BENCHBOOK EVIDENCE.pdf

EVIDENCE

EVIDENCE Basic Principles and Selected Problems Alexander G. Gesmundo

I. WHEN EVIDENCE IS NECESSARY Evidence is the means of proving the truth of a fact in judicial proceedings1. It becomes necessary to present evidence in a case when the pleadings filed present factual issues. Factual issues arise when a party specifically denies material allegations in the adverse party’s pleading. These are the issues which the judge cannot resolve without evidence being presented thereon. Thus, whether a certain thing exists or not, whether a certain act was done or not, whether a certain statement was uttered or not, are questions of fact that require evidence for their resolution. Questions of fact exist when the doubt or difference arises as to the truth or falsehood of alleged facts.2 All facts in issue and relevant facts must, as a general rule, be proven by evidence except the following: “(1) Allegations contained in the complaint or answer immaterial to the issues; (2) Facts which are admitted or which are not denied in the answer, provided they have been sufficiently alleged; (3) Those which are the subject of an agreed statement of facts between the parties; as well as those admitted by the party in the course of the proceedings in the same case; (4) Facts which are the subject of judicial notice; (5) Facts which are legally presumed; and (6) Facts peculiarly within the knowledge of the opposite party.”3 Other than factual issues, the case invariably presents legal issues. A question of law exists when the doubt or difference arises as to what the law is on a certain state of facts. Legal issues are resolved by simply applying the law or rules applicable, or interpreting the law applicable considering the facts of the case. Generally, no evidence need be presented on what the applicable law is. Everyone, including the judge, is presumed to know the law. There is a question of law if the issue raised is capable of being resolved without need of reviewing the probative value of the evidence. The resolution of the issue must rest solely on what the law provides on a given set of circumstances. Once it is clear that the issue invites a review of the evidence presented, the question posed is one of fact. If the query requires a re-evaluation of the credibility of witnesses, or the existence or relevance of 1

Section 1, Rule 128, Rules of Court. Parañaque Kings Enterprises, Inc. v. Court of Appeals, G.R. No. 111538, February 26, 1997, 268 SCRA 727; Sps. Santos v. Court of Appeals, G.R. No. 120821, August 1, 2000, 337 SCRA 67, 74. 3 Republic v. Vda. De Neri, et al., G.R. No. 139588, March 4, 2004, 424 SCRA 676, 692. 2

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surrounding circumstances and their relation to each other, the issue in that query is factual.4 When the parties’ pleadings fail to tender any issue of fact, either because all the factual allegations have been admitted expressly or impliedly (as when a denial is a general denial), there is no need to conduct trial, as there is no need to present evidence anymore. The case is then ripe for judicial determination, either through a judgment on the pleadings 5 or by summary judgment.6 During trial, parties to any action may agree, in writing, upon the facts involved in the litigation and submit the case for judgment on the facts agreed upon without the introduction of evidence.7 A party may waive its right to present testimonial evidence and opt to adduce documentary evidence and, thereafter, submit the case for resolution based solely on their pleadings and documentary evidence.8 II. ADMISSIBILITY OF EVIDENCE The study of the law on Evidence involves two main problems, viz: (1) determining whether a given piece of evidence is admissible, and (2) the proper presentation of that evidence so that the court will consider it in resolving the issues and deciding the case. Although evidence may, by itself, be admissible, the court may not admit or consider it in the resolution of the case, unless the evidence was properly presented. A. Axiom of Admissibility of Evidence Evidence is admissible when it is relevant to the issues and is competent, i.e., it is not excluded by the law or the Rules of Court. 9 Evidence is relevant when it has a relation to the fact in issue as to induce belief in its existence or non-existence.10 Collateral matters are those outside of the controversy or not directly connected to the principal issues in dispute as may be determined 4

Royal Cargo Corp. v. DFS Sports Unlimited, Inc., G.R. No. 158621, December 10, 2008, 573 SCRA 414, 421; Juaban, et al v. Espina, et al., G.R. No. 170049, March 14, 2008, 548 SCRA 588; 610; Citibank, N.A. v. Jimenez, G.R. No. 166878, December 18, 2007, 540 SCRA 573, 582. 5 RULES OF COURT, Rule 34. 6 RULES OF COURT, Rule 35. 7 RULES OF COURT, Rule 30, Sec. 6. 8 Republic v. Vda de Neri, et al., supra note 3 at 690-691. 9 RULES OF COURT, Rule 128. Sec. 3. 10 RULES OF COURT, Rule 128, Sec. 4. F-2

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from the party’s pleadings. It is allowed if it tends in any reasonable degree to establish the probability or improbability of a fact in issue. 11 Collateral evidence is of a lesser degree of reliability as evidence than material evidence. Material evidence directly proves a fact in issue. Thus, the testimony of an eyewitness to the commission of a crime is material; the evidence of motive or flight of the accused may be relevant. Evidence that is material or relevant must also be competent to be admissible. For example, although the testimony of the eyewitness may be material, it may be inadmissible if it is excluded by the marital disqualification rule. Relevancy or materiality of evidence is a matter of logic, since it is determined simply by ascertaining its logical connection to a fact in issue in the case. It is, therefore, inadvisable for a judge to ask an objecting counsel why an offered piece of evidence is irrelevant or immaterial. By his inquiry, he shows his unfamiliarity with the issues in the case. A judge is expected to be aware of the issues which he was supposed to have defined and limited in his mandatory pre-trial order.12 On the other hand, the grounds for objection to the competency of evidence must be specified13 and are determined by the Rules or the law. The opposites of the two requisites for admissibility of evidence, viz., irrelevancy, immateriality, or incompetency, are the general grounds for objection. The first two are valid grounds for objection without need of specification or explanation. The third ground for objection, incompetency, if offered without further explanation, is not valid for being unspecific, except when invoked in reference to the lack of qualification of a witness to answer a particular question or give particular evidence. B. Proper Presentation of Evidence Every piece of evidence, regardless of its nature, requires certain processes of presentation for its admissibility and admission. It is to be noted that there is now a preclusion rule.14 [N]o evidence shall be allowed to be presented and offered during the trial in support of a party's evidence-in-chief other than those that had been identified and premarked during the pre-trial. Any other evidence not indicated or listed in the pre-trial order shall be considered waived by the parties. However, the Court, in its discretion, may allow introduction of additional evidence in the 11

Id. See A.M. No. 03-1-09 SC Re: Guidelines To Be Observed By Trial Court Judges and Clerks of Court in the Conduct of Pre-Trial and Use of Deposition-Discovery Measures 13 RULES OF COURT, Rule 134, Sec. 36 14 As distinguished from the exclusionary rule as provided in RULES OF COURT, Rule 128, Sec. 3. 12

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following cases: (a) those to be used on cross-examination or re-crossexamination for impeachment purposes; (b) those presented on re-direct examination to explain or supplement the answers of a witness during the cross-examination; (c) those to be utilized for rebuttal or sur-rebuttal purposes; and (d) those not available during the pre-trial proceedings despite due diligence on the part of the party offering the same.15

1. Object Evidence Object evidence must generally be marked (Exhibits A, B, etc. for the plaintiff; Exhibits 1, 2, 3, etc. for the defendant) either during the pre-trial or during its presentation at the trial. It must also be identified as the object evidence it is claimed to be. This requires a testimonial sponsor. For example, a forensic chemist identifies marijuana leaves as those submitted to him in the case for examination. Further, object evidence must be formally offered after the presentation of a party’s testimonial evidence.16

2. Oral Evidence Oral evidence is presented through the testimony of a witness. It must be formally offered at the time the witness is called to testify.17 Objections may then be raised against the testimony of the witness. If the objection is valid, as when the witness’ testimony is barred by the hearsay rule or the opinion rule, the witness will not be allowed to testify. If the witness is otherwise allowed to testify, he shall be sworn in, either by taking an oath or making an affirmation.18 It is essential that the proper foundation for the testimony of a witness must be laid. An ordinary witness must be shown to have personal knowledge of the facts he shall testify to; otherwise, his testimony will be hearsay, or he will be incompetent to answer the questions to be asked of him. An expert witness must be specifically qualified as such; otherwise, he cannot validly give his opinion on matters for which he may have been summoned as a witness. However, the requirement of qualifying an expert witness may be dispensed with if: (a) the adverse qualification; or

counsel

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on

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A.M. No. 03-1-09-SC, See A. Civil Cases 2.d, Annex “B” and Annex “D”, thereof. RULES OF COURT, Rule 132, Sec. 35. 17 Id. 18 RULES OF COURT, Rule 132, Sec. 1 16

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(b) the court takes judicial notice of the witness’ expertise, because the judge happens to be aware thereof on account of the judge’s judicial functions. It has been ruled that where the supposed expert’s testimony would constitute the sole ground for conviction and there is equally convincing expert testimony to the contrary, the constitutional presumption of innocence must prevail.19 Rule 132, Sec. 34 provides that the court shall consider no evidence which has not been formally offered, and that the purpose for which the evidence is offered must be specified. In this connection, it has been asked whether it would be proper for the judge to disregard a witness’ direct testimony given without the prior, formal offer thereof which Rule 132, Sec. 35 requires and, corollarily, whether the adverse party may be required to cross-examine that witness. In People v. Marcos, 20 the Supreme Court ruled that if a witness has given unoffered direct testimony without objection from the adverse party, the latter is estopped from raising that objection which he is deemed to have waived; hence, although not formally offered, the testimony may be considered by the court. The view can be advanced, however, that although the aforesaid testimony was not expressly formally offered, it was, nonetheless, formally offered, albeit impliedly and automatically, the moment each question was propounded to elicit an answer. This view is premised on two related provisions in Rule 132, Sec. 36, i.e., that “Objection to evidence offered orally must be made immediately after the offer is made”, and that “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 have become reasonably apparent.” Clearly, the purpose of the express formal offer of oral evidence before the witness testifies is merely to determine, on the basis of the stated substance of the testimony and its purpose, whether the witness shall be allowed to testify. Once the witness is allowed to testify, each question propounded to elicit specific oral evidence may still be objected to as soon as a ground for objection becomes reasonably apparent. But it is fundamental that an objection to evidence be validly raised only after an offer is made. Thus, every question asked of a witness, especially on direct examination, presupposes a formal offer of the answer, the oral evidence sought to be elicited. It would seem, 19

Bayot v. Sandiganbayan, G.R. Nos. 54645-76, December 18, 1986, 142 SCRA 304, 318 citing Cesar v. Sandiganbayan, G.R. Nos. 54719-50, January 7, 1985, 134 SCRA 105, 127. 20 G.R. No. 91646, August 21, 1992, 212 SCRA 748; People v. Ancheta, et al., G.R. No. 143935, June 4, 2004, 431 SCRA 42, 49-50. F-5

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therefore, that unlike documentary and object evidence which are formally offered only after all the witnesses of a party have testified, oral evidence is offered twice: once, expressly, before the witness testifies and, again, with each question propounded to the witness. Failure to interpose any objection in either stage amounts to a waiver of objection to its admissibility.21

3. Documentary evidence Documentary evidence is (1) marked; (2) identified as the document which it is claimed to be (as when the witness asserts that the document presented to him is the same contract which he claims was executed between the two parties); (3) authenticated, if a private document, by proving its due execution and genuineness; and (4) formally offered after all the proponent’s witnesses have testified.22 An instrument, document or paper which is required by law to be stamped and which has been signed, issued, accepted or transferred without being duly stamped, shall not be recorded, nor shall it or any copy thereof or any record of transfer of the same be admitted or used in evidence in any court until the requisite stamp or stamps shall have been affixed thereto and cancelled.23 4. Jurisprudential guidelines on evidence admissible to establish age In People v. Pruna, 24 the Supreme Court set the following guidelines in appreciating age, either as an element of the crime or as a qualifying circumstance: 1. The best evidence to prove the age of the offended party is an original or certified true copy of the certificate of live birth of such party;

21

Bayani v. People, G.R. No. 155619, August 14, 2007, 530 SCRA 84, 92. RULES OF COURT, Rule 132, Sec. 35. 23 Republic Act No. 8424, [1997] Sec. 201, as amended by Republic Act No. 8761 [2000] and Republic Act No. 9010 [2001]. 24 People v. Pruna, G.R. No. 138471, October 10, 2002, 390 SCRA 577, 603-604, reiterated in People v. Barcena, G.R. No. 168737, February 16, 2006, 482 SCRA 543, 558-559; People v. Cayabyab, G.R. No. 167147, August 3, 2005, 465 SCRA 681, 689-690; People v. Rullepa, G.R. No. 131516, March 5, 2003, 398 SCRA 567, 583-584; People v. Legaspi, G.R. No. 137283, February 17, 2003, 397 SCRA 531, 545-546; People v. Villarama, G.R. No. 139211, February 12, 2003, 397 SCRA 306, 324-325. 22

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2. In the absence of a certificate of live birth, similar authentic documents such as baptismal certificate and school records which show the date of birth of the victim would suffice to prove age; 3. If the certificate of live birth or authentic document is shown to have been lost or destroyed or otherwise unavailable, the testimony, if clear and credible, of the victim's mother or a member of the family, either by affinity or consanguinity who is qualified to testify on matters respecting pedigree, such as the exact age or date of birth of the offended party pursuant to Section 40, Rule 130 of the Rules on Evidence, shall be sufficient under the following circumstances: a. If the victim is alleged to be below 3 years of age and what is sought to be proved is that she is less than 7 years old; b. If the victim is alleged to be below 7 years of age and what is sought to be proved is that she is less than 12 years old; c. If the victim is alleged to be below 12 years of age and what is sought to be proved is that she is less than 18 years old. 4. In the absence of a certificate of live birth, authentic document, or the testimony of the victim's mother or relatives concerning the victim's age, the complainant's testimony will suffice, provided that it is expressly and clearly admitted by the accused; 5. It is the prosecution that has the burden of proving the age of the offended party. The failure of the accused to object to the testimonial evidence regarding age shall not be taken against him; and 6. The trial court should always make a categorical finding as to the age of the victim. In Sierra v. People, 25 the Supreme Court held that it is the defense which has the burden of proving the minority of the accused as an exempting circumstance in a crime of rape, since age or minority is not an element of this crime. If the prosecution has a burden related to age, this burden relates to proof of the age of the victim as a circumstance that qualifies the crime of rape. With respect to the 25

Sierra v. People, G.R. No. 182941, July 3, 2009, 591 SCRA 666, 683. F-7

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provision of R.A. No. 9344 (Juvenile Justice and Welfare Act of 2006), the last paragraph of Section 7 thereof provides that any doubt on the age of the child must be resolved in the child’s favor. C. Formal Offer of Evidence; Need for Statement of the Purpose of Evidence Evidence not formally offered will not be considered by the court in deciding the case.26 On the last hearing day allotted for each party, he is required to make his formal offer of evidence after the presentation of his last witness and the opposing party is required to immediately interpose his objection thereto. Thereafter, the judge shall make the ruling on the offer of evidence in open court. However, the judge has the discretion to allow the offer of evidence in writing, in conformity with Rule 132, Sec. 35.27 The formal offer of one’s evidence is deemed waived after failing to submit it within a considerable period of time.28 The pre-trial guidelines and Rule 132, Sec. 35 jointly considered, it is made clear that the party who terminated the presentation of evidence must make an oral offer of evidence on the very day the party presented the last witness. Otherwise, the court may consider the party’s documentary evidence waived. While Sec. 35 of Rule 132 says that the trial court may allow the offer to be done in writing, this can only be tolerated in extreme cases where the object evidence or documents are large in number – say from 100 and above, and only where there is unusual difficulty in preparing the offer.29 The party desiring to make a written offer of evidence should, however, file a motion, pay the filing fee, set the date of the hearing not later than 10 days after the filing of the motion and serve it on the address of the party at least three (3) days before the hearing. In short, it is a litigated motion and cannot be done ex parte.30 A party makes a formal offer of his evidence by stating its substance or nature and the purpose or purposes for which the evidence 26

RULES OF COURT, Rule 130, Sec. 34. A.M. No. 03-1-09-SC. 28 Heirs of Pedro Pasag v. Parocha, G.R. No. 155483, April 27, 2007, 522 SCRA 410, 416, citing Constantino v. Court of Appeals, G.R. No. 116018, November 13, 1996, 264 SCRA 59, 65. 29 Heirs of Pedro Pasag v. Parocha, supra at 417-418. 30 Id., at 418. 27

