustee or other person whose duty it was to
convey real property to a particular person has actually
conveyed it to him or her when such presumption is
necessary to perfect the title of such person or his or
her successor in interest;
(jj) That except for purposes of succession, when two
[(2)] persons perish in the same calamity, such as
wreck, battle, or conflagration, and it is not shown who
died first, and there are no particular circumstances
from which it can be inferred, the survivorship is
determined from the probabilities resulting from the
strength and the age of the sexes, according to the
following rules:
1. If both were under the age of fifteen (15)] years, the
older is deemed to have survived;
2. If both were above the age of sixty (60), the younger
is deemed to have survived;
3. If one is under fifteen [(15)] and the other above sixty
(60), the former is deemed to have survived;
4. If both be over fifteen [(15)] and under sixty [(60)],
and the sex be different, the male is deemed to have
survived, if the sex be the same, the older; and
5. If one be under fifteen [(15)] or over sixty [(60)], and
the other between those ages, the latter is deemed to
have survived;
(kk) That if there is a doubt, as between two (2) or more
persons who are called to succeed each other, as to
which of them died first, whoever alleges the death of
one prior to the other, shall prove the same; in the
absence of proof, they shall be considered to have died
at the same time.
DISPUTABLE PRESUMPTIONS
A disputable presumption has been defined as a species of evidence that
may be accepted and acted upon on where there is no other evidence
to uphold the contention for which it stands, or one which may be
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overcome by other evidence.
DISPUTABLE PRESUMPTION UNDER THE RULES OF COURT
A significant example of a disputable presumption under the Rules of
Court is the presumption that “official duty has been regularly
performed.
For instance, in buy-bust operations, the Court has usually presumed
the regularity of performance of their official duties in favor of members
of the buy-bust team. In cases 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
The presumption of regularity of court proceedings includes a
presumption of regularity of service of summons. It is therefore
incumbent upon the party questioning the validity of the service to rebut
these presumptions with competent and proper evidence
CASES WHERE THE PRESUMPTION OF REGULARITY OF
OFFICIAL DUTY DOES NOT APPLY
1. There is evidence suggesting ill motive on the part of the police
officers or deviation from the regular performance of their duties
2. There is a deviation from the regular performance of duty.
3. There is affirmative evidence of irregularity or failure to perform a
duty
The presumption of regularity in the performance of official functions
cannot, by itself, overcome the presumption of innocence. The
constitutional presumption of innocence may not be overturned by
disputable presumption. The presumption of regularity in the
performance of official duty does not constitute proof beyond a
reasonable doubt.
In case of conflict between the presumption of regularity in the
performance of duty of police officers and the presumption of innocence
of the accused, the presumption of innocence must prevail as the law
imposes upon the prosecution the highest degree of proof of evidence
to sustain the conviction.
EFFECT OF DISPUTABLE PRESUMPTION
The effect of a disputable presumption upon the burden of proof is to
create the need of presenting evidence to overcome the prima facie case
created by the presumption. If no contrary proof is offered, the
presumption will prevail.
Disputable presumptions are presumptions that may be overcome by
contrary evidence.
EXAMPLES OF DISPUTABLE PRESUMPTIONS
Some significant disputable presumptions under Section 3 of Rule 131
of the Rules of Court are:
1. That a person is innocent of crime or wrong;
2. That an unlawful act was done with unlawful intent;
3. That a person intends the ordinary consequences of his voluntary
act;
4. That a person takes ordinary care of his concerns;
5. That money paid by one to another was due to the latter;
6. That a thing delivered by one to another belonged to the
latter;
7. That an obligation delivered up to the debtor has been paid;
8. That prior rents or installments had been paid when a receipt
for the later ones is produced;
9. That a person acting in a public office was regularly
appointed or elected to it;
10. That official duty has been regularly performed.
PRESUMPTIVE RULES IN CASE TWO (2) PERSONS PERISH
IN SAME CALAMITY
When two (2) persons perish in the same calamity, such as wreck,
battle, or conflagration, and it is not shown who died first, and
there are no circumstances from which it can be inferred, the
survivorship is determined from the probabilities resulting from
the strength and the age of the sexes, according to the following
rules:
1. If both were under the age of fifteen (15) years, the older is
deemed to have survived;
2. If both were above the age of sixty (60), the younger is
deemed to have survived;
3. If one is under fifteen (15) and the other above sixty (60), the
former is deemed to have survived;
4. If both be over fifteen (15) and under sixty (60), and the sex
is different, the male is deemed to have survived, if the sex is
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the same, the older; and
5. If one be under fifteen (15) or over sixty (60), and the other
between those ages, the latter is deemed to have survived;
If there is a doubt, as between two (2) or more persons who are
called to succeed each other, as to which of them died first,
whoever alleges the death of one prior to the other, shall prove
the same; in the absence of proof, they shall be considered to
have died at the same time.
PRESUMPTION OF DEATH; PERSON UNHEARD FOR SEVEN
(7) YEARS
A judicial declaration that a person unheard for seven (7) years,
being a presumption juris tantum or disputable presumption only,
subject to contrary proofs, cannot reach the state of finality or
become final.
Proof of the actual death of the person presumed dead because
he had been unheard from in seven years, would have to be made
in another proceeding to have such a particular fact finally
determined.
The absentee shall not be considered dead for the purpose of
opening his or her succession until after an absence of ten (10)
years. If he or she disappeared after the age of seventy-five (75)
years, an absence of five (5) years shall be sufficient in order that
his or her succession may be opened.
THE FOLLOWING SHALL BE CONSIDERED DEAD FOR ALL
PURPOSES INCLUDING THE DIVISION OF THE ESTATE
AMONG HEIRS
1. A person on board a vessel lost during a sea voyage, or an
aircraft that is missing, who has not been heard of for four (4)
years since the loss of the vessel or aircraft;
2. A member of the armed forces who has taken part in armed
hostilities, and has been missing for four (4) years;
3. A person who has been in danger of death under other
circumstances and whose existence has not been known for
four (4) years; and
4. If a married person has been absent for four (4) consecutive
years, the spouse present may contract a subsequent
marriage if he or she has a well-founded belief that the absent
spouse is already dead.
In case of disappearance, where there is a danger of death, under
the circumstances hereinabove provided, an absence of only two
(2) years shall be sufficient for the purpose of contracting a
subsequent marriage.
However, in any case, before marrying again, the spouse present
must institute a summary proceeding as provided in the Family
Code and in the rules for declaration of presumptive death of the
absentee, without prejudice to the effect of reappearance of the
absent spouse
PRESUMPTION IF MARRIAGE IS TERMINATED AND THE
MOTHER CONTRACTED ANOTHER MARRIAGE WITHIN
THREE HNDERED (300) DAYS
After the termination of the former marriage and the woman
contracted subsequent marriage within 300 days, these rules shall
govern in the absence of proof to the contrary:
1. If a child is born before one hundred eighty (180) days after
the solemnization of the subsequent marriage, the child is
considered to have been conceived from the former marriage,
provided, the child be born within the three hundred (300)
days after the termination of the former marriage; and
2. If a child is born after one hundred eighty (180) days following
the celebration of the subsequent marriage, the child is
considered to have been conceived during the current
marriage, even though it be born within the three hundred
(300) days after the termination of the former marriage.
DISTINCTIONS BETWEEN CONCLUSIVE PRESUMPTIONS AND
DISPUTABLE PRESUMPTIONS
CONCLUSIVE DISPUTABLE
PRESUMPTIONS PRESUMPTION
Are presumptions that may not Are presumptions that may be
be overturned by evidence, overcome by contrary evidence
however strong the evidence is
They are made conclusive not They are disputable in
because there is an established recognition of the variability of
uniformity in behavior whenever human behavior.
identified circumstances arise
They are conclusive because they Presumption is not always true.
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 are declared as such under the They may be wrong under
law of the rules certain circumstances, and
courts are expected to apply
them, keeping in mind the
nuances of every experience
that may render the
expectations wrong.
SECTION 4. No presumption of legitimacy or
illegitimacy. – There is no presumption of legitimacy or
illegitimacy of a child born after three hundred (300) days
following the dissolution of the marriage or the separation
of the spouses. Whoever alleges the legitimacy or
illegitimacy of such child must prove his or her allegation.
NO PRESUMPTION OF LEGITIMAVY OR ILLEGITIMACY
There is no presumption of legitimacy of a child born after three hundred
(300) days following the dissolution of the marriage or separation of the
spouses.
Whoever alleges the legitimacy or illegitimacy of such a child must prove
his allegation.
SECTION 5. Presumptions in civil actions and
proceedings. – In all civil actions and proceedings not
otherwise provided for by the law or these Rules, a
presumption imposes on the party against whom it is
directed the burden of going forward with evidence to rebut
or meet the presumption.
If presumptions are inconsistent, the presumption that is
founded upon weightier considerations of policy shall apply.
If considerations of policy are of equal weight,
neither presumption applies.
RULE ON THE PRESUMPTION IN CIVIL ACTION
In civil actions or proceedings, the person against whom a presumption
is directed has the burden of moving forward with the evidence.
In other words, the defendant has the immediate obligation to discharge
his or her burden of evidence without the obligation on the part of the
plaintiff to first discharge his or her own burden of proof because the
presumption established in the defendant’s favor has already been
overcome.
It is also provided that if there are more than one presumption and the
same are inconsistent, such presumption shall apply based upon the
weightier considerations of public policy. And if they are of equal weight,
neither presumption shall apply.
SECTION 6. Presumption against an accused in
criminal cases. – If a presumed fact that establishes guilt,
is an element of the offense charged, or negates a defense,
the existence of the basic fact must be proved beyond
reasonable doubt and the presumed fact follows from the
basic fact beyond reasonable doubt.
RULE ON PRESUMPTION IN CRIMINAL CASES
The rule on the presumption in criminal cases where the same is an
element of the offense is merely procedural enforcement of the
constitutional safeguard that the guilt of the accused must be proven
beyond reasonable doubt.
If the presumption of fact is an element of the offense charged such
presumed fact must be based on the fact that has to be proven first
beyond reasonable doubt. For if the rule were otherwise, there would
be a violation of the constitutional precept that the accused is presumed
to be innocent until the contrary is proved
FINAL COVERAGE
RULE 132
PRESENTATION OF EVIDENCE
A. EXAMINATION OF WITNESS
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SECTION 1. Examination to be done in open court. –
The examination of witnesses presented in a trial or hearing
shall be done in open court, and under oath or affirmation.
Unless the witness is incapacitated to speak, or the question
calls for a different mode of answer, the answers of the
witness shall be given orally.
EXAMINATION OF WITNESS
The examination of witnesses presented in a trial or hearing shall be
done in open court and under oath or affirmation. The oath or
affirmation is so important to the extent that if the same has not been
made, only that part of the evidence which follows that said oath or
affirmation is competent.
However, the right of a party to object to the testimony of the witness
who has not been put under oath or affirmation can be waived. If a
party fails to object to the taking of testimony of a witness without oath
or affirmation, he or she will be deemed to have waived his or her
objection.
Under the Rules, the witness shall give his or her testimony orally unless:
1. The witness is incapacitated to speak, or
2. The question calls for a different mode of answer
For instance, deaf and dumb witnesses may be examined by ordinary
gestures or by a systematic sign language which must be translated by
an interpreter skilled and sworn.
In a criminal case, either party may utilize the testimony of a witness
who is deceased, out of the country, unavailable or unable to testify
despite the exercise of due diligence, even if the testimony was one
used in another case or proceeding, judicial or administrative, provided
the said proceeding involved the same parties and subject matter and
the adverse party had the opportunity to cross-examine the witness.
OATH OR AFFIRMATION
The witness must take either oath or affirmation, but the option to do
so is given to the witness and not the court. Where the witness refuses
to take an oath or give affirmation, the testimony may be barred.
OATH AFFIRMATION
Outward pledge made under an Substitute for an oath, and is a
immediate sense of solemn and formal declaration
responsibilities to God or a that the witness will tell the truth
solemn appeal to the Supreme
Being in attestation of the truth
of some statement
SECTION 2. Proceedings to be recorded. – The entire
proceedings of a trial or hearing, including the questions
propounded to a witness and his or her answers thereto,
the
statements made by the judge or any of the parties,
counsel, or witnesses with reference to the case, shall be
recorded by means of shorthand or stenotype or by other
means of recording found suitable by the court.
A transcript of the record of the proceedings made by the
official stenographer, stenotypist or recorder and certified
as correct by him or her, shall be deemed prima facie a
correct
statement of such proceedings.
RECORD OF PROCEEDINGS
The testimony of the witness or the answers given by the witness during
