Evidence Ateneo Law Reviewer

ATENEO CENTRAL BAR OPERATIONS 2007 Remedial Law SUMMER REVIEWER governing law on that particular proceeding specifically adopts the rules of evidence in the Rules of Court.

EVIDENCE RULE 128 GENERAL PROVISIONS

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Section 1. Evidence defined Section 2. Scope PROOF - the result or effect of evidence. When the requisite quantum of evidence of a particular fact has been duly admitted and given weight, the result is called the proof of such fact. FACTUM PROBANDUM - the ultimate fact or the fact sought to be established. - Refers to proposition FACTUM PROBANS - is the evidentiary fact or the fact by which the factum probandum is to be established. - Materials which establish the proposition. 

The law of evidence is fundamentally a procedural law.

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In criminal cases, if the alteration of these rules may validly be made applicable to cases pending at the time of such change, as the parties to an action have no vested right in the rules of evidence.

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In criminal cases, if the alteration of these rules of evidence would, for instance, permit the reception of a lesser quantum of evidence than what the law required at the time of the commission of the offense in order to convict, then the retroactive application of such amendatory law would be unconstitutional for being ex post facto. 

The rules of evidence are specifically applicable only in judicial proceedings.

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In quasi-judicial proceedings, the rules of evidence shall apply by analogy, or in a suppletory character and whenever practicable and convenient except where the

In cases before the Court of Agrarian Relations, the Rules of Court were not applicable even in a suppletory character, except in criminal and expropriation cases, which procedure has been superseded by the provisions of RA 6657.

CLASSIFICATION OF EVIDENCE ACCORDING TO FORM

1. OBJECTIVE OR REAL EVIDENCE – directly addressed to the senses of the court and consist of tangible things exhibited or demonstrated in open court, in an ocular inspection, or at place designated by the court for its view or observation of an exhibition, experiment or demonstration. This is referred to as autoptic preference.

2. DOCUMENTARY EVIDENCE – evidence supplied by written instruments or derived from conventional symbols, such as letters, by which ideas are represented on material substances

3. TESTIMONIAL EVIDENCE – is that which is submitted to the court through the testimony or deposition of a witness. RELEVANT, EVIDENCE

MATERIAL

AND

COMPETENT

RELEVANT EVIDENCE – evidence having any value in reason as tending to prove any matter provable in an action. The test is the logical relation of the evidentiary fact to the fact in issue, whether the former tends to establish the probability or improbability of the latter.

Remedial Law Summer Reviewer ATENEO CENTRAL BAR OPERATIONS 2007 MATERIAL EVIDENCE – evidence directed to prove a fact in issue as determined by the rules of substantive law and pleadings. The test is whether the fact it intends to prove is an issue or not. AS to whether a fact is in issue or not is in turn determined by the substantive law, the pleadings, the pre-trial order and by the admissions or confessions on file. Consequently, evidence may be relevant but may be immaterial in the case. COMPETENT EVIDENCE– one that is not excluded by this Rules, a stature or the Constitution.

DIRECT AND CIRCUMSTANTIAL EVIDENCE DIRECT EVIDENCE – that which proves the fact in dispute without the aid of any inference or presumption CIRCUMSTANTIAL EVIDENCE - is the proof of a fact or facts from which taken either singly or collectively, the existence or a particular fact in dispute may be inferred as a necessary or probable consequence. CUMULATIVE AND CORROBORATIVE EVIDENCE CUMULATIVE EVIDENCE – evidence of the same kind and to the same state of facts. CORROBORATIVE EVIDENCE – is additional evidence of a difference character to the same point. PRIMA FACIE AND CONCLUSIVE EVIDENCE PRIMA FACIE EVIDENCE – that which is standing alone, unexplained or uncontradicted, is sufficient to maintain the proposition affirmed. CONCLUSVE EVIDENCE – the class of evidence which the law does not allow to be contradicted. PRIMARY AND SECONDARY EVIDENCE PRIMARY EVIDENCE – that which the law regards as affording the greatest certainty of the fact in question. Also referred to as the best evidence. SECONDARY EVIDENCE – that which is inferior to the primary evidence and is permitted by law only when the best evidence is not available. Known as the substitutionary evidence. POSITIVE AND NEGATIVE EVIDENCE

POSITIVE EVIDENCE – when the witness affirms that a fact did or did not occur. Entitled to a greater weight since the witness represents of his personal knowledge the presence or absence of a fact. NEGATIVE EVIDENCE - when the witness did not see or know of the occurrence of a fact. There is a total disclaimer of persona knowledge, hence without any representation or disavowal that the fact in question could or could not have existed or happened. It is admissible only if it tends to contradict positive evidence of the other side or would tend to exclude the existence of fact sworn to by the other side. What do the rules of evidence determine? All rights and liabilities are dependent upon and arise out of facts. Every judicial proceeding whatever has for its purpose the ascertaining of some right or liability. If the proceeding is Criminal, the object is to ascertain the liability to punishment of the person accused. If the proceeding is Civil, the object is to ascertain some right of property or status, or the right of one party and the liability of other to some form of relief. Two branches of the law of procedure: 1. The law of the pleadings which determines the questions in a dispute between the parties 2. The law of evidence, which determines how the party can convince the court of the existence of facts which according to the provisions of substantive law, would establish the existence of the right or liability which they allege to exist. Why should the rule of evidence be uniform? 1. the relation between the evidentiary fact and a particular proposition is always the same, without regard to the kind of litigation in which that proposition becomes material to be proved. 2. if the rules of evidence prescribe the best course to arrive at the truth, that must be and are the same in all civilized countries. Differences in the Rules of Evidence in Criminal and Civil Cases Civil Criminal Parties attend by The accused attends accord by compulsion There is no Presumption of presumption as to innocence attends the either party accused throughout the trial until the same has been overcome by Page 2 of 53

Remedial Law Summer Reviewer ATENEO CENTRAL BAR OPERATIONS 2007 An offer to compromise does not, as a general rule, amount to an admission of liability Must prove by preponderance of evidence: Reason is that there is no presumption and due to the fact that the proof will only result in a judgment of pecuniary damages or establish CIVIL RIGHT. 

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prima facie evidence of his guilt It is an implied admission of guilt.

Section. 3 Admissibility of evidence. Guilt beyond reasonable doubetween

Any evidence inadmissible according to the laws in force at the time the action accrued, but admissible according to the laws in force at the time of the trial, is receivable. There is no vested right of property in rules of evidence. Reason: The rules of evidence are merely methods for ascertaining facts. It must be supposed that change of law merely makes it more likely that the fact will be truly ascertained, either by admitting evidence whose former suppression or by suppressing evidence helped to conceal the truth.

 There are rules of evidence established merely for the protection of the parties. If according to the well-established doctrine, the parties may waive such rules during the trial of a case, there is no reason why they cannot make the waiver in a contract. However, if the rule of evidence waived by the parties has been established by law on grounds of public policy, the waiver is void. 

competent; on the other hand, their admission, if they turn out later to be irrelevant or incompetent, can easily be remedied by completely discarding them or ignoring them.

Trial courts are enjoined to observe the strict enforcement of the rules of evidence which crystallized through constant use and practice and are very useful and effective aids in the search for truth and for the effective administration of justice. But in connection with evidence which may appear to be of doubtful relevancy or incompetence or admissibility, it is safest policy to be liberal, not rejecting them on doubtful or technical grounds, but admitting them unless plainly irrelevant, immaterial or incompetent, for the reason that their rejection places them beyond the consideration of the court, if they are thereafter found relevant or

Section. 4 Relevancy; collateral matters. 2 AXIOMS OF ADMISSIBILITY: 1. None but facts having rational probative value are admissible 2. all facts having rational probative value are admissible unless some specific rule forbids their admission. The Admissibility of Evidence is Determined at the Time it is Offered to the Court When offered When may be objected When the Be made same is either at the presented for the time it is its view or presented in evaluation, as an ocular Object in ocular inspection or evidence inspection or demonstration demonstration s or when it is s, or when the formally party rest his offered case and the real evidence consists of objects exhibited in court. By calling of As to the the witness to qualification of the stand the witness – should be made at the time he is called to the stand. If otherwise qualified Testimonial objection evidence should be raised when the objectionable question is asked or after the answer is given if the objectionable Page 3 of 53

Remedial Law Summer Reviewer ATENEO CENTRAL BAR OPERATIONS 2007

Documentary

evidence

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by similar incompetent evidence.

features became apparent by reason of such answer. At the time it is formally offered.