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is offered. 31 Without a formal offer of evidence and, hence, without a disclosure of its purpose, it cannot be determined whether it is admissible or not. This is so because it is the intended purpose for which a piece of evidence is offered that determines what rule of evidence will apply for its admissibility. A piece of evidence may be admissible if offered for one purpose but may be inadmissible if offered for another. It must be remembered that the purpose for which evidence is offered must be specified because such evidence may be admissible for several purposes under the doctrine of multiple admissibility, or may be admissible for one purpose, and not for another, otherwise, the adverse party cannot interpose the proper objection. Evidence submitted for one purpose may not be considered for any other purpose.32 For example, the testimony of a witness in a libel case that he heard the defendant call the plaintiff a liar and a crook, is certainly inadmissible for being hearsay if offered to prove the truth of the perceived statement. However, the same testimony is perfectly admissible if offered simply to prove that the statement was uttered. For that purpose, the witness would be the only person qualified to testify on and prove what he heard defendant say. Similarly, the declaration of a dying person made without consciousness of his impending death will not qualify as a dying declaration, although it may be admissible if offered as part of the res gestae. The trial court is bound to consider only the testimonial evidence presented and exclude the documents not offered. Documents which may have been identified and marked as exhibits during pre-trial or trial but which were not formally offered in evidence cannot in any manner be treated as evidence. Neither can such unrecognized proof be assigned any evidentiary weight and value. It must be stressed that there is a significant distinction between identification of documentary evidence and its formal offer. The former is done in the course of the pre-trial or the trial, and is accompanied by the marking of the evidence as an exhibit; while the latter is done only when the party rests its case. The mere fact that a particular document is identified and marked as an exhibit does not mean that it has already been offered as part of the evidence. It must be emphasized that any evidence which a party desires to submit for the consideration of the court must formally be offered by the party, otherwise, it is excluded and rejected.33 However, the rule may be relaxed in that evidence not formally 31

RULES OF COURT, Rule 130, Sec. 4. Uniwide Sales Realty and Resources Corporation v. Titan-Ikeda Construction and Development Corporation, G.R. No. 126619, December 20, 2006, 511 SCRA 335, 357. 33 Landingin v. People, G.R. No. 164948, June 27, 2006, 493 SCRA 415, 430; Pasag v. Parocha, supra note 28 at 419-420. 32

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offered may be admitted and considered by the trial court, provided the following requirements are present, viz: first, the same must have been duly identified by testimony duly recorded and, second, the same must have been incorporated in the records of the case.34 Annexes attached to pleadings, if not offered formally, cannot be considered by the court, 35 unless the truth of their contents has been judicially admitted. To the general rule that the court shall not consider any evidence not formally offered, there are certain exceptions: 1. Under the Rule on Summary Procedure, where no full blown trial is held in the interest of speedy administration of justice;36 2. In summary judgments under Rule 35, where the judge bases his decisions on the pleadings, depositions, admissions, affidavits and documents filed with the court; 3. Documents whose contents are taken judicial notice of by the court; 4. Documents whose contents are admitted by the parties; 5. Object evidence which could not be formally offered because they have disappeared or have become lost after they have been marked, identified and testified on and described in the record and became the subject of cross-examination of the witnesses who testified on them during the trial, e.g., marijuana involved in a prohibited drugs prosecution;37 and 6. In land registration, cadastral and election cases, naturalization and insolvency proceedings when it is not practicable and convenient to apply the Rules on formal offer of evidence.38

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Ramos v. Spouses Dizon, et al., G.R. No. 137247, August 7, 2006, 498 SCRA 17, 31; Heirs of Pasag v. Parocha, supra note 28 at 419-420. 35 Spouses Ong v. Court of Appeals, G.R. No. 117103, January 21, 1999, 301 SCRA 387, 399; Del Rosario v. Bonga, G.R. No. 136308, January 23, 2001, 350 SCRA 101, 110; People v. Toledo, Sr., G.R. No. 139961, May 9, 2001, 357 SCRA 649, 663. 36 Hrs. of Sabanpan v. Comorposa, G.R. No. 152807, August 12, 2003, 408 SCRA 692. 37 People v. Napat-A, G.R. No. 84951, November 14, 1989, 179 SCRA 403; Tabuena v. Court of Appeals, G.R. No. 85423, May 6, 1991, 196 SCRA 650; See also People v. Libnao, G.R. No. 136860, January 20, 2003, 395 SCRA 407, 417. 38 Ong Chia v. Republic, G.R. No. 127240, March 27, 2000, 328 SCRA 749, 756. F-10

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III. MODES OF EXCLUDING INADMISSIBLE EVIDENCE There are two ways of excluding inadmissible evidence. One is by objection and the other is by a motion to strike out. In order that an objection or a motion to strike out after an answer has been given, may be effective to render evidence inadmissible, the following requisites must concur: 1. There must be an objection; 2. The objection must be timely made; and 3. The ground for objection must be specified.39

A. Evidence is Objected to at the Time it is Offered and Not Before: 1. Oral evidence is objected to after its express formal offer has been made before the witness testifies.40 When, thereafter, the witness is allowed to testify, 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.41 2. A party may waive his objections to the competency of a witness to testify if, after such incompetency appears, such party fails to make timely objection, despite having knowledge of the incompetency, whether the objection is on the ground of want of mental capacity or for some other reason.42 3. Documentary and object evidence are objected to upon their formal offer after the presentation of a party’s testimonial evidence.

B. Failure to seasonably object to offered evidence amounts to a waiver of the grounds for objection. However, the rules of exclusion are not self-operating. They must be properly and timely invoked.

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RULES OF COURT, Rule 132, Sec. 36. RULES OF COURT, Rule 132, Sec. 35 41 RULES OF COURT, Rule 132, Sec. 36. 42 People v. Duranan, G.R. Nos. 134074-75, January 16, 2001, 349 SCRA 180, 191. 40

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C. The grounds for objection must be specified. 43 Grounds not raised are deemed waived. However, repetition of objection is unnecessary when a continuing objection is properly made. 44 Objection to the purpose for which evidence is offered is not proper.

D. A Motion to Strike Out Answer or Testimony is Proper in the Following Instances: 1. The witness answers prematurely.45 2. The answer is incompetent, irrelevant, or improper.46 The incompetency referred hereto is limited to the incompetency of the witness to answer the question posed; it does not extend to the general concept of incompetency of evidence for being excluded by law or the Rules. 3. The answer given is unresponsive. 4. The ground for objection was not apparent when the question was asked. 5. Uncompleted testimony – e.g., a witness who gave direct testimony subsequently becomes unavailable for cross-examination through no fault of the cross-examiner. 6. Unfulfilled condition in conditionally admitted testimony.

E. Objections and Ruling As a matter of general practice, it is deemed best to resolve doubts in favor of the admission of the contested evidence, without prejudice to such action as the court may deem fit to take in deciding the case on the merits. This practice has added importance as regards the evidence for the prosecution in criminal cases, for, once the accused has been acquitted, there is no means to secure a review by appeal, no matter how erroneous the action of the lower court may have been. Justice is most effectively and expeditiously administered in the courts where trivial objections to the admission of proof are received with least favor.

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Id. RULES OF COURT, Rule 132, Sec. 37. 45 Id., Sec. 39. 46 Id. 44

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The practice of excluding evidence on doubtful objections to its materiality or technical objections to the form of the questions should be avoided. In a case of any intricacy, it is impossible for a judge of first instance, in the early stages of the development of the proof, to know with any certainty whether testimony is relevant or not; and where there is no indication of bad faith on the part of the attorney offering the evidence, the court may, as a rule, safely accept the testimony upon the statement of the attorney that the proof offered will be connected later. Moreover, it must be remembered that in the heat of the battle over which he presides, a judge of first instance may possibly fall into error in judging the relevancy of proof where a fair and logical connection is in fact shown. When such a mistake is made and the proof is erroneously ruled out, the Supreme Court, upon appeal, often finds itself embarrassed and possibly unable to correct the effects of the error without returning the case for a new trial — a step which this court is always very loath to take. On the other hand, the admission of proof in a court of first instance, even if the question as to its form, materiality, or relevancy is doubtful, can never result in much harm to either litigant, because the trial judge is supposed to know the law; and it is its duty, upon final consideration of the case, to distinguish the relevant and material from the irrelevant and immaterial. If this course is followed and the cause is prosecuted to the Supreme Court upon appeal, this court then has all the material before it necessary to make a correct judgment.47 Although it is not possible to determine with precision, at an early stage of the proceedings, how far said exhibits may affect the outcome of that case, it is elemental that all parties therein are entitled to a reasonable opportunity to establish their respective pretenses. Parties should be allowed a certain latitude in the presentation of their evidence, lest they may be so hampered that the ends of justice may eventually be defeated or appear to be defeated. The danger of leading to such result must be avoided.48

F. Objections to Evidence may be Formal or Substantive 1. Formal objections are based on the defective form of the question asked.

47

People v. Abalos, G.R. No. 29039, November 28, 1969, 30 SCRA 599, 604-605, citing Prats and Co. v. Phoenix, Insurance Co., 52 Phil. 807, 816-817 [1929]. 48 People v. Montejo, G.R. No. 28699, April 29, 1975, 63 SCRA 488, 489; People v. Montejo,108 Phil. 613, 621 [1960]. F-13

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Examples: (1) leading questions which suggest to the witness the answer desired.49 a. If counsel finds difficulty in avoiding leading questions, the judge may suggest, to expedite proceedings, that counsel begin his questions with the proper interrogative pronouns, such as “who”, “what”, “where, “why”, “how”, etc. b. Leading questions are allowed of a witness who cannot be reasonably expected to be led by the examining counsel, as (a) on cross-examination;50 (b) when the witness is unwilling or hostile, after it has been demonstrated that the witness had shown unjustified reluctance to testify or has an adverse interest or had misled the party into calling him to the witness stand and, in either case, after having been declared by the court to be indeed unwilling or hostile;51 or (c) when the witness 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.52 c. Leading questions may also be asked when there is difficulty in getting direct and intelligible answers from a witness who is ignorant, or a child of tender years,53 or is feeble minded, or a deafmute.54 d. Leading questions may, moreover, be asked on preliminary matters, i.e., on facts not in controversy, and offered only as basis for more important testimony to follow. For example, “You are Mrs. Maria Morales, wife of the plaintiff in this case?” e. Likewise, asking a question which uses as a premise admitted facts or the witness’ previous answer is not for that reason objectionable as leading.

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RULES OF COURT, Rule 132, Sec. 10. RULES OF COURT, Rule 132, Sec. 10. 51 RULES OF COURT, Rule 132, Secs. 10 and 12. 52 Id. 53 See A.M. No. 00-4-07, SC Rule on Examination of Child Witness, V-A of this Benchbook. 54 Id. 50

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(2) misleading questions, which assume as true a fact not testified to by the witness (question has no basis), or contrary to that which he has previously stated;55 (3) double or multiple questions, which are two or more queries in one. For example, Q: “Did you see the defendant enter the plaintiff’s house, and was the plaintiff there?” (4) vague, ambiguous, indefinite, or uncertain questions – not allowed because the witness cannot understand from the form of the question just what facts are sought to be elicited. (5) repetitious questions, or those already answered. However, on cross-examination, the cross-examiner may ask a question already answered to test the credibility of a witness. (6) argumentative questions, which challenge a witness’ testimony by engaging him in an argument, e.g., Q: “Isn’t it a fact Mr. Witness that nobody could possibly see all the circumstances you mentioned in a span of merely two seconds, and that either your observations are inaccurate or you are lying?”

2. Substantive objections are those based on the inadmissibility of the offered evidence, e.g.: (1) irrelevant, immaterial; (2) best evidence rule; (3) parole evidence rule; (4) disqualification or witness; (5) privileged communication; (6) res inter alios acta; (7) hearsay; (8) opinion; (9) evidence illegally obtained; and (10) private document not authenticated. As part of his judicial function, a Judge is undeniably clothed with authority to admit or reject evidence determinative of the outcome of the case.56 The ruling by the court on an objection must be given immediately after an objection is made, unless the court desires to take 55

RULES OF COURT, Rule 132. Deutsche Bank Manila v. Spouses Yok See, et al., G.R. No. 165606, February 6, 2006, 481 SCRA 672, 687, 694. 56

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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 situations presented by the ruling.57 Thus, an objection to a question asked of a witness must be at once resolved by the court by either sustaining or overruling the objection. It would be incorrect for a judge to consider the objection “submitted” or “noted.” Unless the objection is resolved, the examination of the witness could not be expected to continue since, in all likelihood, the next question would depend on how the objection is resolved. If the issue raised by the objection is a particularly difficult one, it would not be improper for the judge to perhaps declare a brief recess to enable him to quickly study the matter. But, certainly, the resolution must be given before the trial resumes. The reason for sustaining or overruling an objection need not be stated. However, if the objection is based on two or more grounds, a ruling sustaining the objection, or one or some of them, must specify the ground or grounds relied upon.58 Judges are advised to judiciously consider the validity of the grounds for objections and carefully rule on them. A ruling that all evidence formally offered are “admitted for whatever they may be worth” will not reflect well on the judge, as it implies a hasty and illconsidered resolution of the offer and the objections. Besides, the phrase “for whatever they may be worth” is improper, since it refers to the weight or credibility of the evidence. At the formal offer, the only issue presented is the admissibility of evidence; the weight of the evidence shall be considered only after the evidence shall have been admitted. Another ruling that is ludicrous and even nonsensical is “Evidence admitted subject to the objections”. This is non-ruling. In case of honest doubt about the admissibility of evidence, it is better policy to rule in favor of its admission. An erroneous rejection of evidence will be unfair to the offeror, since the judge cannot validly consider it, even if after the trial the judge realizes his mistake. On the other hand, if the judge had erred in admitting a piece of evidence, he may simply give it little or no weight when deciding the case.

57 58

RULES OF COURT, Rule 132, Sec. 38. Id. F-16

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IV. LAYING THE FOUNDATIONS FOR EVIDENCE In determining the competency of an offered piece of evidence, the court must examine the requisites provided by the pertinent rule or law for its admissibility. These requisites must be established as foundations for the evidence. For example, for a declaration of an agent to be admissible against his principal, as an exception to the res inter alios acta rule,59 the declaration must be: (1) within the scope of the agent’s authority; (2) made during the existence of the agency; and (3) the agency is shown by evidence other than by such declaration.60 If the agent’s declaration is on a matter outside the scope of his agency, or is made after the agency had ceased, the agent’s declaration cannot be admitted against his principal; the general rule of res inter alios acta will apply instead; Similarly, the foundation required by the Rules for the proper presentation of evidence must be laid, lest the evidence be rejected. For example, when the original of a document is unavailable, before secondary evidence thereof is admitted, the proponent must establish: (1) the existence or execution of the original document, and (2) the circumstances of the loss or destruction of the original, or that the original cannot be produced in court.