direct examination, cross-examination, redirect examination, and
recross examination shall be recorded.
The questions propounded to a witness and his answer thereto shall also
be recorded. The records are the statements made by the judge, any
of the parties, or any of the counsels.
In fact, the entire proceedings of the trial or hearing must be recorded.
The recording may be by short-hand, stenotype, or any means of
recording found suitable by the court.
The official stenographer steno typist or recorder shall make a transcript
of the record of the proceedings and shall be certified by him as correct.
The transcript so prepared and certified shall be deemed prima facie a
correct statement of such proceedings.
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SECTION 3. Rights and obligations of a witness. – A
witness must answer questions, although his or her answer
may tend to establish a claim against him or her. However,
it is the right of a witness:
(1) To be protected from irrelevant, improper, or insulting
questions, and from harsh or insulting demeanor;
(2) Not to be detained longer than the interests of justice
require;
(3) Not to be examined except only as to matters pertinent
to the issue;
(4) Not to give an answer which will tend to subject him
or her to a penalty for an offense unless otherwise
provided by law; or
(5) Not to give an answer which will tend to degrade his
or her reputation, unless it be to the very fact at issue
or to a fact from which the fact in issue would be
presumed. But a witness must answer to the fact of
his or her previous final conviction for an offense
RIGHTS AND OBLIGATIONS OF A WITNESS
As a rule, a witness has an obligation to answer questions propounded
on him or her based on his or her personal knowledge, although his
answer may tend to establish a claim against him or her.
Under the Rules, the following are the rights and obligations of a
witness:
1. To be protected from irrelevant, improper, or insulting questions,
and from harsh or insulting demeanor;
2. Not the be detained longer than the interest of justice requires;
3. Not to be examined except only as to matters pertinent to the issue;
4. Not to give an answer that will tend to subject him or her to a
penalty for an offense unless otherwise provided by law; or
5. Not to give an answer which will tend to degrade his or her
reputation, unless it be to the very fact at issue or to a fact from
which the fact in issue would be presumed. But a witness must
answer to the fact of his or her previous conviction for an offense.
The fourth (4th) right of the witness, which is a right not to give an
answer that tends to subject him or her to a penalty for an offense, is
also called the right against self-incrimination. It is based on the
constitutional provision which provides that “no person shall be
compelled to be a witness against himself.”
The right against self-incrimination is accorded to every person who
gives evidence, whether voluntary or under compulsion of a subpoena,
in every civil, criminal, and administrative proceeding.
The essence of the right against self-incrimination is testimonial
compulsion, the giving of evidence against himself or herself through a
testimonial act. The right can be claimed only when the specific
question, incriminatory in character, is put to the witness. It cannot be
claimed at any other time.
However, a witness must answer to the fact of his previous final
conviction for an offense. If the witness is the accused, he may totally
refuse to take the stand. A mere witness cannot altogether refuse to
take the stand. Before he refuses to answer, he must wait for the
incriminating question.
The right against self-incrimination is not self-executing or automatically
operational. It must be claimed. If not claimed by or on behalf of the
witness, the protection does not come into play. It follows that the right
may be waived, expressly, or impliedly, as by a failure to claim it at the
appropriate time.
SECTION 4. Order in the examination of an
individual witness. – The order in which an individual
witness may be examined is as follows:
(a) Direct examination by the proponent;
(b) Cross-examination by the opponent;
(c) Re-direct examination by the proponent;
(d) Re-cross-examination by the opponent.
ORDER IN THE EXAMINATION OF WITNESS AND KIND OF
EXAMINATIONS
The order in which an individual witness may be examined is as follows:
1. Direct examination by the proponent
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2. Cross-examination by the opponent
3. Re-direct examination by the proponent
4. Re-cross examination by the opponent
5. Recalling the witness
Generally, there are four (4) kinds of examinations of a witness. After
the witness has been fully exhaustively examined, the witness cannot
be called back to the witness stand. But under the rules, the witness can
be recalled only with prior leave of court as the interests of justice may
require.
Recalling a witness is a matter of judicial discretion.
OFFER OF TESTIMONY OF THE WITNESS
The proponent shall state the substance of the intended testimony of
the witness (an outline of the major points) and the purpose of said
testimony (what the proponent intends to prove by said testimony)
IMPORTANCE OF THE OFFER OF TESTIMONY OF THE WITNESS
The following are the importance of offering the testimony of the
witness in court:
1. The direct examination may be objected to by the opponent
2. Matters not included in the offer may not be allowed to be testified
on upon proper objection and
3. To shorten the proceedings as the opponent may admit or stipulate
on the matters to be testified on.
SECTION 5. Direct examination. – Direct examination is
the examination-in-chief of a witness by the party
presenting him or her on the facts relevant to the issue.
DIRECT EXAMINATION OF A WITNESS
Direct examination is the examination-in-chief of a witness by the party
presenting him on the facts relevant to the issue. The examination-in-
chief of a witness, particularly a prosecution witness in criminal cases is
so important that if the witness is not able to attend the hearing for the
presentation of his or her evidence-in-chief, it shall warrant the dismissal
of the criminal case on the ground of violation of the constitutional right
of the accused to speedy trial and the same cannot be re-filed without
violation the other constitutional right of the accused against double
jeopardy.
However, direct examination of the witness is now subject to judicial
affidavit rule issued by the Supreme Court of the Philippines under A.M.
12-8-8-SC in all criminal cases with the penalty of imprisonment not
exceeding six (6) years and discretionary for more than 6 years penalty
of imprisonment.
IMPORTANCE OF DIRECT EXAMINATION
Direct Examination is the only opportunity for the proponent to elicit
from the witness all the facts which are important and favorable to him.
By the time the direct examination is over, all favorable facts should
have been squeezed from the witness. The examination must be clear,
forceful, comprehensive, and must efficiently present the facts of the
case.
SECTION 6. Cross-examination; its purpose and
extent. – Upon the termination of the direct examination,
the witness may be cross-examined by the adverse party on
any relevant matter, with sufficient fullness and freedom to
test his or her accuracy and truthfulness and freedom from
interest or bias, or the reverse, and to elicit all important
facts bearing upon the issue.
CROSS-EXAMINATION OF A WITNESS
Cross-examination is the examination of the witness by the opponent
after the direct examination.
Upon the termination of the direct examination, the witness may be
cross-examined by the adverse party as to any relevant matters stated
in the direct examination, or connected therewith, with sufficient fullness
and freedom to test the witness’ accuracy and truthfulness and freedom
from interest or bias, or the reverse, and to elicit all important facts
bearing upon the issue.
In an adversarial judicial system such as ours, the right to cross-examine
a witness is essential to the principle of due process. Indeed, no person
may be deprived of life, liberty, or property without due process of law.
The right of a party to confront and cross-examine opposing witnesses
is available in either criminal or civil judicial litigation, or in administrative
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tribunals with quasi-judicial power.
However, the right to cross-examine the witness is a personal one that
may be waived expressly or impliedly by conduct amounting to a
renunciation of the right of cross-examination. Thus, where a party has
had the opportunity to cross-examine a witness but failed to avail
himself or herself of it, he or she necessarily forfeits the right to cross-
examine, and the testimony given in direct examination of the witness
will be received or allowed to remain in the record of the case.
The importance of cross-examination in a trial or hearing cannot be
gainsaid is further emphasized by the rule that oral testimony may be
considered only when it is complete, that is, if the witness has been
wholly cross-examined by the adverse party or the right to cross-
examine is lost wholly or in part through the fault of such adverse party.
On the other hand, when cross-examination is not and cannot be done
or completed due to causes attributable to the party offering the
witness, the uncompleted testimony is thereby rendered incompetent
and therefore can be stricken off the record.
The function of cross-examination is to set the truthfulness of the
statements of a witness made on direct examination. The opportunity
of cross-examination has been regarded as an essential safeguard of
the accuracy and completeness of a testimony.
IMPORTANCE AND PURPOSE OF CROSS EXAMINATION
Cross examination is both a weapon to destroy or weaken the testimony
of the opponent’s witness and a tool to build up or strengthen a party’s
case. The conduct of cross-examination must always be directed
towards achieving a specific purpose or purposes.
KINDS OF CROSS-EXAMINATION
1. Constructive Cross-Examination, where the purposes are:
a) To amplify or expand the story of the witness to place the
facts in a different light which is favorable to the party. Note
that the witness of the opponent seldom volunteer facts
favorable to the cross-examiner, hence the manner of
questioning should be “insinuating,” and
b) To obtain favorable or establish additional facts favorable to
the cross-examining party.
2. Destructive Cross-Examination. The purposes are:
a) To discredit the testimony of the witness by showing its
absurdity, or that it is unbelievable or contrary to the evidence
b) To discredit the witness by showing his bias, interest, lapse of
or selective memory, incorrect or incomplete observation of
events, and similar situations.
SCHOOL OF THOUGHT IN CROSS-EXAMINATION
There are two schools of thought on the conduct of cross-examination.
These are the following:
1. English Rule – a witness is called to a particular fact, he or she
becomes a witness for all purposes and may be fully cross-examined
upon all matter’s material to the issue, the examination not being
confined to the matters inquired about in the direct examination.
2. American Rule – under this rule, cross-examination is restricted to
facts and circumstances which relate to the matters that have been
stated in the direct examination of the witness. If a party wishes to
examine other matters, he or she must do so by calling the witness
on his or her own behalf.
In our jurisdiction, especially with the recent amendment made in our
Rules on Evidence, we follow the English Rule. This is based on the
wordings in the cross-examination which states that the witness may be
cross-examined by the adverse party on any relevant matter.
DEATH OF ABSENCE OF A WITNESS DURING CROSS-
EXAMINATION
If the witness dies before his cross-examination is over, his testimony
on the direct may be stricken out only with respect to the testimony not
covered by the cross-examination.
However, the absence of the witness is not enough to warrant striking
out his testimony for failure to appear for further cross-examination
where the witness has already been sufficiently cross-examined, and the
matter on which the cross-examination is sought is not in controversy.
If the witness was not cross-examined because of causes attributed to
the cross-examining party and the witness had always made himself
available for cross-examination, the direct testimony of the witness shall
remain in the record and cannot be ordered stricken off because the
cross-examiner is deemed to have waived the right to cross-examine
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the witness.
QUESTIONING BY THE COURT:
The Court may ask questions:
1. To clarify itself on certain points
2. To call the attention of counsel to points at issue that are overlooked
and
3. To direct counsel to questions on matters to elicit facts and clarify
ambiguous answers
However, the questioning by the court should not be confrontational,
probing and insinuating. It should not be partisan and not over
extensive. The court is not to assume the role of an advocate or
prosecutor.
SECTION 7. Re-direct examination; its purpose and
extent. – After the cross-examination of the witness has
been concluded, he or she may be re-examined by the party
calling him or her to explain or supplement his or her
answers given during the cross-examination. On re-direct
examination, questions on matters not dealt with during the
cross-examination may be allowed by the court in its
discretion.
RE-DIRECT EXAMINATION OF THE WITNESS
After the cross-examination of the witness has been concluded, he may
be re-examined by the party calling him, to explain or supplement his
answers given during the cross-examination.
On re-direct examination, questions on matters not dealt with during
the cross-examination, may be allowed by the court in its discretion.
In the re-direct examination, the counsel may elicit testimony to correct
or repel any wrong impression or inferences that may have been created
in the cross-examination. It may also be an opportunity to rehabilitate
a witness whose credibility has been damaged. In the court’s discretion,
the court may allow questions on matters not touched in the cross-
examination
PURPOSE OF RE-DIRECT EXAMINATION
Principal purposes of redirect examination are the following:
1. To prevent injustice to the witness and the party who has called him
by affording an opportunity to the witness to explain the testimony
given on cross-examination;
2. To explain any apparent contradiction or inconsistency in his
statements, and
3. Complete the answer of a witness, or add a new matter which has
been omitted, or correct a possible misinterpretation of testimony
SECTION 8. Re-cross-examination. – Upon the
conclusion of the re-direct examination, the adverse party
may re-cross-examine the witness on matters stated in his
or her re-direct examination, and also on such other matters
as may be allowed by the court in its discretion
RE-CROSS EXAMINATION OF WITNESS
Upon the conclusion of the re-direct examination, the adverse party may
re-cross-examine the witness on matters stated in his re-direct
