2016 Preweek Pointers on Evidence by Prof. Manuel Riguera

JURISTS BAR REVIEW CENTER™ PREWEEK POINTERS ON EVIDENCE Prof. Manuel Riguera

23 November 2016 1 pm to 5 pm

While administrative or quasi-judicial bodies, such as the Office of the Ombudsman, are not bound by the technical rules of procedure, this is not a license to disregard fundamental evidentiary rules. In an investigation before the OMB for grave misconduct, the SC upheld the inadmissibility of affidavits and NBI report based thereon on the ground of hearsay. (Miro v Vda. de Herederos, 20 Nov 2013). Since both Article 7 of P.D. No. 603 and the Rules on Evidence do not provide for the exclusion from evidence of the birth certificates, said public documents are admissible and should be properly taken into consideration in the resolution of the administrative case against respondent. (De Jesus v. SanchezMalit, 8 July 2014). ADMISSIBILITY. Evidence is admissible when it is relevant to the issue and is not excluded by the law or by the Rules of Court. (S3 R128). ADMISSIBILITY = RELEVANCY + COMPETENCY. RELEVANCY Evidence is relevant when it has a relation to the fact in issue as to induce belief in its existence or nonexistence. (iben)

COMPETENCY Even if the evidence is relevant, but it is excluded by the law or by the Rules of Court, the evidence would be inadmissible. Otherwise put, evidence must not only be relevant but it must also be relevant. Competency rules are based on public policy considerations which override the probative character of the evidence. KINDS OF EVIDENCE. (DOT) DOCUMENTARY EVIDENCE. Writings or any material offered as proof of their contents. OBJECT (OR REAL) EVIDENCE. Evidence which is directly addressed to the court’s senses. TESTIMONIAL EVIDENCE. Consists of the statement of a witness offered to the court. Maybe oral/live or written (affidavit). DOCUMENTARY EVIDENCE. Writings or any material containing letters, words, numbers, symbols, or other modes of written expression offered as proof of their contents. Hence a document can be object evidence if offered not as proof of its contents but of its existence or physical condition or features. BEST EVIDENCE RULE (ORIGINAL DOCUMENTS RULE) S3-7 R130 Presently we have two best evidence rules. One under S3 R130 and another one under R4 REE. Best evidence rule under S3 R130 When the subject of inquiry is the contents of a document, no evidence shall be admissible other than the original document itself. (S3 R130). BER applies only to documentary evidence not to testimonial/oral or object evidence. Air France v. Carrascoso, 18 SCRA 155. Testimony on what the purser read to the witness from a notebook not covered by BER. People v. Tandoy, 192 SCRA 28. Photocopies of buy-bust money admissible in evidence.

Trial court’s discretion to dispense with production of original Estrada v. Desierto, 356 SCRA 108 (2001). The SC adopted Wigmore’s comment that production of the original may be dispensed with, in the trial court’s discretion, if the opponent does not bona fide dispute the contents of the document and no other useful purpose will be served by requiring production. (DBU). A certification by an officer of the local assessor’s office that a copy of the deed of sale is a certified true copy is not an acceptable secondary evidence. First the local assessor’s office is not the official repository of original notarized deeds of sale and could not have been the legal custodian contemplated in S24 R132. Second the certification did not state that it is a certified true copy of the original. (Gabatan v. CA, 13 March 2009). The fact that the articles of incorporation, memorandum of agreement, purchase agreement, confidential memorandum, and letters were collected by the PCGG in the course of its investigation of the alleged illgotten wealth of the Marcoses did not make them public records within the purview of S3(c) and S7 R130. Hence they could not be admitted for being in violation of the best evidence rule. As to the copy of the TSN of the proceedings before the PCGG, while it may be considered as a public document since it was taken in the course of the PCGG’s exercise of its mandate, it was not attested to by the legal custodian to be a correct copy of the original. This omission falls short of the requirement of Rule 132, Secs. 24 and 25 of the Rules of Court. (Republic v Marcos-Manotoc, 8 February 2012). Proponent must account for non-production of all the originals Citibank v. Teodoro, G.R. 150905, 23 Sep 03. production of all the originals.

SC said the proponent must account for the non-

Under Sec. 3(c) R130, the proponent must lay a proper foundation for the admission of the original documents on which the summary is based. (Republic v Mupas, 8 Sep 2015). BEST EVIDENCE RULE UNDER THE REE The Rules on Electronic Evidence (REE) took effect on 1 August 2001. Please take note that its coverage was extended to criminal actions and proceedings effective 14 October 2002. (A.M. No. 01-701-SC, dated 24 September 2002). The REE shall apply whenever an electronic document is used or offered in evidence. SC stated that the Rules of Electronic Evidence are applicable to criminal actions & proceedings in line with SC Reso dated 24 Sep 2002 and effective 14 Oct 2002. This corrects the earlier pronouncement in Ang v. CA, 20 April 2010. (Pp v Enojas, 10 March 2014). Electronic Document: Information or data or representation of information or data which is received, recorded, transmitted, stored, processed, retrieved, or produced (3RP TSP) by electronic, optical, or similar means by which a right is established or an obligation extinguished, or by which fact may be proved. (R2(g)&(h), REE). It includes digitally signed documents and print-outs. (Id.). The REE applies to electronic, not non-electronic, documents. The term original includes the soft copy and the printouts or outputs (hard copy) readable by sight or other means (S1 R4 REE). Copies or duplicates, that is those reproduced by mechanical, electronic, or chemical means or by other equivalent techniques which accurately reproduces the original, shall be regarded as the equivalent of the original, Unless (AU)  a genuine question is raised as to the authenticity of the original; or  in the circumstances it would be unjust or inequitable to admit the copy in lieu of the original. Q Is the Best Evidence Rule under the Rules on Electronic Evidence applicable to non-electronic documents?

2016 Preweek Pointers on Evidence by Prof. Manuel Riguera for Jurists Bar Review Center. All rights reserved 2016 by Jurists Review Center Inc. Unauthorized reproduction, use, or dissemination strictly prohibited and shall be prosecuted to the full extent of the law, including administrative complaints with the Office of the Bar Confidant, Supreme Court. Page 2 of 20