A. Judicial Notice 1. Mandatory and Discretionary Judicial Notice Not everything alleged in a party’s pleading is required to be proved. Certain matters may be so well known to the court that to compel a party to prove it would be a waste of time and effort. Under the Rules, it shall be mandatory for the court to 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 nationalities, 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 three departments of the Philippine government, the laws of nature, the measure of time, and the geographical divisions.61 Courts may take judicial notice of matters which are: (a) of public knowledge, (b) capable of unquestionable demonstration, or (c) ought to be known to judges because of their official functions.62

59

RULES OF COURT, Rule 130, Sec. 28. RULES OF COURT, Rule 130, Sec. 29. 61 RULES OF COURT, Rule 129, Sec. 1. 62 RULES OF COURT, Rule 129, Sec. 2. 60

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Our courts do not take judicial notice of foreign laws and judgments; hence, like any other facts, both the divorce decree and the national law of the alien must be alleged and proven according to our law on evidence. The power of judicial notice must be exercised with caution, and every reasonable doubt upon the subject should be resolved in the negative.63 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. This is because the court assumes that the matter is so notorious that it will not be disputed. But judicial notice is not judicial 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, the basis of his action.64 2. Hearing the Parties on Discretionary Judicial Notice During the trial, when a court is uncertain whether it may, at its discretion, take judicial notice of a certain fact or not, it may call the parties to a hearing to give them a reasonable opportunity to present information relevant to the propriety or impropriety of taking judicial notice of that fact. Certainly, the so-called “hearing” is not for the purpose of adducing evidence on that fact. Similarly, even after the trial and before judgment or on appeal, the court may hear the parties on the propriety of taking judicial notice of a certain matter, if such matter is decisive of a material issue in the case.65 This procedure will apprise the parties of the possibility that the judge will or will not take judicial notice of a fact, or of his resolution either way; it will thus eliminate the element of surprise and enable the parties to act accordingly. Thus, the Court has taken judicial notice of the practices of banks and other financial institutions. Precisely, it has noted that it is their uniform practice, before approving a loan, to investigate, examine and assess would-be borrowers’ credit standing or real estate offered as security for the loan applied for.66 63

Garcia v. Recio, G.R. No. 138322, October 2, 2001, 366 SCRA 437, 451-452. Landbank v. Wycoco, G.R. No. 140160, January 13, 2004, 419 SCRA 67, 78. 65 RULES OF COURT, Rule 129, Sec. 3. 66 Solidbank Corporation v. Mindanao Ferroalloy Corporation, G.R. No. 153535, July 28, 2005, 464 SCRA 409, 427. 64

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3. Judicial Notice of Proceedings in another case In the adjudication of a case pending before it, a court is not authorized to take judicial notice of the contents of another case even if said case has been tried or is pending in the same court, and notwithstanding the fact that both cases may have been tried or are actually pending before the same judge.67 However, in the absence of objection, and as a matter of convenience to all parties, the court may properly treat all or any part of the original record of the case filed in its archives as read into the records of the case pending before it (1) when, with the knowledge of the opposing party,68 reference is made to it by name and number or in some other manner by which it is sufficiently designated;69 or (2) 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 the request or with the consent of the parties, and admitted as part of the record of the pending case. 70 Parenthetically, a court will take judicial notice of its own acts and records in the same case.71 When there is an objection, and the judge, therefore, cannot take judicial notice of a testimony or deposition given in another case, the interested party must present the witness to testify anew. However, if the witness is already dead or unable to testify (due to a grave cause almost amounting to death, as when the witness is old and has lost the power of speech72), his testimony or deposition 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, pursuant to Rule 130, Section 47.73 The pre-conditions set forth in this rule must be strictly complied with; however, the failure to object to the evidence because it does not conform to the statute is a waiver of the provision of law.74

67

Gener v. De Leon, G.R. No. 130730, October 19, 2001, 367 SCRA 631, 645. Landbank of the Philippines v. Spouses Banal, et al., G.R. No. 143276, July 20, 2004, 434 SCRA 543, 552-553. 69 Gener v. De Leon, supra note 67 at 645; Calamba Steel Center v. Commisioner of Internal Revenue, G.R. No. 151857, April 28, 2005, 457 SCRA 482, 496. 70 Tabuena v. Court of Appeals, supra note 37; People v. Mendoza, G.R. No. 96397, November 21, 1991, 204 SCRA 288; Calamba Steel Center v. Commisioner of Internal Revenue, supra note 69 at 495-496. 71 Clarion Printing House, Inc. v. NLRC, G.R. No. 148372, June 27, 2005, 461 SCRA 272, 293-294; Republic v. Court of Appeals, G.R. No. 119288, August 18, 1997, 277 SCRA 633. 72 Cariaga v. Court of Appeals, G.R. No. 143561, June 6, 2001, 358 SCRA 583, 591; Tan v. CA, G.R. No. 22793, May 16, 1967, 20 SCRA 54. 73 RULES OF COURT, Rule 130, Sec. 47. 74 Cariaga v. Court of Appeals, supra note 72 at 591; Manliclic, et al. v. Calaunan, G.R. No. 150157, January 25, 2007, 512 SCRA 642, 655-656. 68

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If the testimony or deposition given in another proceeding is that of a party in a case, the other party may simply offer in evidence the record of that testimony or the deposition, without having to call the declarant-party to testify thereon. Certainly, a party will offer the opposing party’s declaration as evidence only if it is prejudicial to the latter’s interest. Such declaration of a party against his interest is an extra-judicial admission which may be given in evidence against him.75 B. Admissions: Judicial and Extrajudicial An admission is a party’s acknowledgment of a fact which is against his interest. A party may make an admission in any of these ways: 1. In written pleadings, motions and other papers, and stipulations filed in the case; 2. In open court, either by his testimony on the stand or by his statement or that of his counsel; and 3. In his statement made outside the proceedings in the same case. In the first two instances above-mentioned, the admissions made are regarded as judicial admissions. A judicial admission does not require proof and may be contradicted only by showing that it was made through palpable mistake or that no such admission was made. 76 A judicial admission need not be offered in evidence since it is not evidence. It is superior to evidence and shall be considered by the court as established. On the other hand, statements made by a party outside the proceedings in the same case are extrajudicial admissions. Such admissions may also be an act, declaration or omission made by a party as to a relevant fact and may be given in evidence against him.77 This type of admission is regarded as evidence and must be offered as such; otherwise, the court will not consider it in deciding the case. If the extrajudicial statement of a party is not against his interest but is in his favor, it becomes a self-serving declaration which is inadmissible for being hearsay, since it will be testified to by one who simply heard the statement and has no personal knowledge of it. But it will not be incompetent evidence, nor self-serving, if testified to by the party himself at the trial.78 75

RULES OF COURT, Rule 130, Sec. 26. RULES OF COURT, Rule 129, Sec. 4 77 RULES OF COURT, Rule 130, Sec. 26. 78 Tuason v. Court of Appeals, G.R. Nos. 113779-80, February 23, 1995, 241 SCRA 695. 76

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By the rule’s definition, not all admissions made by a party during a judicial proceeding are judicial admissions. To constitute judicial admission, the admission must be made in the same case in which it is offered. If made in another case or in another court, the fact of such admission must be proved as in the case of any other fact, although if made in a judicial proceeding, it is entitled to greater weight.79 Thus, the declaration of a defendant in a case that the plaintiff therein is his agent is a judicial admission of the agency relationship between them if that fact is against the defendant’s interest. However, that same admission may only be an extrajudicial admission if considered in another case between the same parties. With more reason, an admission made in a document drafted for purposes of filing as a pleading in the case but never filed, another pleading being filed in its stead, is not a judicial admission, for the unfiled document is not considered a pleading. Whether it will even be an extrajudicial admission would depend upon whether the document was signed by the client or only by his attorney. If signed only by the attorney, it would not be admissible at all, since an attorney has authority to make statements on behalf of his client only in open court or in a pleading actually filed.80 In criminal cases, it should be noted that an admission or stipulation made by the accused during the pre-trial cannot be used in evidence against him, unless reduced to writing and signed by him and his counsel.81 Conversely, stipulations freely and voluntarily made during pretrial are valid and binding and will not be set aside, unless for good cause shown.82 A stipulation of facts in criminal cases is sanctioned by law. It is done in further pursuit of the objective of expediting trial by dispensing with the presentation of evidence on matters that the accused is willing to admit. Further, stipulations are recognized as declarations constituting judicial admissions; hence, binding upon the parties. By virtue of such stipulation of facts, the prosecution has dispensed with the introduction of additional evidence, and the defense has waived the right to contest or dispute the veracity of the statements contained in the exhibits.83 It is true that in criminal cases, omission of the signatures of the accused and counsel renders the stipulation of facts inadmissible, but conviction of accused is proper if the prosecution evidence is able to establish the elements of the crime independently of the unsigned stipulation of facts.84 79

Republic Glass Corporation v. Qua, G.R. No. 144413, July 30, 2004, 435 SCRA 480, 492. Jackson v. Schine Lexington Corporation, 305 Ky. 823, 205 S.W. 2d 1013. 81 RULES OF COURT, Rule 118, Sec. 4; Fule v. Court of Appeals, G.R. No. 79094, June 22, 1988, 162 SCRA 446. 82 Bayas v. Sandiganbayan, G.R. No. 143689-91, November 12, 2002, 391 SCRA 415, 423. 83 People v. Razul, et al., G.R. No. 146470, November 22, 2002, 392 SCRA 553, 578. 84 People v. Bandang, et al., G.R. No. 151314, June 3, 2004, 430 SCRA 570, 586. 80

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But this rule does not apply to admissions made in the course of the trial. Thus, an admission made by an accused or his counsel during the trial may be used against the accused, although not signed by either of them. 85 Admissions in a pleading which had been withdrawn or superseded by an amended pleading, although filed in the same case, are reduced to the status of extrajudicial admissions and, therefore, must be proved by the party who relies thereon86 by formally offering in evidence the original pleading containing such extrajudicial admission.87 Consistently, the 1997 Rules of Civil Procedure provides that “An amended pleading supersedes the pleading that it amends. However, admissions in superseded pleadings may be received in evidence against the pleader xxx.”88 Since, generally, a judicial admission does not require proof and cannot be contradicted, any attempt made by a party to still prove it may be objected to as immaterial, i.e., not in issue anymore; and any attempt to adduce evidence in contradiction of that admission may also be objected to. In either case, the judge may himself block such attempts as improper departures from the issues of the case. Unless, of course, it can be shown that the admission was made through palpable mistake or that no such admission was made at all.89 C. Best Evidence Rule The Best Evidence Rule is applicable only to documents. Documents as evidence consist of writings or any material containing letters, words, numbers, figures, symbols or other modes of written expressions offered as proof of their contents. 90 When the subject of inquiry is the contents of a document, no evidence shall be admissible other than the original writing itself.91 Production of the original may be dispensed with, in the trial court’s discretion, whenever on the case in hand the opponent does not bona fide dispute the contents of the document and no other useful purpose will be served by requiring production.92 85

People v. Hernandez, G.R. No. 108028, July 30, 1996, 260 SCRA 25; See also Silot, Jr. v. dela Rosa, G.R. No. 159240, February 4, 2008, 543 SCRA 533, 538-539. 86 Ching v. Court of Appeals, G.R. No. 110844, April 27, 2000, 331 SCRA 16, 33-34; Bastida v. Menzi & Co., 58 Phil. 188 [1933]. 87 Director of Lands v. Court of Appeals, G.R. No. 31408, April 22, 1991, 196 SCRA 94; Torres v. Court of Appeals, G.R. No. 37420, July 31, 1984, 131 SCRA 24; Javellana v. D.O. Plaza Enterprises, Inc., G.R. No. 28297, March 30, 1970, 32 SCRA 261; Ching v. Court of Appeals, supra note 86 at 34. 88 RULES OF COURT, Rule 10, Sec. 8. 89 Id., Rule 129. 90 Id., Rule 130, Sec. 2. 91 Id., Rule 130. 92 Citibank, N.A., et al., v. Investors’ Finance Corporation, G.R. No. 156132, October 16, 2006, 504 SCRA 378, 459. F-22

EVIDENCE

Not every writing is considered a document for purposes of the best evidence rule. If a writing is offered, not to prove its contents, but to prove some other fact, e.g., that the writing exists, or that it is done on sheepskin, or the size of the paper it is written on, it is, for purposes of evidence, only object evidence. To determine the admissibility of object evidence, the best evidence rule does not apply. Hence, the original writing need not be presented. The existence or condition of that writing may be proved at once by any other evidence, like oral testimony.93 Closely related to the best evidence rule is the rule that a document or writing which is merely “collateral” to the issue involved in the case on trial need not be produced. This is the collateral facts rule. Thus, where the purpose of presenting a document is not to prove its contents, but merely to give coherence to, or to make intelligible, the testimony of a witness regarding a fact contemporaneous to the writing, the original of the document need not be presented. In this case, the contents of the document are not sought to be proven, but are simply incidental to the fact being testified to. Thus, the best evidence rule cannot apply.94 The original of a document is one the contents of which are the subject of inquiry. 95 Even a mere photocopy of a document may be treated as an original, if the inquiry is regarding its contents. When a document is in two or more copies executed at or about the same time with identical contents, all such copies are equally regarded as originals. Thus, the first copy and four (4) carbon copies of a contract, all of which are identical, are all considered originals. Each of them may be offered as proof of their contents. But if a party has lost his original document, he must account not only for the unavailability of his copy but also for the loss, destruction or unavailability of the rest of the original copies before secondary evidence can be given of any one. 96 A photocopy may not be used without accounting for the other originals.97 Secondary evidence may also be resorted to, as though the document had been lost, when the adverse party who has custody of the original refuses, despite reasonable notice, to produce the document. 98 93

People v. Tandoy, G.R. No. 80505, December 4, 1990, 192 SCRA 28. Citibank, et al. v. Sabeniano, G.R. No. 156132, October 16, 2006, 504 SCRA 378, 459-460; Bank of the Philippine Islands v. Casa Montessori Internationale, G.R. No. 149454, May 28, 2004, 430 SCRA 261, 281-282; People v. Bago, G.R. No. 122290, April 6, 2000, 330 SCRA 115, 128-129; Air France v. Carrascoso, G.R. No. 21438, September 28, 1966, 18 SCRA 155. 95 RULES OF COURT, Rule 130, Sec. 4 96 Ebreo et al. v. Ebreo, G.R. No. 160065, February 28, 2006, 483 SCRA 583, 596; Santos v. Santos, G.R. No. 139524, October 12, 2000, 342 SCRA 753, 764. 97 Citibank Mastercard v. Teodoro, G.R. No. 150905, September 23, 2003, 411 SCRA 577, 585. 98 RULES OF COURT, Rule 130, Sec. 6. 94

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To warrant the admissibility of secondary evidence when the original of a writing is in the custody or control of the adverse party, Rule 130, Section 6 requires that the adverse party be given reasonable notice, that he fails or refuses to produce the same in court, and that the offeror offers satisfactory proof of its existence. The mere fact that the original of the writing is in the custody or control of the party against whom it is offered does not warrant the admission of secondary evidence. The offeror must prove that he has done all in his power to secure the best evidence by giving notice to the said party to produce the document. The notice may be in the form of a motion for the production of the original, or made in open court in the presence of the adverse party, or via a subpoena duces tecum, provided that the party in custody of the original has sufficient time to produce the same. When such party has the original of the writing and does not voluntarily offer to produce it or refuses to produce it, secondary evidence may be admitted.99 In this case, such adverse party should not later be allowed to introduce the original for the purpose of contradicting the secondary evidence presented.100 When the proper foundation for the reception of secondary evidence has been laid, the best evidence rule insists on a preference in the type of secondary evidence that will be presented. Thus, Rule 130, Section 5 provides: When the original document has been lost or destroyed, or cannot be produced in court, the offeror, upon proof of its execution or existence and the cause of its unavailability without bad faith on his part, may prove its contents by a copy, or by a recital of its contents in some authentic document, or by the testimony of witnesses in the order stated. Hence, before a party may offer the testimony of witnesses to prove the contents of a lost original, he must first show or prove that no copy of the document exists and, in addition, that there exists no authentic document reciting the contents of the unavailable original. This second layer of foundations may, of course, be established by oral testimony, but it must be established.

99

Edsa Shangri-la Hotel and Resort, Inc., et al v. BF Corporation, G.R. No. 145842, June 27, 2008, 556 SCRA 25, 40. 100 Wigmore on Evidence, § 1210. F-24

EVIDENCE

D. Parol Evidence Rule The Parol Evidence Rule applies only to contractual documents. 101 Parol Evidence Rule, which provides that “when the terms of a written agreement have been reduced to writing, it is considered as containing all the terms agreed upon, and there can be, between the parties and their successors-in-interest, no evidence of such terms other than the contents of the written agreement,102” applies to written agreements and has no application to a judgment of a court.103 It does not apply where at least one party to the suit is not a party, nor a privy to a party, to the written instrument and does not base his claim, nor assert a right arising from the instrument or established therein. Thus, a total stranger to the writing is not bound by its terms and is allowed to introduce extrinsic – or parol – evidence against the efficacy of the writing.104 In order that parol evidence may be admissible, the exceptional situation, including the fact of a subsequent agreement, must be put in issue in the pleading. Otherwise, no parol evidence can be admissible. When the defendant invokes such exceptional situations in his answer, such facts are sufficiently put in issue as to allow the presentation of parol evidence. However, if, when presented, the parol evidence is not objected to, such objection is deemed waived.