examination, and on such other matters as may be allowed by the court
in its discretion.
SECTION 9. Recalling witness. – After the examination
of a witness by both sides has been concluded, the witness
cannot be recalled without leave of the court. The court will
grant or withhold leave in its discretion, as the interests of
justice may require.
RECALLING OF A WITNESS
Generally, after exhaustively examination of a witness by both sides and
the examination has been concluded, the witness cannot be recalled
back to the witness stand without leave of the court.
The court will grant or withhold leave in its discretion, as the interests
of justice may require the court shall be guided by the interests of
justice.
EXAMINATION OF THE WITNESS
Examination of the witness means to find out facts from the witness or
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to test his memory, truthfulness, or credibility by directing him to answer
appropriate questions.
MEANING OF PROPONENT OF THE WITNESS
A proponent of the witness means the party who owns or who called
the witness to testify in his favor.
MEANING OF OPPONENT PARTY
Opponent party means the party against whom the witness was called.
MEANING OF FRIENDY WITNESS
A friendly witness is the one who is expected to give testimony favorable
to the party who called for him.
MEANING OF HOSTILE WITNESS
A hostile witness is the one whose testimony is not favorable to the
cause of the party who called him as a witness.
SECTION 10. Leading and misleading questions. – A
question which suggests to the witness the answer which
the examining party desires is a leading question. It is not
allowed, except:
(a) On cross-examination;
(b) On preliminary matters;
(c) When there is difficulty in getting direct and intelligible
answers from a witness who is ignorant, a child of
tender years, is of feeble mind, or a deaf-mute;
(d) Of an unwilling or hostile witness; or
(e) Of a witness who is an adverse party or an officer,
director, or managing agent of a public or private
corporation, or of a partnership or association which is
an adverse party.
A misleading question is one which assumes as true a fact
not yet testified to by the witness, or contrary to that which
he or she has previously stated. It is not allowed
LEADING AND MISLEADING QUESTIONS
LEADING QUESTIONS
A leading question is a question that suggests to the witness the answer
that the examining party desires. It is one that is framed in such a way
the question indicates to the witness to answer favorably by the party
asking the question.
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 defense.
The reason why leading question is not allowed in direct or re-direct
examination is that the witness being a friendly witness and having been
called by the proponent, he is naturally expected to be sympathetic to
the cause of the proponent. Thus, there is great danger that he would
just confirm any and all facts suggested to him by the proponent. Hence,
leading questions are not allowed.
The general rule in the leading question, however, is subject to the
following exceptions:
1. Leading questions during cross and re-cross examination is
allowed;
2. Leading questions on preliminary matters is allowed;
3. When there is difficulty in getting direct and intelligible answers
from a witness who is ignorant or a child of tender years, or is of
feeble mind, or a deaf-mute is allowed;
4. Leading questions propounded to an unwilling or a hostile witness
is allowed; or
5. Leading questions propounded to a witness who is an adverse
party, or an officer, director, or managing agent of a corporation,
partnership or association which is an adverse party is allowed.
The reason why leading questions are allowed during cross-examination
is that the witness is not expected to be sympathetic to the cause of the
opponent and would not volunteer important facts favorable to the
opponent, or that he would resist to testify on facts adverse to the party
who called him. Thus, it becomes necessary that the opposing counsel
has to force the facts from the witness through leading questions.
The opponent states a fact favorable to him and forces the witness to
confirm it.
A witness may be considered as unwilling or hostile only if so, declared
by the court upon adequate showing of his adverse interest, unjustified
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reluctance to testify or his having misled the party into calling him to the
witness stand.
MISLEADING QUESTIONS
A misleading question is one that assumes as true a fact not yet testified
to by the witness, or contrary to that which he has previously stated.
Misleading questions cannot be allowed absolutely in all instances. It is
not allowed in any type of examination. It is not allowed unless waived
or when asking hypothetical questions to an expert witness.
SECTION 11. Impeachment of adverse party’s
witness. – A witness may be impeached by the party
against whom he or she was called, by contradictory
evidence, by evidence that his or her general reputation for
truth, honesty, or integrity is bad, or by evidence that he or
she has made at other times statements inconsistent with
his or her present testimony, but not by evidence of
particular wrongful acts, except that it may be shown by the
examination of the witness, or record of the
judgment, that he or she has been convicted of an offense.
IMPEACHMENT OF A WITNESS
Impeachment of a witness is a technique employed usually as part of
cross-examination to discredit a witness’ testimony by attacking his
credibility. Destroying credibility is vital because it is linked with a
witness’ ability and willingness to tell the truth.
The following are certain guideposts in impeaching a witness:
1. The impeachment of a witness is to be done by the party against
whom the witness is called.
2. Subject to certain exceptions, the party producing the witness is
barred from impeaching his own witness.
3. By way of exception to the immediately preceding rule, if the witness
is unwilling or hostile, the party calling him may be allowed by the
court to impeach the witness. But is not for the party calling the
witness to decide that the witness is unwilling or hostile.
A party may also be allowed to impeach his own witness when said
witness is an adverse party or is an officer, director, or managing agent
of a corporation, partnership or association which is an adverse party.
It is also improper for the party calling the witness to present evidence
of the good moral character of his own witness. The same is allowed
only if the character of the witness has been impeached.
Thus, evidence of the good character of the witness is allowed only to
rebut the evidence offered to impeach the witness’ character. If he has
been impeached, then he can be rehabilitated by evidence of his good
character.
HOW TO IMPEACH A WITNESS
To impeach means to call into question the veracity of the witness’
testimony by means of evidence offered for that purpose or by showing
that the witness is unworthy of belief. Impeachment is an allegation,
supported by proof, that a witness who has been examined is unworthy
of credit.
Under section 11 of Rule 132 of the Rules of Court, a witness may be
impeached through the following modes:
1. By contradictory evidence;
2. By evidence that his general reputation for truth, honesty or
integrity is bad; or
3. By evidence that he has made at other times statements
inconsistent with his present testimony.
IMPEACHMENT BY CONTRADICTORY EVIDENCE
One basic rule in impeaching a witness is through contradictory evidence
is the observance of fairness. Fairness demands that the impeaching
matter in the cross-examination of the witness sought to be impeached
by allowing him to admit or deny a matter to be used as the basis for
impeachment by contradictory evidence
The basis of this mode of impeachment is a declaration made by the
witness in his direct testimony. The cross-examiner’s intention is to show
to the court that there were allegations made by the witness that do not
correspond to the real facts of the case.
This mode of impeachment of a witness may also be used to contradict
conclusions made by expert witness during their testimonies. Usually,
the adverse party may also call another expert to testify a contrary
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conclusion.
IMPEACHMENT BY SHOWING BAD REPUTATION
Evidence of the good character of a witness is not admissible until such
character has been impeached. The law presumes every person to be
reputedly truthful until evidence has been produced to the contrary.
When a witness testifies, he puts his credibility at issue because the
weight of his testimony depends upon his credibility. One way to impair
his credibility is by showing a not-so-pleasing reputation. Hence, the
prevailing rule allows his impeachment by evidence that he has a bad
general reputation.
The aspect of a person’s reputation that is relevant to his credibility. He
cannot be impeached for his reputation on other grounds. Thus, it would
be improper for a witness to be impeached because of his reputation for
being troublesome and abrasive.
Be it noted that the party calling a witness cannot initiated proof of his
good character, because a witness is presumed to be truthful and of
good character.
The party presenting the witness does not have to prove he is good
because he is presumed to be good one. It is only after the witness’
character has been attacked can he prove his being good. The witness
must first be discredited before the witness reputation or character can
be bolstered.
The rule that bars evidence of the good character of the witness, who
has not yet been impeached, has reference only to a mere witness. It
does not refer to an accused in a criminal case.
In a criminal case, the accused may prove his good moral character
relevant to the offense charged even before his character is attacked.
However, the prosecution cannot initiate proof of the bad character of
the accused. It can only do so by way of rebuttal. This means that the
prosecution can prove the bad character of the accused only if the
accused had first presented evidence of the accused good character.
IMPEACHMENT ON CREDIBILITY
Credibility means the disposition and intention to tell the truth in the
testimony given. It refers to a person’s integrity, and to the fact that he
or she is worthy of belief. Thus, a witness may be discredited by
evidence attacking his or her general reputation for truth honesty or
integrity.
Truth means conformity to fact or reality, exact accordance with that
which is, or has been or shall be.
Honesty signifies the quality or state of being straight, forwardness of
conduct, thought, speech, etc.
Integrity has been defined as moral, soundness, honesty, freedom from
corrupting influence or practice, especially strictness in the fulfillment of
contracts, the discharge of agencies, trusts and the like, uprightness,
and rectitude.
SECTION 12. Impeachment by evidence of
conviction of crime. – For the purpose of impeaching a
witness, evidence that he or she has been convicted by final
judgment of a crime shall be admitted if (a) the crime was
punishable by a penalty in excess of one [(1)] year; or (b)
the crime involved moral turpitude, regardless of the
penalty.
However, evidence of a conviction is not admissible if the
conviction has been the subject of an amnesty or annulment
of the conviction.
IMPEACHMENT BY EVIDENCE OF CONVICTION OF A CRIME
Although a witness cannot be impeached through the wrongful acts or
that he or she has been charged with an offense, he or she can be
impeached by evidence of conviction by final judgment. But not all
convictions are sufficient to impeach a witness.
Note must be taken that conviction of a crime is never an issue on
admissibility of evidence but only as to weight. Even convicted criminals
are not excluded from testifying in court so longs as, having organs of
sense, they can perceive and perceiving, can make known their
perception to others.
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The fact of prior criminal conviction alone does not suffice to discredit a
witness. The testimony of such witness must be scrutinized in exactly
the same way the testimony of other witness for its relevance and
credibility.
SECTION 13. Party may not impeach his or her own
witness. – Except with respect to witnesses referred to in
paragraphs (d) and (e) of Section 10 of this Rule, the party
presenting the witness is not allowed to impeach his or her
credibility.
A witness may be considered as unwilling or hostile only if
so declared by the court upon adequate showing of his or
her adverse interest, unjustified reluctance to testify, or his
or her having misled the party into calling him or her to the
witness stand.
The unwilling or hostile witness so declared, or the witness
who is an adverse party, may be impeached by the party
presenting him or her in all respects as if he or she had been
called by the adverse party, except by evidence of his or her
bad character. He or she may also be impeached and cross-
examined by the adverse party, but such cross-examination
must only be on the subject matter of his or her
examination-in-chief.
PARTY MAY NOT IMPEACH THE OWN WITNESS
As a rule, the party introducing the witness is not allowed to impeach
his or her own witness. It is improper for the party to impeach his own
witness. The impeachment of a witness must be done by the party
against whom the witness is called.
By way of exception, if the witness turned out to be an unwilling or
hostile witness or the witness who is an adverse party may impeach his
or her own witness. An unwilling or hostile witness may be considered
only if so, declared by the court.
Before a witness is considered by the court as unwilling or hostile, the
party producing him or her as a witness must lay the predicate or proper
foundation that he or she is indeed such, that is:
1. There must be adequate showing of his or her adverse interest;
2. His or her unjustified reluctance to testify; or
3. He or she has misled the party into calling him or her to the witness
stand.
SECTION 14. How witness impeached by evidence of
inconsistent statements. – Before a witness can be
impeached by evidence that he or she has made at other
times statements inconsistent with his or her present
testimony, the statements must be related to him or her,
with the circumstances of the times and places and the
persons present, and he or she must be asked whether he
or she made such statements, and if so, allowed to explain
them. If the statements be in writing, they must be shown
to the witness before any question is put to him or her
concerning them
IMPEACHMENT BY PRIOR INCONSISTENT STATEMENTS
A witness cannot be impeached by evidence of contradictory or prior
inconsistent statements until the proper foundation or laying the
predicate has been laid by the party against whom said witness was
called.
Laying the predicate means that it is the duty of a party trying to impugn
the testimony of a witness by means of prior or subsequent inconsistent
statements, whether oral or in writing, to give the witness a change to
reconcile his conflicting declaration. Thus, laying the predicate refers to