Formally offered by the proponent immediately before he rests his case.

b. English rule – if a party has presented inadmissible evidence, the adverse party may resort to similar inadmissible evidence

c. Massachusetts rule – the adverse

Every objection to the admissibility of evidence shall be made at the time such evidence is offered, or as soon thereafter as the objection to its admissibility shall have become apparent, otherwise the objection shall be considered waived.

CERTAIN DOCTRINES ADMISSIBILITY:

OR

RULES

OF

1. Conditional admissibility Where the evidence at the time of its offer appears to be immaterial or irrelevant unless it is connected with the other facts to be subsequently proved, such evidence may be received ob condition that the other facts will be proved thereafter, otherwise the evidence given will be stricken out. This is subject to the qualification that there should be no bad faith on the part of the proponent. 2. Multiple admissibility Where the evidence is relevant and competent for two or more purposes, such evidence should be admitted for any or all the purposes for which it is offered provided it satisfies all the requirements of law for its admissibility therefore. 3. Curative admissibility This treats upon the right of the party to introduce incompetent evidence in his behalf where the court has admitted the same kind of evidence adduced by the adverse party.

Three theories on curative admissibility:

a. American rule – the admission of such incompetent evidence, without objection by the opponent does not justify such opponent in rebutting it

party may be permitted to introduce similar incompetent evidence in order to avoid a plain and unfair prejudice caused by the admission of the other party’s evidence. What should determine the application of the rule of curative admissibility: 1) whether the incompetent evidence was seasonably objected to 2) whether, regardless of the objection, the admission of such evidence shall cause a plain and unfair prejudice to the party against whom it is admitted. 

The evidence which was illegally obtained is inadmissible on a timely motion or action to suppress.

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The rules prohibit the admission of irrelevant collateral facts only.

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Circumstantial evidence is legal evidence and if sufficient, can sustain a judgment. Circumstantial evidence is evidence of relevant collateral facts.

ISSUE – is the point or points in question, at the conclusion of the pleadings which one side affirms, and the other side denies. FACT – thing done or existing. FACTS IN ISSUE - are those facts which the plaintiff must prove in order to establish his claim and those facts which the defendant must prove in order to establish a defense set up by him, but only when the fact alleged by the one party is not admitted by the other party.. FACTS RELEVANT TO THE ISSUE - are those facts which render the probable existence or non-existence of a fact in issue, or some other relevant fact. The effect of the pleadings is that they help in determining whether the evidence offered is relevant to the case, for it is a familiar proposition that the Page 4 of 53

Remedial Law Summer Reviewer ATENEO CENTRAL BAR OPERATIONS 2007 evidence must be confined to the facts put in issue by the pleadings. RULE 129 WHAT NEED NOT BE PROVED Section 1.

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Section 2. Judicial Notice, when discretionary . 

The mere personal knowledge of the judge is not the judicial knowledge of the court; Judicial cognizance is taken only of those matters which are commonly known.

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It is not essential that matters of judicial cognizance be actually known to the judge if the subject is proper for judicial knowledge, the judge may at his discretion, inform himself in any way which may seem best to him, and act accordingly.

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The doctrine of judicial notice rests on the wisdom and discretion of the courts. The power to take judicial notice is to be exercised by courts with caution; care must be taken that the requisite notoriety exists; and every reasonable doubt upon the subject should be promptly resolved in the negative.

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Foreign laws may not be taken judicial notice of and have to be proved like any other fact EXCEPT where said laws are within the actual knowledge of the court such as when they are well and generally known or they have been actually ruled upon in other cases before it and none of the parties claim otherwise.

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To prove a written foreign law, the requirements must be complied with, that is, by an official publication or by a duly attested and authenticated copy thereof.

Judicial Notice, when mandatory

JUDICIAL NOTICE – no more than that the court will bring to its aid and consider, without proof of the facts, its knowledge of those matters of public concern which are known by all well-informed persons. – cognizance of certain facts which judges may take and act on without proof because they are already known to them 

The object of judicial notice is to save time, labor and expense in securing and introducing evidence on matters which are not ordinarily capable of dispute and not actually bona fide disputed, and the tenor of which can safely be assumed form the tribunal’s general knowledge or from slight search on its part.

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Judicial notice is based on convenience and expediency.

Two kinds of judicial notice : 1) mandatory 2) discretionary 

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The direct effect of judicial notice upon the burden of proving a fact is to relieve the parties from the necessity of introducing evidence to prove the fact noticed. It makes evidence unnecessary. The stipulation and admission of the parties or counsel cannot prevail over the operation of the doctrine of judicial notice, and such stipulation and admissions are all subject to the operation of the doctrine. Municipal trial courts are required to take judicial notice of the ordinances of the municipality or city wherein they sit.

In the RTC, they must take such judicial notice only 1. when required to do so by statute and 2. in a case on appeal before them and wherein the inferior court took judicial notice of an ordinance involved in said case. 

Courts are required to take judicial notice of the decisions of the appellate courts but not of the decisions of coordinate trial courts

DOCTRINE OF PROCESSUAL PRESUMPTION – absent any of the evidence or admission, the foreign law is presumed to be the same as that in the Philippines. Section 3. necessary 

Judicial

notice,

when

hearing

The purpose of the hearing is not for the presentation of evidence but to afford the parties reasonable opportunity to present information relevant to the proprietary of taking such judicial notice or to the tenor of the matter to be noticed.

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Remedial Law Summer Reviewer ATENEO CENTRAL BAR OPERATIONS 2007 What stage may the court take judicial notice of a fact? 1. During trial 2. after trial and before judgment 3. appeal

the courts unless contrary to public policy or good morals. However, the binding effect of the facts applies only to the parties in agreement. 

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A DISTINCTION is made between judicial notice taken during trial and that taken after trial but before judgment or on appeal.

During the trial: the Court may announce its intention to take judicial notice of any matter and may hear the parties thereon. After trial but before judgment or on appeal: the Court may take judicial notice of any matter and allow the parties to be heard thereon if such matter is decisive of a material issue in the case

Pleadings superseded or amended disappear from the record of judicial admissions, and in order that any statements contained therein may be considered as an extrajudicial admission, it should be offered formally in evidence. RULE 130 RULES ON ADMISSIBILITY

Section 1.

Object as evidence

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Where an object is relevant to a fact in issue, the court may acquire knowledge thereof by actually viewing the object, in which case such object becomes object evidence or by receiving testimonial evidence thereon.

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The fact that an ocular inspection has been held does not preclude a party from introducing other evidence on the same issue.

out of court, or in a judicial proceeding other than the one under consideration

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Whether an ocular inspection is to be made or not lies in the discretion of the trial court.

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Extrajudicial admissions or other admissions are, as a rule and where elements of estoppel are not present, disputable.

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An ocular inspection conducted by a judge without notice to or presence of the parties is invalid as an ocular inspection is a part of the trial.

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A judicial admission may be oral as a verbal waiver of proof made in open court, a withdrawal of a contention or a disclosure made before the court, or an admission made by a witness in the course of his testimony or deposition, or may be in writing as in pleading, bill of particulars, stipulation of facts, request for admission, or a judicial admission contained in an affidavit used in the case.

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The judge may consult works on collateral science, or arts, touching the topic on trial.

Section 4. Judicial Admissions.

 JUDICIAL ADMISSIONS are those so made in the pleadings filed or in the progress of a trial.

 EXTRAJUDICIAL ADMISSIONS are those made

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To be considered a judicial admission, the admission must be made in the same case, otherwise, it is an extrajudicial admission.

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When a defendant is declared in default for having failed to answer the complaint, such a failure does not amount to an admission of the facts alleged in the complaint.

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Stipulations voluntarily entered into between the parties will be respected and enforced by

THE COURT MAY REFUSE THE INTRODUCTION OF OBJECT EVIDENCE AND RELY ON TESTIMONIAL EVIDENCE ALONE IF: 1. the exhibition of such object is contrary to morals or decency 2. to require its being viewed in court or in an ocular inspection would result in delays, inconvenience, unnecessary expenses out of proportion to the evidentiary value of such object 3. such object evidence would be confusing or misleading, as when the purpose is to prove the former condition of the object and there is no preliminary showing that there has been no substantial change in said condition 4. the testimonial or documentary evidence already presented clearly portrays the object in question as to render a view thereof unnecessary. Page 6 of 53

Remedial Law Summer Reviewer ATENEO CENTRAL BAR OPERATIONS 2007 

Even if the object is repulsive or indecent, if a view of the same is necessary in the interest of justice, such evidence may still be exhibited but the court may exclude the public from such view.