A No. (MCC Industrial Corporation v. Ssangyong Corp., G.R. No. 170633, 17 October 2007). Hence non-electronic documents (paper-based documents) are covered by the best evidence rule under S3 R130. Best Evidence Rule (S3 R130) Best Evidence Rule (R4 REE) Applies to non-electronic & electronic Applies to electronic documents only documents Copies or duplicates not equivalent of Copies or duplicates equivalent of the original original Photocopies of fax transmissions are not admissible unless the non-production of the original fax transmission is accounted for. Fax transmissions are not electronic documents or electronic evidence. (MCC Industrial Corporation v. Ssangyong Corp., G.R. No. 170633, 17 October 2007, Nachura, J.) If not all the contents of a document are generated or recorded electronically, such as if the document contains a manual signature and handwritten notations, then a photocopy of such document will not be considered as an equivalent of the original. (National Power Corporation v. Codilla, G.R. No. 170491, 3 April 2007, Chico-Nazario, J.). PAROL EVIDENCE RULE (S9 R130) Once an agreement has been reduced to writing, parol or extraneous evidence (oral or written) may not be admitted to modify, explain, or add to the terms of the written agreement. The PER applies only to written contracts. Thus a receipt which is merely proof of payment is not covered by the PER. A will is considered a written agreement for purposes of the PER. The SC held that the parol evidence rule applies only to the parties to the contract and their successorsin-interest and not to the defendants who are not parties to the deed of sale. (Lechugas v. CA, 143 SCRA 355). A beneficiary under a stipulation pour autrui is considered a party to a written contract and is bound by the parol evidence rule. (Pacres v. Heirs of Ygona, 5 May 2010). Rudlin Corp contends that although the price stated in the contract is P6.9 million, there was an understanding that the price would be reduced to P6 million. They invoke the exception to the PER under S9(a) R130 wherein the written agreement failed to express the true intent of the parties. SC held that S9(a)(b) R130 available only where written contract is so ambiguous or obscure that the parties’ contractual intention cannot be understood from a mere reading of the instrument. (Financial Building Corp. v. Rudlin International Corp., 4 October 2010, Villarama, J.) SPECIAL KINDS OF EVIDENCE EPHEMERAL ELECTRONIC COMMUNICATION. Ephemeral Electronic Communication. Refers to phone talks, text msgs, chatroom sessions, streaming audio and video (PTC SS), and other forms of electronic communication the evidence of which is not recorded or retained. (S2(k) R2, REE). If recorded by audio, photo or video means, becomes audio, photo or video evidence. If recorded as an electronic document, becomes such. A text message which is saved becomes an electronic document. The Supreme Court recently admitted text messages as evidence against a CA personnel who was accepting bribes from a litigant. Electronic documents as functional equivalent of paper-based document. Whenever a rule of evidence refers to a writing, document, record, etc., such a term is deemed to include an electronic document. DEOXYRIBONUCLEIC ACID/DNA. 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 testing is 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 99.9% or higher, there shall be a disputable presumption of paternity. (Rule on DNA Evidence).

2016 Preweek Pointers on Evidence by Prof. Manuel Riguera for Jurists Bar Review Center. All rights reserved 2016 by Jurists Review Center Inc. Unauthorized reproduction, use, or dissemination strictly prohibited and shall be prosecuted to the full extent of the law, including administrative complaints with the Office of the Bar Confidant, Supreme Court. Page 3 of 20

Compliance with the conditions under S4 of the Rule on DNA Evidence does not mean that a DNA testing order will be issued as a matter of right. During the hearing on the motion for DNA testing, the petitioner must present prima facie evidence or establish a reasonable possibility of paternity. (Lucas v. Lucas, 6 June 2011). QUALIFICATION OF WITNESSES There is no law requiring a witness to present authorization to testify from the party presenting him. All that the Rules require is that a witness possess the qualification and none of the disqualifications provided therein. (AFP-RSBS v Republic, 20 March 2013). Child witness: One who at the time of giving testimony is below 18. Also those 18 and above but unable to fully take care of himself or protect himself from cruelty, abuse, neglect, exploitation or discrimination (CANED) because of a physical or mental disability or condition. (S4a) DISQUALIFICATIONS OF WITNESSES (MIM DIP) DEAD MAN’S RULE (S23 R130) A party having a claim or demand against the estate of a deceased person or against his executor/administrator cannot testify as to fact occurring before the decedent’s death. -

One way street. Works only against person making a claim v. the estate of the deceased. (Tongco v. Vianzon, 50 P 698). Where the estate filed a counterclaim against the survivor-claimant, the latter can testify on antemortem facts in his defense. Witness other than the claimant may testify on antemortem facts. Applies only to testimonial evidence, not object or documentary evidence. Hence the claimant may present, identify, and offer in evidence a promissory note signed by the decedent.

MARRIAGE DISQUALIFICATION RULE (S22 R130) During the marriage, a spouse cannot testify for or against the other, except in a civil case by one against the other or a criminal case committed by one spouse against the other or the other’s ascendants or descendants. (SAD) - Marriage must be existing at the time of the offer of the testimony. Even if marriage occurred after the fact sought to be testified to. - Husband may bar wife from testifying for or against her. - Lezama v. Rodriguez, 23 S 1166. Where the husband and wife were charged with having colluded to defraud the plaintiff, the wife cannot be called as an adverse party witness by the plaintiff over the husband’s objection.

Right to privacy A government employee has no reasonable expectation to privacy with respect to his personal files which he stored in the office computer, especially where the office policy is that the computers should only be used for business purposes and that users have no expectation of privacy. Hence the evidence may be used against him in an administrative charge which resulted in his dismissal. (Pollo v. Constantino-David, 18 October 2011). MARITAL COMMUNICATION PRIVILEGE (S24(a) R130) The husband or wife cannot be examined without the consent of the other as to any confidential communication received 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 ascendants or descendants. -

Unlike MDR, the MCR still holds even when the marriage has been terminated as S24(a) R130 states “during or after the marriage.” Privileged matter is limited though, that is,

2016 Preweek Pointers on Evidence by Prof. Manuel Riguera for Jurists Bar Review Center. All rights reserved 2016 by Jurists Review Center Inc. Unauthorized reproduction, use, or dissemination strictly prohibited and shall be prosecuted to the full extent of the law, including administrative complaints with the Office of the Bar Confidant, Supreme Court. Page 4 of 20

confidential communications received during the marriage. Thus a wife can testify as to a husband’s dying declaration as the same is not confidential. (U.S. v. Antipolo, 37 P 726. - Where privileged communication comes into hands of third person without collusion, privilege does not apply. The ones who can invoke the privilege are the spouses. Others cannot invoke it. ATTORNEY-CLIENT PRIVILEGE An attorney cannot, without the client’s consent, be examined as to any communication made by the client to him or his advice given thereon in the course of, or with a view to, professional employment. (CAP) -

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Extends to attorney’s secretary, stenographer, or clerk. Paralegal should also be deemed covered. Cannot be examined without the consent of the client and the employer. The rules safeguarding privileged communication between attorney and client shall apply to similar communications made to or received by the law student, acting for a legal clinic. S3 R138-A (Law Student Practice Rule). Lawyer may reveal secrets when necessary to collect fees or to defend (cd) himself, his associates, or employees. (Rule 21.01(c), Code of Professional Responsibility).

Regala v. Sandiganbayan, 262 SCRA 124 (1996). Client’s identity privileged where it would implicate the client for the very activity which he sought the lawyer’s advice. People v. Sandiganbayan, 275 SCRA 505 (1997). Privileged information relates only to past crimes not intention to commit future crime. Cut-off point is when the communication was made to the client, not when witness will testify. PHYSICIAN-PATIENT PRIVILEGE A person authorized to practice medicine, surgery, or obstetrics cannot in a civil case, without the patient’s consent, be examined as to any advice or treatment given by him or any information which he may have acquired in attending such patient in a professional capacity, which information was necessary to enable him to act in that capacity, and which would blacken the patient’s reputation. (PCATI PB) -

Applies only to civil cases. Law and order considerations override the privilege in criminal cases. The information must blacken the patient’s reputation. So information concerning physical injuries which are not compromising may be inquired into.