impeachment of a witness through prior inconsistent statement
The purpose of laying the predicate is to allow the witness to admit or
deny the prior statement and afford him an opportunity to explain the
same. Non-compliance with the foundational elements for this mode of
impeachment will be a ground for an objection based on “improper
impeachment.” Over a timely objection, extrinsic evidence of a prior
inconsistent statement without the required foundation is not
admissible.
Where there is no laying predicate is laid during the trial proof of alleged
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inconsistent statements of the witness, whether verbal or written,
cannot be admitted on objection of the adverse party, or be pointed out
on appeal for the purpose of destroying the credibility of the witness.
Prior inconsistent statements are statements made by a witness on an
earlier occasion which contradict the statements he later made during
trial. These inconsistent statements are admissible to impeach the
credibility of the witness making them. Impeachment by a prior
inconsistent statement is the most commonly used method because of
its simplicity and the impact it makes when properly used.
Effectivity impeaching a witness by prior inconsistent statements
requires laying the proper foundation for the impeachment. Laying the
foundation, commonly referred to as “laying the predicate”, is a
preliminary requirement before the impeachment process prospers.
The elements of this foundation are spelled out in Section 14 of Rule
132 of the Rules of Court. These are:
1. The alleged statements must be related to the witness including the
circumstances of the times and places and the persons present. If
the statements are in writing, they must be shown to him; and
2. He must be asked whether he made such statements and to explain
to them if he admits making those statements.
The mere presentation of the prior declarations of the witness without
the same having read to him while testifying in court is insufficient for
the desired impeachment of his testimony if he was not given the ample
opportunity to explain the supposed discrepancy. This rule is founded,
not only upon common sense but is essential to protect the character of
the witness.
SECTION 15. Exclusion and separation of witnesses.
– The court, motu proprio or upon motion, shall order
witnesses excluded so that they cannot hear the testimony
of other witnesses. This rule does not authorize exclusion
of (a) a party who is a natural person, (b) a duly designated
representative
of a juridical entity which is a party to the case, (c) a person
whose presence is essential to the presentation of the
party’s cause, or (d) a person authorized by a statute to be
present.
The court may also cause witnesses to be kept separate and
to be prevented from conversing with one another, directly
or
through intermediaries, until all shall have been examined.
EXCLUSION AND SEPARATION OF WITNESS
The practice of exclusion and separation of witnesses prevailed in the
British Parliament and in the courts of England and Scotland from the
early days. It was referred to as “placing the witness under the rule”
The purpose of this practice is to prevent the influence that one witness
may have overheard the testimony of another. Thus, for the purpose of
making effective the order placing witnesses under the rule, the court
may direct the witnesses to be kept separate while others are being
examined, in order that they may not communicate with each other.
SECTION 16. When witness may refer to
memorandum. – A witness may be allowed to refresh his
or her memory respecting a fact by anything written or
recorded by himself or herself, or under his or her direction,
at the time when the fact occurred, or immediately
thereafter, or at any other time when the fact was fresh in
his or her memory and he or she
knew that the same was correctly written or recorded; but
in such case, the writing or record must be produced and
may be inspected by the adverse party, who may, if he or
she chooses, cross-examine the witness upon it and may
read it in evidence. A witness may also testify from such a
writing or record, though he or she retains no recollection
of the particular facts, if he or she is able to swear that the
writing or record correctly stated the transaction when
made; but such evidence must be received with caution.
WITNESS REFERRAL TO MEMORANDUM
During the witness testimony, in order to refresh his memory, a witness
may refer to a memorandum or to anything written or recorded by
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witness, or written or recorded by someone acting under the direction
of witness.
Such memorandum should be written at the time the fact occurred or
immediately thereafter or at any time when the event or fact was fresh
in his memory. It is necessary too that the witness affirm that the fact
was correctly written or recorded. Also, the memorandum must be
produced and may be inspected by the adverse party.
The witness may testify from the memorandum, writing or record,
although he has no more recollection of the facts written therein. As
long as he swears that the memorandum, writing or record correctly
stated the facts or transaction when the recording was made. This type
of evidence must, however, be received with caution.
SECTION 17. When part of transaction, writing or
record given in evidence, the remainder admissible.
– When part of an act, declaration, conversation, writing or
record is given in evidence by one party, the whole of the
same subject may be inquired into by the other, and when
a detached act, declaration, conversation, writing or record
is given in evidence, any other act, declaration,
conversation, writing or record necessary to its
understanding may also be given in evidence.
WHEN PART OF THE TRANSACTION GIVEN IN EVIDENCE
When only part of the transaction, record, or writing is given in evidence,
it is a rule that the whole of the same subject may be inquired into by
the other, and when a detached act, declaration, conversation, writing
or record is given in evidence, any other act, declaration, conversation,
writing or record necessary to its understanding may also be given on
evidence.
SECTION 18. Right to inspect writing shown to
witness. – Whenever a writing is shown to a witness, it
may be inspected by the adverse party
RIGHT TO INSPECT WRITING OR MEMORANDUM
Before a witness may be allowed to refresh his or her memory by
referring to the memorandum, the writing or record must be produced
and may be inspected by the adverse party who may, if he or she
chooses, cross-examine the witness upon it and may read it in evidence.
B. AUTHENTICATION AND PROOF OF DOCUMENT
MEANING OF AUTHENTICATION
Authentication is the process of evidencing the due execution and
genuineness of a document. Evidence when presented in court is not
presumed authentic. The general rule, therefore, is to prove its
authenticity unless it is self-authenticating.
The concept of “authentication” occupies a vital place in the presentation
of evidence. Not only objects but also documents introduced in evidence
need to be authenticated. It is the preliminary step in showing the
admissibility of evidence.
ILLUSTRATION:
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 satisfaction of the court that
the weapon 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 someone else who
handled the evidence. When he affirms it is the same weapon, then the
evidence is authenticated.
DOCUMENT, DEFINED
A document is defined as a “deed, instrument or other duly authorized
paper by which something is proved, evidenced or set forth”.
However, for documents to be considered documentary evidence, it
must be “offered as proof of their contents”. If the document is not
offered for the purpose, the document is mere object evidence as when
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the purpose is merely to prove its existence hence, not every document
is to receive as documentary evidence.
CONCEPT AS TO DOCUMENT
As to document it is the process of proving that the document presented
in court is not spurious, falsified, or questionable, or that it is not a
different document.
CONCEPT AS TO OBJECT
As to objects, it is the process of proving that the object presented in
court is the very object involved in the case without any alteration or
substitution.
SECTION 19. Classes of documents. – For the purpose
of their presentation in evidence, documents are either
public or private. Public documents are:
(a) The written official acts, or records of the sovereign
authority, official bodies and tribunals, and public
officers, whether of the Philippines or of a foreign
country;
(b) Documents acknowledged before a notary public
except last wills and testaments;
(c) Documents that are considered public documents
under treaties and conventions which are in force
between the Philippines and the country of source; and
(d) Public records, kept in the Philippines, of private
documents required by law to be entered therein.
All other writings are private
CLASSES OF DOCUMENTS
For the purposes of their presentation as evidence, documents are either
public or private. Public documents are:
1. The written official acts, or records of the official acts of the
sovereign authority, official bodies and tribunals, and public officers,
whether of the Philippines or of a foreign country;
2. Documents acknowledged before a notary public except last wills
and testaments;
3. Documents that are considered public documents under treaties and
conventions which are in force between the Philippines and the
other country; and
4. Public records, kept in the Philippines, of private documents required
by law to the entered therein.
Based on the definition of public documents, an affidavit cannot be
considered a public document under the definition for the purpose of
presenting it as evidence. It cannot be considered as a document
acknowledged before notary public although it is notarized. There is
difference between an acknowledged document and a notarized
affidavit. Thus, an affidavit is merely hearsay evidence where its maker
did not take the witness stand.
Private documents are defined as all kinds of documents that do not
belong in the inclusion of public documents.
IMPORTANCE OF KNOWING WHETHER A DOCUMENT IS
PUBLIC OR PRIVATE DOCUMENT
The importance of determining whether a document is public or private
lies in the following reasons:
• Public documents do not require authentication; thus, it is
admissible in court without further proof of its due execution and
authenticity
• Public document that consists of entries in public records made in
the performance of a duty by a public officer are prima facie
evidence of the facts stated therein.
In contrast, a private document requires authentication and its due
execution before its acceptance as evidence in court.
LAST WILL AND TESTAMENT
Last will and testament must undergo an authentication process even if
they are notarized as required by law. While the term public document
includes one acknowledged before the notary public, nevertheless,
expressly excludes last will and testaments.
CHURCH REGISTRIES
Church registries of birth, marriage, and death made after the
promulgation of General Order No. 68 on December 18, 1889, and the
passage of Act No. 190, enacted on August 7, 1901, are no longer public
writings, nor are they kept by duly authorized public officials.
They are public writing and their authenticity must, therefore, be
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proved, as are all other writings in accordance with the Rule of Evidence.
SECTION 20. Proof of private documents. – Before any
private document offered as authentic is received in
evidence, its due execution and authenticity must be proved
by any of the following means:
(a) By anyone who saw the document executed or written;
(b) By evidence of the genuineness of the signature or
handwriting of the maker; or
(c) By other evidence showing its due execution and
authenticity.
Any other private document need only be identified as that
which it is claimed to be.
PRIVATE DOCUMENTS
The Rules on Evidence do not give a specific definition of private
document except by providing under Section 19 of Rule 132 that all
other writings are private.
Thus, private documents are those that do not fall under any of the
enumerations in Section 19, Rule 132 of the Rules of Court.
Before any public document offered is received in evidence, its due
execution and authenticity must first be proved by any of the following
means:
• By anyone who saw the document executed or written;
• By evidence of the genuineness of the signature or handwriting of
the maker; or
• By other evidence showing its due execution and authenticity
WHEN AUTHENTICATION OF A PRIVATE DOCUMENT IS
REQUIRED
Where the private document is offered in evidence as authentic, there
is a need to prove its due execution and authenticity. If the document
or writing is not offered as authentic, it only needs to be identified as
that which it is claimed to be.
There are two (2) ways of proving the due execution and genuineness
of a private instrument.
1. One way is to rely on the personal knowledge of a witness. Here,
the witness attests to the genuineness of the document because it
was executed or signed in his presence, he personally witnessed the
execution or writing of the document.
2. The second mode does not require that the document be executed
in the presence of the witness. Here, the witness testifies or shows
evidence that the signature or handwriting of the maker is genuine.
The manner of authenticating a document applies only when a private
document is offered as authentic as when it is offered to prove that the
document was truly executed by the person purported to have made
the same.
Where the document is offered in evidence not as authentic, its
genuineness and due execution need not be proven when the only
purpose is for the offeror to show that a certain piece of the document
exists.
Private writing is not self-authenticating. It requires proof of their due
execution and authentication before they can be received in evidence.
The due execution and authenticity must be proved either:
1. By anyone who saw the document executed or written; or
2. By evidence of the genuineness of the signature or handwriting of
the maker
Any other private document need only be identified as that which it is
claimed to be.
Authentication of a private document does not require a seal. There shall
be no difference between sealed and unsealed private documents
insofar as their admissibility is concerned.
AUTHENTICATION OF BOTH THE ORIGINAL AND PHOTOCOPY
OF THE ORIGINAL
While it is a basic rule of evidence that the original copy prevails over a
mere photocopy, there is no harm if in case, both the original and a
photocopy thereof are authenticated, identified, and offered in evidence
by the party proponent.
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 SECTION 21. When evidence of authenticity of
private document not necessary. – Where a private
document 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, no other evidence of its
authenticity need be given
ANCIENT DOCUMENTS
A private document is considered ancient when it is More than thirty