E. Admissibility of Extrajudicial Confessions The confession of an accused acknowledging his guilt of the offense charged, or of any offense necessarily included therein, may be given in evidence against him.105 Note that if the confession is judicially given, either by way of a plea of guilty upon arraignment or made in the course of the trial, it need not be offered in evidence since it is a judicial admission.106 An extrajudicial confession may be given either before or during the custodial investigation stage. A person is placed under custodial investigation when after a crime has been committed, the authorities’ investigation ceases to be a mere general inquiry into the circumstances and authorship of the crime and begins to focus on the individual as a

101

Cruz v. Court of Appeals, G.R. No. 79962, December 10, 1990, 192 SCRA 209. RULES OF COURT, Rule 130, Sec. 9 103 Mactan-Cebu International Airport Authority v. Court of Appeals, G.R. No. 139495, November 27, 2000, 346 SCRA 126, 136. 104 Lechugas v. Court of Appeals, G.R. Nos. 39972 and 40300, August 6, 1986, 143 SCRA 335. 105 RULES OF COURT, Rule 130, Sec. 33. 106 RULES OF COURT, Rule 129, Sec. 4. 102

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suspect.107 Under Republic Act No. 7438,108 custodial investigation shall include the practice of issuing an “invitation” to a person who is investigated in connection with an offense he is suspected to have committed. When under custodial investigation, a person shall have the constitutional right to be informed of his right to remain silent and to have competent and independent counsel, preferably of his own choice. If the person cannot afford the services of a counsel, he must be provided with one. These rights cannot be waived, except in writing and in the presence of counsel.109 The competent and independent counsel so engaged must be present from beginning to end.110 It must be noted that neither a lawyer NBI agent nor the City Legal Officer can be considered an independent counsel for this purpose. If the person under custodial investigation has not been informed of any of the above-mentioned rights, any confession or declaration given by him during said investigation shall be inadmissible. 111 To be valid, the information to be given to the accused regarding his rights must be more than a perfunctory recitation of such rights; it must be made in practical terms, in a language or dialect he understands and in a manner he comprehends, the degree of explanation varying according to the person’s level of education and intelligence and other relevant personal circumstances of the person undergoing investigation.112 The presumption of regularity in the performance of official duty does not apply to in-custody confessions. And while jurisprudence provides that extrajudicial confessions are presumed to be voluntary, the condition for this presumption is that the prosecution is able to show that the constitutional requirements safeguarding an accused’s rights during custodial investigation have been strictly complied with, especially when the extrajudicial confession has been denounced.113

107

Miranda v. Arizona, 384 U.S. 436; Escobedo v. Illinois, 378 U.S. 478; See also People v. Morial, et al., G.R. No. 129295, August 15, 2001, 363 SCRA 96, 110. 108 An Act Defining Certain Rights Of Persons Arrested, Detained, Or Under Custodial Investigation As Well As The Duties Of The Arresting, Detaining, and Investigating Officers And Providing Penalties For Violations Thereof. 109 CONSTITUTION, Art. III, Sec. 12. 110 People v. Morial, et al., supra note 107 at 113-114; People v. Rapeza, G.R. No. 169431, April 4, 2007, 520 SCRA 596, 624. 111 People v. Samus, G.R. Nos. 135957-58, September 17, 2002, 389 SCRA 93, 105; People v. Morial, et al., supra note 107 at 116; People v. Figueroa, et al., G.R. No. 134056, July 6, 2000, 335 SCRA 249, 263; People v. Jimenez, G.R. No. 40677, May 31, 1976, 71 SCRA 186. 112 People v. Camalog, G.R. No. 77116, January 31, 1989, 169 SCRA 816; People v. Rapeza, supra note 110 at 619. 113 People v. Sayaboc, G.R. No. 147201, January 15, 2004, 419 SCRA 659, 668; Belonghilot v. RTC of Zamboanga del Norte, G.R. No. 128512, April 30, 2003, 402 SCRA 221, 238. F-26

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No custodial investigation shall be conducted unless it be in the presence of counsel engaged by the person arrested, or by any person in his behalf, or appointed by the court, upon petition either by the detainee himself or by anyone in his behalf. The right to counsel may be waived, but the waiver shall not be valid unless made with the assistance of counsel. Any statement obtained in violation of this procedure, whether inculpatory or exculpatory, in whole or in part, shall be inadmissible in evidence.114 But note the ruling in People v. Samus,115 that even if the uncounselled admission per se may be inadmissible, the failure of the defense to object to its presentation during trial is deemed a waiver of the objection to its admissibility. In People v. Policarpio,116 the accused who was arrested in a buy-bust operation refused to give a statement after having been informed of his Constitutional rights; but he was made to acknowledge in writing that six plastic bags of marijuana leaves were confiscated from him, and he was also made to sign a receipt for P20.00 as the purchase price of the marijuana. The Supreme Court ruled that said receipts were in effect extrajudicial confessions given during custodial investigation and were, therefore, inadmissible for having been given without the assistance of counsel. An extrajudicial confession made by an accused shall not be sufficient for conviction, unless corroborated by evidence of corpus delicti.117 Thus, in People v. Barlis,118 the accused who validly gave a statement during custodial investigation confessing to the commission of homicide and robbery was convicted of homicide only and acquitted of the robbery charge in the absence of evidence establishing the corpus delicti of robbery. The rights guaranteed a person under Art. III, Sec. 12 of the Constitution are not available when he is not under custodial investigation. Thus, a statement or confession voluntarily given by an employee during an administrative investigation that he had malversed his employer’s funds is admissible, although without a prior information of said rights and without the assistance of counsel.119

114

People v. Janson, G.R. No. 125983, April 4, 2003, 400 SCRA 584, 599; People v. Salonga, G.R. No. 131131, June 21, 2001, 359 SCRA 310, 320; People v. Sevilla, G.R. No. 124077, September 5, 2000, 339 SCRA 625, 651; People v. Galit, G.R. No. 51770, March 20, 1985, 135 SCRA 465; Morales v. Ponce-Enrile, G.R. No. 61016, April 20, 1983, 121 SCRA 538; 115 People v. Samus, G.R. Nos. 135957-58, September 17, 2002, 389 SCRA 93, 108. 116 G.R. No. 69844, February 23, 1988, 158 SCRA 85; People v. Go, G.R. No. 144639, September 12, 2003, 411 SCRA 81, 100. 117 RULES OF COURT, Rule 133, Sec. 3. 118 G.R. No. 101003, March 24, 1994, 231 SCRA 426. 119 Astudillo v. People, G.R. No. 159734, November 30, 2006, 509 SCRA 302, 320-321; People v. Salonga, supra note 114 at 320; People v. Ayson, G.R. No. 85215, July 7, 1989, 175 SCRA 216. F-27

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To fall within the ambit of Section 12, quoted above, there must be an arrest or a deprivation of freedom, with “questions propounded on him by the police authorities for the purpose of eliciting admissions, confessions, or any information.” 120 The said constitutional provision does “not apply to spontaneous statements made in a voluntary manner,” 121 whereby an individual orally admits to authorship of a crime.122 In fact, the exclusionary rule under §12, paragraph (2) of the Bill of Rights, "applies only to admissions made in a criminal investigation but not to those made in an administrative investigation."123 Similarly competent is the admission of adulterous conduct made by a woman to her husband when the latter confronted her with incriminatory evidence in their residence.124 Likewise, admissions made during preliminary investigation, even if made without counsel, are admissible. 125 Also admissible are admissions made to a radio announcer who was not part of the investigation, or even to a mayor approached as a personal confidante, and not in his official capacity.126 As regards competency, specifically, the exclusionary rule as provided in the Bill of Rights of the Constitution does not apply to warrantless search by private individuals. The Constitutional proscription enshrined in the Bill of Rights does not concern itself with the relation between a private individual and another individual. It governs the relationship between the individual and the State and its agents.127 The Supreme Court held that there is no merit in the contention of the accused-appellant that the search and seizure performed by the vessel security personnel should be considered as one 120

Bank of the Philippine Islands v. Casa Montessori Internationale, et al., G.R. No. 149454, May 28, 2004 430 SCRA 261, 277; People v. Arondain, 418 Phil. 354, 367–368 [2001]; See also People v. Amestuzo, 413 Phil. 500, 508 [2001]; People v. Valdez, G.R. No. 129296, September 25, 2000, 341 SCRA 25, 41-42; People v. Labtan, 377 Phil. 967, 982, 984 [1999]; People v. De la Cruz, 344 Phil. 653, 660–661 [1997]; People v. Del Rosario, 365 Phil. 292, 310 [1999]; People v. Ayson, G.R. No. 85215, July 7, 1989, 175 SCRA 216, 231; and Gamboa v. Cruz, G.R. No. 56291, June 27, 1988, 162 SCRA 642, 648. 121 Bank of the Philippine Islands v. Casa Montessori Internationale, et al., supra note 120 at 277; People v. Dano, G.R. No. 117690, September 1, 2000, 339 SCRA 515, 528; See also Aballe v. People, G.R. No. 64086, March 15, 1990, 183 SCRA 196, 205; People v. Dy, G.R. No. 74517, February 23, 1988, 158 SCRA 111, 123–124; People v. Taylaran, G.R. No. 49149, 195 Phil. 226, 233–234 [1981]. 122 Bank of the Philippine Islands v. Casa Montessori Internationale, et al., supra note 120 at 277. 123 Remolona v. CSC, 414 Phil. 590, 599 [2001]; See also Sebastian, Sr. v. Garchitorena, 397 Phil. 519, 525 (2000); Manuel v. N.C. Construction Supply, 346 Phil. 1014, 1024 [1997]; Lumiqued v. Exevea, G.R. No. 117565, November 18, 1997, 807, 822–823. 124 Arroyo v. Court of Appeals, G.R. No. 96602, November 19, 1991, 203 SCRA 750. 125 Ladiana v. People, G.R. No. 144293, December 4, 2002, 393 SCRA 419, 431-432. 126 Astudillo v. People, G.R. No. 159734, November 30, 2006, 509 SCRA 302, 321; People v. Guillermo, G.R. No. 147786, January 20, 2004, 420 SCRA 326, 340-342. 127 Tolentino, et al v. Mendoza, et al., A.C. No. 5151, October 19, 2004, 440 SCRA 519, 531, citing People v. Hipol, G.R. No. 140549, July 22, 2003, 407 SCRA 179, 185. F-28

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conducted by the police authorities for like the latter, the former are armed and tasked to maintain peace and order. The vessel security officer, in the case at bar, is a private employee and does not discharge any governmental function.128

F. Examination of Witnesses 1. Generally, the testimony of a witness is elicited through questions propounded by the examining counsel in open court. 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. 129 The main purpose of requiring a witness to appear and testify orally in open court is to secure to the adverse party the opportunity to cross-examine the witness. Another reason for such rule is to enable the judge to observe the countenance and demeanor of the witness while testifying, an important factor in determining the credibility of a witness. Therefore, it would be impermissible and would be a grave abuse of discretion on the part of the trial judge to accept the affidavit of a witness in lieu of the latter’s direct testimony subject to crossexamination.130 This rule was applied to the use of depositions in San Luis v. Rojas,131 where the Supreme Court held that any deposition offered to prove the facts therein set out during a trial or hearing, in lieu of the actual oral testimony of the deponent in open court, may be opposed and excluded on the ground that it is hearsay: the party against whom it is offered has no opportunity to cross-examine, although cross-examination was afforded during the taking of the deposition, for normally, the evidence is actually presented against him during the trial or hearing. However, depositions may be used without the deponent being actually called to the witness stand by the proponent, under certain conditions and for certain limited purposes. These exceptional situations are governed by Rule 23, Section 4 of the Rules of Court. In civil cases, however, the judge, at his discretion, can order the parties to use the affidavits of witnesses as direct testimonies, subject to the right to object to inadmissible portions thereof and to the right of crossexamination by the other party. The affidavits shall be based on personal knowledge, shall set forth facts as would be admissible in evidence, and shall show affirmatively that the affiant is competent to testify to the matters stated therein. The affidavits shall be in question and answer form, and shall comply with the rules on admissibility of evidence.132 128

People v. Bongcarawan, G.R. No. 143944, July 11, 2002, 384 SCRA 525, 532. RULES OF COURT, Rule 132, Sec. 1. 130 People v. Estenzo, G.R. No. 41166, August 25, 1976, 72 SCRA 428; See also People v. Go, et al., G.R. Nos. 130714 & 139634, December 27, 2002, 394 SCRA 350, 363. 131 G.R. No. 159127, March 3, 2008, 547 SCRA 345, 360. 132 A.M. No. 03-01-09-SC. 129

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In criminal cases, however, the use of sworn statements of witnesses in lieu of direct examination in open court is proscribed.133 The rule that witnesses be examined in open court is relaxed under the 1991 Revised Rule on Summary Procedure (RRSP) where in criminal cases covered by said Rule, the affidavits and counter-affidavits of the parties’ witnesses constitute their direct testimonies subject, however, to cross-examination, re-direct or re-cross examination.134 And in civil actions covered by the RRSP, the parties shall submit the affidavit of their witnesses and other evidence on the factual issues defined in the preliminary conference order prepared by the judge after the termination of said conference, together with their position papers setting forth the law and the facts relied upon by them.135 Another exception is found in the trial of agrarian cases where the parties submit affidavits of their witnesses subject to cross-examination.136 But note also that evidence in criminal cases is not limited to the declarations made in open court; it includes all documents, affidavits or sworn statements of the witnesses, and other supporting evidence. It comprehends something more than just the mere testimony of a witness. Thus, when a sworn statement has been formally offered as evidence, it forms an integral part of the evidence which should not be ignored for it complements and completes the testimony on the witness stand.137 Thus, in a rape case, while the complainant failed to categorically declare in her testimony that the accused employed force, threat or intimidation against her, the Supreme Court still appreciated this circumstance as it was included in the complainant’s sworn statement.138 The Guidelines on the Conduct of Pre-Trial and Use of DepositionDiscovery Measures139 provides: a. One-day Examination of Witness Rule. A witness has to be fully examined in one (1) day only, shall be strictly adhered to subject to the courts’ discretion during trial on whether or not to extend the direct and/or cross examination for justifiable reasons.

133

People v. Go, et al., supra note 130 at 361-362. RULE ON SUMMARY PROCEDURE, Sec. 15. 135 RULE ON SUMMARY PROCEDURE, Sec. 9. 136 Presidential Decree No. 946 [1976], Sec. 16. 137 People v. Servano, G.R. Nos. 143002-03, July 17, 2003, 406 SCRA 508, 522. 138 Garces v. People, G.R. No. 173858, July 17, 2007, 527 SCRA 827, 838-839. 139 A.M. No. 03-1-09-SC. 134

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b. Most Important Witness Rule. Determine the most important witnesses to be heard and limit the number of witnesses. The facts to be proven by each witness and the approximate number of hours per witness shall be fixed.