Lim v. CA, 214 S 273. Attending psychiatrist could testify and give expert opinion where the same is based only on strictly hypothetical questions and not on information obtained while attending to patient. Krohn v. CA, 233 S 146, 14 June 1994: In a marriage annulment case, a husband could testify as to the contents of a confidential psychiatric evaluation of his wife as a schizophrenic. The SC said that the privilege bars only the physician not other persons. The SC said that the testimony may not be considered a circumvention of the privilege since the husband’s testimony cannot have the same force and effect as the testimony of the physician. The respondent’s counsel waived the hearsay objection when he failed to raise this as a ground in his objection. In a marriage nullification case, R27 cannot be used to compel production of hospital and medical records of respondent (test results, diagnosis, advice & treatment) to show that he was undergoing drug rehabilitation. Disclosing them would be equivalent to compelling the physician to testify. (Chan v. Chan, 24 July 2013). PUBLIC INTEREST PRIVILEGE A public officer cannot be examined during his term of office or afterwards, as to communications made to him in official confidence, when the court finds that the public interest would suffer by the disclosure. (S24(e) R130). Dean Riano opines that this privilege may be invoked as to informers.

2016 Preweek Pointers on Evidence by Prof. Manuel Riguera for Jurists Bar Review Center. All rights reserved 2016 by Jurists Review Center Inc. Unauthorized reproduction, use, or dissemination strictly prohibited and shall be prosecuted to the full extent of the law, including administrative complaints with the Office of the Bar Confidant, Supreme Court. Page 5 of 20

Banco Filipino v. Monetary Board, 142 S 523. Tapes and transcripts on MB closure of Banco Filipino not absolutely confidential. No showing that public interest would suffer. Danger of bank run absent since BF already closed. EXECUTIVE PRIVILEGE Q What is executive privilege? A It is the privilege which protects the confidentiality of conversations that take place in the President’s performance of his official duties. The privilege may be invoked not only by the President but also by his close advisors under the “operational proximity” test. (Neri v. Senate Committee on Accountability of Public Officers and Investigations, G.R. No. 180643, 25 March 2008) The Supreme Court upheld Mr. Neri’s invocation of executive privilege (more specifically the presidential communications privilege) stating that disclosure might impair our diplomatic as well as economic relations with China. The SC distinguished this from U.S. v. Nixon, where there was an on-going criminal investigation into the Watergate break-in. (Neri v. Senate Committee on Accountability of Public Officers and Investigations, G.R. No. 180643, 25 March 2008) Trade & Industrial Secrets Privilege Trade and industrial secrets recognized under our law and exempted from discovery and compulsory disclosure. (Air Philippines Corp. v. Pennswell, Inc., 13 December 2007). FILIAL PRIVILEGE A person may not be compelled to testify against his ascendants or descendants. (S25 R130). Note that the privilege belongs to the witness not to the person he is testifying against. A stepmother may be compelled to testify against her stepdaughter. The filial privilege does not apply since the same covers only direct ascendants and direct descendants, and a stepdaughter is not a direct descendant of the stepmother. (Lee v. Court of Appeals, 13 July 2010). PARTY ADMISSIONS Admission. An act, declaration, or omission of a party as to a relevant fact may be given in evidence against him. An admission need not be against the party’s interest. The admissions under R130 are extrajudicial admissions. This should be distinguished from judicial admissions under R129. Admissions may be made by a party directly or vicariously. Under the rule of res inter alios acta, the admissions of another person should not be considered as the admissions of a party. Exception is in the case of vicarious admissions. Rationale: Sufficient affinity or close relation of the 3P with the party litigant. 3 FORMS OF PARTY ADMISSION (ASO) -

Act Statement or declaration. Omission.

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Voluntary participation in the re-enactment of a crime conducted by the police. Flight from the scene of a crime. Changing one’s appearance or name. Transfer of property. Attempt to bribe witnesses.

Act

Certain conduct on public-policy grounds not admissible as admission of liability. 2016 Preweek Pointers on Evidence by Prof. Manuel Riguera for Jurists Bar Review Center. All rights reserved 2016 by Jurists Review Center Inc. Unauthorized reproduction, use, or dissemination strictly prohibited and shall be prosecuted to the full extent of the law, including administrative complaints with the Office of the Bar Confidant, Supreme Court. Page 6 of 20

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Post-accident repairs. Withdrawn or unaccepted offers of plea of guilty. Offers to pay or the payment of medical expenses. Offers of compromise in civil cases.

In criminal cases, offer of compromise implied admission of guilt. Exceptions: Quasi-offenses and those allowed by law to be compromised. Offer of accused to marry rape victim was held to be an implied admission. The offer of compromise dated 5 December 2000 was made prior to the filing of the criminal complaint against her on 9 March 2001 for a violation of the Bouncing Checks Law. The Offer of Compromise was clearly not made in the context of a criminal proceeding and, therefore, cannot be considered as an implied admission of guilt. (San Miguel Corp. v. Kalalo, 13 June 2012). Failure to respond to a demand letter is not an implied admission of liability. A person does not make a letter evidence by sending it to a party against whom he wishes to prove the facts stated therein. He can no more impose a duty to answer a charge than he can impose a duty to pay by sending goods. (Phil. First Ins. Co. v. Wallem Phils., 26 March 2009). Non-flight is not evidence of innocence. (Eduarte v. People, 16 April 2009). VICARIOUS ADMISSIONS (J-CAPP) AGENT & PARTNER The act or declaration of a partner or agent of the party within the scope of his authority and during the existence of the partnership or agency may be given in evidence against such party after the partnership or agency is shown by evidence other than such act or declaration. Estrada v. Desierto. Angara as Ex Sec was the alter-ego of Erap. JOINT OWNER, DEBTOR, INTEREST The act or declaration of a joint owner, joint debtor, or other person jointly interested with the party within the scope of his authority and during the existence of the joint ownership, debt, or interest may be given in evidence against such party after the joint ownership, debt, or interest is shown by evidence other than such act or declaration. Joint here should not be confused with joint cf solidary in our law of oblicon. It means community of interest. Thus a co-owner, solidary (not joint) debtor, and sureties/guarantors. The statements of Ayala Land Inc., (the developer) would be binding upon the Ayala Alabang Village Association (the homeowner’s association) in an action by the latter to enforce the deed of restrictions over a lot in Ayala Alabang. This is because ALI under the deed of restrictions may enforce the same together with AAVA and thus ALI is a person jointly interested under S28 R130. (The Learning Child Inc. v. Ayala Alabang Village Association, 7 July 2010). By entering into a joint venture, MBMI has a joint interest with Corporations A, B, and C. Hence its statements in relation to such joint venture are an exception to the res inter alios acta rule. (Narra Nickel Mining Corp. v. Redmont Consolidated Mines Corp., 21 April 2014). PRIVY Where one derives title to the property from another, the act, declaration, or omission of the latter, while holding the title, in relation to the property, is evidence against the former. Per the rules a person from whom one derives the title to property from. E.g. donor, vendor, decedent, testator.