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Object evidence includes any article or object which may be known or perceived by the use of any of the senses.

Example: examination of the anatomy of a person or of any substance taken therefrom, or the examination of the representative portrayals of the object in question, such as maps, diagrams or sketches, pictures or audio-visual recordings, provided the same are properly authenticated. 

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Just like ocular inspection, which are only auxiliary remedies afforded to the court, such observations of the court may be amplified by interpretations afforded by testimonial evidence, especially by experts. Documents are object evidence if the purpose is to prove their existence or condition, or the nature of the handwriting thereon, or to determine the age of the paper used, or the blemishes or alterations thereon, as where falsification is alleged. Otherwise, they are considered documentary evidence if the purpose is to establish the contents or tenor thereof.

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DEMONSTRATIVE EVIDENCE - is a tangible evidence that merely illustrates a matter of importance in the litigation such as maps, diagrams, models, summaries and other materials created especially for litigation. The DISTINCTION between object and demonstrative evidence is important because it helps determine the standards that the evidence must meet to be admissible. For OBJECT EVIDENCE, the required foundation relates to proving that the evidence is indeed the object used in the

Physical evidence is the highest form of evidence.

REQUISITES FOR THE ADMISSIBILITY OF THE OBJECT EVIDENCE: 1. Must be relevant to the fact in issue. Example: In murder case, the prosecution offered in evidence a gun. The gun must have some connection to the crime. There must be a logical nexus between the evidence and the point on which it is offered.

2. Object must be authenticated before it is admitted. Authentication usually consists of showing that the object was involved in underlying event. The “chain of custody” method of authentication requires that every link in the chain of custody – every person who possessed the object since it was first recognized as being relevant to the case, must explain what he did with it. 

Object evidence may consist of articles or persons, which may be exhibited inside or outside the courtroom; it may also be a mere inspection of an object or an experiment.

OBJECT EVIDENCE - is a tangible object that played some actual role on the matter that gave rise to the litigation. For instance, a knife.

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underlying event. The foundation for DEMONSTRATIVE EVIDENCE, does not involve showing that the object was the one used in the underlying event, but the foundation generally involves the showing that the demonstrative object fairly represents or illustrates what it is alleged to illustrate.

In order that photographs may be given as evidence, it must be shown that it is the true and faithful representation of the place or object which to which they refer. Photographs may be verified by the photographer or any person acquainted with the object represented and testify that the same faithfully represents the object.

For tape recordings, the ff. must be shown: 1. the recording device was capable of recording testimony 2. the operator of the device was competent 3. establishment of the correctness or authenticity of the recording 4. deletions, additions, changes have not been made 5. manner of the preservation of the recording 6. identification of the speakers 7. Testimony elicited was voluntarily made. 

Authenticated fingerprints may be compared to fingerprints found on the crime scene. Page 7 of 53

Remedial Law Summer Reviewer ATENEO CENTRAL BAR OPERATIONS 2007 2 theories on whether the court may compel the plaintiff to submit his body for inspection in personal injury cases: 1. No, because the right of a person to be secured of the possession or control of his person is sacred. 2. Yes, because if it is not allowed then the court will be an instrument of the grossest injustice and therefore the object for which courts are instituted would be defeated since the courts will be compelled to give a onesided decision. Weight of authority favors the first 2nd theory 

The accused may be compelled to submit himself to an inspection of his body for the purpose of ascertaining identity or for other purpose.

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There cannot be any compulsion as to the accused taking dictation from the prosecuting officer for the purpose of determining his participation in the offense charged.

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Whenever the defendant, at the trial of his case, testifying in his own behalf, denies that a certain writing or signature is in his own hand he may on cross-examination be compelled to write in open court in order that the jury may be able to compare his handwriting with the one in question. Where the object in question cannot be produced in court because it is immovable or inconvenient to remove, it is proper for the tribunal to go to the object in its place and there observe it.

produced EXCEPTIONS: 1. When the original has been lost or destroyed, or cannot be produced in court, without bad faith on the part of the offeror; 2. When the original is in the custody or under the control of the party against whom the evidence is offered, and the latter fails to produce it after reasonable notice; 3. When the original consists of numerous accounts or other documents which cannot be examined in court without great loss of time and the fact sought to be established from them is only the general result of the whole; and 4. When the original is a public record in the custody of a public officer or is recorded in a public office BEST EVIDENCE RULE - is that rule which requires the highest grade of evidence obtainable to prove a disputed fact. Purpose of the rule requiring the production of the best evidence: is the prevention of fraud because if the best evidence is not presented then the presumption of suppression of evidence will be present. 

Best evidence rule applies only when the purpose of the proof is to establish the terms of writing.

For the application of the best evidence, it is essential that: the original writing or if it is a private document, be first duly identified, and a sufficient and a sufficient foundation be laid, so as to entitle the writing to be admitted in evidence, and it must be available to the opposite party for cross-examination

DOCUMENTARY EVIDENCE Section 4. Original document. Section 2 Documentary evidence DOCUMENT – any substance having any matter expressed or described upon it by marks capable of being read. 

If it is produced without regard to the message which it contains, it is treated as real evidence. 1. Best Evidence Rule

Section 3. Original document must be produced; exceptions GENERAL RULE: the original document must be

WHAT IS AN ORIGINAL DOCUMENT? (a) the original of a document is one in two the contents of which are the subject of inquiry. (b) 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 (c) When an entry is repeated in the regular course, of business, one being copied from another at or near the time of the transaction, all entries are likewise equally regarded as originals. Document - is a deed, instrument or other duly authorized appear by which something is proved, Page 8 of 53

Remedial Law Summer Reviewer ATENEO CENTRAL BAR OPERATIONS 2007 evidenced or set forth. 

Documentary evidence is that which is furnished by written instruments, inscriptions and documents of all kinds.

RULE OF EXCLUSION: that which is secondary evidence cannot inceptively be introduced as the original writing itself must be produced in court, except in the four instances mentioned in Section 3. 

The non-production of the original document unless justified in Section 3, gives rise to the presumption of suppression of evidence.

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In the case of real evidence, secondary evidence of the fact in issue may readily be introduced without having to account for the non-production of such primary evidence.

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With respect to documentary evidence, the best evidence rule applies only when the content of such document is the subject of inquiry.

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If carbon copies are signed, they are considered as originals.

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In criminal cases, where the issue is not only with respect to the contents of the document but also as to whether such document actually existed, the original itself must be presented.

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Affidavits and depositions are considered as not being the best evidence, hence not admissible if the affiants or deponents are available as witness.

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If the issue is the contents of the telegram as received by the addressee, then the original dispatch received is the best evidence; and on the issue as to the telegram sent by the sender, the original is the message delivered for transmission. If the issue is the inaccuracy of transmission, both telegrams as sent and received are originals.

GENERAL RULE: an objection by the party against whom secondary evidence is sought to be introduced is essential to bring the best evidence rule into application. Where secondary evidence has been admitted, the rule of evidence might have been successfully invoked if proper and timely objection had been taken. 

When a duplicate or a copy is amended or

altered by the party, it becomes the original. 

Blueprints and vellum tracings have been held to be originals rather than copies.

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Xerox copies are not originals since they are reproduced at a latter time.

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When an entry is repeated in the regular course of business, one being copied from another at or near the time of the transaction, all the entries are regarded as originals.

2. Secondary Evidence Section 5. When original document is unavailable SECONDARY EVIDENCE – shows that better or primary evidence exists as to the proof of fact in question. It is deemed less reliable. What must be proved to admit secondary evidence? (a) The execution of the original (b) loss, destruction or unavailability of all such originals (c) Reasonable diligence and good faith in the search for or attempt to produce the original. The due execution can be proved through the testimony of either: 1) the person who executed it 2) The person before whom its execution was acknowledged 3) any person who was present and saw it executed and delivered or who thereafter saw it and recognized the signatures, or one to whom the parties thereto had previously confessed the execution thereof 

Intentional destruction of the originals by a party who, however, had acted in good faith does not preclude his introduction of secondary evidence of the contents thereof.

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When the original is outside the jurisdiction of the court, as when it is in a foreign country, secondary evidence is admissible.

Secondary evidence may consist of (IN THE SAME ORDER): 1. a copy of said document 2. recital of its contents in an authentic document Page 9 of 53

Remedial Law Summer Reviewer ATENEO CENTRAL BAR OPERATIONS 2007 3. the recollection of the witnesses 

Where the law specifically provides for the class and quantum of secondary evidence to establish the contents of a document, such requirement is controlling.