2. One question often asked is whether a witness may be allowed to testify by narration. While the general rule is that material and relevant facts are elicited from a witness by questions put to him, it still rests within the sound discretion of the trial judge to determine whether a witness will be required to testify by question and answer, or will be permitted to testify in narrative form.140 There is no legal principle which prevents a witness from giving his testimony in narrative form if he is requested to do so by counsel. A witness may be allowed to testify by narration if it would be the best way of getting at what he knew or could state concerning the matter at issue. It would expedite the trial and would perhaps furnish the court a clearer understanding of the matters related as they occurred. Moreover, narrative testimony may be allowed if material parts of his evidence cannot be easily obtained through piecemeal testimonies. But if in giving such testimony, the witness states matters irrelevant or immaterial or incompetent, it is the right and duty of counsel objecting to such testimony to interpose and arrest the narration by calling the attention of the court particularly to the objectionable matter and, by a motion to strike it out, obtain a ruling of the court excluding such testimony from the case. 141 While a witness may be permitted in the discretion of the court to narrate his knowledge of material facts bearing upon the case without specifically being interrogated in detail, it is also within the discretion of the court to prohibit a witness from volunteering unsought information in connection with the case.142

3. Some jurisprudential rules regarding uncompleted testimonies: 3.1. Oral testimony may be taken into account 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 thru the fault of the adverse party. 143 When a witness had testified on direct examination, but was not cross-examined because he dies or becomes 140

98 C.J.S. Sec. 325, p. 26. Id. 142 People v. Calixtro, G.R. No. 92355, January 24, 1991, 193 SCRA 303. 143 People v. Givera, G.R. No. 132159, Jan. 18, 2001, 349 SCRA 513, 535. 141

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incapacitated to testify after numerous postponements of his crossexamination attributable to the cross-examining party, whereas the witness had all the time been available for cross-examination, his direct testimony shall be allowed to remain in the record and cannot be ordered stricken off. The cross-examiner is deemed to have waived his right to cross-examine.144 3.2. On the contrary, 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.145 3.3. The direct testimony of a witness who dies before conclusion of the cross-examination can be stricken only insofar as to the part not covered by the cross-examination, and absence of a witness is not enough to warrant striking his testimony for failure to appear for further cross-examination where the witness has already been sufficiently cross-examined, and the matter on which further cross-examination is sought is not in controversy.146 4. A judge may intervene in the trial of a case to promote expedition and avoid unnecessary waste of time or to clear up some ambiguity. A judge is not a mere referee like that of a boxing bout. He should have as much interest as a counsel in the orderly and expeditious presentation of evidence, calling the attention of counsel to points at issue that are overlooked, directing them to ask questions that would elicit the facts on the issues involved, clarifying ambiguous remarks. He may examine or cross-examine a witness.147 He may propound clarificatory questions to test the credibility of the witness and to extract the truth. He may seek to draw out relevant and material testimony though the testimony may tend to support or rebut the position taken by one or the other party. The number of times a judge intervenes in the examination of a witness is not necessarily an indication of bias. It cannot be taken against a judge if his clarifying questions happen to reveal certain truths which tend to spoil the theory of one party.148

144

Dela Paz, Jr., v. Intermediate Appellate Court, G.R. No. 71537, September 17, 1987, 154 SCRA 65; People v. Monje, G.R. No. 146689, September 27, 2002, 390 SCRA 160, 171; People v. Givera, supra at 535. 145 Ortigas, Jr. v. Lufthansa German Airlines, G.R. No. 28773, June 30, 1975, 64 SCRA 610; People v. Monje, supra at 171. 146 People v. Señeris, G.R. No. 48883, August 6, 1980, 99 SCRA 92; People v. Monje, supra note 144 at 171. 147 People v. Zheng Bai Hui, G.R. No. 127580, August 22, 2000, 338 SCRA 420, 460. 148 People v. De Leon, G.R. No. 144052, March 6, 2002, 378 SCRA 495, 512-514; Barbers, et al. v. Laquio, A.M. No. RTJ-00-1568, February 15, 2001, 351 SCRA 606, 626; People v. Hatton, G.R. No. 85043, June 16, 1992, 210 SCRA 1. F-32

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However, a trial judge should not participate in the examination of witnesses as to create the impression that he is allied with the prosecution. We doubt not that the sole motive of the learned judge was to ascertain the truth of the transaction, but it is never proper for a judge to discharge the duties of a prosecuting attorney. However anxious a judge may be for the enforcement of the law, he should always remember that he is as much judge in behalf of the defendant accused of crime, and whose liberty is in jeopardy, as he is judge in behalf of the state, for the purpose of safeguarding the interests of society. Ordinarily it is not good practice for the presiding judge himself to examine witnesses at length. The circumstances may be such in a given case as to justify the court in so doing xxx. This court, however, has more than once said that the examination of witnesses is the more appropriate function of counsel, and the instances are rare and the conditions exceptional which will justify the presiding judge in conducting an extensive examination. It is always embarrassing for counsel to object to what he may deem improper questions by the court. Then, in conducting a lengthy examination, it would be almost impossible for the judge to preserve a judicial attitude. While he is not a mere figurehead or umpire in a trial, and it is his duty to see that justice is done, he will usually not find it necessary to conduct such examinations. The extent to which this shall be done must largely be a matter of discretion, to be determined by the circumstances of each particular case, but in so doing he must not forget the function of the judge and assume that of an advocate xxx. While it is true that the manner in which a witness shall be examined is largely in the discretion of the trial judge, it must be understood that we have not adopted in this country the practice of making the presiding judge the chief inquisitor. It is better to observe our time-honored custom of orderly judicial procedure, even at the expense of occasional delays xxx. The judge is an important figure in the trial of a cause, and while he has the right, and it is often his duty, to question witnesses to the end that justice shall prevail, we can conceive of no other reason, for him to take the trial of the cause out of the hands of counsel.149

5. The court may stop the introduction of further testimony upon any particular point when the evidence upon it is already so full that more witnesses to the same point cannot be reasonably expected to be additionally persuasive. But this power should be exercised with caution.150 149

Tabuena vs. Sandiganbayan et. al., G.R. Nos. 103501-03, February 17, 1997, 268 SCRA 332, 401-402. 150 RULES OF COURT, Rule 133, Sec. 6. F-33

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G. Authentication and Proof of Documents For the purpose of their presentation in evidence, documents are either public or private.151 Public documents need not be authenticated; private documents have to be authenticated to be admissible in evidence. There are only three types of public documents, viz.: (1) the written official acts or records of official acts of the sovereign authority, official bodies and tribunals and public officers, whether of the Philippines or of a foreign country, e.g., transfer certificate of title, the Official Gazette, entries in the book of entries of judgments; (2) documents acknowledged before a notary public, except last wills and testaments; (3) public records, kept in the Philippines, of private documents required by law to be entered therein, e.g., certified true copies of birth certificates or of death certificates issued by the local civil registrar.152 All other writings are private and thus ought to be authenticated. Their due execution and genuineness 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.153 Note that the opinion of an ordinary witness regarding the handwriting of a person is admissible under Rule 130, Sec. 50, as an exception to the opinion rule provided the witness is shown to have sufficient familiarity with the handwriting. The last paragraph of Rule 132, Sec. 20 states that “Any other private document need only be identified as that which it is claimed to be.” This provision should be taken in relation to the first paragraph, which reads: “Before any private document offered as authentic is received in evidence, its due execution and genuineness must be proved.” If it is offered as a genuine writing, it must be proved to be genuine. If it is offered as a forgery, it must be proved to be a forgery. If a private writing is offered not as an authentic document, it need only be identified as that which the offeror claims it to be. Thus, if an anonymous letter a party has received is relevant to the issues in a case, he need not authenticate it since he cannot possibly do that anyway. He only has to identify it as the anonymous letter he had received. The authenticity of the document is immaterial for he is not offering it as authentic. An ancient document, although private in nature, needs no authentication either, provided it appears to be more than thirty years old, is produced from a custody in which it would naturally be found if genuine, and is unblemished by any

151

Id., Rule 132, Sec. 19 Id. 153 Id., Sec. 20. 152

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alteration or circumstances of suspicion. 154 Of course, also, if the authenticity of a private document is judicially admitted by the other, a party need not authenticate it. Not all public documents have the same probative value. 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. 155 Official entries are admissible in evidence regardless of whether the officer or person who made them was presented and testified in court, since these entries are considered prima facie evidence of the facts stated therein.156 Hence, the entries made by the clerk of court in the book of entries of judgments are prima facie evidence of the entered facts; the clerk of court need not be called to attest to the truth thereof; Such evidence, of course, are only prima facie, i.e., good until rebutted by reliable contradictory evidence. When entries in the Certificate of Live Birth recorded in the Local Civil Registry vary from those appearing in the copy transmitted to the Civil Registry General, pursuant to the Civil Registry Law, the variance has to be clarified in more persuasive and rational manner.157 But “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.”158 Thus, a certified true copy of a death certificate issued by the local civil registrar – although a public document – is proof only of the fact which gave rise to its execution, i.e., the fact of death and the date of that fact. The death certificate is not evidence of the cause of death, which ought to be proved by competent evidence. It cannot be overemphasized that the required certification of an officer in the foreign service, under Rule 132, Sec. 24 refers only to the documents enumerated in Section 19 (a), to wit: written official acts or records of the official acts of the sovereign authority, official bodies and tribunals, and public officers of the Philippines or of a foreign country. It does not apply to documents acknowledged before a notary public abroad.159 The notarization of a document does not guarantee its validity because it is not the function of a notary public to validate an instrument

154

Id., Sec. 22. Id., Sec. 23. 156 Fullero v. People, G.R. No. 170583, September 12, 2007, 533 SCRA 97, 119. 157 In Re: Intestate of the Late Juan “Jhonny” Locsin, Sr., et al., v. Locsin, Jr., G.R. No. 146737, December 10, 2001, 371 SCRA 711, 721. 158 Id. 159 Heirs of Deceased Spouses Arcilla, et al., v. Teodoro, G.R. No. 162886, August 11, 2008, 561 SCRA 545, 562. 155

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that was never intended by the parties to have any binding legal effect on them.160

H. Tender of Excluded Evidence Evidence formally offered by a party may be admitted or excluded by the court. If a party’s offered documentary or object evidence is excluded, he may move or request that it be attached to form part of the record of the case. If the excluded evidence is oral, he may state for the record the name and other personal circumstances of the witness and the substance of the proposed testimony.161 If a question asked of a witness by the counsel who presented him is objected to and the objection is sustained, counsel may manifest for the record what the witness would have answered if the witness had been allowed to do so. As regards documentary or object evidence, the evidence must have been formally offered before the court. And before formal offer of evidence is made, the evidence must have been identified and presented before the court. 162 These procedures are known as offer of proof or tender of excluded evidence and are made for purposes of appeal.163 If an adverse judgment is eventually rendered against the offeror, he may, in his appeal, assign as error the rejection of the excluded evidence. The appellate court will better understand and appreciate the assignment of error if the evidence involved is included in the record of the case. And since the offer of proof is for appellate purposes, the same cannot be denied by the trial court.

V. SPECIAL RULES ON EVIDENCE A. Rule on Examination of a Child Witness164 SECTION 1. Applicability of the Rule. - Unless otherwise provided, this Rule shall govern the examination of child witnesses who are victims of crime, accused of a crime, and witnesses to crime. It shall apply in all criminal proceedings and non-criminal proceedings involving child witnesses. 160

Ramos v. Heirs of Ramos Sr., G.R. No. 140848, April 25, 2002, 381 SCRA 594, 605. Yu v. Hon. Court of Appeals, et al., G.R. No. 154115, November 29, 2005, 476 SCRA 443, 451. 162 Id. 163 RULES OF COURT, Rule 130, Sec. 40; Cruz-Arevalo v. Layosa, A.M. No. RTJ-06-2005, July 14, 2006, 495 SCRA 9, 13. 164 A.M. No. 00-4-07-SC, effective December 15, 2000; See also A.M. No. 02-1-18-SC, Rule on Juveniles in Conflict with the Law, effective February 28, 2002 and A.M. No. 04-10-11-SC, Rule on Violence against Women and their Children, effective November 15, 2004 for cross references to the Rule on the Examination of a Child Witness. 161

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SECTION 2. Objectives. - The objectives of this Rule are to create and maintain an environment that will allow children to give reliable and complete evidence, minimize trauma to children, encourage children to testify in legal proceedings, and facilitate the ascertainment of truth. SECTION 3. Construction of the Rule. - This Rule shall be liberally construed to uphold the best interests of the child and to promote maximum accommodation of child witnesses without prejudice to the constitutional rights of the accused. SECTION 4. Definitions. – (a) 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 eighteen (18) years 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. (b) "Child abuse" means physical, psychological, or sexual abuse, and criminal neglect as defined in Republic Act No. 7610 and other related laws. (c) "Facilitator" means a person appointed by the court to pose questions to a child. (d) "Record regarding a child" or "record" means any photograph, videotape, audiotape, film, handwriting, typewriting, printing, electronic recording, computer data or printout, or other memorialization, including any court document, pleading, or any copy or reproduction of any of the foregoing, that contains the name, description, address, school, or any other personal identifying information about a child or his family and that is produced or maintained by a public agency, private agency, or individual. (e) A "guardian ad litem" is a person appointed by the court where the case is pending for a child who is a victim of, accused of, or a witness to a crime to protect the best interest of the said child.

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(f) A "support person" is a person chosen by the child to accompany him to testify at or attend a judicial proceeding or deposition to provide emotional support for him. (g) "Best interests of the child" means the totality of the circumstances and conditions as are most congenial to the survival, protection, and feelings of security of the child and most encouraging to his physical, psychological, and emotional development. It also means the least detrimental available alternative for safeguarding the growth and development of the child. (h) "Developmental level" refers to the specific growth phase in which most individuals are expected to behave and function in relation to the advancement of their physical, socio-emotional, cognitive, and moral abilities. (i) "In-depth investigative interview" or "disclosure interview" is an inquiry or proceeding conducted by duly trained members of multidisciplinary team or representatives of law enforcement or child protective services for the purpose of determining whether child abuse has been committed. SECTION 5. Guardian Ad Litem. – (a) The court may appoint a guardian ad litem for a child who is a victim of, accused of, or a witness to a crime to promote the best interests of the child. In making the appointment, the court shall consider the background of the guardian ad litem and his familiarity with the judicial process, social service programs, and child development, giving preference to the parents of the child, if qualified. The guardian ad litem may be a member of the Philippine Bar. A person who is a witness in any proceeding involving the child cannot be appointed as a guardian ad litem. (b) The guardian ad litem: (1) Shall attend all interviews, depositions, hearings, and trial proceedings in which a child participates;

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(2) Shall make recommendations to the court concerning the welfare of the child; (3) Shall have access to all reports, evaluations, and records necessary to effectively advocate for the child, except privileged communications; (4) Shall marshal and coordinate the delivery of resources and special services to the child; (5) Shall explain, in language understandable to the child, all legal proceedings, including police investigations, in which the child is involved; (6) Shall assist the child and his family in coping with the emotional effects of crime and subsequent criminal or non-criminal proceedings in which the child is involved; (7) May remain with the child while the child waits to testify; (8) May interview witnesses; and (9) May request additional examinations by medical or mental health professionals if there is a compelling need therefore. (c) The guardian ad litem shall be notified of all proceedings but shall not participate in the trial. However, he may file motions pursuant to sections 9, 10, 25, 26, 27 and 31(c). If the guardian ad litem is a lawyer, he may object during trial that questions asked of the child are not appropriate to his developmental level. (d) The guardian ad litem may communicate concerns regarding the child to the court through an officer of the court designated for that purpose. (e) The guardian ad litem shall not testify in any proceeding concerning any information, statement, or opinion received from the child in the course of serving as a guardian ad litem, unless the court finds it necessary to promote the best interests of the child.

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(f) The guardian ad litem shall be presumed to have acted in good faith in compliance with his duties described in sub-section (b). SECTION 6. Competency. Every child is presumed qualified to be a witness. However, the court shall conduct a competency examination of a child, motu proprio or on motion of a party, when it 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. (a) Proof of Necessity. — A party seeking a competency examination must present proof of necessity of competency examination. The age of the child by itself is not a sufficient basis for a competency examination. (b) Burden of Proof. — To rebut the presumption of competence enjoyed by a child, the burden of proof lies on the party challenging his competence. (c) Person allowed at competency examination. — Only the following are allowed to attend a competency examination: (1) The judge and necessary court personnel; (2) The counsel for the parties; (3) The guardian ad litem; (4) One or more support persons for the child; and (5) The defendant, unless the court determines that competence can be fully evaluated in his absence. (d) Conduct of examination. — Examination of a child as to his competence shall be conducted only by the judge. Counsel for the parties, however, can submit questions to the judge that he may, in his discretion, ask the child. (e) Developmentally appropriate questions. — The questions asked at the competency examination shall be appropriate to the age and developmental level of the child; shall not be related to the issues at trial; and shall focus on the ability of the child to remember, communicate,

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distinguish between truth and falsehood, and appreciate the duty to testify truthfully. (f) Continuing duty to assess competence. — The court has the duty of continuously assessing the competence of the child throughout his testimony. The determination of the competence and capability of a child as a witness rests primarily with the trial judge.165 It is well-established that any child, regardless of age, can be a competent witness if he or she can perceive, and perceiving, can make known his or her perception to others, that is, he or she is capable of relating truthfully facts for which the child is examined. The requirements of a child’s competence as a witness are: (a) capacity of observation, (b) capacity of recollection, and (c) capacity of communication. A child may be a competent witness where he or she has sufficient capacity to understand the solemnity of an oath and to comprehend the obligation it imposes, and where he or she has sufficient intelligence to receive just impressions as to the facts of which the child is to testify and relate them correctly, although he or she is very young.166 Persons react differently when confronted with situations like this one. One cannot expect a child of five (5) years to act the same way a ten (10)-year old or an older woman would. Crying is almost always brought about by the horrifying experience a woman has undergone and the shame and scandal that she has to go through after the dastardly act has been committed. Not so in the case of a five (5)-year old who has not fathomed the ways of man. If she did not cry while she was being raped, it could be because she was afraid of what was being done to her. Fear would oftentimes overwhelm the victim or stupefy her into inaction. This kind of apprehension comes to one when somebody older and close to her does something she does not comprehend but she just keeps quiet because the other person might get mad.167 SECTION 7. Oath or Affirmation. - Before testifying, a child shall take an oath or affirmation to tell the truth. It cannot be argued that simply because a child witness is not examined on the nature of the oath and the need for her to tell the whole truth, the competency of the witness and the truth of her testimony are impaired. If a party against whom a witness is presented believes that the witness is incompetent or is not aware of his obligation and responsibility 165