2016 Preweek Pointers on Evidence by Prof. Manuel Riguera for Jurists Bar Review Center. All rights reserved 2016 by Jurists Review Center Inc. Unauthorized reproduction, use, or dissemination strictly prohibited and shall be prosecuted to the full extent of the law, including administrative complaints with the Office of the Bar Confidant, Supreme Court. Page 7 of 20

CO-CONSPIRATORS Refers only to EJ acts or admissions. Does not refer to testimony given in court by the conspirator where there is a right to cross the conspirator and hence no need for preliminary proof of conspiracy’s existence. Take note of the common requirements that (1) the act or declaration must be in connection with the third person’s relation with the party, (2) the act or declaration must be made during the existence of the relation, and (3) the relation must be proved by evidence other than the act or declaration. In the case of admission by privies, however, independent evidence is not required. No. 2 is important and the subject of several bar exam questions. ADOPTIVE ADMISSION: Adoptive admission is where a party, by his words or conduct, voluntarily adopts or ratifies another’s statement. Evidence of the statement would then be admissible against the party. Here the Respondent adopted its counsel’s statement that he had transmitted the draft of the answer to the Respondent, but did not sign the answer which was filed. (Republic of the Philippines v. Kenrick Dev’t Corp., G.R. 149576, 8 August 2006). SIMILAR ACTS RULE (RIAA 2nd branch) 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; but it may be received to prove PIKICHUS. Exception: PIKICHUS Plan, identity, knowledge, intent, custom, habit, usage, system, and the like. The 3 contracts to sell were not sufficient to prove a habit or custom on the part of XEI to grant the 120month term to all its lot buyers. (Boston Bank v. Manalo, 9 Feb 06). Note the Sexual abuse shield rule in criminal cases involving child abuse. (S30 RECW). Evidence of the alleged child victim’s other sexual behavior and sexual predisposition (osb) inadmissible. Exc: To prove that a person other than the accused was the source of the semen, physical injury or other physical evidence (hair, blood). (SPie) The proponent must file a pretrial motion stating that he intends to offer such kind of evidence, in order to prevent unfair surprise upon the other. Rape shield rule under S6 of RA 8505 (Rape Victim Protection & Assistance Act) Evidence of victim’s past sexual conduct, opinion thereof, or of his/her reputation (PaSCOR) inadmissible unless court finds that such evidence is relevant to the case. HEARSAY RULE AND ITS EXCEPTIONS HEARSAY: An out-of-court statement which is relevant for the truth of a matter asserted therein. (See Federal Rules of Evidence). Self-serving statements are those made by a party out of court advocating his own interest. They do not include a party’s testimony in court as a witness. The proper ground for self-serving statements is not that they are self-serving but that they are hearsay. Statements made by a party in court favoring his interest may not be objected to as self-serving since the party may be cross-examined. (People v. Omictin, 26 July 2010). Psychologist’s report on the psychological incapacity of the respondent was based solely on her interview of the petitioner. The psychologists did not actually interview the respondent. Consequently the psychologist’s report and testimony were hearsay evidence since she had no personal knowledge of the alleged facts she was testifying on. (Paz v. Paz, 18 February 2010). Contra: In a marriage nullity case, the lack of personal interview of the respondent does not render hearsay the psychologist’s report. (Camacho-Reyes v. Reyes, G.R. No. 185286, 18 August 2010). Even hearsay evidence can be admitted if it satisfies the basic minimum test of relevance and consistency with other evidence. The courts should exercise of flexibility in the consideration of evidence, 2016 Preweek Pointers on Evidence by Prof. Manuel Riguera for Jurists Bar Review Center. All rights reserved 2016 by Jurists Review Center Inc. Unauthorized reproduction, use, or dissemination strictly prohibited and shall be prosecuted to the full extent of the law, including administrative complaints with the Office of the Bar Confidant, Supreme Court. Page 8 of 20

including hearsay evidence, in extrajudicial killings and enforced disappearance cases. Tagitis, 3 December 2009, Brion, J.)

(Razon v.

NBI agent’s testimony that Zaldy had identified in a police line-up the accused as one of the perpetrators of the robbery and killing was held unreliable where Zaldy did not testify in court and the NBI agent did not testify on the when, how, and who of the police line-up. (Pp v Cachuela, 10 June 2013). The affiants’ failure to identify their affidavits in the administrative case before the OMB and the grave nature of the charges (grave misconduct) led the SC to treat their affidavits as inadmissible under the hearsay rule. (Miro v. Vda de Erederos, 20 Nov 2013). Medical certificate that plaintiff suffered whiplash is hearsay if the physician who executed it not presented in court. (Dela Llana v Biong, 4 Dec 2013). A medical report is hearsay when the doctor who prepared the same did not testify in court, even if the defense counsel agreed to the stipulation that the rape victim submitted herself to a medical examination. (Pp v Rondina, 30 June 2014). Hearsay evidence is admissible in determining probable cause in a preliminary investigation because such investigation is merely preliminary, and does not finally adjudicate rights and obligations of parties. However, in administrative cases, where rights and obligations are finally adjudicated, what is required is “substantial evidence” which cannot rest entirely or even partially on hearsay evidence. (Estrada v. OMB, 21 Jan 2015, e.b.) EXCEPTIONS Exceptions may be grouped into two: Those where there is a requirement that the declarant is dead or unavailable to testify (DU requirement) and those where there is no such requirement. Unavailability. Means that the declarant cannot be produced in court by a party despite diligent efforts, as when he could no longer be located. Mere refusal to testify is not equivalent to unavailability as declarant can be subpoenaed, unless declarant is invoking a privilege. DEATH/UNAVAILABILITY OF DECLARANT REQUIRED (D BF PDC) DYING DECLARATION -

Requirements: DICC Applies to both civil and criminal cases Declarant should die Death is the subject of inquiry in the case Declarant conscious of impending death Declaration relates to cause and circumstances sorrounding declarant’s death. Declarant must otherwise be competent.

The fact that the victim had nine stab wounds which caused his death within the next 48 hours indicates that the victim was conscious of his impending death. (People v. Tabarnero, 24 February 2010). Bloodied condition of a stab victim indicates that victim must have been fully aware that he was on the brink of death. (People v. Serenas, 29 June 2010). It is of no moment that the victim died seven days from the stabbing incident and after receiving adequate care and treatment, because the apparent proximate cause of his death, the punctures in his lungs, was a consequence of appellant’s stabbing him in the chest. At the time the victim made his declaration, his breathing labored, he realized that he could die after having been stabbed twice in the chest. (People v. Rarugal, 16 January 2013). BUSINESS ENTRIES (S43 R130) - Requirements: TDK PO - Entries made at, or near the time of the transactions to which they refer, by a person deceased, or unable to testify, who was in a position to know the facts stated therein. The 2016 Preweek Pointers on Evidence by Prof. Manuel Riguera for Jurists Bar Review Center. All rights reserved 2016 by Jurists Review Center Inc. Unauthorized reproduction, use, or dissemination strictly prohibited and shall be prosecuted to the full extent of the law, including administrative complaints with the Office of the Bar Confidant, Supreme Court. Page 9 of 20

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entrant must have made the entries in his professional capacity or in the performance of duty and in the ordinary or regular course of business or duty. (PDOR) The entrant should have personal knowledge of the information he is entering.