Section 6. – When original document is in adverse party’s custody or control FACTS WHICH MUST BE SHOWN BY THE PARTY OFFERING SECONDARY EVIDENCE: 1) The adverse party’s custody or control of the original document. 2) That reasonable notice was given to the adverse party who has the custody or control of the document 3) Satisfactory proof of its existence 4) Failure or refusal by the adverse party to produce it in court.

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It is not necessary to prove the loss beyond all possibility of mistake. A reasonable probability of its loss is sufficient, and this may be shown by bona fide and diligent search for it in place where it is likely to be found.

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Where both parties admit that an instrument has been lost, it is sufficient to warrant the reception of secondary evidence.

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No particular form of notice is required, as long as it fairly apprises the other party as to what papers are desired.

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The fact of loss or destruction must, like any other fact, be proved by a fair preponderance of evidence, and this is sufficient.

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Even an oral demand in open court for production at a reasonable time thereafter will suffice.

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The fact that a writing is really a true copy of the original may be shown by the testimony of a person who has had the opportunity to compare the copy with the original and found it to be correct. In order that the testimony of such person may be admissible, it is sufficient that the original was read to him by another person while he read the copy and found that it corresponded with what was read to him. It is also sufficient where the person who made the original a short time thereafter made a copy by writing down the dictation of another reading from the original.

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Notice must be given to the adverse party, or his attorney, even if the document is in the actual possession of a third party.

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Where receipt of the original of a letter is acknowledged on a carbon copy thereof, there is no need for a notice to the other party to produce the original of the latter.

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It should be observed that the duplicate copy, if complete, is itself an original copy and the only point in issue is the receipt of the basic original copy thereof

As long as the originals of a public document in the possession of the parties have been proven lost, a certified copy of the document made before it was lost is admissible as secondary evidence of its contents, and the burden of proof is upon the party questioning its authenticity to show that it is not a true copy of the original.

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The justified refusal or failure of the adverse party to produce the document does not give rise to the presumption of suppression of evidence or create an unfavorable inference against him. It authorizes the introduction of secondary evidence.

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Under this rule, the production of the original document is procured by mere notice to adverse party and the requirements for such notice must be complied with as a condition precedent for the subsequent introduction of secondary evidence by the proponent.

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Where the nature of the action is in itself a notice, as where it is for the recovery or annulment of documents wrongfully obtained or withheld by the other party, no notice to produce said document is required.

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In proving the contents of the original in some authentic document, it is sufficient if it appears in a private document which is proved to be authentic. “Authentic” means that the document should be genuine. It need not be a public document. It is not expected of a witness to state the contents of a document with verbal accuracy, it is enough that the substance of the documents be stated.

Section 7. Evidence admissible when original Page 10 of 53

Remedial Law Summer Reviewer ATENEO CENTRAL BAR OPERATIONS 2007 documents is a public record 

Such document may be evidenced by an official publication thereof or by a copy attested by the officer having the legal custody of the record, and in case of an authorized public record of a private writing, the same may also be proved by a copy thereof attested by the legal keeper of the record.

generally not admissible to vary, contradict, or defeat the operation of a valid document. PAROL EVIDENCE – any evidence aliunde, whether oral or written, which is intended or tends to vary or contradict a complete and enforceable agreement embodied in a document. 

Section 8. Party who calls for document not bound to offer it. 

Production of papers or documents upon the trial, pursuant to a notice duly served, does not make such papers or documents evidence. It is not until the party who demanded the production of the papers examine them and offers them in evidence that they assume the status of evidentiary matter. 3. Parol Evidence Rule

1) 2)

3) 4)

Section 9. Evidence of written agreements GENERAL RULE: When the terms of an agreement have been reduced to writing, it is to be considered as containing all the terms agreed upon and there can be, between the parties and their successors in interest, no evidence of such terms other than the contents of the written agreement. However, a party may present evidence to modify, explain or add to the terms of the written agreement if he puts in issue in his pleading any of the following: (a) An intrinsic ambiguity, mistake or imperfection in the written agreement; (b) The failure of the written agreement to express the true intent and agreement of the parties thereto; (c) The validity of the written agreement; or (d) The existence of other terms agreed to by the parties or their successors in interest after the execution of the written agreement. The term “agreement” includes wills. The parol evidence rule is based upon the consideration that when the parties have reduced their agreement on a particular matter into writing, all their previous and contemporaneous agreements on the matter are merged therein, hence evidence of a prior or contemporaneous verbal agreement is

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Formerly, even if there was a written agreement on a particular subject matter, the parol evidence rule did not apply to or bar evidence of a collateral agreement between the same parties on the same or related subject matter, in the ff instances: Where the collateral agreement is not inconsistent with the terms of the written contract Where the collateral agreement has not been integrated in and is independent of the written contract as where it is suppletory to the original contract where the collateral agreement is subsequent to or novatory of the written contract; and Where the collateral agreement constitutes a condition precedent which determines whether the written contract may become operative or effective, but this exception shall not apply to a condition subsequent not stated in the agreement. Parol evidence rule does not apply, and may not properly be invoked by either party to the litigation against the other, where at least one party to the suit is not a party or privy to the written instrument in question and does not base a claim or assert a right originating in the instrument or the relation established thereby.

Parol Evidence Rule It presupposes that the original document is available in court

Prohibits the varying of the terms of a written agreement

With the exception of

Best Evidence Rule Contemplates the situation wherein the original writing is not available and/or there is a dispute as to whether said writing is the original. Prohibits the introduction of substitutionary evidence in lieu of the original document regardless of whether or not it varies the contents of the original Applies to all kinds of Page 11 of 53

Remedial Law Summer Reviewer ATENEO CENTRAL BAR OPERATIONS 2007 the wills, the parol evidence rule applies only to documents which are contractual in nature Can be invoked only when the controversy is between the parties to the written agreement, their privies, or any party directly affected thereby (this is to prevent fraudulent operation of the instrument upon the rights of strangers)

imposed upon by unfair dealing of the other.

writings 

“Imperfection” includes an inaccurate statement in the agreement, or incompleteness in the writing, or the presence of inconsistent provisions therein. As a matter of substantive law, when one party was mistaken and the other knew that the instrument did not state their real agreement but concealed the fact from the former, the instrument may be reformed.

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The purpose of the second exception is to enable the court to ascertain the true intention of the parties or the true nature of the transaction between the parties.

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As earlier stated, it now includes a latent or intrinsic ambiguity in the writing. There is latent ambiguity when the writing on its face appears clear and unambiguous but there are collateral matters or circumstances which make the meaning uncertain, or where a writing admits of two constructions both of which are in harmony with the language used.

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Example of latent ambiguity is when the documents refers to a particular person but such name pertains to many persons with same name.

It can be invoked by any party to an action regardless of whether or not such party has participated in the writing involved.

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In order that the parol evidence may be admissible, the mistake or imperfection of the document, or its failure to express the true intent and agreement of the parties, or the validity of the agreement must be put in issue by the pleadings. Where the plaintiff failed to allege any such fact in his complaint, he cannot introduce parol evidence thereon.

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If the defendant invoked such fact in his answer, parol evidence may be introduced as such fact is now put in issue.

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Even if such defenses were not raised in the pleadings, but the parol evidence is not objected to, such objection is deemed waived. Such mistake or imperfection must be proved by clear and convincing evidence.

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When no timely objection or protest is made to the admission of parol evidence in respect to a contract relative to real estate and when the motion to strike out said evidence came too late; and if the other party against whom such evidence was presented crossexamined the witnesses who testified in respect to the contract, said party will be understood to have waived the benefits of the law. Parol evidence under those facts is competent and admissible.

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An intrinsic ambiguity in the written agreement is now required to be put in issue in the pleading in order that parol evidence therein may be admitted.

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The “mistake” under the first exception refers to a mistake of fact which is mutual to the parties where the innocent party was

PATENT OR EXTRINSIC AMBIGUITY - is such ambiguity which is apparent on the face of the writing itself and requires something to be added in order to ascertain the meaning of the words used. In this case, parol evidence is not admissible, otherwise the court would be creating a contract between the parties. INTERMEDIATE AMBIGUITY – situation where an ambiguity partakes of the nature of both patent and latent. In this, the words are seemingly clear and with a settled meaning, is actually equivocal and admits of two interpretations. Here, parol evidence is admissible to clarify the ambiguity provided that the matter is put in issue by the pleader. Example: Dollars, tons and ounces 

False description does not vitiate a document if the subject is sufficiently identified. The incorrect description shall be rejected as surplusage while the correct and complete description standing alone shall sustain the validity of the writing.