People v. Bisda, et al., G.R. No. 140895, July 17, 2003, 406 SCRA 454, 478. People v. De Jesus, G.R. No. 127878, July 25, 2003, 407 SCRA 265, 272. 167 People v. Gajo, G.R. No. 127749, March 9, 2000, 327 SCRA 612. 166

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to tell the truth and the consequence of him testifying falsely, such party may pray for leave to conduct a voire dire examination on such witness to test his competency. The court may motu proprio conduct the voir dire examination. In United States v. Buncad,168 the Court held that when a child of tender age is presented as a witness, it is the duty of the judge to examine the child to determine his competency.169 SECTION 8. Examination of a Child Witness. The examination of a child witness presented in a hearing or any proceeding shall be done in open court. 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. The party who presents a child witness or the guardian ad litem of such child witness may, however, move the court to allow him to testify in the manner provided in this Rule. SECTION 9. Interpreter for Child. (a) When a child does not understand the English or Filipino language or is unable to communicate in said languages due to his developmental level, fear, shyness, disability, or other similar reason, an interpreter whom the child can understand and who understands the child may be appointed by the court, motu proprio or upon motion, to interpret for the child. (b) If a witness or member of the family of the child is the only person who can serve as an interpreter for the child, he shall not be disqualified and may serve as the interpreter of the child. The interpreter, however, who is also a witness, shall testify ahead of the child. (c) An interpreter shall take an oath or affirmation to make a true and accurate interpretation. SECTION 10. Facilitator to Pose Questions to Child. – (a) The court may, motu proprio or upon motion, appoint a facilitator if it determines that the child is unable to understand or respond to questions asked. The facilitator may be a child psychologist, psychiatrist, social

168 169

25 Phil. 530 (1913). People v. Bisda, et al., supra note 165 at 476. F-42

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worker, guidance counselor, teacher, religious leader, parent, or relative. (b) If the court appoints a facilitator, the respective counsels for the parties shall pose questions to the child only through the facilitator. The questions shall either be in the words used by counsel or, if the child is not likely to understand the same, in words that are comprehensible to the child and which convey the meaning intended by counsel. (c) The facilitator shall take an oath or affirmation to pose questions to the child according to the meaning intended by counsel.

SECTION 11. Support Persons. – (a) A child testifying at a judicial proceeding or making a deposition shall have the right to be accompanied by one or two persons of his own choosing to provide him emotional support. (1) Both support persons shall remain within the view of the child during his testimony. (2) One of the support persons may accompany the child to the witness stand, provided the support person does not completely obscure the child from the view of the opposing party, judge, or hearing officer. (3) The court may allow the support person to hold the hand of the child or take other appropriate steps to provide emotional support to the child in the course of the proceedings. (4) The court shall instruct the support persons not to prompt, sway, or influence the child during his testimony. (b) If the support person chosen by the child is also a witness, the court may disapprove the choice if it is sufficiently established that the attendance of the support person during the testimony of the child would

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pose a substantial risk of influencing or affecting the content of the testimony of the child. (c) If the support person who is also a witness is allowed by the court, his testimony shall be presented ahead of the testimony of the child. SECTION 12. Waiting Area for Child Witnesses. - The courts are encouraged to provide a waiting area for children that is separate from waiting areas used by other persons. The waiting area for children should be furnished so as to make a child comfortable. SECTION 13. Courtroom Environment. - To create a more comfortable environment for the child, the court may, in its discretion, direct and supervise the location, movement and deportment of all persons in the courtroom including the parties, their counsel, child, witnesses, support persons, guardian ad litem, facilitator, and court personnel. The child may be allowed to testify from a place other than the witness chair. The witness chair or other place from which the child testifies may be turned to facilitate his testimony but the opposing party and his counsel must have a frontal or profile view of the child during the testimony of the child. The witness chair or other place from which the child testifies may also be rearranged to allow the child to see the opposing party and his counsel, if he chooses to look at them, without turning his body or leaving the witness stand. The judge need not wear his judicial robe. Nothing in this section or any other provision of law, except official in-court identification provisions, shall be construed to require a child to look at the accused. Accommodations for the child under this section need not be supported by a finding of trauma to the child. SECTION 14. Testimony During Appropriate Hours. - The court may order that the testimony of the child should be taken during a time of day when the child is well-rested. SECTION 15. Recess During Testimony. - The child may be allowed reasonable periods of relief while undergoing direct, cross, re-direct, and re-cross examinations as often as necessary depending on his developmental level.

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SECTION 16. Testimonial Aids. - The court shall permit a child to use dolls, anatomically-correct dolls, puppets, drawings, mannequins, or any other appropriate demonstrative device to assist him in his testimony. SECTION 17. Emotional Security Item. - While testifying, a child shall be allowed to have an item of his own choosing such as a blanket, toy, or doll. SECTION 18. Approaching the Witness. The court may prohibit a counsel from approaching a child if it appears that the child is fearful of or intimidated by the counsel. SECTION 19. Mode of Questioning. - The court shall exercise control over the questioning of children so as to (1) facilitate the ascertainment of the truth, (2) ensure that questions are stated in a form appropriate to the developmental level of the child, (3) protect children from harassment or undue embarrassment, and (4) avoid waste of time. The court may allow the child witness to testify in a narrative form. SECTION 20. Leading Questions. - The court may allow leading questions in all stages of examination of a child if the same will further the interests of justice. The trend in procedural law is to give wide latitude to the courts in exercising control over the questioning of a child witness. The reasons are spelled out in our Rule on Examination of a Child Witness, which took effect on December 15, 2000, namely: (1) to facilitate the ascertainment of the truth; (2) to ensure that questions are stated in a form appropriate to the developmental level of the child; (3) to protect children from harassment or undue embarrassment; and (4) avoid waste of time. Leading questions in all stages of examination of a child are allowed if the same will further the interests of justice.170 No prior proof of difficulty in eliciting intelligible answers from the child witness is required in order to allow leading questions. It is sufficient that the witness is shown to be a child of tender years.171

170

People v. Escultor, G.R. No. 149366-67, May 27, 2004, 429 SCRA 651, 665; People v. Daganio, G.R. No. 137385, January 23, 2002, 374 SCRA 365, 371. 171 People v. Legaspi, G.R. No. 137283, February 17, 2003, 397 SCRA 531, 543. F-45

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The afore-cited rule was formulated to allow children to give reliable and complete evidence, minimize trauma to children, encourage them to testify in legal proceedings, and facilitate the ascertainment of truth.172 SECTION 21. Objections to Questions. - Objections to questions should be couched in a manner so as not to mislead, confuse, frighten, or intimidate the child. Child witnesses may testify in a narrative form and leading questions may be allowed by the trial court in all stages of the examination if the same will further the interest of justice. Objections to questions should be couched in a manner so as not to mislead, confuse, frighten and intimidate the child.173 SECTION 22. Corroboration. - Corroboration shall not be required of a testimony of a child. His testimony, if credible by itself, shall be sufficient to support a finding of fact, conclusion, or judgment subject to the standard of proof required in criminal and non-criminal cases. SECTION 23. Excluding the Public. - When a child testifies, the court may order the exclusion from the courtroom of all persons, including members of the press, who do not have a direct interest in the case. Such an order may be made to protect the right to privacy of the child or if the court determines on the record that requiring the child to testify in open court would cause psychological harm to him, hinder the ascertainment of truth, or result in his inability to effectively communicate due to embarrassment, fear, or timidity. In making its order, the court shall consider the developmental level of the child, the nature of the crime, the nature of his testimony regarding the crime, his relationship to the accused and to persons attending the trial, his desires, and the interests of his parents or legal guardian. The court may, motu proprio, exclude the public from the courtroom if the evidence to be produced during trial is of such character as to be offensive to decency or public morals. The court may also, on motion of the accused, exclude the public from trial, except court personnel and the counsel of the parties. The same Rule on Examination of a Child Witness provides that when a child testifies, the court may, motu proprio, order the exclusion from the courtroom of all persons who do not have a direct interest in the case. In issuing such order, the court is to consider, inter alia, the developmental level of the child, the nature of the crime, and the nature of 172 173

People v. Ugos, G.R. No. 181633, September 12, 2008, 565 SCRA 207, 215. People v. Cañete, G.R. No. 142930, March 28, 2003, 400 SCRA 109, 122. F-46

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his testimony regarding the crime. It may also exclude the public from the courtroom if the evidence to be produced is of such character as to be offensive to decency or public morals.174 SECTION 24. Persons Prohibited from Entering and Leaving Courtroom. - The court may order that persons attending the trial shall not enter or leave the courtroom during the testimony of the child. SECTION 25. Live-Link Television in Criminal Cases Where the Child is a Victim or a Witness. (a) The prosecutor, counsel or the 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 television. Before the guardian ad litem applies for an order under this section, he shall consult the prosecutor or counsel and shall defer to the judgment of the prosecutor or counsel regarding the necessity of applying for an order. In case the guardian ad litem is convinced that the decision of the prosecutor or counsel not to apply will cause the child serious emotional trauma, he himself may apply for the order. The person seeking such an order shall apply at least five (5) days before the trial date, unless the court finds on the record that the need for such an order was not reasonably foreseeable. (b) The court may motu proprio hear and determine, with notice to the parties, the need for taking the testimony of the child through live-link television. (c) The judge may question the child in chambers, or in some comfortable place other than the courtroom, in the presence of the support person, guardian ad litem, prosecutor, and counsel for the parties. The questions of the judge shall not be related to the issues at trial but to the feelings of the child about testifying in the courtroom. (d) The judge may exclude any person, including the accused, whose presence or conduct causes fear to the child. 174

Genil v. Rivera, A.M. No. MTJ-06-1619, January 23, 2006, 479 SCRA 363, 371. F-47

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(e) The court shall issue an order granting or denying the use of live-link television and stating the reasons therefore. It shall consider the following factors: (1) The age and level of development of the child; (2) His physical and mental health, including any mental or physical disability; (3) Any physical, emotional, or psychological injury experienced by him; (4) The nature of the alleged abuse; (5) Any threats against the child; (6) His relationship with the accused or adverse party; (7) His reaction to any prior encounters with the accused in court or elsewhere; (8) His reaction prior to trial when the topic of testifying was discussed with him by parents or professionals; (9) Specific symptoms of stress exhibited by the child in the days prior to testifying; (10) Testimony of expert or lay witnesses; (11) The custodial situation of the child and the attitude of the members of his family regarding the events about which he will testify; and (12) Other relevant factors, such as court atmosphere and formalities of court procedure. (f) The court may order that the testimony of the child be taken by live-link television if there is a substantial likelihood that the child would suffer trauma from testifying in the presence of the accused, his counsel or the prosecutor as the case may be. The trauma must be of a kind which would impair the completeness or truthfulness of the testimony of the child.

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(g) If the court orders the taking of testimony by live-link television: (1) The child shall testify in a room separate from the courtroom in the presence of the guardian ad litem; one or both of his support persons; the facilitator and interpreter, if any; a court officer appointed by the court; persons necessary to operate the closedcircuit television equipment; and other persons whose presence are determined by the court to be necessary to the welfare and well-being of the child; (2) The judge, prosecutor, accused, and counsel for the parties shall be in the courtroom. The testimony of the child shall be transmitted by live-link television into the courtroom for viewing and hearing by the judge, prosecutor, counsel for the parties, accused, victim, and the public unless excluded. (3) If it is necessary for the child to identify the accused at trial, the court may allow the child to enter the courtroom for the limited purpose of identifying the accused, or the court may allow the child to identify the accused by observing the image of the latter on a television monitor. (4) The court may set other conditions and limitations on the taking of the testimony that it finds just and appropriate, taking into consideration the best interests of the child. (h) The testimony of the child shall be preserved on videotape, digital disc, or other similar devices which shall be made part of the court record and shall be subject to a protective order as provided in section 31(b). SECTION 26. Screens, One-way Mirrors, and Other Devices to Shield Child from Accused. (a) The prosecutor or the guardian ad litem may apply for an order that the chair of the child or that a screen or other device be placed in the courtroom in such a manner that the child cannot see the accused while testifying. Before the guardian ad litem applies for an order under this section, he shall consult with the

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prosecutor or counsel subject to the second and third paragraphs of section 25(a) of this Rule. The court shall issue an order stating the reasons and describing the approved courtroom arrangement. (b) If the court grants an application to shield the child from the accused while testifying in the courtroom, the courtroom shall be arranged to enable the accused to view the child. SECTION 27. Videotaped Deposition. – (a) The prosecutor or the guardian ad litem may apply for an order that a deposition be taken of the testimony of the child and that it be recorded and preserved on videotape. Before the guardian ad litem applies for an order under this section, he shall consult with the prosecutor or counsel subject to the second and third paragraphs of section 25(a). (b) If the court finds that the child will not be able to testify in open court at trial, it shall issue an order that the deposition of the child be taken and preserved by videotape. (c) The judge shall preside at the videotaped deposition of a child. Objections to deposition testimony or evidence, or parts thereof, and the grounds for the objection shall be stated and shall be ruled upon at the time of the taking of the deposition. The other persons who may be permitted to be present at the proceeding are: (1) The prosecutor; (2) The defense counsel; (3) The guardian ad litem; (4) The accused, subject to sub-section (e); (5) Other persons whose presence is determined by the court to be necessary to the welfare and wellbeing of the child;

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(6) One or both of his support persons, the facilitator and interpreter, if any; (7) The court stenographer; and (8) Persons necessary to operate the videotape equipment. (d) 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. (e) If the order of the court is based on evidence that the child is unable to testify in the physical presence of the accused, the court may direct the latter to be excluded from the room in which the deposition is conducted. In case of exclusion of the accused, the court shall order that the testimony of the child be taken by live-link television in accordance with section 25 of this Rule. If the accused is excluded from the deposition, it is not necessary that the child be able to view an image of the accused. (f) The videotaped deposition shall be preserved and stenographically recorded. The videotape and the stenographic notes shall be transmitted to the clerk of the court where the case is pending for safekeeping and shall be made a part of the record. (g) The court may set other conditions on the taking of the deposition that it finds just and appropriate, taking into consideration the best interests of the child, the constitutional rights of the accused, and other relevant factors. (h) The videotaped deposition and stenographic notes shall be subject to a protective order as provided in section 31(b). (i) If, at the time of trial, the court finds that the child is unable to testify for a reason stated in section 25(f) of this Rule, or is unavailable for any reason described in section 4(c), Rule 23 of the 1997 Rules of Civil Procedure, the court may admit into evidence the videotaped deposition of the child in lieu of his testimony at the trial. The court shall issue an order stating the reasons therefor.