Sales invoices excluded as hearsay where proponents failed to show that entrant was dead or unable to testify. (Advance Paper Corp. v. Arma Traders Corp., 11 Dec 2013). ELECTRONIC BUSINESS RECORD (S1 R8 REE) -

Requirements: MET KKR A memorandum, report, record or data compilation (MR RD) of acts, conditions, events, diagnoses, or opinions (ACEDO) made by electronic, optical or other similar means at or near the time by, or from transmission or supply of information by, a person with knowledge thereof, kept in the regular course or conduct of a business activity, (rc-cba) and such was the regular practice to make the MR RD by electronic, optical or similar means

is excepted from the rule on hearsay evidence. (S1 R8 REE). The above matters should be shown by the testimony of the custodian or other qualified witness. Such testimony may be in affidavit form as per S1 R9 REE. Sec. 2(b) R2 of REE defines “business records” as including records of any business, profession, occupation, and calling of every kind, whether or not conducted for profit or for legitimate purposes. DISTINCTIONS BETWEEN BUSINESS ENTRIES EXCEPTION (BEE) & THE ELECTRONIC BUSINESS RECORD EXCEPTION (EBRE) Under BEE, it is required that the entrant be dead or unavailable to testify, while there is no such requirement under the EBRE. Under BEE, the entrant should be in a position to know the facts stated therein, while in EBRE, the entrant or recorder need not personally know the facts entered, it being sufficient that the records were made “from transmission or supply of information by a person with knowledge thereof.” FORMER TESTIMONY OR DEPOSITION (S47) Requirements: PSC The testimony or deposition of a witness deceased or 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 the witness. (PSC) Statements made during preliminary investigation are not covered by this exception since there is no right to cross-examine. (S3(e) R112). But depositions are covered under this exception because the deponents may be cross-examined. (S3 R23, S4 R24). S47 R130 refers to a deposition taken in a former case or proceeding. If the deposition is taken in the same case or proceeding, it is S4(c) R23 (DOSUE) which governs. Francisco v. People, GR 146584, 12 July 2004, Callejo, J.: Jovita’s testimony in Case 1 (qualified theft) that Pacita confessed to her that she had sold the jewelry to Francisco is inadmissible against Francisco in Case 2 (fencing) to prove the truth of said admission. It bears stressing that Francisco was not a party (accused) in Case 1. Jovita did not reiterate her testimony in Case 2 nor was Pacita presented as a witness therein to testify on the admission she purportedly made to Jovita. Thus there was no opportunity to cross-examine Pacita. Pacita’s testimony in the preliminary investigation of Case 2 as well as her affidavit are inadmissible against Francisco since the latter did not have the opportunity to crossexamine Pacita.

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The testimony of witnesses in a prior criminal case for reckless imprudence against the employee (bus driver) cannot be introduced in a subsequent civil case for tort filed by the offended party against the employer (bus company) to enforce the latter’s vicarious liability under Article 2180 of the Civil Code. This is because the employer is not a party in the criminal case and thus had no opportunity to crossexamine the witnesses. However where the employer failed to object to the TSNs when they were offered in evidence, the same are admissible. The driver’s acquittal is of no moment since the tort case is an independent civil action. (Manliclic v. Calaunan, 25 January 2007). A judgment of conviction of the employee is however conclusive upon the employer in a motion or action to enforce the employer’s subsidiary liability under Article 103 of the Revised Penal Code and said judgment is admissible in evidence in the proceedings brought to enforce the employer’s subsidiary liability. DECLARATION AGAINST INTEREST (S38) -

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Requirements: D ITC 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 man in his position would not have made the declaration unless he believed it to be true, may be received in evidence against himself or his successors in interest and against third persons. People v. Toledo, 51 Phil 285: The deceased declarant had stated that he alone was the one responsible for the death of the victim and that the accused was free from blame. While statement not admissible as dying declaration, it was admissible as a declaration against interest. Fuentes v. CA, 253 SCRA 430 involved a similar declaration but the accused did not exert diligent efforts to locate the declarant who was not shown to be dead. SC held that the declarant was not unavailable to testify and thus the exception did not apply.

There is no declaration against interest where the affidavit was executed not by the seller himself but by his father. (Dantis v. Maghinang, 10 April 2013). CHILD-DECLARANT RE CHILD ABUSE (S28 RECW) -

REQUIREMENTS: DN CCC Where the declarant is a child-witness, who is dead or unavailable to testify, and the declaration relates to act or attempted act of child abuse. Proponent must give advance notice to adverse party and give the particulars of the declaration. “Unavailable” includes cases where the child is suffering from physical infirmity, lack of memory, mental illness, or will be exposed to severe psychological injury. The declaration is corroborated by other admissible evidence.

DEATH/UNAVAILABILITY OF DECLARANT NOT REQUIRED (RFC COLES)

RES GESTAE, PART OF THE (S42) -

Actually consists of two exceptions, excited utterances and verbal acts.

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Excited utterance/spontaneous exclamation Statements made by a person while a startling occurrence is taking place or immediately prior or subsequent thereto with respect to the circumstances thereof (STIC) may be given in evidence as part of the res gestae. Excited utterance must be made while under the influence of a startling occurrence and at or about the time of the startling occurrence, and regarding the circumstances thereof.

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Statement made as part of the res gestae admissible even if made eleven hours after the incident, provided the declarant was still under the influence of the startling event. (Zarate v. People, 3 July 2009, Peralta, J.).

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COMMERCIAL LISTS (S45) -

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Requirements: IPO PR Statements of matters of interest to persons engaged in an occupation contained in a list, register, periodical or other published compilation (LR PP), published for use by persons engaged in that occupation and generally used and relied upon by them. Advertisements in the buy-and-sell section of newspapers not included since they are just separate and distinct offers. PNOC Shipping Corp. v. CA, 297 SCRA 402 (1998). Price quotation letters for the replacement cost of a barge sent by shipbuilders to PNOC are not covered by the exception.

ENTRIES IN OFFICIAL RECORDS (Official Entries) -

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Requirements: OPP Entries in official records made in the performance of his duty by a public officer of the Philippines, or by a person in the performance of a duty specially enjoined by law. Entries must be made by a public officer or a private person specially enjoined by law to make such entries. Examples of private person specially enjoined by law to make entries: (1) Log book entry required under the Code of Commerce to be kept by a ship captain; (2) stamp of dishonor and its reason required from the drawee of a check under B.P. Blg. 22; (3) Parties to a marriage ceremony and the solemnizing officer are required to sign and attest the marriage certificate and the solemnizing officer is required to keep a copy. (Art. 23, Family Code). Entrant need not be presented in court to testify on the official entries. The entrant must have personal knowledge of the facts he is entering or the information must have been supplied by persons having a specific legal (not moral) duty to supply such information. (Africa v. Caltex, 16 SCRA 448). POEA certification that accused was not a licensed recruiter is an official record. Hence it is an exception to the hearsay rule and admissible even if the one who made the certification was not presented in court. (People v. Ochoa, 31 August 2011). The SC noted that a witness had identified the signature of the certifying officer. It is opined that even if the certifying officer’s signature was not identified, the certification would still be admissible as it is a public document which does not need to be authenticated.

The NBI/Progress report, having been submitted by the officials not on the basis of their own personal observation of the facts reported but merely on the basis of the complainants' affidavits is double hearsay. The Deputy Ombudsman cannot rely on it. (Miro v Vda de Erederos, 20 Nov 2013). Sec. 13, A.M. No. 12-11-2-SC (eff. 1 May 2014) re accused under preventive detention: A certified copy of the report of a government medical, chemical, or laboratory expert relating to a criminal case shall be admissible as prima facie evidence of the truth of its contents. The personal appearance in court of a witness who prepared the report shall be unnecessary unless demanded by the accused for crossexamination. OPINION RULE G.R. The opinion of a witness is not admissible in evidence. EXCEPTIONS: - Expert opinion. - Lay opinion on HIS and short-hand opinions. EXPERT OPINION The opinion of a witness on a matter requiring special knowledge, skill, experience or training (special TEKS) which he is shown to possess, may be received in evidence. - Note that the witness need not have formal training or instruction on his field of expertise.