(30) years old. It is produced from custody in which it would naturally
be found genuine and unblemished by any alterations or circumstances
of suspicion.
When the document is ancient, evidence of its authenticity need not be
given. Thus, there is no need to prove its genuineness and due
execution.
This means that there is no necessity for observance of the
authentication process such as testimony of a person who saw the
document executed or by one who will show evidence of the
genuineness of the handwriting of the maker of the document.
It must, however, be established first that the document is ancient and
that it has the characteristics of a document.
WHEN AUTHENTICATION OF PRIVATE DOCUMENT IS NOT
REQUIRED
The requirement of authentication of a private document is excused in
some instances, specifically:
1. When the genuineness and due execution of the document is
admitted by the adverse party;
2. When such genuineness and due execution are immaterial to the
issue;
3. When the document is an ancient document.
SECTION 22. How genuineness of handwriting
proved. – The handwriting of a person may be proved by
any witness who believes it to be the handwriting of such
person because he or she has seen the person write, or has
seen writing purporting to be his or hers upon which the
witness has acted or been charged, and has thus acquired
knowledge of the handwriting of such person. Evidence
respecting the handwriting may also be given by a
comparison, made by the witness or the court, with writings
admitted or treated as genuine by the party against whom
the evidence is offered, or proved to be genuine to the
satisfaction of the judge.
HOW TO PROVE THE GENUINENESS OF HANDWRITING
The handwriting of a person may be proved by:
1. Any witness who believes it to be the handwriting of such a person
because he has seen the person write, or
2. Has seen writing purporting to be his upon which the witness has
acted or been charged, and has thus acquired knowledge of the
handwriting of such person.
Evidence respecting the handwriting may also be given by a comparison,
made by the witness or the court, with writings admitted or treated as
genuine by the party against whom the evidence is offered, or proved
to be genuine to the satisfaction of the judge.
The party producing a document as genuine which has been altered and
appears to have been altered after its execution, in a part material to
the question in dispute, must account for the alteration.
He may show that the alteration was made by another, without his
concurrence, or was made with the consent of the parties affected by
it, or was otherwise properly or innocently made, or that the alteration
did not change the meaning or language of the instrument. If he fails to
do that the document shall not be admissible in evidence
SECTION 23. Public documents as evidence. –
Documents consisting of entries in public records made in
the performance of a duty by a public officer are prima facie
evidence of the facts therein stated. All other public
documents are evidence, even against a third person, of the
fact which gave rise to their execution and of the date of
the latter.
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PUBLIC DOCUMENT AS EVIDENCE
Public documents are:
1. The written official acts, or records of the official acts of the
sovereign authority, official bodies and tribunals, and public officers,
whether of the Philippines, or of a foreign country;
2. Documents acknowledged before a notary public except last wills
and testaments; and
3. Public records, kept in the Philippines, of private documents required
by law to be entered therein.
Documents consisting of entries in public records made in the
performance of a duty by a public officer are prima facie evidence of the
facts therein stated.
All other public documents are evidence, even against a third person, of
the fact which gave rise to their execution and of the date of the latter.
Public documents are of two classes:
1. Those issued by competent public officials by reason of their office,
and
2. Those executed by private individuals which are authenticated by
notaries public.
SECTION 24. Proof of official record. – The record of
public documents referred to in paragraph (a) of Section 19,
when admissible for any purpose, may be evidenced by an
official publication thereof or by a copy attested by the
officer having the legal custody of the record, or by his or
her deputy, and accompanied, if the record is not kept in
the Philippines, with a certificate that such officer has the
custody.
If the office in which the record is kept is in a foreign
country, which is a contracting party to a treaty or
convention to which the Philippines is also a party, or
considered a public document under such treaty or
convention pursuant to paragraph (c) of Section 19 hereof,
the certificate or its equivalent shall be in the form
prescribed by such treaty or convention subject to
reciprocity granted to public documents originating from the
Philippines.
For documents originating from a foreign country which is
not a contracting party to a treaty or convention referred to
in the next preceding sentence, the certificate may be made
by a secretary of the embassy or legation, consul general,
consul, vice-consul, or consular agent or by any officer in
the foreign service of the Philippines stationed in the foreign
country in which the record is kept, and authenticated by
the seal of his [or her] office.
A document that is accompanied by a certificate or its
equivalent may be presented in evidence without further
proof, the certificate or its equivalent being prima facie
evidence of the due execution and genuineness of the
document involved. The certificate shall not be required
when a treaty or convention between a foreign country and
the Philippines has abolished the requirement, or has
exempted the document itself from this formality
PROOF OF OFFICIAL RECORDS
While a public document does not require the authentication imposed
upon a private document, there is a necessity for showing to the court
that indeed a record of the official acts of official bodies, tribunals or of
public officers exists.
The record of public documents (official acts), when admissible for any
purpose, may be evidenced:
1. By an official publication thereof or
2. By a copy attested by the officer having the legal custody of the
record, or by his deputy, and accompanied, if the record is not kept
in the Philippines, with a certificate that such officer has the custody.
Whenever a copy of a document or record is attested for the purpose of
evidence, the attestation must state, in substance, that the copy is a
correct copy of the original or a specific part thereof.
The attestation must be under the official seal of the attesting officer, if
there be any, or if he be the clerk of a court having a seal, under the
seal of such court.
If the office in which the record is kept is in a foreign country, the
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certificate may be made by a secretary of the embassy or legation,
consul general, consul, vice consul, or consular agent or by any officer
in the foreign service of the Philippines stationed in the foreign country
in which the record is kept, and authenticated by the seal of his office.
SECTION 25. What attestation of copy must state. –
Whenever a copy of a document or record is attested for
the purpose of evidence, the attestation must state, in
substance, that the copy is a correct copy of the original, or
a specific part thereof, as the case may be. The attestation
must be under the official seal of the attesting officer, if
there be any, or if he or she be the clerk of a court having
a seal, under the seal of such court.
ATTESTATION OF COPY
The attestation of the document must state that the copy is a correct
copy of the original or specific part thereof. The attestation must be
under:
• The official seal of the attesting officer, if there be any, or
• If he/she is the clerk of the court having a seal, under the seal of
such court.
PROOF OF FOREIGN LAWS; DOCTRINE OF PROCESSUAL
PRESUMPTION
To prove a foreign law, the party invoking it must present a copy
thereof. Where a foreign law is not pleaded or, even if pleaded, is not
proven, the presumption is that the foreign law is the same as Philippine
law (doctrine of processual presumption)
FOREIGN JUDGMENT
Before a foreign court is given presumptive evidentiary value, the
document must first be presented and admitted in evidence.
For example, a divorce obtained abroad is proven by the divorce decree
itself and the best evidence is the judgment itself. The decree purports
to be a written act or record of an act an official body or tribunal of a
foreign country.
SECTION 26. Irremovability of public record. – Any
public record, an official copy of which is admissible in
evidence, must not be removed from the office in which it
is kept, except upon order of a court where the inspection
of the record is essential to the just determination of a
pending case
IRREMOVABILITY OF PUBLIC RECORD
Any public record, an official copy of which is admissible in evidence,
must not be removed from the office in which it is kept, except upon
order of a court where the inspection of the record is essential to the
just determination of a pending case.
SECTION 27. Public record of a private document. –
An authorized public record of a private document may be
proved by the original record, or by a copy thereof, attested
by the legal custodian of the record, with an appropriate
certificate that such officer has the custody.
PUBLIC RECORD OF A PRIVATE DOCUMENT
An authorized public record of a private document may be proved by
the original record, or by a copy thereof, attested by the legal custodian
of the record, with an appropriate certificate that such officer has
custody.
A document acknowledged before a notary public becomes a public
instrument and renders it admissible in court without further proof of its
authenticity.
SECTION 28. Proof of lack of record. – A written
statement signed by an officer having the custody of an
official record or by his or her deputy that, after diligent
search, no record or entry of a specified tenor is found to
exist in the records of his or her office, accompanied by a
certificate as above provided, is admissible as evidence that
the records of his or her office contain no such record or
entry.
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PROOF OF LACK OF RECORD
When a proof of lack of record of a document, a written statement
signed by an officer having the custody of an official record or by his
deputy that after diligent search no record or entry of a specified tenor
is found to exist in the records of his office, accompanied by a certificate
as above provided, is admissible as evidence that the records of his
office contain no such record or entry.
A litigation does not always involve evidence of the existence of a record.
Sometimes the issue centers on the absence of an official record. Proof
of lack of record of a document consists of a written statement signed
by the officer having custody of an official record or by his deputy.
The written statement must contain the following matters:
• There has been a diligent search of the record
• That despite the diligent search, no record of entry of a specified
tenor is found to exist in the records of his office
• The written statement must be accompanied by a certificate that
such officer has the custody of official record.
SECTION 29. How judicial record impeached. – Any
judicial record may be impeached by
evidence of:
(a) want of jurisdiction in the court or judicial officer;
(b) collusion between the parties; or
(c) fraud in the party offering the record, in respect to the
proceedings.
IMPEACHMENT OF JUDICIAL RECORDS
A judicial record refers to the record of judicial proceedings. It does not
only include official entries or files or the official acts of a judicial officer
but also the judgment of the court
Any judicial record may be impeached by evidence of:
1. Lack of jurisdiction in the court or judicial officer,
2. Collusion between the parties, or
3. Fraud in the party offering the record, with respect to the
proceedings
SECTION 30. Proof of notarial documents. – Every
instrument duly acknowledged or proved and certified as
provided by law, may be presented in evidence without
further proof, the certificate of acknowledgment being
prima facie evidence of the execution of the instrument or
document involved
PROOF OF NOTARIAL DOCUMENTS
The notarial seal converts a document from a private to a public
document. A notarized document is entitled to full faith and credit upon
its face
The rule provides that the document was notarized by a person duly
authorized to perform notarial functions. Without such authority, the
private document does not become a public document.
SECTION 31. Alteration in document, how to explain.
– The party producing a document as genuine which has
been altered and appears to have been altered after its
execution, in a part material to the question in dispute, must
account for the alteration. He or she may show that the
alteration was made by another, without his or her
concurrence, or was made with the consent of the parties
affected by it, or was otherwise properly or innocently
made, or that the alteration did not change the meaning or
language of the instrument. If he or she fails to do that, the
document shall not be admissible in evidence.
ALTERATIONS IN A DOCUMENT
The party producing the document as genuine but which bears
alterations after its execution has the duty to account for any alteration
found in a document purported to be genuine.
For such purpose, he/she may show any of the following:
• That the alteration was made by another without his/her
concurrence;
• That the alteration was made with the consent of the parties
affected by it;
• That the alteration was otherwise properly or innocently made
• That the alteration did not in any way change the meaning or
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 language of the instrument
Failure to do of the above will make the document inadmissible in
evidence.
SECTION 32. Seal. – There shall be no difference
between sealed and unsealed private documents insofar as
their admissibility as evidence is concerned.
SEAL OF A DOCUMENT
There shall be no difference between sealed and unsealed private
documents insofar as their admissibility as evidence is concerned.
SECTION 33. Documentary evidence in an unofficial
language. – Documents written in an unofficial language
shall not be admitted as evidence, unless accompanied with
a translation into English or Filipino. To avoid interruption
of proceedings, parties or their attorneys are directed to
have such translation prepared before trial.
PROOF OF DOCUMENTS IN AN OFFICIAL LANGUAGE
Documents written in an unofficial language shall not be admitted as
evidence unless accompanied by a translation into English or Filipino.
This is because under the Constitution, the official media of
communication and instruction in the Philippines are Filipino and, unless
otherwise provided by law, English.
To avoid interruption of proceedings, parties or their attorneys are