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(j) After the original videotaping but before or during trial, any party may file any motion for additional videotaping on the ground of newly discovered evidence. The court may order an additional videotaped deposition to receive the newly discovered evidence. SECTION 28. Hearsay Exception in Child Abuse Cases. - A statement made by a child describing any act or attempted act of child abuse, not otherwise admissible under the hearsay rule, may be admitted in evidence in any criminal or non-criminal proceeding subject to the following rules: (a) Before such hearsay statement may be admitted, its proponent shall make known to the adverse party the intention to offer such statement and its particulars to provide him a fair opportunity to object. If the child is available, the court shall, upon motion of the adverse party, require the child to be present at the presentation of the hearsay statement for cross-examination by the adverse party. When the child is unavailable, the fact of such circumstance must be proved by the proponent. (b) In ruling on the admissibility of such hearsay statement, the court shall consider the time, content and circumstances thereof which provide sufficient indicia of reliability. It shall consider the following factors: (1) Whether there is a motive to lie; (2) The general character of the declarant child; (3) Whether more than one person heard the statement; (4) Whether the statement was spontaneous; (5) The timing of the statement and the relationship between the declarant child and witness; (6) Cross-examination could not show the lack of knowledge of the declaration child; (7) The possibility of faulty recollection of the declarant of child is remote; and

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(8) The circumstances surrounding the statement are such that there is no reason to suppose the declarant child misrepresented the involvement of the accused. (c) The child witness shall be considered unavailable under the following situations: (1) Is deceased, suffers from physical infirmity, lack of memory, mental illness, or will be exposed to severe psychological injury; or (2) Is absent from the hearing and the proponent of his statement has been unable to procure his attendance by process or other reasonable means. (d) When the child witness is unavailable, his hearsay testimony shall be admitted only if corroborated by other admissible evidence. SECTION 29. Admissibility of Videotaped and Audiotaped Indepth Investigative or Disclosure Interviews in Child Abuse Cases. - The court may admit videotape and audiotape indepth investigative or disclosure interviews as evidence, under the following conditions: (a) The child witness is unable to testify in court on grounds and under conditions established under section 28 (c). (b) The interview of the child was conducted by duly trained members of a multidisciplinary team or representatives of law enforcement or child protective services in situations where child abuse is suspected so as to determine whether child abuse occurred. (c) The party offering the videotape or audiotape must prove that: (1) the videotape or audiotape discloses the identity of all individuals present and at all times includes their images and voices; (2) the statement was not made in response to questioning calculated to lead the child to make a particular statement or is clearly shown to be the statement of the child and not the product of improper suggestion;

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(3) the videotape and audiotape machine or device was capable of recording testimony; (4) the person operating the device was competent to operate it; (5) the videotape or audiotape is authentic and correct; and (6) it has been duly preserved. The individual conducting the interview of the child shall be available at trial for examination by any party. Before the videotape or audiotape is offered in evidence, all parties shall be afforded an opportunity to view or listen to it and shall be furnished a copy of the written transcript of the proceedings. The fact that an investigative interview is not videotaped or audiotaped as required by this section shall not by itself constitute a basis to exclude from evidence out-of-court statements or testimony of the child. It may, however, be considered in determining the reliability of the statements of the child describing abuse. SECTION 30. Sexual Abuse Shield Rule. (a) Inadmissible evidence. — The following evidence is not admissible in any criminal proceeding involving alleged child sexual abuse: (1) Evidence offered to prove that the alleged victim engaged in other sexual behavior; and (2) Evidence offered to prove predisposition of the alleged victim.

the

sexual

(b) 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 semen, injury, or other physical evidence shall be admissible. A party intending to offer such evidence must: (1) File a written motion at least fifteen (15) days before trial, specifically describing the evidence and stating the purpose for which it is offered, unless the court, for good cause,

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requires a different time for filing or permits filing during trial; and (2) Serve the motion on all parties and the guardian ad litem at least three (3) days before the hearing of the motion. Before admitting such evidence, the court must conduct a hearing in chambers and afford the child, his guardian ad litem, the parties, and their counsel a right to attend and be heard. The motion and the record of the hearing must be sealed and remain under seal and protected by a protective order set forth in section 31(b). The child shall not be required to testify at the hearing in chambers except with his consent.

SECTION 31. Protection of Privacy and Safety. – (a) Confidentiality of records. — Any record regarding a child shall be confidential and kept under seal. Except upon written request and order of the court, a record shall only be released to the following: (1) Members of the court staff for administrative use; (2) The prosecuting attorney; (3) Defense counsel; (4) The guardian ad litem; (5) Agents of investigating law enforcement agencies; and (6) Other persons as determined by the court. (b) Protective order. — Any videotape or audiotape of a child that is part of the court record shall be under a protective order that provides as follows: (1) Tapes may be viewed only by parties, their counsel, their expert witness, and the guardian ad litem. (2) No tape, or any portion thereof, shall be divulged by any person mentioned in sub-section (a) to any other person, except as necessary for the trial.

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(3) No person shall be granted access to the tape, its transcription or any part thereof unless he signs a written affirmation that he has received and read a copy of the protective order; that he submits to the jurisdiction of the court with respect to the protective order; and that in case of violation thereof, he will be subject to the contempt power of the court. (4) Each of the tape cassettes and transcripts thereof made available to the parties, their counsel, and respective agents shall bear the following cautionary notice: "This object or document and the contents thereof are subject to a protective order issued by the court in (case title), (case number). They shall not be examined, inspected, read, viewed, or copied by any person, or disclosed to any person, except as provided in the protective order. No additional copies of the tape or any of its portion shall be made, given, sold, or shown to any person without prior court order. Any person violating such protective order is subject to the contempt power of the court and other penalties prescribed by law." (5) No tape shall be given, loaned, sold, or shown to any person except as ordered by the court. (6) Within thirty (30) days from receipt, all copies of the tape and any transcripts thereof shall be returned to the clerk of court for safekeeping unless the period is extended by the court on motion of a party. (7) This protective order shall remain in full force and effect until further order of the court. (c) Additional protective orders. — The court may, motu proprio or on motion of any party, the child, his parents, legal guardian, or the guardian ad litem, issue additional orders to protect the privacy of the child. (d) Publication of identity contemptuous. — Whoever publishes or causes to be published in any format the name,

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address, telephone number, school, or other identifying information of a child who is or is alleged to be a victim or accused of a crime or a witness thereof, or an immediate family of the child shall be liable to the contempt power of the court. (e) Physical safety of child; exclusion of evidence. — A child has a right at any court proceeding not to testify regarding personal identifying information, including his name, address, telephone number, school, and other information that could endanger his physical safety or his family. The court may, however, require the child to testify regarding personal identifying information in the interest of justice. (f) Destruction of videotapes and audiotapes. — Any videotape or audiotape of a child produced under the provisions of this Rule or otherwise made part of the court record shall be destroyed after five (5) years have elapsed from the date of entry of judgment. (g) Records of youthful offender. — Where a youthful offender has been charged before any city or provincial prosecutor or before any municipal judge and the charges have been ordered dropped, all the records of the case shall be considered as privileged and may not be disclosed directly or indirectly to anyone for any purpose whatsoever. Where a youthful offender has been charged and the court acquits him, or dismiss the case or commits him to an institution and subsequently releases him pursuant to Chapter 3 of P.D. No. 603, all the records of his case shall also be considered as privileged and may not be disclosed directly or indirectly to anyone except to determine if a defendant may have his sentence suspended under Article 192 of P.D. No. 603 or if he may be granted probation under the provisions of P.D. No. 968 or to enforce his civil liability, if said liability has been imposed in the criminal action. The youthful offender concerned shall not be held under any provision of law to be guilty of perjury or of concealment or misrepresentation by reason of his failure to acknowledge the case or recite any fact related thereto in response to any inquiry made to him for any purpose. "Records" within the meaning of the sub-section shall include those which may be in the files of the National Bureau of Investigation and with any police department or government

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agency which may have been involved in the case. (Art. 200, P.D. No. 603) SECTION 32. Applicability of Ordinary Rules. - The provisions of the Rules of Court on deposition, conditional examination of witnesses, and evidence shall be applied in a suppletory character. B. Rules on Electronic Evidence175

RULE 1 Coverage SECTION 1. Scope. — Unless otherwise provided herein, these Rules shall apply whenever an electronic document or electronic data message, as defined in Rule 2 hereof, is offered or used in evidence. SECTION 2. Cases covered. — These Rules shall apply to all civil actions and proceedings, as well as quasi-judicial and administrative cases. SECTION 3. Application of other rules on evidence. — In all matters not specifically covered by these Rules, the Rules of Court and pertinent provisions of statutes containing rules on evidence shall apply. RULE 2 Definition of Terms and Construction SECTION 1. Definition of Terms. — For purposes of these Rules, the following terms are defined, as follows: (a) "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. (b) "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. 175

A.M. No. 01-7-01-SC, effective August 1, 2001 as amended, effective October 14, 2002 F-58

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(c) "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. (d) "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. (e) "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. (f) "Digitally signed" refers to an electronic document or electronic data message bearing a digital signature verified by the public key listed in a certificate. (g) "Electronic data message" refers to information generated, sent, received or stored by electronic, optical or similar means. (h) "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".

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(i) "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. (j) "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. (k) "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. (l) "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. (m) "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. (n) "Private Key" refers to the key of a key pair used to create a digital signature. (o) "Public Key" refers to the key of a key pair used to verify a digital signature. The terms "electronic data message" and "electronic document," as defined under the Electronic Commerce Act of 2000, do not include a facsimile transmission. Accordingly, a facsimile transmission cannot be considered as electronic evidence. It is not the functional equivalent of an original under the Best Evidence Rule and is not admissible as electronic evidence.

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Since a facsimile transmission is not an "electronic data message" or an "electronic document," and cannot be considered as electronic evidence by the Court, with greater reason is a photocopy of such a fax transmission not electronic evidence.176 The rules use the word "information" to define an electronic document received, recorded, transmitted, stored, processed, retrieved or produced electronically. This would suggest that an electronic document is relevant only in terms of the information contained therein, similar to any other document which is presented in evidence as proof of its contents. However, what differentiates an electronic document from a paper-based document is the manner by which the information is processed; clearly, the information contained in an electronic document is received, recorded, transmitted, stored, processed, retrieved or produced electronically. A perusal of the information contained in the photocopies submitted by petitioner will reveal that not all of the contents therein, such as the signatures of the persons who purportedly signed the documents, may be recorded or produced electronically. By no stretch of the imagination can a person's signature affixed manually be considered as information electronically received, recorded, transmitted, stored, processed, retrieved or produced. Hence, the argument of petitioner that since these paper printouts were produced through an electronic process, then these photocopies are electronic documents as defined in the Rules on Electronic Evidence is obviously an erroneous, if not preposterous, interpretation of the law. Having thus declared that the offered photocopies are not tantamount to electronic documents, it is consequential that the same may not be considered as the functional equivalent of their original as decreed in the law.177 Short Messaging System or text messages are admissible in evidence under Section 1(k), Rule 1 of the Rules on Electronic Evidence.178 SECTION 2. Construction. — These Rules shall be liberally construed to assist the parties in obtaining a just, expeditious, and inexpensive determination of cases.

176

MCC Industrial Sales Corp. v. Ssangyong, G.R. No. 170633, October 17, 2007, 536 SCRA 408, 455; See also Garvida v. Sales, G.R. No. 124893, April 18, 1997, 271 SCRA 767, 779 . 177 National Power Corporation v. Codilla, Jr., G.R. No. 170491, April 3, 2007, 520 SCRA 412, 423. 178 Nuez v. Cruz-Apao, A.M. No. CA-05-18-P, April 12, 2005, 455 SCRA 288; 299, cited in Vidallon-Magtolis v. Salud, A.M. No. CA-05-20-P, September 9, 2005, 469 SCRA 439, 461462. F-61

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The interpretation of these Rules shall also take into consideration the international origin of Republic Act No. 8792, otherwise known as the Electronic Commerce Act.

RULE 3 Electronic Documents SECTION 1. Electronic Documents as functional equivalent of paper-based 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 as defined in these Rules. SECTION 2. Admissibility. — 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 these Rules. SECTION 3. Privileged communication. — The confidential character of a privileged communication is not lost solely on the ground that it is in the form of an electronic document.

RULE 4 Best Evidence Rule SECTION 1. Original of an Electronic Document. — An electronic document shall be regarded as the equivalent of an original document under the Best Evidence Rule if it is a printout or output readable by sight or other means, shown to reflect the data accurately. SECTION 2. Copies as equivalent of the originals. — 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. Notwithstanding the foregoing, copies or duplicates shall not be admissible to the same extent as the original if:

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(a) a genuine question is raised as to the authenticity of the original; or (c) in the circumstances it would be unjust or inequitable to admit the copy in lieu of the original.

RULE 5 Authentication of Electronic Documents SECTION 1. Burden of proving authenticity. — The person seeking to introduce an electronic document in any legal proceeding has the burden of proving its authenticity in the manner provided in this Rule. SECTION 2. Manner of authentication. — Before any private electronic document offered as authentic is received in evidence, its authenticity must be proved by any of the following means: (a) by evidence that it had been digitally signed by the person purported to have signed the same; (b) 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 (c) by other evidence showing its integrity and reliability to the satisfaction of the Judge. SECTION 3. Proof of electronically notarized document. — 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. RULE 6 Electronic Signatures SECTION 1. Electronic signature. — 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.

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SECTION 2. Authentication of electronic signatures. — An electronic signature may be authenticated in any of the following manner: (a) By evidence that a method or process was utilized to establish a digital signature and verify the same; (b) By any other means provided by law; or (c) By any other means satisfactory to the judge as establishing the genuineness of the electronic signature. SECTION 3. Disputable presumptions relating to electronic signatures. — Upon the authentication of an electronic signature, it shall be presumed that: (a) The electronic signature is that of the person to whom it correlates; (b) 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 (c) The methods or processes utilized to affix or verify the electronic signature operated without error or fault. SECTION 4. Disputable presumptions relating to digital signatures. — Upon the authentication of a digital signature, it shall be presumed, in addition to those mentioned in the immediately preceding section, that: (a) The information contained in a certificate is correct; (b) The digital signature was created during the operational period of a certificate; (c) No cause exists to render a certificate invalid or revocable; (d) The message associated with a digital signature has not been altered from the time it was signed, and, (e) A certificate had been issued by the certification authority indicated therein.

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RULE 7 Evidentiary Weight of Electronic Documents SECTION 1. Factors for assessing evidentiary weight. — In assessing the evidentiary weight of an electronic document, the following factors may be considered: (a) 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; (b) The reliability of the manner in which its originator was identified; (c) 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; (d) The familiarity of the witness or the person who made the entry with the communication and information system; (e) 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 (f) Other factors which the court may consider as affecting the accuracy or integrity of the electronic document or electronic data message. A computer print out must be authenticated or its due execution be duly established to deserve evidentiary weight.179 SECTION 2. Integrity of an information and communication system. — In any dispute involving the integrity of the information and communication system in which an electronic

179

Aznar v. Citibank, N.A. (Philippines), G.R. No. 164273, March 28, 2007, 519 SCRA 287, 308. F-65

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document or electronic data message is recorded or stored, the court may consider, among others, the following factors: (a) Whether the information and communication system or other similar device was operated in a manner that did not affect the integrity of the electronic document, and there are no other reasonable grounds to doubt the integrity of the information and communication system; (b) Whether the electronic document was recorded or stored by a party to the proceedings with interest adverse to that of the party using it; or (c) Whether the electronic document was recorded or stored in the usual and ordinary course of business by a person who is not a party to the proceedings and who did not act under the control of the party using it.

RULE 8 Business Records as Exception to the Hearsay Rule SECTION 1. Inapplicability of 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 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 on hearsay evidence. SECTION 2. Overcoming the presumption. — The presumption provided for in Section 1 of this Rule may be overcome by evidence of the untrustworthiness of the source of information or the method or circumstances of the preparation, transmission or storage thereof. RULE 9 Method of Proof SECTION 1. Affidavit evidence. — All matters relating to the admissibility and evidentiary weight of an electronic document may be established by an affidavit stating facts of direct

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personal knowledge of the affiant or based on authentic records. The affidavit must affirmatively show the competence of the affiant to testify on the matters contained therein. SECTION 2. Cross-examination of deponent. — The affiant shall be made to affirm the contents of the affidavit in open court and may be cross-examined as a matter of right by the adverse party. RULE 10 Examination of Witnesses SECTION 1. Electronic testimony. — After summarily hearing the parties pursuant to Rule 9 of these Rules, the court may authorize the presentation of testimonial evidence by electronic means. Before so authorizing, the court shall determine the necessity for such presentation and prescribe terms and conditions as may be necessary under the circumstances, including the protection of the rights of the parties and witnesses concerned. SECTION 2. Transcript of electronic testimony. — When examination of a witness is done electronically, the entire proceedings, including the questions and answers, shall be transcribed by a stenographer, stenotypist or other recorder authorized for the purpose, who shall certify as correct the transcript done by him. The transcript should reflect the fact that the proceedings, either in whole or in part, had been electronically recorded. SECTION 3. Storage of electronic evidence. — The electronic evidence and recording thereof as well as the stenographic notes shall form part of the record of the case. Such transcript and recording shall be deemed prima facie evidence of such proceedings.

RULE 11 Audio, Photographic, Video, and Ephemeral Evidence SECTION 1. Audio, video and similar evidence. — Audio, photographic and video evidence of events, acts or transactions shall be admissible provided it shall be shown, presented or displayed to the court and shall be identified, explained or authenticated by the person who made the

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recording or by some other person competent to testify on the accuracy thereof. SECTION 2. Ephemeral electronic communications. — Ephemeral electronic communications shall be proven by the testimony of a person who was a party to the same or has personal knowledge thereof. In the absence or unavailability of such witnesses, other competent evidence may be admitted. A recording of the telephone conversation or ephemeral electronic communication shall be covered by the immediately preceding section. If the foregoing communications are recorded or embodied in an electronic document, then the provisions of Rule 5 shall apply.