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The witness should be qualified, that is, he should be shown to possess the special knowledge, skill, experience or training, before he is allowed to testify. However the objection should be timely raised, otherwise it is deemed waived.

Even assuming Dra. Dela Llana was a neurologist, her testimony that the car collision caused the whiplash injury cannot be given probative value as she was presented not as an expert witness but as an ordinary witness. (Dela Llana v. Biong, 4 December 2013). LAY OPINION -

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Lay or short-hand opinion is allowed on HIS: o Handwriting of which he is familiar. o Identity of a person whom the witness he adequately knows. o Sanity of a person of whom the witness is acquainted. Short-hand impressions: Impressions on the CABE (Condition, appearance, behavior, and emotion) of a person. Witnesses can also give opinions re physical dimensions (length, height, weight) and speed, and lighting conditions.

BURDEN OF PROOF Distinction between 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 claim or defense by the amount of evidence required by law. (S1 R131). The BOP rests upon a party asserting the affirmative of an issue. Thus Plaintiff who alleges defendant’s negligence has the burden of proof. This is often with the Plaintiff but it need not necessarily be so. The Defendant in a suit for enforcement of written contract who raises the defense of forgery has the burden of proof of proving forgery. The key query is who is the party asserting the affirmative of an issue. Burden of evidence on the other hand is the duty of a party to go forward with the evidence and may shift from party to party depending upon the developments in the case. Rivera v. CA, G.R. 115625, 23 Jan 1998 (Equipoise Doctrine). Where the evidence on an particular issue is in equipoise or level, the party with the burden of proof on that issue will lose out on that particular issue. PRESUMPTIONS The presumption under S2(b) R131 does not bar a tenant from challenging the landlord’s title by title subsequent to the commencement of the lease contract, as where the tenant had purchased the leased land from the mortgagee-purchaser in the extrajudicial foreclosure sale. (Ermitano v Paglas, 23 Jan 2013, Peralta, J.) WHAT NEED NOT BE PROVED: JUDICIAL NOTICE AND ADMISSIONS (Rule 129) JUDICIAL NOTICE -

Mandatory: (SIP NTG) o The existence and territorial extent of STATES, their political history, forms of government, and symbols of nationality. o INTERNATIONAL LAW, the admiralty and maritime courts of the world and their seals. o The constitution and history of the PHILIPPINES, the official acts of the legislative, executive, and judicial departments of the Philippines. o The laws of NATURE. o The measurement of TIME. o The GEOGRAPHICAL divisions.

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Discretionary (PUJ). Matters which are of PUBLIC knowledge, capable of UNQUESTIONABLE demonstration, or ought to be known to JUDGES because of their judicial functions. Hearing is necessary before Court can take judicial notice.

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Courts cannot take judicial notice of foreign laws. The parties may however stipulate on what the foreign law is in which case the same are judicial admissions binding upon them and they cannot take a contrary stance. (PCIB v. Escolin, G.R. 27936, 29 March 1974). Courts cannot take “judicial knowledge that criminal activities such as robbery and kidnappings are becoming daily fares in Philippine society.” (New Sun Valley Homeowners’ Assoc. v. Sangguniang Bgy. of Sun Valley, 27 July 2011). The Management Contract entered into by Asian Terminals Inc. and the Philippine Ports Authority (PPA) cannot be considered an official act of the executive department. The PPA is a government-owned and controlled corporation in charge of administering the ports in the country. Obviously, the PPA was only performing a proprietary function when it entered into a Management Contract with ATI. As such, judicial notice cannot be applied. (Asian Terminals Inc. v. Malayan Insurance Co., 4 April 2011).

Courts cannot take judicial notice that vehicular accidents cause whiplash injuries. (Dela Llana v Biong, 4 Dec 2013) JUDICIAL ADMISSIONS (S4 R129). Failure to answer the complaint is not an implied admission of the allegations thereof. (Heirs of de Guzman v. Perona, 2 July 2010). The benefit of a judicial admission may be lost by failure to object to the presentation of evidence contradicting it. (ATCI Overseas Corp. v. Echin, 11 October 2010). PRESENTATION OF EVIDENCE EXAMINATION OF A WITNESS (S1) G.R. The examination of a witness shall be done in open court (oral examination). Exceptions: -

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S9 & 15 Rule on Summary Procedure. SC Guidelines on Pre-trial and Deposition. S1 R9 Rules on Electronic Evidence. Matters regarding the admissibility and evidentiary weight of electronic documents may be proved by affidavits subject to cross by adverse party. Cases covered by the Judicial Affidavit Rule

The witness’s examination should be done in question-and-answer form. Narrative testimony prohibited. Exception is S19, Rule on Examination of a Child Witness.

S3 RIGHTS AND OBLIGATION OF A WITNESS -

SC Guidelines on Pre-trial and Discovery exhort courts to adhere strictly to the “One-Day Examination of Witness” Rule subject to justifiable exceptions. A witness can be compelled to answer to the fact of his prior FINAL conviction for an offense. The answer can be used to impeach the witness or prove his bad moral character but generally not to prove that he committed a similar act as that would run afoul of the similar acts rule.

S6 CROSS-EXAMINATION -

EXTENT: Matters stated in the direct or connected therewith. PURPOSE: To test the witness’ impartiality, honesty, and accuracy (IHA), and to elicit all important facts bearing upon the issue. Two rules on the scope of cross-examination: American & English. Wordings of S6 R132 show that it is an adoption of the English rule. In 2 instances however the American rule is followed: (CHUA) o S12 R132: Cross-examination of a witness who has been called as an adverseparty witness by the other side or who has been declared as a hostile or unwilling witness upon the initiative of the other side.

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o

S1(d) R115. Cross-examination of the accused in a criminal case.

LEADING QUESTION Definition: One which suggests to the witness the answer which the examining party desires. The reason for prohibiting leading questions is that it is virtually the lawyer testifying rather than the witness. When allowed: (PICHUCA) -

On cross. On preliminary (background) matters. Ignorant witness, child of tender years, feeble-minded or deaf-mute witness. (DFIC) Unwilling or hostile witness. Adverse-party witness, or a director, officer, or managing agent (DOM) of a corporation, partnership, or association which is an adverse party. Child Witness (S20 RECW). Court has discretion to allow leading questions if the same will further the interests of justice.

Misleading question: One which assumes as true a fact not yet testified to by the witness, or contrary to that which he has previously stated. It is never allowed. If asked on direct, the more precise objection is that the question lacks basis. IMPEACHMENT: Means to destroy or put in doubt the credibility of the witness or his testimony. Not necessary to show that witness is lying but that witness may be mistaken in her observation or narration. How adverse party’s witness impeached: (RICC) -

Reputation for honesty, integrity, or truth (HIT) is bad. Inconsistent statement. Contradictory evidence. Conviction. (S11 R132)

Inconsistent Statement (S13 R132) -

Impeachment by inconsistent statement, requires that the predicate be laid. The laying of the predicate is done as follows: (WARE) o If the statements are in writing, they must first be shown to the witness before any question is asked of him. o The statements must be related to him, with the circumstances of the time and place and the persons present. o He must be asked whether he made such statements. o If so, he must be asked to explain the inconsistency.