directed to have such translation prepared before trial.
C. OFFER AND OBJECTION
SECTION 34. Offer of evidence. – The court shall
consider no evidence which has not been formally offered.
The purpose for which the evidence is offered must be
specified.
OFFER OF EVIDENCE
Before the evidence can serve as proof, it is important that it is
presented, offered, and admitted as evidence.
A formal offer means that the offeror shall inform the court of the
purpose of introducing its exhibits into evidence. Without a formal offer
of evidence, courts cannot take notice of this evidence even if this has
been previously marked and identified.
The rationales in stating the purpose for which the evidence is being
offered:
1. For the court to determine whether that piece of evidence should
be admitted or not;
2. Evidence submitted for one purpose may not be considered for any
other purpose; and
3. For the adverse party to interpose the proper objection.
FORMAL OFFER OF EVIDENCE AND FORMAL OFFER OF PROOF
Formal offer of evidence refers either to the offer of the testimony of a
witness prior to the witness’ 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 circumstances of the proposed witness and the substance
of his proposed testimony. If the evidence excluded is documentary or
of things, the offer of proof is made by having the same attached to or
made a part of the record
WHEN A FORMAL OFFER OF EVIDENCE IS NOT REQUIRED
A formal offer or evidence is not required in certain cases, thus:
1. In summary proceedings, because it is a proceeding where there
is no full-blown trial;
2. Documents judicially admitted or taken judicial notice of;
3. Documents, affidavits, and depositions used in rendering a
summary judgment;
4. Document or affidavits used in deciding quasi-judicial or
administrative cases;
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5. Lost objects previously marked identified, described in the record,
and testified to by the witnesses who had been subjects of cross-
examination in respect to said objects.
MARKING OF A DOCUMENT; NOT FORMAL OFFER
A document, or any article for that matter, is not evidence when it is
simply marked for identification. It must be formally offered, and the
opposing counsel given an opportunity to object to it or cross-examine
the witness called upon to prove or identify it.
A formal offer is necessary since judges are required to base their
findings of fact and judgment only, and strictly, upon the evidence
offered by the parties at the trial.
There is a distinction between identification of a documentary evidence
and its formal offer as an exhibit.
The identification of a document is done in the course of the trial and is
accompanied by the marking of the evidence as an exhibit, while the
formal offer of exhibit is done only when the party rests its case.
SECTION 35. When to make offer. – All evidence must
be offered orally.
The offer of the testimony of a witness in evidence must be
made at the time the witness is called to testify.
The offer of documentary and object evidence shall be
made after the presentation of a party’s testimonial
evidence.
WHEN TO MAKE AN OFFER OF EVIDENCE
Under the Rules, all evidence must be offered orally and the purpose for
which the evidence is offered must be specified.
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 evidence is offered. The court shall consider the evidence solely for
the purpose for which it is offered, not for any other purpose.
Regarding TESTIMONIAL evidence, the Rule provide that the offer of
testimony of a witness in evidence must be made at the time the witness
is called to testify.
Regarding offer of DOCUMENTARY and OBJECT evidence, the Rules
provide that the offer of documentary and object evidence shall be made
after the presentation of a party’s testimonial evidence
HOW AND WHEN A PARTY MAKES THE OFFER OF EVIDENCE
TESTIMONIAL EVIDENCE DOCUMENTARY AND
OBJECT EVIDENCE
Offer must be made at the time Must be made after the
the witness is called to testify. presentation of party’s
testimonial evidence, and before
resting his case
Every time a question is The evidence is only offered
propounded to a witness, there once, after all the testimonial
is an implied offer of the evidence and prior to the resting
evidence sought to be elicited by of the case for a party.
the question.
SECTION 36. Objection. – Objection to offer of evidence
must be made orally immediately after the offer is made.
Objection to the testimony of a witness for lack of a formal
off er must be made as soon as the witness begins to testify.
Objection to a question propounded in the course of the oral
examination of a witness must be made as soon as the
grounds therefor become reasonably apparent.
The grounds for the objections must be specified.
OBJECTION AND ITS PURPOSES
The Rule state that objection to the offer of evidence must be made
orally. It is a basic rule that an objection shall be made at the time when
an alleged inadmissible document is offered in evidence, otherwise, the
objection shall be treated as waived since the right to object is merely a
privilege that the party may waive.
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The proper time to make an objection is when from the question
addressed to the witness, or from the answer thereto, or from the
presentation of the proof, the admissibility of the evidence is or may be
inferred.
Thus, failure to object on the ground that it does not conform with the
statute or the rule is a waiver of the provisions of the law or the rules.
That objection to a question put to a witness must be made at the time
the question is asked. An objection to the admission of testimony has
been given, is too late. Thus, failure to object where the party is able to
object is a waiver of any objection thereto.
GROUND FOR OBJECTION:
Hearsay; Argumentative; Leading Question; Misleading Question;
Incompetent; Irrelevant; Original Document Rule; Parole evidence rule;
Question has no basis.
Objections may be made for any of the following purposes:
1. To keep out inadmissible evidence that would cause harm to a
client’s cause. The rules on evidence are not self-operating and,
hence, must be invoked by way of an objection;
2. To protect the record, that is, to present the issue of inadmissibility
of the offered evidence in a way that if the trial court rules
erroneously, the error can be relied upon as a ground for a future
appeal;
3. The protect a witness from being embarrassed on the stand or from
being harassed by the adverse counsel;
4. To expose the adversary’s unfair tactics like his consistently asking
obviously leading questions;
5. To give the trial court an opportunity to correct its own errors and,
at the same time, warn the court that a ruling adverse to the
objector may supply a reason to invoke a higher court’s appellate
jurisdiction; and
6. To avoid a waiver of the inadmissibility of otherwise inadmissible
evidence.
Objection to a question propounded during the oral examination of a
witness shall be made as soon as the grounds therefor shall become
reasonably apparent.
GENERAL AND SPECIFIC OBJECTIONS
An objection must point out the specific grounds of the objection and, if
it does not do so, no error is committed in overruling it.
An objection that evidence is “incompetent”, “irrelevant” or “immaterial”
is ordinarily regarded in most jurisdictions, in the absence of any
statutory provision to the contrary as not sufficiently definite to present
any question for review, because it conveys neither to the court nor
counsel any specific point of objection.
The rule is that a specific objection is always preferred over a general
objection. The rule on specificity is dictated largely by the need to allow
the court to intelligently rule on the objection and give the other party
an opportunity to withdraw the evidence or correct an error in his
presentation.
OBJECTION MUST BE TIMELY
Aside from the requirement that an objection must state the specific
ground relied upon, it is also necessary that the objection be timely.
When a party desires the court to reject the evidence offered, he must
so state in the form of objection. Without such objection, he cannot raise
the question for the first time on appeal.
In order to be timely, the objection to the evidence must be made at
the earliest opportunity. What the earliest opportunity is depends upon
the manner the evidence is offered:
1. If the evidence is offered orally, objection to the evidence must be
made immediately after the offer is made;
2. An objection to a question propounded in the course of the oral
examination of the witness shall be made as soon as the grounds
therefor shall become reasonably apparent;
3. An offer of evidence in writing shall be objected to within three (3)
days after notice of the offer unless a different period is allowed by
the court.
The rules therefore, make the offer of evidence the frame of reference
for a timely objection. Hence, it is to be assumed that an objection to
the evidence before it is offered is premature and no adverse inference
may be had against a party who does not object to the evidence before
it is offered.
There are witnesses who are quick to answer even before the question
is over. Before the adverse counsel can react and object to the question,
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the answer comes in a rapid-fire fashion preventing the counsel from
inserting himself neatly between the question and answer. Counsel
must, object, state his reasons, and move to strike out the answer.
WAIVER OF OBJECTIONS; BELATED OBJECTIONS
The term “waiver” implies the existence of a right, claim, privilege, or
something one is entitled to. It is, by its nature, a unilateral act. It need
not, however, be a positive act.
A waiver may result from failure to perform an act. When the claim,
rights, or privilege is abandoned, repudiated, renounced, or not
asserted, there is a waiver.
Applied to objections, there is a waiver when there is failure to point out
some defect, irregularity or wrong in the admission or exclusion of
evidence. Such failure may take various forms and may either be
expressed or implied. A failure to assert an objection promptly and
specifically is a waiver.
Failure to object to an offer of evidence is a waiver of the objection. For
instance, even assuming ex grantia argument that certain documents
are inadmissible for being hearsay, the same may be admitted on
account of failure to object thereto.
SECTION 37. When repetition of objection
unnecessary. – When it becomes reasonably apparent in
the course of the examination of a witness that the
questions being propounded are of the same class as those
to which objection has been made, whether such objection
was sustained or overruled, it shall not be necessary to
repeat the objection, it being sufficient for the adverse party
to record his or her continuing objection to such class of
questions.
RULE ON CONTINUING OBJECTION
The rule on continuing objection may be considered as an exception to
the rule that the ground for objection must be specified, for in continuing
objection, there is no longer a need to repeat the grounds for the
objection.
When it becomes reasonably apparent in the course of the examination
of a witness that the questions being propounded are of the same class
as those to which objection has been made, whether such objection was
sustained or overruled, it shall not be necessary to repeat the objection,
it being sufficient for the adverse party to record his continuing objection
to such class of questions.
Thus, when questions calling for a hearsay answer are repetitiously
asked by the adverse counsel, the recording of a continuing objection
to such questions would be in order after an initial objection had already
been made.
SECTION 38. Ruling. – The ruling of the court must be
given immediately after the objection is made, unless the
court desires to take a reasonable time to inform itself on
the question presented; but the ruling shall always be made
during the trial and at such time as will give the party
against whom it is made an opportunity to meet the
situation presented by the ruling.
The reason for sustaining or overruling an objection need
not be stated. However, if the objection is based on two
[(2)] or more grounds, a ruling sustaining the objection on
one [(1)] or some of them must specify the ground or
grounds relied upon.
RULING ON OBJECTION
The ruling of the court must be given immediately after the objection is
made, unless the court desires to take a reasonable time to inform itself
on the question presented.
The ruling shall always be made during the trial and at such time as will
give the party against whom it is made an opportunity to meet the
situation presented by the ruling.
When a counsel asks a question and the other party objects, the court
rules on the objection by either sustaining or overruling the objection
made.
SUSTAINED OR OVERRULED RULING
When a counsel asks a question and the other objects, the court rules
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on the objection by either sustaining or overruling the objection.
Let us assume the judge rules, “SUSTAINED” what does this ruling
mean?
The answer is not difficult to understand. When an objection to a
question is sustained, the judge considers the question as “improper”
and the witness will not be allowed to answer the question. This means
the exclusion of a testimonial evidence.
When the objection is “OVERRULED,” this means that for the court,
the question is proper and the witness will be allowed to answer.
The ruling of the court sustaining or overruling the objection need not
be stated except if the objection is based on two or more grounds. In
such case, a ruling sustaining the objection must specify the grounds
relied upon.
SECTION 39. Striking out of answer. – Should a
witness answer the question before the adverse party had
the opportunity to voice fully its objection to the same, or
where a question is not objectionable, but the answer is not
responsive, or where a witness testifies without a question
being posed or testifies beyond limits set by the court, or
when the witness does a narration instead of answering the
question, and such objection is found to be meritorious, the
court shall sustain the objection and order such answer,
testimony or narration to be stricken off the record.
On proper motion, the court may also order the striking out
of answers which are incompetent, irrelevant, or otherwise
improper.
STRIKING OUT AN ANSWER OR TESTIMONY
Should a witness answer the question before the adverse party had the
opportunity to voice fully its objection to the same, and such objection
is found to be meritorious, the court shall sustain the objection and order
the answer given to be stricken off the record. The court may also order
the striking out of answers which are incompetent, irrelevant, or
otherwise improper.
The following are instances where the striking out of an answer is
necessary:
1. When the witness answered the question before the adverse party
had opportunity to voice fully its objection;
2. When a question is not objectionable, but the answer is not
responsive;
3. When a witness testifies without a question being posed or testifies