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No express trust concerning an immovable or Page 12 of 53

Remedial Law Summer Reviewer ATENEO CENTRAL BAR OPERATIONS 2007 any interest therein may be proved by parol evidence. Rules governing the admissibility of parol evidence to explain ambiguity 1) Where the instrument itself seem to be clear and certain on its face, and the ambiguity arises from extrinsic or collateral matter, the ambiguity may be helped by parole evidence (Latent ambiguity)

prohibits is varying the terms of the writing by parol evidence. 

To determine whether or not the subject of an oral agreement is separate and distinct from the subject of a writing: it is essential to ascertain first what is the whole subject intended by the parties to be covered by such writing. This question may be determined from the contract itself, in the light of the subject matter with which it deals and of the circumstances standing its execution. The next step is to ascertain the subject of the oral agreement offered to be proved. Then a comparison should be made between the writing and the oral negotiation and from that comparison it may be seen whether or not the subject of the writing is separate and distinct from that of the oral negotiation. Parol evidence is admitted if the subject of the oral negotiation is not so closely connected with the subject of the writing.

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The prohibition does not apply when the intent is to show that there is no meeting of the minds or there is no perfected contract.

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This rule has no application to conditions or stipulations which are antecedent to the existence of the contract and on the faith of which the supposed contract is executed.

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Where the provisions of a written contract are ambiguous and there is sufficient evidence showing the existence of other agreements collateral thereto, parol evidence is admissible to prove the real agreement of the parties.

2) Where the ambiguity consists in the use of equivocal words designing the person or subject-matter, parole evidence of collateral or extrinsic matter may be introduced for the purpose of aiding the court in arriving at the meaning of the language used (Intermediate ambiguity) 3) Where the ambiguity is such that a perusal of the instrument shows plainly that something more must be added before the reader can determine what of several things is meant, the rule is inflexible that parol evidence cannot be admitted to supply the deficiency. To justify the reformation of a written instrument upon the ground of mistake, the concurrence of three things is necessary:

1. Mistake should be of fact – does not correctly express the intention of the parties applies only to a mistake of facts

2. Mistake should be mutual or common to both parties to the instrument – Reformation is then given because mistake is mutual. The parties must have come to an actual oral agreement before they have attempted to reduce it in writing, 3. The mistake should be alleged and proved by clear and convincing evidence 

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When the operation of the contract is made to depend upon the occurrence of an event, which for that reason is a condition precedent, such may be established parol evidence. This is not varying the terms of the written contract by extrinsic agreement for the simple reason that there is no contract in existence; there is nothing to which to apply the excluding rule. Due execution of a writing may proved by parol evidence because what the rule

4. Interpretation of Documents Section 10. Interpretation of a writing according to its legal meaning The language of a writing is to be interpreted according to the legal meaning it bears in the place of the execution unless the parties intended otherwise. Section 11 Instrument construed so as to give effect to all provisions In the construction of an instrument where there are several provisions or particulars such a construction is, if possible, to be adopted as will give effect to all. Section 12 Interpretation according to intention; general and particular provisions Page 13 of 53

Remedial Law Summer Reviewer ATENEO CENTRAL BAR OPERATIONS 2007 In the construction of an instrument, the intention of the parties is to be pursued and when a general and a particular provisions are inconsistent, the latter is paramount to the former. So a particular intent will control a general one that is inconsistent with it. Section 13 circumstances

Interpretation

according

interpretations, one in favor of natural rights and the other against it, the former is to be adopted. Section 19 Interpretation according to usage An instrument may be construed according to usage, in order to determine its true character.

to

For the proper construction of an instrument, the circumstances under which it was made, including the situation of the object thereof and of the parties to it, may be shown, so that the judge may be placed in the position of those whose language he is to interpret.

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The laws in force at the time the contract was made must govern its interpretation and application.

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The clear terms of the contract should not be subject to interpretations. QUALIFICATION OF WITNESSES

Section 14 Peculiar signification of terms The terms of a writing are presumed to have been used in their primary and general acceptation, but evidence is admissible to show that they have been a local, technical, or otherwise peculiar signification, and were so used and understood in the particular instance, in which case the agreement must be construed accordingly

C. Testimonial Evidence Section 20 Witness; their qualifications – WITNESS – reference to a person who testifies in a case or gives evidence before a judicial tribunal COMPETENCY OF A WITNESS – is the legal fitness or ability of a witness to be heard on the trial of a cause.

Section 15 Written words control printed When an instrument consists partly of written words and partly of a printed form, and the two are inconsistent, the former controls the latter. Section 16 Experts and interpreters to be used in explaining certain writings When the characters in which an instrument is written are difficult to be deciphered, or the language is not understood by the court, the evidence of persons skilled in deciphering the characters, or who understand the language, is admissible to declare the characters or the meaning of the language.

GENERAL RULE: when a witness takes the stand to testify, the law, on grounds of public policy, presumes that he is competent. The court cannot reject the witness if there is not proof of his incompetency. 

The burden is upon the party objecting to the competency of a witness to establish the grounds of incomeptency.

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It is the judge who has the decision as to the competency of the witness.

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The objection to the competency of a witness must be made before he has given any testimony if a party knows before the trial that the witness is incompetent, and if the incompetency appears on the trial, the objection must be interpreted as soon as it becomes apparent.

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When the incompetency of a witness is only partial, the objection need not be raised until he is asked to testify to those matters as to which he is incapacitated.

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The testimony of the interested witness, while rightfully subjected to careful scrutiny, should not be rejected on the ground of bias alone.

Section 17 Of two constructions, which preferred When the terms of an agreement have been intended in a different sense by the different parties to it, that sense is to prevail against either party in which he supposed the other understood it, and when different constructions of a provision are otherwise equally proper, that it is to be taken which is the most favorable to the party in whose favor the provision was made. Section 18 Construction in favor of natural right When an instrument is equally susceptible of two

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Remedial Law Summer Reviewer ATENEO CENTRAL BAR OPERATIONS 2007 

The interest of the witness affects only his credibility but not his competency.

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When an attorney is a witness to his client, except as to merely formal matters, such as the attestation or custody of an instrument and the like, he should leave the trial of the case to other counsel. Except when essential to the ends of justice, a lawyer should avoid testifying in court in behalf of his client.

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It is objectionable for a judge to be a witness on the same trial. However, the trial judge is competent when his testimony concerns merely formal or preliminary matters about which there is no dispute, as where he testifies in a perjury prosecution that the defendant gave testimony before him in another proceeding in another court. Persons who have been convicted of perjury is cannot be discharged as a witness for the government when he is a co-accused in a criminal case. The same goes for witnesses to a will. Upon the timely objection to the incompetency of a witness being raised, it is the duty of the court to make such examination as will satisfy him as to the competency or incompetency of the witness to testify in the case, and thereupon, to rule on the objection accordingly. The failure to object to the competency of a witness is tantamount to a waiver and once the evidence is admitted the same shall stay in the records and be judge according to its merits; the judge has no right to discard it solely for the reason that it could have been excluded had it been objected to.

THE FOLLOWING CANNOT BE WITNESSES: 1) Those whose mental conditions, at the time of their production for examination, is such that they are incapable of intelligently making known their perception to others; 2) Children whose mental maturity is such as to render them incapable of perceiving the facts respecting which they are examined and relating to them truthfully. 

The qualifications and disqualifications of witnesses are determined as of the time the said witnesses are produced for examination in court or at the taking of their depositions.

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With respect to children of tender years, their competence at the time of the occurrence to be testified to should be taken into account, especially if such event took place long before their production as witnesses.

UNSOUND MIND - any mental aberration, whether organic or functional, or induced by drugs or hypnosis. 

GENERAL RULE: lunatic or a person affected with insanity is admissible as a witness if he has sufficient understanding to apprehend the obligation of an oath and is capable of giving a correct account of the matters which he has seen or heard with respect to the questions at issue. 

If the witness is a lawful inmate of an asylum for the insane, he will not be presumed to be competent and before he can testify his competency should be made to appear by the party offering him. This is because the insanity is presumed to continue as a mental state, if it has once existed, until the contrary is shown.