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If the predicate is not laid, the impeachment is not complete and the witness has not been impeached effectively. (Pp v. Cortezano, 375 SCRA 95).

Reputation for Honesty, Integrity, and Truth (HIT) is Bad -

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Note that reputation evidence only may be used and not evidence of particular facts or acts., e.g. of lying. Thus evidence that the witness lied in another court case is not admissible for impeachment purposes. Note however that a witness must answer to the fact of his previous final conviction for an offense. (S3[5] R132).

Contradictory evidence. The purpose is not just to show an inconsistency but to prove outright that the witness is mistaken or lying. Thus if the witness testified that defendant’s car entered the intersection when the stoplight was green in his favor but a video recording showed otherwise, the video recording is contradictory evidence. Predicate need not be laid.

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Conviction While a witness may not be impeached by evidence of particular wrongful acts, it may be shown by the examination of the witness or by the record of the judgment, that he has been convicted of an offense. (S11 R132). The conviction must be final. Note that a witness must answer to the fact of his previous final conviction for an offense. (S3 R132). The conviction may be for any offense, not just for perjury or false testimony. A party may not impeach his own witness, exceptions: (S12 R132) A party may not impeach his own witness. The basis for the rule is that a party vouches for his witness. Exceptions: If the witness is an adverse-party witness or a DOM of a CPA which is an adverse party, or one who has been declared by the court as an unwilling or hostile witness. (UHA). Do not confuse adverse-party witness with adverse party’s witness. A witness may be considered as unwilling or hostile only if so declared by the court upon an adequate showing of his adverse interest, unjustified reluctance to testify, and of his having misled the party into calling him to the witness stand. (ARM). Impeachment of one’s own witness who is UHA Just like impeaching an adverse witness except that impeachment by reputation evidence is not allowed. (ICC). S5 of the JAR expressly excludes from its application adverse party and hostile witnesses. Enough for the party calling the adverse party witness to serve beforehand written interrogatories pursuant to S6 R25. (Ng Meng Tam v. China Banking Corp., 5 August 2015). Live-link TV testimony of a child witness The prosecutor, counsel or guardian ad litem may apply for an order that the testimony of the child be taken in a room outside the courtroom and be televised to the courtroom by live-link TV. Court may motu proprio hear and determine, with notice to the parties, the need for live-link TV testimony. The judge may question the child in camera about his feelings on testifying in the courtroom but not about the issues at trial. Ground: 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, which trauma would impair the completeness or truth of the testimony. (S25 RECW) Videotaped deposition of child witness The prosecutor, counsel, or guardian ad litem may apply for an order that a deposition be taken of the child’s testimony and that it be recorded and preserved on videotape. If the judge finds that the child will not be able to testify in open court during the trial, it shall issue the order. The judge shall preside at the videotaped deposition of the child. Objections to deposition testimony or evidence shall be stated and shall be ruled upon at the time of the taking of the deposition. The rights of the accused during trial, especially the right to counsel and to confront and cross-examine the child, shall not be violated during the deposition. If at the time of the trial the court finds that the child is unable to testify because: (1) 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, which trauma would impair the completeness or truth of the testimony; or (2) of any reason under S4(c) R23, the court may admit the videotaped deposition in lieu of his testimony. (S27 RECW). AUTHENTICATION AND PROOF OF DOCUMENTS. Authentication in general

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All kinds of evidence, not just documentary, should be authenticated before it is received in evidence. In the language of trial lawyers, one must “lay a foundation” for the exhibit. Authentication means establishing that the exhibit is in fact what it purports to be. Authentication of documents PUBLIC DOCUMENTS -

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Public Documents consist of: (APO) o Written official acts or records of official acts of the sovereign authority, official bodies and tribunals, and public officers (SOP), whether of the Philippines or of a foreign country. o Acknowledged documents (notarial documents), except wills. o Public records of private documents required by law to be entered therein. (S19 R132). An improperly notarized deed of sale is not a public document which carries the presumption of due execution and authenticity. Hence the evidentiary standard to prove forgery is merely preponderance of evidence, not clear and convincing evidence. The alleged seller’s testimony that his signature was forged taken with the testimony of the buyer that he did not see the seller sign and that he did not acknowledge the document before the notary public was sufficient to prove forgery even without presenting a handwriting expert. (Dela Rama v. Papa, 30 January 2009). Acknowledgment defective where person who appeared before notary public not indicated in the acknowledgment. Hence the document is not considered a public document. (Dycoco v. Orina, 30 July 2010). The fact that Pantranco’s articles of incorporations, memorandum of agreement, and purchase agreement were collected by the PCGG in the course of its investigation of the Marcoses’ alleged ill-gotten wealth do make the same public records within the purview of S19(c) R132. (Republic v. Marcos-Manotoc, 8 February 2012). The certification as to the income of the deceased, executed by his employer the United States Agency for International Development (USAID) are public documents under S3(a) R132. Hence its authenticity and due execution are already presumed and moreover it is prima facie evidence of the facts stated therein under S23 R132. (Heirs of Ochoa v. G&S Transport, 16 July 2012). The chemistry report showing a positive result of the paraffin test is a public document under S19(a) R132 and does not need authentication. The forensic chemist who made the report need not be presented in court to identify, describe and testify how the report was conducted. (Kummer v Pp, 11 Sep 2013).

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 stated therein. (S23 R132). This is in effect an exception to the hearsay rule. (See also S44 R130). CENRO and PENRO certifications that land alienable and disposable do not fall within the purview of the first sentence of S23 R132. (Republic v Medida, 13 August 2012). NSO certification of marriage, death, and that respondent has record of 2 marriages are public documents per to Art. 410 of the Civil Code which provides that the books making up the civil register and all documents relating thereto are public documents and shall be prima facie evidence of the facts therein. Hence there was no need to present the records custodian of the NSO to testify on their authenticity and due execution. (Iwasawa v Gangan, 11 Sep 2013). Proof of lack of record 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, accompanied by a certificate that the officer has the custody, is admissible as evidence that the records of his office contain no such record or entry. (S28 R132). 2016 Preweek Pointers on Evidence by Prof. Manuel Riguera for Jurists Bar Review Center. All rights reserved 2016 by Jurists Review Center Inc. Unauthorized reproduction, use, or dissemination strictly prohibited and shall be prosecuted to the full extent of the law, including administrative complaints with the Office of the Bar Confidant, Supreme Court. Page 17 of 20

The certification of the Municipal Civil Registrar of Carmona, Cavite, that marriage license no. 9969967 was issued to another couple and that “it appear that no marriage license was issued to Syed Abbas and Gloria Goo” was sufficient to prove the lack of marriage license. The certification need not stated that a diligent search was made because of the presumption that official duty has been regularly performed. Besides the fact that the MCR stated that license no. 9969967 was issued to another couple shows that she undertook a diligent search. (Abbas v. Abbas, 30 January 2013). PRIVATE DOCUMENTS -

Before a private document offered as authentic is received in evidence it should first be authenticated, that is, its due execution and authenticity should be proved by (a) anyone who saw the document executed or written (sew) or (b) evidence of the genuineness of the signature or handwriting of the maker (EGSHaM). (SG). (S20 R132)

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The genuineness of a person’s handwriting may be proved by: (WC) 1. A witness who has seen the person write. What is written here is a document other than the one sought to be authenticated. If what the witness saw is the execution or writing of the document, the same is authenticated under S20(a) R132. 2. Or 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 (acak). E.g. a signed instruction for a person to make payment to a particular agent and the statement of account thereafter shows that the payment was credited. 3. A comparison, made by the witness or the court, with writings admitted or treated as genuine by the adverse party or proved (atp) to be genuine to the satisfaction of the judge. (S22 R132).