beyond the limits set by the court;
4. When the witness does a narration instead of answering the
question; or
5. When the answer is incompetent, irrelevant, or otherwise improper.
An objection to a witness disqualification in general must be made as
soon as he is called to the stand and before his examination begins,
provided his disqualification is then known. For example, a husband
accused of robbery, can object the moment his wife is called by the
prosecution to testify against him without his consent on the basis
marital or privilege communication rule.
SECTION 40. Tender of excluded evidence. – If
documents or things offered in evidence are excluded by
the court, the offeror may have the same attached to or
made part of the record. If the evidence excluded is oral,
the offeror may state for the record the name and other
personal circumstances of the witness and the substance of
the proposed testimony.
TENDER OF EXCLUDED EVIDENCE OR PROFFER OF PROOF
Tender of excluded evidence is made by the offeror who wants to have
the excluded evidence attached or made part of the record.
If the evidence excluded is oral, the offeror may state for the record the
name and other personal circumstances of the witness and the
substance of the proposed testimony.
If documents or things offered in evidence are excluded by the court,
the offeror may have the same attached to or made part of the record.
These procedures are known as proffer of proof and are made for
purposes of appeal. If an adverse judgment is eventually rendered
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against the offeror, he or she may in his or her appeal assign as error
the rejection of the excluded evidence.
When an attorney is not allowed by the court to present testimony which
he thinks is competent, material, and necessary to prove his case, he
must make an proffer of proof. This is the method properly preserving
the record to the end that the question may be saved for purposes of
review.
JUDICIAL AFFIDAVIT RULE
A.M. NO. 12-8-2-SC
Judicial affidavit rule was promulgated by the Supreme Court on
September 04, 2012 under Administrative Matter (A.M.) No. 12-8-8-SC.
The judicial affidavit rule took effect on January 1, 2013, following the
publication in two newspapers of general circulation not later than
September 15, 2012.
The most basis reason for the adoption of the Judicial Affidavit Rule is
to decongest the court of cases and to reduce delays in disposition of
cases.
Cases congestion and delays plague most courts in cities, given the huge
volume of cases filed each year and the slow and cumbersome
adversarial system that the judiciary has in place.
About 40% of criminal cases are dismissed annually owing to the fact
that complainants simply give up coming to court after repeated
postponements.
The judicial affidavit shall take the place of the direct testimonies of the
witness. The rule, therefore, modifies the existing practice in the
conduct of a trial and reception of evidence by doing away with the
usual oral examination of a witness in a direct examination.
The judicial affidavit rule, in effect, applies to all courts, other than the
Supreme Court. It also applies to certain non-judicial bodies. It applies
to all actions, proceedings, and incidents requiring the reception of
evidence in the following courts with respect to criminal actions:
1. Where the maximum penalty of the impossible penalty does not
exceed six (6) years; or
2. Where the accused agrees to the use of judicial affidavits,
irrespective of the penalty involved
Thus, the Judicial Affidavit (JA) is applicable regardless of criminal
penalty imposable where the accused agrees to the use of the judicial
affidavits.
Before a court can consider the judicial affidavit of a witness in lieu of
oral testimony, it is important that the parties shall first file with the
court and serve on the adverse party, personally or by licensed courier
service, not later than five (5) days before pre-trial or preliminary
conference or the scheduled hearing with respect to motions and
incidents, the following:
1. The judicial affidavits of their witnesses, which shall take the place
of such witness’ direct examination; and
2. The parties’ documentary or object evidence, if any, which shall be
attached to the judicial affidavit and marked as Exhibits A, B, C, and
so on in the case of the complainant, or the plaintiff, and as exhibits
1,2,3 and so on in the case of respondent or the defendant.
A judicial affidavit shall be prepared in the language known to the
witness. If the affidavit is not in English or Filipino, it shall be
accompanied by a translation in either language.
It contains the name, age, residence or business address, and
occupation of the witness. There must also be a statement in the
affidavit that the witness is answering the questions asked of him, fully
conscious that he does so under oath, and that he may face criminal
liability for false testimony or perjury.
It also indicates the place of the witness where the examination is being
held. It shall contain the questions asked of the witness and his answers
to the questions, all consecutively numbered, and shall be signed by the
witness over his printed name.
A judicial affidavit which does not conform to the content requirements
of Judicial Affidavit Rule shall not be admitted by the court in evidence
The court shall not consider the affidavit of any witness who does not
appear in the scheduled hearing of the case as required. If the affidavit
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is not considered, it is as if no judicial affidavit has been executed by
the absent witness. Such witness, hence, shall be deemed as not having
given a direct testimony in the trial.
RULE 133
WEIGHT AND SUFFICIENCY OF EVIDENCE
There is a different quantum of proof or weight of evidence required in
the appreciation of evidence in each case. These are the following:
1. In civil cases, preponderance of evidence;
2. In criminal cases, proof beyond reasonable doubt;
3. Clear and convincing evidence
4. In labor and other administrative cases, substantial evidence.
The rules of evidence must be liberally construed. Rules of procedure
are mere tools intended to facilitate rather than to frustrate the
attainment of justice. A strict and rigid application of the rules must
always be avoided if it would subvert their primary objective of
enhancing substantial justice. The meaning should receive a fair and
reasonable interpretation, so as to secure a just, speedy and inexpensive
disposition of every action or proceeding in court.
SECTION 1. Preponderance of evidence, how
determined. – In civil cases, the party having the burden
of proof must establish his or her case by a preponderance
of evidence. In determining where the preponderance or
superior weight of evidence on the issues involved lies, the
court may consider all the facts and circumstances of the
case, the witnesses’ manner of testifying, their intelligence,
their means and opportunity of knowing the facts to which
they are testifying, the nature of the facts to which they
testify, the probability or improbability of their testimony,
their interest or want of interest, and also their personal
credibility so far as the same may legitimately appear upon
the trial. The court may also consider the number of
witnesses, though the preponderance is not necessarily with
the greater number.
PREPONDERANCE OF EVIDENCE
Preponderance of evidence is the weight, credit, and value of the
aggregate evidence on either side and is usually considered to be
synonymous with the term “greater weight of credible evidence”.
It is evidence that is more convincing to the court as it is worthier of
belief than that which is offered in opposition thereto. It is a phrase
which, in the last analysis, means probability of the truth.
Preponderance of evidence is applicable in civil cases. The party having
the burden of proof must establish his case by a preponderance of
evidence. In determining where the preponderance or superior weight
of evidence on the issues involved lies, the court may consider all the
facts and circumstances of the case.
Although the number of the witnesses may be considered a factor in the
appreciation of evidence, preponderance is not necessary with the
greatest number. The civil claim can still be had on the basis of credible
and positive testimony of the witness.
SECTION 2. Proof beyond reasonable doubt. – In a
criminal case, the accused is entitled to an acquittal, unless
his or her guilt is shown beyond reasonable doubt. Proof
beyond reasonable doubt does not mean such a degree of
proof as, excluding possibility of error, produces absolute
certainty. Moral certainty only is required, or that degree of
proof which produces conviction in an unprejudiced mind.
PROOF BEYOND REASONABLE DOUBT
In criminal cases, the quantum of proof used is proof beyond reasonable
doubt. Proof beyond reasonable doubt does not mean such a degree of
proof as, excluding possibility of error, produces absolute certainty.
Moral certainty is the only one required, or that degree of proof which
produces conviction in an unprejudiced mind.
The burden of proof as to the guilt of the accused lies with the
prosecution because of the presumption that the accused is presumed
innocent until the contrary is proven.
The presumption of innocence of an accused in a criminal case is a basic
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constitutional principal fleshed out by procedural rules which place on
the prosecution the burden of proving that the accused is guilty of the
offense charged by proof beyond reasonable doubt. The evidence of the
prosecution must stand on its own strength and not rely on the
weakness of the evidence of the defense.
Where the prosecution eyewitness was familiar with both the victim and
the accused, and where the locus criminis afforded good visibility, and
where no improper motive can be attributed to the witness for testifying
against the accused, then his or her version of the story deserves much
weight.
SECTION 3. Extrajudicial confession, not sufficient
ground for conviction. – An extrajudicial confession
made by an accused
shall not be sufficient ground for conviction, unless
corroborated by evidence of corpus
delicti.
EXTRAJUDICIAL CONFESSION
Extrajudicial confession is not sufficient ground for the conviction of the
accused. Such extrajudicial confession to be sufficient to justify
conviction must be supported by evidence of corpus delicti
As required, extra-judicial confession, to be admissible, must satisfy the
following requirements:
1. The confession must be voluntary
2. It must be made with the assistance of a competent and
independent counsel, preferably of the confessant’s choice
3. It must be expressed
4. It must be in writing
5. To satisfy conviction must be supported by corpus delicti
A suspect’s extra-judicial confession, whether verbal or non-verbal,
when taken without the assistance of counsel or 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 on evidence, even
if such confession were the gospel truth.
CORPUS DELICTI
Corpus delicti is the body of the crime or substance of the crime or the
offense and in its primary sense, refers to the fact that the crime has
actually been committed.
It does not always refer to the object used in the perpetuation of the
crime. If the rule were otherwise, there would be innumerable instances
of unjustified acquittal.
For instance, it is not indispensable for the prosecution to introduce and
offer in evidence the firearm or weapon which was used in the killing of
the victim.
There is no law or rule of evidence which requires the prosecution to do
so. There is also no law which prescribes that a ballistics examination
be conducted to determine the source and trajectory of the bullets.
For conviction to lie, it is enough that the prosecution establishes by
proof beyond reasonable doubt that a crime was committed and that
the accused is the author thereof.
The production of weapon used in the commission of the crime is not a
condition sine qua non for the discharge of the accused because the
weapon may not have been recovered at all from the assailant. If the
rule were otherwise, many criminals would go scot-free and much
injustice would be cause to the victim of the crimes.
EXAMPLE OF CORPUS DELICTI
Narcotics The rule to settle definitively whether the object
(illegal evidence subjected to laboratory examination and
possession presented in court is the same object allegedly seized
of drugs) from the accused.
Corpus delicti has two elements:
1. Property was lost by the owner
Theft 2. it was lost by felonious taking
May be proven by testimonial evidence and whatever
documentary evidence is on record
Illegal The accused’s lack of license or permit to possess or
possession carry the firearms, as possession itself is not prohibited
of firearms by law
Murder or It is not necessary to recover the body or show where
Homicide it can be found.
It is enough that the death and the criminal agency
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 causing it be proven expert witness:
1. The expert opinion should be based on facts
2. There is reliable method of opinion given
3. Application of principles and methods reliably to the facts of the
EXTRA-JUDICIAL CONFESSION MADE DURING CUSTODIAL
case
INVESTIGATION
4. Such other facts helpful for the determination of the case.
An extrajudicial confession is usually made during custodial
investigation. A custodial investigation is understood as any questioning
initiated by law enforcement authorities after the person is taken into
custody or otherwise deprived of his or her freedom of action in any SECTION 6. Substantial evidence. – In cases filed
significant manner. before administrative or quasi-judicial bodies, a fact may be
deemed established if it is supported by substantial
It begins when there is no longer a general inquiry into an unsolved evidence, or that amount of relevant evidence which a
crime and the investigation has started to focus on a particular person reasonable mind might accept as adequate to justify a
as a suspect or when the police investigator starts interrogating or conclusion.
exacting a confession from the suspect in connection with an alleged
offense. SUBSTANTIAL EVIDENCE
Substantial evidence refers to such relevant evidence which a
reasonable mind might accept as adequate to support a conclusion.
SECTION 4. Circumstantial evidence, when
sufficient. – Circumstantial evidence is sufficient for In administrative cases, the quantum of evidence required is that of
conviction if: substantial evidence. It does not require evidence that is overwhelming
(a) There is more than one [(1)] circumstance; or even preponderant.
(b) The facts from which the inferences are derived are
proven; and In cases filed before administrative or quasi-judicial bodies, a fact may
(c) The combination of all the circumstances is such as to be deemed established if it is supported by substantial evidence. This
produce a conviction beyond reasonable doubt. standard proof is used in labor proceedings before the National Labor
Relation Proceedings, and in administrative cases before all quasi-
Inferences cannot be based on other inferences. judicial agencies.