RULE 12 Effectivity SECTION 1. Applicability to pending cases. — These Rules shall apply to cases pending after their effectivity. SECTION 2. Effectivity. — These Rules shall take effect on the first day of August, 2001 following their publication before the 20th of July, 2001 in two newspapers of general circulation in the Philippines. C. The Electronic Commerce Act, Rep. Act No. 8792180 1. Implementing Rules and Regulations of the “Electronic Commerce Act” 2. Implementing Rules and Regulations on Electronic Signatures 3. Joint DTI-DOST Department Administrative Order No. 02 Providing Implementing Rules and Regulations of Electronic Authentication and Electronic Signatures

180

SECTION 42. Effectivity. — This Act shall take effect immediately after its publication in the Official Gazette or in at least two (2) newspapers of general circulation. Approved: June 14, 2000; Published in Malaya and Philippine Post on June 19, 2000. Published in the Official Gazette, Vol. 96 No. 48, page 7675 on November 27, 2000. F-68

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The full text of the foregoing law, together with its implementing rules and regulations and Administrative Order No. 2, are all appended to this work and in the CD version of the bench book. D. Rule on DNA Evidence

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SECTION 1. Scope. — This Rule shall apply whenever DNA evidence, as defined in Section 3 hereof, is offered, used, or proposed to be offered or used as evidence in all criminal and civil actions as well as special proceedings. As gatekeepers of evidence and, more importantly, as fact-finders and initial decision-makers in the Philippine legal system, trial judges are tasked with ascertaining the admissibility of expert evidence, including testimony on DNA test results and, thereafter, assessing their credibility. In performing these tasks, trial judges should not only be aware of the underlying technology of DNA evidence and its real significance but, more importantly, should be given prescribed parameters on the requisite elements for reliability and validity (i.e., the proper procedures, protocols, necessary laboratory reports, etc.), the possible sources of error, the available objections to the admission of DNA test results as evidence, as well as the probative value of DNA evidence.182 We have now the facility and expertise in using DNA test for identification and parentage testing. The University of the Philippines Natural Science Research Institute (UP-NSRI) DNA Analysis Laboratory has now the capability to conduct DNA typing using short tandem repeat (STR) analysis. The analysis is based on the fact that the DNA of a child/person has two (2) copies, one copy from the mother and the other from the father. The DNA from the mother, the alleged father, and child are analyzed to establish parentage.183 A person may be compelled to submit to fingerprinting, photographing, paraffin, blood and DNA, as there is no testimonial compulsion involved.184 In case proof of filiation or paternity would be unlikely to satisfactorily establish or would be difficult to obtain, DNA testing, which examines genetic codes obtained from body cells of the illegitimate child

181

A.M. NO. 06-11-5-SC, effective October 15, 2007. The Court Systems Journal, Vol. 12, No. 3, September 2007, p. 74. 183 Tijing, et al v. CA, et al., G.R. No. 125901, March 8, 2001, 354 SCRA 17, 26. 184 People v. Yatar, G.R. No. 150224, May 19, 2004, 428 SCRA 504, 518. 182

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and any physical residue of the long dead parent, could be resorted to. A positive match would clear up filiation or paternity.185 DNA print or identification technology has been advanced as a uniquely effective means to link a suspect to a crime, or to exonerate a wrongly accused suspect, where biological evidence has been left. For purposes of criminal investigation, DNA identification is a fertile source of both inculpatory and exculpatory evidence. It can assist immensely in effecting a more accurate account of the crime committed, efficiently facilitating the conviction of the guilty, securing the acquittal of the innocent, and ensuring the proper administration of justice in every case.186

SECTION 2. Application of Other Rules on Evidence. — In all matters not specifically covered by this Rule, the Rules of Court and other pertinent provisions of law on evidence shall apply. SECTION 3. Definition of Terms. — For purposes of this Rule, the following terms shall be defined as follows: (a) "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; (b) "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; (c) "DNA evidence" constitutes the totality of the DNA profiles, results and other genetic information directly generated from DNA testing of biological samples; (d) "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; (e) "DNA testing" means verified and credible scientific methods which include the extraction of DNA from biological samples, the generation of DNA profiles and the 185

Tecson, et al., v. COMELEC, et al., G.R. No. 161434, March 3, 2004, 424 SCRA 277, 345. People v. Yatar, supra note 184 at 514 reiterated in People v. Umanito, G.R. No. 172607, October 26, 2007, 537 SCRA 553, 560. 186

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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); and (f) "Probability of Parentage" means the numerical estimate for the likelihood of parentage of a putative parent compared with the probability of a random match of two unrelated individuals in a given population. DNA is an organic substance found in a person’s cells which contains his or her genetic code. Except for identical twins, each person’s DNA profile is distinct and unique.187 DNA is a molecule that encodes the genetic information in all living organisms. A person's DNA is the same in each cell and it does not change throughout a person's lifetime; the DNA in a person's blood is the same as the 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. DNA evidence collected from a crime scene can link a suspect to a crime or eliminate one from suspicion in the same principle as fingerprints are used. Incidents involving sexual assault would leave biological evidence such as hair, skin tissue, semen, blood, or saliva which can be left on the victim's body or at the crime scene. Hair and fiber from clothing, carpets, bedding, or furniture could also be transferred to the victim's body during the assault. Forensic DNA evidence is helpful in proving that there was physical contact between an assailant and a victim. If properly collected from the victim, crime scene or assailant, DNA can be compared with known samples to place the suspect at the scene of the crime.188 SECTION 4. Application for DNA Testing Order. — The appropriate court may, at any time, either motu proprio or on application of any person who has a legal interest in the matter in litigation, order a DNA testing. Such order shall issue after due hearing and notice to the parties upon a showing of the following: (a) A biological sample exists that is relevant to the case; 187 188

People v. Vallejo, G.R. No. 144656, May 9, 2002, 382 SCRA 192, 208. People v. Yatar, supra note 184 at 514-515 F-71

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(b) 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; (c) The DNA testing uses a scientifically valid technique; (d) The DNA testing has the scientific potential to produce new information that is relevant to the proper resolution of the case; and (e) The existence of other factors, if any, which the court may consider as potentially affecting the accuracy or 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. When a crime is committed, material is collected from the scene of the crime or from the victim's body for the suspect's DNA. This is the evidence sample. The evidence sample is then matched with the reference sample taken from the suspect and the victim. The purpose of DNA testing is to ascertain whether an association exists between the evidence sample and the reference sample. The samples collected are subjected to various chemical processes to establish their profile. The test may yield three possible results: 1) The samples are different and, therefore, must have originated from different sources (exclusion). This conclusion is absolute and requires no further analysis or discussion; 2) It is not possible to be sure, based on the results of the test, whether the samples have similar DNA types (inconclusive). This might occur for a variety of reasons, including degradation, contamination, or failure of some aspect of the protocol. Various parts of the analysis might then be repeated with the same or a different sample, to obtain a more conclusive result; or 3) The samples are similar, and could have originated from the same source (inclusion). In such a case, the samples are found to be similar, the analyst proceeds to determine the statistical significance of the similarity.189 189

People v. Vallejo, supra note 187 at 208-209. F-72

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In Gan v. Pondevida,190 the Supreme Court affirmed the Court of Appeals denial of petitioner’s Motion to Direct Parties to Submit to DNA Testing since he had been long declared in default, precluding him to present evidence on appeal. The Supreme Court affirmed the order of the Court of Appeals remanding the case to the trial court for DNA testing even if one of the parties had died during appeal, citing Section 4 of this Rule. The Supreme Court held that the death of the petitioner does not ipso facto negate the application of DNA testing for as long as there exists appropriate biological samples of his DNA.191 SECTION 5. DNA Testing Order. — If the court finds that the requirements in Section 4 hereof have been complied with, the court shall — (a) Order, where appropriate, that biological samples be taken from any person or crime scene evidence; (b) Impose reasonable conditions on DNA testing designed to protect the integrity of the biological sample, the testing process and the reliability of the test results, including the condition that the DNA test results shall be simultaneously disclosed to parties involved in the case; and (c) If the biological sample taken is of such an amount that prevents the conduct of confirmatory testing by the other or the adverse party and where additional biological samples of the same kind can no longer be obtained, issue an order requiring all parties to the case or proceedings to witness the DNA testing to be conducted. An order granting the DNA testing shall be immediately executory and shall not be appealable. Any petition for certiorari initiated therefrom shall not, in any way, stay the implementation thereof, unless a higher court issues an injunctive order. The grant of a DNA testing application shall not be construed as an automatic admission into evidence of any component of the DNA evidence that may be obtained as a result thereof. SECTION 6. Post-conviction DNA Testing. — Post-conviction DNA testing may be available, without need of prior court order, to the prosecution or any person convicted by final and executory judgment provided that (a) a biological sample exists, (b) such 190 191

Gan v. Pondevida, G.R. No. 145527, May 28, 2002, 382 SCRA 357, 361, 363. Estate of Rogelio Ong v. Diaz, G.R. No. 171713, December 17, 2007, 540 SCRA 480, 497. F-73

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sample is relevant to the case, and (c) the testing would probably result in the reversal or modification of the judgment of conviction. SECTION 7. Assessment of Probative Value of DNA Evidence. — In assessing the probative value of the DNA evidence presented, the court shall consider the following: (a) The chain of custody, including how the biological samples were collected, how they were handled, and the possibility of contamination of the samples; (b) The DNA testing methodology, including the procedure followed in analyzing the samples, the advantages and disadvantages of the procedure, and compliance with the scientifically valid standards in conducting the tests; (c) The forensic DNA laboratory, including accreditation by any reputable standards-setting institution and the qualification of the analyst who conducted the tests. If the laboratory is not accredited, the relevant experience of the laboratory in forensic casework and credibility shall be properly established; and (d) The reliability of the testing result, as hereinafter provided. The provisions of the Rules of Court concerning the appreciation of evidence shall apply suppletorily. The Vallejo standards, according to the Supreme Court, is that in assessing the probative value of DNA evidence, courts should consider, among others things, the following data: how the samples were collected, how they were handled, the possibility of contamination of the samples, the procedure followed in analyzing the samples, whether the proper standards and procedures were followed in conducting the tests, and the qualification of the analyst who conducted the tests.192 The science of DNA typing involves the admissibility, relevance and reliability of the evidence obtained under the Rules. DNA profiling requires a factual determination of the probative weight of the evidence presented.193 The issue of “DNA tests” as a more accurate and authoritative means of identification, than eyewitness identification, need not be 192 193

People v. Vallejo, supra note 187 at 209; See also Herrera v. Alba, supra at 212. People v. Yatar, supra note 184 at 519. F-74

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belabored. The accused were all properly and duly identified by the prosecution’s principal witness.194 SECTION 8. Reliability of DNA Testing Methodology. — In evaluating whether the DNA testing methodology is reliable, the court shall consider the following: (a) The falsifiability of the principles or methods used, that is, whether the theory or technique can be and has been tested; (b) The subjection to peer review and publication of the principles or methods; (c) The general acceptance of the principles or methods by the relevant scientific community; (d) The existence and maintenance of standards and controls to ensure the correctness of data generated; (e) The existence of an appropriate reference population database; and (f) 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. SECTION 9. Evaluation of DNA Testing Results. — In evaluating the results of DNA testing, the court shall consider the following: (a) The evaluation of the weight of matching DNA evidence or the relevance of mismatching DNA evidence; (b) The results of the DNA testing in the light of the totality of the other evidence presented in the case; and that (c) 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.

194

Andal, et al. v. People, G.R. Nos. 138268-69, May 26, 1999, 307 SCRA 650, 654. F-75

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In this age of genetic profiling and deoxyribonucleic acid (DNA) analysis, the extremely subjective test of physical resemblance or similarity of features will not suffice as evidence to prove paternity and filiation before the courts of law.195 In [a] paternity test, the forensic scientist looks at a number of these variable regions in an individual to produce a DNA profile. Comparing next the DNA profiles of the mother and child, it is possible to determine which half of the child's DNA was inherited from the mother. The other half must have been inherited from the biological father. The alleged father's profile is then examined to ascertain whether he has the DNA types in his profile, which match the paternal types in the child. If the man's DNA types do not match that of the child, the man is excluded as the father. If the DNA types match, then he is not excluded as the father. It is not enough to state that the child's DNA profile matches that of the putative father. A complete match between the DNA profile of the child and the DNA profile of the putative father does not necessarily establish paternity. For this reason, following the highest standard adopted in an American jurisdiction, trial courts should require at least 99.9% as a minimum value of the Probability of Paternity ("W") prior to a paternity inclusion. W is a numerical estimate for the likelihood of paternity of a putative father compared to the probability of a random match of two unrelated individuals. An appropriate reference population database, such as the Philippine population database, is required to compute for W. Due to the probabilistic nature of paternity inclusions, W will never equal to 100%. However, the accuracy of W estimates is higher when the putative father, mother and child are subjected to DNA analysis compared to those conducted between the putative father and child alone. DNA analysis that excludes the putative father from paternity should be conclusive proof of non-paternity. If the value of W is less than 99.9%, the results of the DNA analysis should be considered as corroborative evidence. If the value of W is 99.9% or higher, then there is refutable presumption of paternity. This refutable presumption of paternity should be subjected to the Vallejo standards.196 Obtaining DNA samples from an accused in a criminal case or from the respondent in a paternity case, will not violate the right against selfincrimination. This privilege applies only to evidence that is “communicative” in essence taken under duress.197

195

Cabatania v. Court of Appeals, et al., G.R. No. 124814, October 21, 2004, 441 SCRA 96, 105. 196 Herrera v. Alba, G.R. No. 148220, June 15, 2005, 460 SCRA 197, 209-211. 197 Herrera v. Alba, supra at 219. F-76

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SECTION 10. Post-conviction DNA Testing. Remedy if the Results Are Favorable to the Convict. — The convict or the prosecution may file a petition for a writ of habeas corpus in the court of origin if the results of the post-conviction DNA testing are favorable to the convict. In case the court, after due hearing, finds the petition to be meritorious, it shall reverse or modify the judgment of conviction and order the release of the convict, unless continued detention is justified for a lawful cause. A similar petition may be filed either in the Court of Appeals or the Supreme Court, or with any member of said courts, which may conduct a hearing thereon or remand the petition to the court of origin and issue the appropriate orders. A new trial on the ground of post-conviction DNA testing is different from a new trial under Rule 121, which is available only before final judgment. Unlike a new trial under Rule 121, a new trial for postconviction DNA testing does not vacate the judgment of conviction, which stands until recalled by the court as a result of the new trial. A new trial after final conviction may be ordered only on the sole ground that DNA testing will establish that the convicted felon could not have committed the crime. Moreover, DNA testing must not have been available or possible during the original trial. However, such a remedy is sui generis to give the convicted felon a chance to adduce DNA evidence until Rule 121 of the Revised Rules of Criminal Procedure is revised anew.198 SECTION 11. Confidentiality. — 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, under such terms and conditions as may be set forth by the court: (a) Person from whom the sample was taken; (b) Lawyers representing parties in the case or action where the DNA evidence is offered and presented or sought to be offered and presented; (c) Lawyers of private complainants in a criminal action; (d) Duly authorized law enforcement agencies; and 198

In Re: The Writ of Habeas Corpus for Reynaldo de Villa, G.R. No. 158802, November 17, 2004, 442 SCRA 706, 734. F-77

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(e) 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. Where the person from whom the biological sample was taken files a written verified request to the court that allowed the DNA testing for the disclosure of the DNA profile of the person and all results or other information obtained from the DNA testing, the same may be disclosed to the persons named in the written verified request. SECTION 12. 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: (a) In criminal cases: i. for not less than the period of time that any person is under trial for an offense; or, ii in case the accused is serving sentence, until such time as the accused has served his sentence; and (b) 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: (a) A court order to that effect has been secured; or (b) The person from whom the DNA sample was obtained has consented in writing to the disposal of the DNA evidence.

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SECTION 13. Applicability to Pending Cases. — Except as provided in Sections 6 and 10 hereof, this Rule shall apply to cases pending at the time of its effectivity. SECTION 14. Effectivity. — This Rule shall take effect on October 15, 2007, following publication in a newspaper of general circulation.

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