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If a private document is not being offered as an authentic document but only to prove its existence or the fact of receipt or some other matter, it need not be authenticated. E.g., presentation by the prosecution of a ransom note. o Ancient documents need not be authenticated. An ancient document is a private document more than 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. CUT (S21 R132) o Under FRE 803(16), statements in an ancient document are excepted from the hearsay rule. In the absence of any similar exception in our Rules of Evidence, such statements should be considered as hearsay if offered to prove the truth of the matter asserted therein. Authentication by circumstantial evidence: Where there is no eyewitness to the execution or writing of a document or no evidence concerning the genuineness of the maker’s signature or handwriting can be obtained, the document may still be authenticated using circumstantial evidence. Examples: o Self-authenticated documents. Where the facts in the writing could only have been known by the writer. For instance the use of code terms likely to be known only by the participants in the underlying events, or by other revealing contents, such as dates, amounts, etc., known only to the participants in the events. (ANTONIO R. BAUTISTA, BASIC EVIDENCE 149 [2004 ed.]). o Reply-authenticated documents. Where the reply of the adverse party refers to and affirms the sending to him and his receipt of the letter in question, a copy of which the proponent is offering in evidence. o Reply-letter rule. Where a reply to a letter indicates that the one writing the reply knew the tenor of the letter, the reply is deemed authenticated.

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Where party may not object to lack of authentication

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Estrada v. Desierto, supra. Estrada argued that the Angara Diary was not properly authenticated under S20 R132. The SC said however that “a party who does not deny the genuineness of a proferred instrument may not object that it was not properly identified before it was received in evidence.” Estrada did not deny the authenticity of the Angara

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Diary despite opportunity to do so. The ruling applies only against a party who had the opportunity and the means to challenge the authenticity of a document. A person who is not a party to the document nor privy thereto is not covered by the rule. Where the genuineness and due execution of a document has been expressly or impliedly admitted, as in S8 R8 or under R26, authentication is no longer necessary. AUTHENTICATION OF ELECTRONIC DOCUMENTS -

Before any private electronic document offered as authentic is received in evidence, its authenticity must be proved by any of the following means: o Evidence that it had been digitally signed. o Appropriate security procedures or devices as may be authorized by law or rules have been applied to the document, or o Other evidence showing its reliability and integrity to the satisfaction of the judge. (S2 R5, REE).

Accused argued that an obscene picture sent through a text message was an electronic document that should have been authenticated by a digital signature. SC said that the objection was not raised during the trial and was thus waived. (Ang v. Court of Appeals, 20 April 2010, Abad, J.). Furthermore a picture even if sent through a text message is not an electronic document but a photographic and hence object evidence. SC committed an oversight in this case when it stated that the REE does not apply to criminal actions and proceedings. The SC overlooked SC resolution dated 24 September 2002 which provides that the REE applies to criminal actions and proceedings effective 14 October 2002. OFFER AND OBJECTION When and how to offer evidence: -

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Testimonial evidence. At the time the witness is called to testify. The offer is made orally. Documentary evidence. After the presentation of a party’s testimonial evidence and before he rests his case. The offer shall be done orally unless allowed by the court to be done in writing. Object evidence. Same as documentary evidence, unless it cannot be submitted to the court in which case at the time it is presented to the court’s senses. In cases covered by the Judicial Affidavit Rule, upon the termination of the testimony of his last witness, a party shall immediately make an oral offer of evidence of his documentary or object exhibits, piece by piece, in their chronological order, stating the purpose or purposes for which he offers the particular exhibit. The proponent should state the purpose/s for which he is offering the evidence.

Reason: So that the court may consider the evidence for the purpose for which it was offered. Evidence not offered cannot be considered by the Court. Mere identification of documents and the marking thereof as exhibits does not confer any evidentiary weight on the documents unless these are formally offered. (Heirs of Cruz-Zamora v. Multiwood Inter. Inc., 19 Jan 09). OBJECTIONS When to object: -

Testimonial evidence: At two points. One when the offer is made, and second, when an objectionable question is asked of the witness. Objection must be made immediately after the offer is made. Objection to a question propounded in the course of the oral examination of a witness shall be made as soon as the grounds therefore shall become reasonably apparent. Documentary and object evidence. When the document is offered in evidence. So objecting when the document is merely being marked and identified is premature. When the evidence is offered orally, objection must be made immediately

2016 Preweek Pointers on Evidence by Prof. Manuel Riguera for Jurists Bar Review Center. All rights reserved 2016 by Jurists Review Center Inc. Unauthorized reproduction, use, or dissemination strictly prohibited and shall be prosecuted to the full extent of the law, including administrative complaints with the Office of the Bar Confidant, Supreme Court. Page 19 of 20

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after the offer. When the evidence is offered in writing, objection must be made within 3 days from notice, unless a different period is allowed by the court. JUDICIAL AFFIDAVIT RULE. The party presenting the judicial affidavit of his witness in place of direct testimony shall state the purpose of such testimony at the start of the presentation of the witness. The adverse party may then move to disqualify the witness or to strike out his affidavit or any of the answers found in it on ground of inadmissibility. After each piece of exhibit is offered, the adverse party shall state the legal ground for his objection and the court shall immediately make its ruling respecting that exhibit.

MOTION TO STRIKE OUT (S39 R132) Remedy of a party where the objectionable feature was not apparent from the question or where the witness answered instantly without giving the lawyer a chance to object. CONTINUING OBJECTION When a party has previously objected to a question, whether sustained or overruled, and succeeding questions are of the same class as those to which objection has been made, 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. (S37 R132). RULING -

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The court should rule immediately on the objection although it can where necessary take a reasonable time to study the matter but the ruling should always be made during the trial. JUDICIAL AFFIDAVIT RULE. The court shall promptly rule on the motion to disqualify the witness or to strike out his affidavit or any of the answers therein. If granted, the court shall cause the marking of any excluded answer by placing it in brackets under the initials of an authorized court personnel, without prejudice to a tender of excluded evidence under S40 R132. In object evidence, the court shall also immediately make its ruling after the exhibit is offered. The court need not state the ground for its ruling except when the objection is based on 2 or more grounds in which case a ruling sustaining the objection must state on what ground/s it is based. No need to except to ruling in order to challenge it on appeal. Note however that if the ruling excludes offered evidence, the proponent must make an offer of proof.

TENDER OF EXCLUDED EVIDENCE OR OFFER OF PROOF (S40 R132) -

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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. (NPS) The purpose of making an offer of proof is to allow the appellate court to assess whether the trial court’s exclusion of the evidence is proper.

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2016 Preweek Pointers on Evidence by Prof. Manuel Riguera for Jurists Bar Review Center. All rights reserved 2016 by Jurists Review Center Inc. Unauthorized reproduction, use, or dissemination strictly prohibited and shall be prosecuted to the full extent of the law, including administrative complaints with the Office of the Bar Confidant, Supreme Court. Page 20 of 20