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Idiots are incompetent witnesses. They may be classed as insane persons. An idiot, being one who has no understanding of his nativity, the law presumes that he will never attain any.

Acts of a party entitled to object that can be considered as waiver of an objection: 1) where the party fails to raise the objection when the witness testifies, though at that time the party knows of his incompetency; 2) where one party who might have made the objection calls the witness in support of his own case. Section 21. Disqualification by reason of mental incapacity or immaturity

Unsoundness of mind does not per se render a witness incompetent, one may be medically insane but in law capable of giving competent testimony.

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Remedial Law Summer Reviewer ATENEO CENTRAL BAR OPERATIONS 2007 

However, it is not prudent to admit the interpretation of a teacher if he cannot understand properly the signs given by the deaf-mute who was not even his student.

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Drunkenness does not per se disqualify a witness from testifying. The point of inquiry is the moment of examination.

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authorize domestic peace to be disregarded for the sake of ferreting out facts within the knowledge of strangers. 

The rule applies to any form of testimony; therefore it protects against using the spouse-witness’s admission or against compelling him to produce documents.

A witness is not rendered incompetent by the fact that he was under the influence of a drug at the time of the occurrence as to which he testifies, or at the time of giving his testimony.

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In order that this will apply, it is necessary that the marriage is valid and existing as of the time of the offer of testimony and that the other spouse is a party to the action.

Deaf-mutes are competent witnesses when: 1. they can understand and appreciate the sanctity of an oath; 2. can comprehend facts they are going to testify to; and 3. can communicate their ideas through a qualified interpreter.

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The privilege to object to testimony concerning anti-marital facts may be claimed only when the spouse for or against whom the testimony of the other is offered as a party to the case.

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After the death or the divorce of one spouse, the privilege ceases, for the reason ceases.

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The prosecuting attorney has no right to call a wife as a witness or to attempt to draw from her statements that the accused had married her for the purpose of suppressing her testimony.

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The wife is competent to testify for the other defendant if the case against his husband as a party was dismissed.

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No unfavorable inference may be drawn from the fact that a party spouse invokes the privilege to prevent the witness-spouse from testifying against him or her

In the case of a child witness, the court in determining his competency must consider his capacity: (a) at the time the fact to be testified to occurred such that he could received correct impressions thereof (b) to comprehend the obligation of an oath and (c) to relate those facts truly at the time he is offered as a witness. The court should take into account his capacity for observation, recollection and communication. 

A child who witnessed the crime when he was 11 years old and testified thereto when he was already 15, is a competent witness.

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The intelligence of the child is the test of his competency and not his age.

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The court, not the judge as an individual, is to be satisfied of the competency of the child

EXCEPTION TO THE RULE: 1. that the case in which the husband or the wife is called to testify is a civil case instituted by one against the other 2. it is a criminal case for a crime committed by one against the other.

Section 22 Disqualification by reason of marriage 

This is called the “spousal immunity”. This is different from marital privilege.

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The rule forbidding one spouse to testify for or against the other is based on principles which are deemed important to preserve the marriage relation as one of full confidence and affection, and that this is regarded as more important to the public welfare than that the exigencies of the lawsuits should

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The reason for the exception is that the identity of the interest of person disappears and the consequent danger of perjury based on that identity is non-existent. And in such a situation, the security and confidence of private life which the law aims at protecting will be nothing but ideals which, through their absence, merely leave a void in the unhappy home.

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This can be waived just like any other Page 16 of 53

Remedial Law Summer Reviewer ATENEO CENTRAL BAR OPERATIONS 2007 objection to the competency of other witnesses. Can be waived through failure to interpose timely objection or by calling the other spouse as a witness 

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Where the accused husband in his testimony imputed the commission of the crime to his wife, he is deemed to have waived his objection to the latter’s testimony in rebuttal. In a prosecution of the husband for the rape of their daughter, the wife is not disqualified to testify for the prosecution since the crime may be considered as having been committed against the wife and the conjugal harmony sought to be protected by this rule no loner exists. The exception to the marital disqualification rule was applied where the wife was the complainant in a case against her husband for falsification of her signature in a deed of sale involving their conjugal property. Where the wife is a co-defendant in a suit charging her and her husband with collusive fraud, she cannot be called as an adverse party witness as this will violate the disqualification rule.

Section 23 Disqualification by reason of death or insanity of adverse party 

This section is called THE SURVIVORSHIP DISQUALIFICATION RULE OR DEAD MAN STATUTE.

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It constitutes only a partial disqualification as the witness is not completely disqualified but is only prohibited from testifying on the matters therein specified, unlike the marital disqualification rule which is complete and absolute disqualification.

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This applies to both civil and criminal cases

REQUISITES FOR THE APPLICATION OF THIS RULE: 1. the witness offered for examination is a party plaintiff, or the assignor of said party, or a person in whose behalf a case is prosecuted. -

such plaintiff must be the real party in interest. This disqualification does not apply where a counterclaim has been interposed

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by the defendant as the plaintiff would thereby be testifying in his defense. The same is true where the deceased contracted with the plaintiff through an agent and said agent is alive and can testify, but the testimony of the plaintiff should be limited to acts performed by the agent. the term “assignor” of a party means assignor of a cause of action which has arisen, and not the assignor of a right assigned before any cause of action has arisen A witness may testify against an estate, provided he is not a party, or an assignor of a party, or a person in whose behalf the suit is instituted. Interest in the outcome of the suit, per se, seemingly, does not disqualify a witness from testifying

2. the case is against the executor or administrator or other representative of a person deceased or of unsound mind - The term “representative of a deceased person” has been interpreted to include not only the executor or administrator of a deceased person, but also the person who has succeeded to the right of the deceased, whether by purchase or descent or operation of law. - It is necessary that the said defendant is being sued and defends in such representative capacity and not in his individual capacity. Even if the properties have been judicially adjudicated to the heirs, they are still protected under this rule against such prohibited testimony as they are considered as the representatives of the deceased. - The rule applies regardless of whether the deceased died before or alter the suit against him is filed provided he is already dead at the time the testimony is sought to be given 3. the case is upon a claim or demand against the estate of such person who is deceased or of unsound mind -

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the rule does not apply where it is administrator who brings an action to recover property allegedly belonging to the estate or the action is by the heirs of a deceased plaintiff who were substituted for the latter. this is restricted to debts or demands enforceable by personal actions upon which money judgments can be rendered. An action for damages for breach of agreement to devise property for services Page 17 of 53

Remedial Law Summer Reviewer ATENEO CENTRAL BAR OPERATIONS 2007 -

rendered is a claim against an estate; hence the plaintiff is not a competent witness. Estate of a deceased person includes all properties, real and personal, belonging to the deceased person.

to avoid prejudice to the estate of the deceased, the law has certainly no reason for its application. 

The disqualification under this rule is waived if the defendant does not timely object to the admission of such evidence or testifies on the prohibited matters or cross-examines thereon.

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If the case is brought against the partnership of the deceased, the witness is still credible because the testimony is not against the deceased nor his estate.

4. The testimony to be given is on matter of fact occurring before the death, of such deceased person or before such person became of unsound mind. -

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This includes any matter of fact which bears upon a transaction or communication between the witness and the decedent, even though without the presence or participation of the latter. Negative testimony, that the fact did not occur during the life time of the deceased, is not covered by the prohibition. Testimony on the present possession by the witness of a written instrument signed by the deceased is also not covered by the prohibition, as such fact exists even after the decedent’s demise. the parties plaintiff to an action is not rendered incompetent to testify to fraudulent transactions of the deceased, as the rule is not designed to shield wrongdoers. But before admitting the testimony of parties plaintiff in this kind of action, the court should compel such parties to clearly establish the alleged fraudulent acts.

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In land registration case instituted by the decedent’s representatives, this prohibition does not apply as the oppositors are considered defendants and may therefore, testify against the petitioner. This prohibition does not also apply in cadastral cases since there is no plaintiff or defendants therein.