EFFECT ON THE CRIMINAL CASE OF FAILURE TO PROVE

CIRCUMSTANTIAL EVIDENCE
ADMINISTRATIVE LIABILITY
Circumstantial evidence has been defined as that which goes to prove a
Administrative cases are independent from criminal actions for the same
fact or series of facts other than the facts in issue, which, if proved, may
or omission. Thus, an absolution from a criminal charge is not a bar to
tend by inference to establish a fact in issue.
an administrative prosecution or vice versa.
It is also known as indirect or presumptive evidence to proof of collateral
Criminal and administrative proceedings may involve similar operative
facts and circumstances when the existence of the main fact may be
facts; but requires different quantum of evidence Dismissal of the
inferred according to reason and common experience.
criminal case does not foreclose administrative action involving the same
facts.
These circumstances must be consistent with one another, and the only
rational hypothesis that can be drawn therefrom must be the guilt of the
CLEAR AND CONVINCING EVIDENCE
accused.
Evidence is clear and convincing if it produces in the mind of the trier of
fact a firm belief or conviction as to allegations sought to be established.
To support conviction, circumstantial evidence must comply with the
following requisites:
It is intermediate, being more than preponderance, but not to the extent
1. There is more than one circumstances;
of such certainty as is required beyond reasonable doubt as in criminal
2. The facts from which the inferences are derived are proven;
cases.
3. The combination of such circumstances is such as to produce
conviction beyond reasonable doubt.
Clear and convincing evidence is often said that to overcome a
disputable presumption of law, clear and convincing evidence is
Conviction can be secured based on circumstantial evidence if the
required. This standard should be lower than proof beyond reasonable
established circumstances constitute an unbroken chain leading to a fair
doubt but higher than preponderance of evidence.
and reasonable conclusion proving that the accused is the author of the
crime to the exclusion of all others.
SUMMARY OF EVIDENTIARY FACTS
There can be conviction if the prosecution can establish the appellant’s Rank Evidentiary Applicability Definition
participation in the crime through credible and sufficient circumstantial value
evidence that leads to the inescapable conclusion that the accused, and 1st Proof beyond Criminal cases That degree of
none other, committed the imputed crime. (hardest reasonable proof, excluding the
to prove) doubt possibility of error,
All circumstances must be consistent with each other, consistent with produces moral
the hypothesis that the accused is guilty, and at the same time certainty
inconsistent with the hypothesis that he or she is innocent. 2nd Clear and Bail and Produces in the mind
convincing extradition of the trier of fact a
evidence cases firm belief or
conviction as to
SECTION 5. Weight to be given opinion of expert allegations sought to
witness, how determined. – In any case where the be established
opinion of an expert witness is received in evidence, the 3rd Preponderance Administrative Such amount of
court has a wide latitude of discretion in determining the of evidence and quasi- relevant evidence
weight to be given to such opinion, and for that purpose judicial which a reasonable
may consider the following: agency cases mind might accept
as adequate to
(a) Whether the opinion is based upon sufficient facts or support a
data; conclusion.
(b) Whether it is the product of reliable principles and
methods;
(c) Whether the witness has applied the principles and
methods reliably to the facts of the case; and RULES ON ELECTRONIC EVIDENCE
(d) Such other factors as the court may deem helpful to A.M. NO. 01-07-01-SC
make such determination. The Rules on Electronic Evidence take effect on the first day of August
2001 following their publication before the 20th of July in two
newspapers of general circulation in the Philippines.
WEIGHT OF OPINION OF EXPERT WITNESS
The following are the factors to consider to weight the opinion of an
Unless otherwise provided in the Rules, the Rules on Electronic Evidence
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shall apply whenever an electronic document or electronic data message
is offered in evidence in all civil actions and proceedings, as well as
quasi-judicial and administrative cases.
DEFINITION OF TERMS USED IN ELECTRONIC EVIDENCE
For purposes of these Rules, the following terms are defined, as follows:
1. "Asymmetric or public cryptosystem" means a system capable of
generating a secure key pair, consisting of a private key for creating
a digital signature, and a public key for verifying the digital
signature.
2. "Business records" include records of any business, institution,
association, profession, occupation, and calling of every kind,
whether or not conducted for profit, or for legitimate or illegitimate
purposes.
3. "Certificate" means an electronic document issued to support a
digital signature which purports to confirm the identity or other
significant characteristics of the person who holds a particular key
pair.
4. "Computer" refers to any single or interconnected device or
apparatus, which, by electronic, electro-mechanical or magnetic
impulse, or by other means with the same function, can receive,
record, transmit, store, process, correlate, analyze, project, retrieve
and/or produce information, data, text, graphics, figures, voice,
video, symbols or other modes of expression or perform any one or
more of these functions.
5. "Digital signature" refers to an electronic signature consisting of a
transformation of an electronic document or an electronic data
message using an asymmetric or public cryptosystem such that a
person having the initial untransformed electronic document and the
signer's public key can accurately determine:
i. whether the transformation was created using the private
key that corresponds to the signer's public key; and
ii. whether the initial electronic document had been altered
after the transformation was made.
6. "Digitally signed" refers to an electronic document or electronic data
message bearing a digital signature verified by the public key listed
in a certificate.
7. "Electronic data message" refers to information generated, sent,
received, or stored by electronic, optical or similar means.
8. "Electronic document" refers to information or the representation of
information, data, figures, symbols or other modes of written
expression, described or however represented, by which a right is
established or an obligation extinguished, or by which a fact may be
proved and affirmed, which is received, recorded, transmitted,
stored, processed, retrieved or produced electronically. It includes
digitally signed documents and any print-out or output, readable by
sight or other means, which accurately reflects the electronic data
message or electronic document. For purposes of these Rules, the
term "electronic document" may be used interchangeably with
"electronic data message".
9. "Electronic key" refers to a secret code which secures and defends
sensitive information that crosses over public channels into a form
decipherable only with a matching electronic key.
10. "Electronic signature" refers to any distinctive mark, characteristic
and/or sound in electronic form, representing the identity of a
person and attached to or logically associated with the electronic
data message or electronic document or any methodology or
procedure employed or adopted by a person and executed or
adopted by such person with the intention of authenticating, signing
or approving an electronic data message or electronic document.
For purposes of these Rules, an electronic signature includes digital
signatures.
11. "Ephemeral electronic communication" refers to telephone
conversations, text messages, chatroom sessions, streaming audio,
streaming video, and other electronic forms of communication the
evidence of which is not recorded or retained.
12. "Information and communication system" refers to a system for
generating, sending, receiving, storing or otherwise processing
electronic data messages or electronic documents and includes the
computer system or other similar devices by or in which data are
recorded or stored and any procedure related to the recording or
storage of electronic data messages or electronic documents
13. "Key pair" in an asymmetric cryptosystem refers to the private key
and its mathematically related public key such that the latter can
verify the digital signature that the former creates.
14. "Private key" refers to the key of a key pair used to create a digital
signature.
15. "Public key" refers to the key of a key pair used to verify a digital
signature
ELECTRONIC DOCUMENTS
Whenever a rule of evidence refers to the term writing, document,
record, instrument, memorandum or any other form of writing, such
term shall be deemed to include an electronic document.
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An electronic document shall be regarded as the equivalent of an original
document under the Best Evidence Rule (Original Document Rule) if it
is a printout or output readable by sight or other means, shown to reflect
the data accurately.
When a document is in two or more copies executed at or about the
same time with identical contents, or is a counterpart produced by the
same impression as the original, or from the same matrix, or by
mechanical or electronic re-recording, or by chemical reproduction, or
by other equivalent techniques which accurately reproduces the original,
such copies or duplicates shall be regarded as the equivalent of the
original.
ELECTRONIC SIGNATURES
An electronic signature or a digital signature authenticated in the
manner prescribed hereunder is admissible in evidence as the functional
equivalent of the signature of a person on a written document.
An electronic signature may be authenticated in any of the following
manner:
1. By evidence that a method or process was utilized to establish a
digital signature and verify the same;
2. By any other means provided by law; or
3. By any other means satisfactory to the judge as establishing the
genuineness of the electronic signature
DISPUTABLE PRESUMPTIONS RELATING TO ELECTRONIC
SIGNATURES
Upon the authentication of an electronic signature, it shall be presumed
that:
1. The electronic signature is that of the person to whom it correlates;
2. The electronic signature was affixed by that person with the
intention of authenticating or approving the electronic document to
which it is related or to indicate such person's consent to the
transaction embodied therein; and
3. The methods or processes utilized to affix or verify the electronic
signature operated without error or fault.
DISPUTABLE PRESUMPTION RELATING TO DIGITAL
SIGNATURE
Upon the authentication of a digital signature, it shall be presumed, in
addition to those mentioned in the immediately preceding section, that:
1. The information contained in a certificate is correct;
2. The digital signature was created during the operational period of a
certificate;
3. No cause exists to render a certificate invalid or revocable;
4. The message associated with a digital signature has not been
altered from the time it was signed; and,
5. A certificate had been issued by the certification authority indicated
therein
AUTHENTICATION OF ELECTRONIC DOCUMENTS
The person seeking to introduce an electronic document in any legal
proceeding has the burden of proving its authenticity.
Before any private electronic document offered as authentic is received
in evidence, its authenticity must be proved by any of the following
means:
1. By evidence that it had been digitally signed by the person purported
to have signed the same;
2. By evidence that other appropriate security procedures or devices
as may be authorized by the Supreme Court or by law for
authentication of electronic documents were applied to the
document; or
3. By other evidence showing its integrity and reliability to the
satisfaction of the judge.
A document electronically notarized in accordance with the rules
promulgated by the Supreme Court shall be considered as a public
document and proved as a notarial document under the Rules of Court.
ADMISSIBILITY OF ELECTRONIC DOCUMENT
An electronic document is admissible in evidence if it complies with the
rules on admissibility prescribed by the Rules of Court and related laws
and is authenticated in the manner prescribed by the Rules of Court.
Whenever a rule of evidence refers to the term 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
The confidential character of a privileged communication is not lost
solely on the ground that it is in the form of an electronic document.
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ORIGINAL DOCUMENT RULES IN ELECTRONIC EVIDENCE
An electronic document shall be regarded as the equivalent of an original
document under the Original Document Rule (Best Evidence Rule) if it
is a printout or output readable by sight or other means, shown to reflect
the data accurately.
When a document is in two or more copies executed at or about the
same time with identical contents, or is a counterpart produced by the
same impression as the original, or from the same matrix, or by
mechanical or electronic re-recording, or by chemical reproduction, or
by other equivalent techniques which accurately reproduces the original,
such copies or duplicates shall be regarded as the equivalent of the
original.
However, copies or duplicates shall not be admissible to the same extent
as the original if:
1. A genuine question is raised as to the authenticity of the original; or
2. In the circumstances it would be unjust or inequitable to admit the
copy in lieu of the original.
AUTHENTICATION OF ELECTRONIC DOCUMENTS
The person seeking to introduce an electronic document in any legal
proceeding has the burden of proving its authenticity in the manner
provided in the Rule on Electronic Evidence.
Before any private electronic document offered as authentic is received
in evidence, its authenticity must be proved by any of the following
means:
1. By evidence that it had been digitally signed by the person purported
to have signed the same;
2. By evidence that other appropriate security procedures or devices
as may be authorized by the Supreme Court or by law for
authentication of electronic documents were applied to the
document; or
3. By other evidence showing its integrity and reliability to the
satisfaction of the judge.
BUSINESS RECORDS AS AN EXCEPTION TO THE HEARSAY RULE
A memorandum, report, record, or data compilation of acts, events,
conditions, opinions, or diagnoses, made by electronic, optical or other
similar means at or near the time of or from transmission or supply of
information by a person with knowledge thereof, and kept in the regular
course or conduct of business activity, and such was the regular practice
to make the memorandum, report, record, or data compilation by
electronic, optical or similar means, all of which are shown by the
testimony of the custodian or other qualified witnesses, is excepted from
the rule on hearsay evidence.
EVIDENTIARY WEIGHT OF ELECTRONIC DOCUMENTS
In assessing the evidentiary weight of an electronic document, the
following factors may be considered:
1. The reliability of the manner or method in which it was generated,
stored, or communicated, including but not limited to input and
output procedures, controls, tests and checks for accuracy and
reliability of the electronic data message or document, in the light
of all the circumstances as well as any relevant agreement;
2. The reliability of the manner in which its originator was identified;
3. The integrity of the information and communication system in which
it is recorded or stored, including but not limited to the hardware
and computer programs or software used as well as programming
errors;
4. The familiarity of the witness or the person who made the entry with
the communication and information system;
5. The nature and quality of the information which went into the
communication and information system upon which the electronic
data message or electronic document was based; or
6. Other factors which the court may consider as affecting the accuracy
or integrity of the electronic document or electronic data message.
RULES ON DNA EVIDENCE
A.M. NO. 06-11-05-SC
The rule on DNA Evidence was promulgated by the Supreme Court
through A.M. 06-11-05-SC and took effect on October 15, 2007.
The coverage of the Rules on DNA Evidence shall apply whenever DNA
evidence is offered, used, or proposed to be offered or used as evidence
in the following:
(a) Criminal actions;
(b) Civil actions; and
(c) Special proceedings.
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DNA or deoxyribonucleic acid is a molecule that encodes the genetic
information in all living organism. A person’s DNA is the same in each
cell and it does not change throughout a person’s lifetime.
The DNA is a person’s blood is the same DNA found in his saliva, sweat,
bone, the root and shaft of hair, earwax, mucus, urine, skin tissue and
vaginal and rectal cells.
Most importantly, because of polymorphisms in human genetic
structure, no two individuals have the same DNA, with the notable
exception of identical twins.
DEFINITION OF TERMS USED IN DNA EVIDENCE
Biological sample – means any organic material originating from a
person’s body, even if found in inanimate objects, that is susceptible to
DNA testing. This includes blood, saliva and other body fluids, tissues,
hairs and bones.
DNA – means deoxyribonucleic acid, which is the chain of molecules
found in every nucleated cell of the body. The totality of an individual’s
DNA is unique for the individual, except identical twins.
DNA evidence – constitutes the totality of the DNA profiles, results and
other genetic information directly generated from DNA testing of
biological samples.
DNA profile – means genetic information derived from DNA testing of
a biological sample obtained from a person, which biological sample is
clearly identifiable as originating from that person.
DNA testing – means verified and credible scientific methods which
include the extraction of DNA from biological samples, the generation of
DNA profiles and the comparison of the information obtained from the
DNA testing of biological samples for the purpose of determining, with
reasonable certainty, whether or not the DNA obtained from two or more
distinct biological samples originates from the same person (direct
identification) or if the biological samples originate from related persons
(kinship analysis).
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.
RELIABILITY OF DNA TESTING METHODOLOGY
In evaluating whether the DNA testing methodology is reliable, the court
shall consider the following:
1. The falsifiability of the principles or methods used, that is, whether
the theory or technique can be and has been tested;
2. The subjection to peer review and publication of the principles or
methods;
3. The general acceptance of the principles or methods by the relevant
scientific community;
4. The existence and maintenance of standards and controls to ensure
the correctness of data generated;
5. The existence of an appropriate reference population database; and
6. The general degree of confidence attributed to mathematical
calculations used in comparing DNA profiles and the significance and
limitation of statistical calculations used in comparing DNA profiles
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:
1. A biological sample exists that is relevant to the case;
2. The biological sample:
i. was not previously subjected to the type of DNA testing now
requested; or
ii. was previously subjected to DNA testing, but the results
may require confirmation for good reasons;
3. The DNA testing uses a scientifically valid technique;
4. The DNA testing has the scientific potential to produce new
information that is relevant to the proper resolution of the case; and
5. The existence of other factors, if any, which the court may consider
as potentially affecting the accuracy of integrity of the DNA testing.
This Rule shall not preclude a DNA testing, without need of a prior court
order, at the behest of any party, including law enforcement agencies,
before a suit or proceeding is commenced.
If the court finds that the requirements in application for DNA Testing
have been complied with, the court shall order, where appropriate, that
biological samples be taken from any person or crime scene evidence.
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DNA TESTING RESULTS
In evaluating the results of DNA testing, the court shall consider the
following:
1. The evaluation of the weight of matching DNA evidence or the
relevance of mismatching DNA evidence;
2. The results of the DNA testing in the light of the totality of the other
evidence presented in the case; and
3. That DNA results that exclude the putative parent from paternity
shall be conclusive proof of non-paternity.
✓ If the value of the Probability of Paternity is less than 99.9%,
the results of the DNA testing shall be considered as
corroborative evidence.
✓ If the value of the Probability of Paternity is 99.9% or higher
there shall be a disputable presumption of paternity.

CONFIDENTIALITY OF DNA RESULTS

DNA profiles and all results or other information obtained from DNA
testing shall be confidential.

Except upon order of the court, a DNA profile and all results or other
information obtained from DNA testing shall only be released to any of
the following person, under such terms and conditions as may be set
forth by the court:
1. Person from whom the sample was taken;
2. Person from whom the sample was presented;
3. Lawyers of private complainants in a criminal action;
4. Duly authorized law enforcement agencies; and
5. Other persons as determined by the court.

Whoever discloses, utilizes, or publishes in any form any information

concerning a DNA profile without the proper court order shall be liable
for indirect contempt of the court wherein such DNA evidence was
offered, presented or sought to be offered and presented

PRESERVATION OF DNA EVIDENCE

The trial court shall preserve the DNA evidence in its totality, including
all biological samples, DNA profiles and results or other genetic
information obtained from DNA testing.

For this purpose, the court may order the appropriate government
agency to preserve the DNA evidence as follows in criminal cases:
1. For not less than the period of time that any person is under trial
for an offense; or
2. In case the accused is serving sentence, until such time as the
accused has served his sentence;
3. In all other cases, until such time as the decision in the case where
the DNA evidence was introduced has become final and executory.

The court may allow the physical destruction of a biological sample

before the expiration of the periods set forth above, provided that
1) a court order to that effect has been secured; or
2) the person from whom the DNA sample was obtained has consented
in writing to the disposal of the DNA evidence.

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“Knowing your limitation”

One of the most common causes of stress is doing too much beyond
your limits. Remember that you are just human being with so many
limitations; do not try to reach the impossible for you will only be
frustrated in the end.

HOWEVER, frustration and stress will defeat if you are resolutely

determined to your studies. Get the books, read, and study them until
you understand in their principal features. Always bear in mind that your
own resolution to succeed is more important than any other one thing.

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