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Since the purpose of this rule is to discourage perjury and protect the estate from fictitious claims, the prohibition does not apply even if all the 4 requisites above are present, where the testimony is offered to prove a claim less than what is established under a written document or is intended to prove a fraudulent transaction of the deceased, provided such fraud is first established by evidence aliunde

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This is designed to close the lips of the party as plaintiff when the death has closed the lips of the party defendant. If the purpose of the oral testimony is to prove a lesser claim than what might be warranted by clear evidence,

Section 24. Disqualification privileged communication

by

reason

of

THE FOLLOWING PERSONS CANNOT TESTIFY AS TO MATTERS LEARNED IN CONFIDENCE IN THE FF CASES: 1. The husband or the wife, during or after the marriage, cannot be examined without the consent of the other as to any communication received in confidence by one from the other during the marriage except in a civil case by one against the other, or in a criminal case for a crime committed by one against the other or the latter’s direct descendants or ascendants 2. An attorney cannot, without the consent of his client, be examined as to any communication made by the client to him, or his advice given thereon in the course of, or with a view to, professional employment, nor can an attorney’s secretary, stenographer, or clerk be examined, without the consent of the client and his employer, concerning any fact the knowledge of which has been acquired in such capacity. 3. A person authorized to practice medicine, surgery or obstetrics cannot in a civil case, without the consent of the patient, be examined as to any evidence or treatment given by him or any information which he may have acquired in attending such patient in a professional capacity, which information was necessary to enable him to act in that capacity, and which would blacken the reputation of the patient. 4. A minister or priest cannot, without the consent of the patient, be examined as to any advice or treatment given by him or any Page 18 of 53

Remedial Law Summer Reviewer ATENEO CENTRAL BAR OPERATIONS 2007 information which he may have acquired in attending such patient in a professional capacity, which information was necessary to enable him to act in that capacity, and which would blacken the reputation of the patient.

third party, whether legally or not, by reason of the fact that while the spouse is covered by the prohibition, such third party is not and, consequently, can testify thereon. It is necessary, however, that there was no collusion with or voluntary disclosure by either spouse to the third person, otherwise the latter becomes an agent of the spouse and would thereby be covered by the prohibition.

5. A public officer cannot be examined during his term of office or afterwards, as to communications made to him in official confidence, when the court finds that the public interest would suffer by the disclosure. 

Objections under the disqualification rules can be invoked only by the persons protected thereunder and may be waived by said persons in the same manner, either expressly or impliedly. Marital Privilege

REQUISITES FOR MARITAL PRIVILEGE TO APPLY: 1) there was a valid marital relation 2) the privilege is invoked with respect to a confidential communication between the spouses during said marriage 3) the spouse against whom such evidence is being offered has not given his or her to such testimony 

Consequently, the privilege cannot be claimed with respect to communications made prior to the marriage of the spouse

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The privilege on principle applies to any form of confident disclosure. Usually this will be a communication in words but it may also include conduct.

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Marital communications are presumed to be confidential but the presumption may be overcome by proof that they were not intended to be private. Since the confidential nature of the communication is the basis of the privilege, the same cannot be invoked where it was not intended to be kept in confidence by the spouse who received the same, as in the case of a dying declaration of the husband to his wife as to who was his assailant, which communications was obviously intended to be reported to the authorities. The privilege is lost if the communication is overheard or comes into the hands of a

EXCEPTIONS TO MARITAL PRIVILEGE: 1. that the case in which the husband or the wife is called to be examined is not a civil case instituted by one against the other 2. that it is not a criminal case for a crime committed by one against the other Disqualification by reason of Marriage Can be invoked only if one of the spouses is a party to the action, Applies only if the marriage is existing at the time the testimony is offered Constitutes a total prohibition against the spouse of the witness

Marital Privilege Can be claimed whether or not the spouse is a party to the action. Can be claimed even after the marriage has been dissolved Applies only to confidential communications between the spouse

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The privilege in principle, belongs to the communicating spouse not to the other one.

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Even if the communication between the spouse who is a party to the action can still prevent the other spouse from testifying against him under the marital disqualification rule

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Even if the spouse who is a party to the action does not object to the other testifying therein, thus waiving the marital disqualification, he can still prevent the disclosure by said spouse-witness of confidential communications covered by the privilege.

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Conspiracy between spouses to commit a crime is not covered by the privilege since it is not the intention of the law to protect the commission of a crime.

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This does not apply when spouses are living separately and there is an active hostility. But Page 19 of 53

Remedial Law Summer Reviewer ATENEO CENTRAL BAR OPERATIONS 2007 if there is a chance to reconcile, then this privilege will apply (sabi ni sir, give them a chance)

question for which no compensation is asked or expected and none given except a luncheon, should not be regarded as privileged communications

Attorney-Client Privilege REQUISITES: 1) there is an attorney and client relation 2) The privilege is invoked with respect to a confidential communication between them in the course of professional employment 3) The client has not given his consent to the attorney’s testimony.

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The privilege is applicable to counsel de oficio. Even in cases where the consent of the client is obtained, it is his duty to ask first to be relieved and have another attorney take his place before testifying so that he may be cross-examined and not leave his client without proper representation.

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An attorney who becomes a subscribing witness to his client’s will, may testify to the attending circumstances of the execution of his client’s will for by requesting his attorney to become a subscribing witness to the will, the testator waives privilege as to his attorney’s testimony concerning testamentary communications.

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Communication made by a client to an attorney as a public officer to enable him to act in his capacity is not privilege

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The privilege does not apply when the action was brought by the client against the attorney.

Basis: public policy 

The client owns the privilege and therefore he alone can invoke it.

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For the privilege to apply, the attorney must have been consulted in his professional capacity, even if no fee has been paid therefore. However, if the communications were not made for the purpose of creating that relationship, they will not be covered by the privilege even if thereafter the lawyer becomes the counsel of the party in a case involving said statements

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The test is whether the communications are made to an attorney with a view of obtaining professional assistance or advice.

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Communications to an attorney are not privileged where they are voluntary made after he has refused to accept employment.

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There is no privilege communication in cases where abstract legal opinions are sought and obtained on general questions of law, either civil or criminal, in such cases, no facts are or need be disclosed implicating the client, and so there is nothing of a confidential character to conceal.

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The communications covered by the privilege include verbal statements and documents or papers entrusted to the attorney, and of facts learned by the attorney through the act or agency of his client.

THE PRIVILEGE DOES NOT APPLY TO COMMUNICATIONS WHICH ARE: 1. intended to be made public 2. intended to be communicated to others 3. intended for an unlawful purpose 4. received from third person not acting in behalf or as agent of the client 5. made in the presence of third parties who are strangers to the attorney-client relationship 

The period to be considered is that date when the privileged communication was made by the client to the attorney in relation to either a crime committed in the past or with respect to a crime intended to be committed in the future

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Professional communications continues even after the relation of client and attorney is terminated

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Confidential relations made in reliance upon the supposed relation of attorney and client, whether the party assuming to act as such is an attorney or not, are excluded by the court.

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Communications regarding a crime already committed made by the offender to an attorney, consulted as such, are privileged communications

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Sidewalk advice from attorney upon legal

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Contemplated criminal acts are not covered Page 20 of 53

Remedial Law Summer Reviewer ATENEO CENTRAL BAR OPERATIONS 2007 

The privilege does not attach when the attorney is a conspirator

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The privilege does not apply when all the attorney has to do it to either affirm or deny the secret revealed by the client to the court.

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The rule does not apply to mere causal information stated by the witness because such information is not necessary for the treatment of the patient.

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If the physician confined himself merely to the ascertainment of the nature and character of the injury for the purpose of reporting them to the defendant, physician may testify.

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The burden of proving that such relation does not exist is upon the person objecting it.

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Death of the patient does not extinguish the relation

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Under Rule 28 of the Rules of Court, the results of the physical and mental examination of a person, when ordered by the court, are intended to be made public, hence they can be divulged in that proceeding and cannot be objected to on the ground of privilege

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Result of autopsies or post mortem examinations are generally intended to be divulged in court, aside from the fact the doctor’s services were not for purposes of medical treatment

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An example of a waiver of the privilege by provision of law is found in Section 4 of said Rule 28 under which if the party examined obtains a report on said examination or takes the deposition of the examiner, he thereby waives any privilege regarding any other examination of said physical or mental condition conducted or to be conducted on him by any other physician.

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Waiver of the privilege by contract may be found in stipulations in life insurance policies.

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The disqualification due to privilege communications between ministers or priests and penitents require that the same were made pursuant to a religious duty enjoined in the course of discipline of the sect or denomination to which they belong and must be confidential and penitential in character. Example: under seal of the confessional

Physician-Patient Privilege 

This privilege is intended to facilitate and make safe, full and confidential disclosure by patient to physician of all facts, circumstances, and symptoms, untrammeled by apprehension of their subsequent and enforced disclosure and publication on the witness stand, to the end that the physician may form a correct opinion, and be enabled safely and efficaciously to treat his patient.

REQUISITES: 1) the physician is authorized to practice medicine, surgery, or obstetrics 2) the information was acquired or the advice or treatment was given by him in his professional capacity for the purpose of treating and curing the patient. 3) The information, advice or treatment, if revealed, would blacken the reputation of the patient 4) the privilege is invoked in a civil case, whether patient is a party or not 

It is not necessary that the physician-patient relationship was created through the voluntary act of the patient. For example the treatment may have been given at the behest of another, the patient being in extremis

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The privilege extends to all forms of communications as well as to the professional observations and examinations of the patient

THE PRIVILEGE DOES NOT APPLY WHERE: 1) the communication was not given in confidence 2) the communication is irrelevant to the professional employment 3) the communication was made for an unlawful purpose, as when it is intended for the commission or concealment of a crime 4) the information was intended to be made public 5) there was a waiver of the privilege either by provisions of contract or law

Privileged communications to Public Officers REQUISITES: Page 21 of 53

Remedial Law Summer Reviewer ATENEO CENTRAL BAR OPERATIONS 2007 1) 2)

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that it was made to the public officer in official confidence that public interest would suffer by the disclosure of such communication, as in the case of State secrets. Where no public interest will be prejudiced, this rule will not apply.

2. Testimonial Privilege Section 25 Parental and filial Privilege 

This section is an expanded amendment of the former provision found in Section 20 (e), a disqualification by reason of relationship which, in turn, was reproduced from Art. 315 of the Civil Code.

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It was not correctly a rule of disqualification, as the descendant was not incompetent or disqualified to testify against his ascendants, but was actually a privilege to testify, hence it was referred to as “filial privilege”.

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However, under the Family Code, the descendant may be compelled to testify against his parents and grandparents, if such testimony is indispensable in prosecuting a crime against the descendant by one parent against the other (Art. 215)

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Under the present formulation, both parental and filial privileges are granted to any person, which privileges against compulsory testimony he can invoke in any case against any of his parents, direct ascendants, children or direct descendants.

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The reason for the rule is to preserve “family cohesion” deploring the lack of this provision under former laws as doing violence to the most sacred sentiments between members of the same family.”

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The privilege may now be invoked in both civil and criminal cases.

PUBLIC INTEREST – something in which the community at large has some pecuniary interest by which their legal rights or liabilities are affected. Other instances of privilege 

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Under RA 53 as amended by RA 1477, the publisher, editor or duly accredited reporter of any newspaper, magazine or periodical of general circulation cannot be compelled to reveal the source of any news report or information appearing in said publication which was related in confidence to him unless the court or a House or committee of Congress finds that such revelation is demanded by the Security of the State. Art. 233 of the Labor Code provides that all information and statements made at conciliation proceedings shall be treated as privileged communications and shall not be used as evidence in the National Labor Relations Commission, and conciliators and similar officials shall not testify in any court or body regarding any matter taken up at the conciliation proceedings conducted by them.

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Voters are cannot be compelled to reveal their bets

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Trade Secrets will be covered by this privilege

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Prosecutor is not to be compelled to dispose the identity of the informer unless the informer is already known to the accused and when the identity of the informer is vital.

3. Admissions and Confessions

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GENERAL RULE: Bank deposits may not be disclosed

EXCEPTION: 1. authorized by depositor 2. Impeachment under the Constitution 3. Upon order of the court in case of bribery or deriliction of duty 4. When the subject matter is the deposits 5. Anti-graft cases

Section 26 Admission of a party ADMISSION - any statement of fact made by a party against his interest or unfavorable to the conclusion for which he contends or is inconsistent with the facts alleged by him.

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Admission is a voluntary acknowledgment in express terms or by implication, by a party interest or by another by whose statement he is legally bound, against his interest, of the existence or truth of a fact in dispute material to the issue (Francisco). Page 22 of 53

Remedial Law Summer Reviewer ATENEO CENTRAL BAR OPERATIONS 2007 

Example: Action for personal injuries caused by a collision between P’s carriage and D’s automobile. D was not in the automobile when the accident occurred. D’s son was driving the automobile, having taken it without express permission from D. Before trial D told P’s husband that he had bought the automobile for the pleasure of his family and for business; that members of the family might take it without asking; and that so far as the liability extended (D) was responsible. On the bases of this express admission, verdict was rendered for P. Likewise, defendant duly executes and signs a document before a notary public stating therein that his wife is the true and absolute owner of the lands which are the subject matter of the litigation. Said document is an express admission that defendant is not the owner of the land, and admissible against him. 

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Delay in instituting a criminal prosecution unless satisfactorily explained, creates suspicion about the motive of the supposed offended party and gives rise to reasonable doubt of the guilt of the defendant.

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Implied admission is cannot be inferred from an act of repairing a defect which caused on injury. This is founded on sound reason and good policy. A person may have exercised all the care which the law required and yet, in the light of his new experience, after an unexpected accident has occurred, and as a measure of extreme caution, he may adopt additional safeguards.

EXPRESS ADMISSIONS are those made in definite, certain and unequivocal language.

IMPLIED ADMISSIONS are those which may be inferred from the acts, declarations or omission of a party. Therefore, an admission may be implied from conduct, statement of silence of a party. For instance, the payment of interest of a debt is an implied admission of the existence of the debetween The repair made by the landlord is the implied admission that it is not the duty of the tenant to repair. The immediate flight of the accused and prolong stay in other country is the implied consciousness of guilt. Failure to answer a letter does not give rise to an implied admission as to the truth of the statements contained therein, since there is no duty upon the addressee to reply. However, where the good faith requires that the addressee state his position frankly so that the addressee be not misled, acquiescence may be inferred from nondenial. Failure to return or object to a bill or statement sent by the debtor, within a reasonable time, is competent evidence (but rebuttable) that the account is correct. Undue delay in the enforcement of a right is strongly persuasive of a lack of merit in the claim, since it is human nature for a person to assert his rights most strongly when they are threatened or invaded.

Admission and Confession Distinguished Admission An admission is a statement of fact which does not involve an acknowledgement of guilt or liability It may be express or tacit May be made by third persons

Confession It involves acknowledgment guilt or liability

an of

Must be express Can be made only by the party himself and in some instance, are admissible against his co-accused

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The rule that the act, declaration or omission of a party may be given in evidence against him is based upon the presumption that no man could declare anything against himself, unless such declarations were true.

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It is a rule that a “statement is not competent as an admission where it does not, under a reasonable construction, appear to admit or acknowledge the fact which is sought to be proved by it.”

REQUISITES FOR ADMISSIBILITY OF ADMISSIONS: 1) They must involve matters of fact and not of law 2) They must be categorical and definite 3) They must be knowingly and voluntarily made 4) They must be adverse to the admitter’s interests, otherwise it would be self-serving and inadmissible. An admission may be introduced in evidence in Page 23 of 53

Remedial Law Summer Reviewer ATENEO CENTRAL BAR OPERATIONS 2007 two ways: 1. independent evidence 2. impeaching evidence

extrajudicial admissions. 

Independent evidence – admissions are original evidence and no foundation is necessary for their introduction in evidence 

If the admission was made orally, it may be proved by any competent witness who heard them or by the declarant himself. The law does not require impossibilities. If the witness states the substance of the conversation or declaration, the admission of his testimony is not erroneous.

Impeaching evidence –a proper foundation must be laid for the impeaching questions, by calling attention of such party to his former statement so as to give him an opportunity to explain before such admissions are offered in evidence. Example to illustrate the rules regarding the introduction of admissions in evidence either as an independent or as impeaching evidence: P sues D for a balance due and unpaid for groceries furnished. The claim is for P175 due on July 31. D disputes the amount due, and offers a statement of account sent by P in September reading “Balance due – P75”. This is admissible and may be presented as part of the evidence in chief of D. Action was brought by broker P for commissions on stock shares bought and sold for D. All the transactions had been made through D’s office manager. P claims the interest at 8% was understood to be charged monthly on balances. The manager testifies that the interest was to be 5%. However, there is a letter of D to P dated June 1, containing the sentence “as usual this year, I expect to pay 8% interest on monthly balances. I D had taken the stand as a witness and had testified in corroboration of his manager’s statements as to the understanding, it would be necessary for P’s counsel to ask D if he had written such a letter, before introducing it in rebuttal as D’s admission for the purpose of discrediting D’s testimony. 

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Admissions may be verbal or written, express or tacit, judicial or extrajudicial.

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A JUDICIAL ADMISSION is one made in connection with a judicial proceeding in which it is offered, while an extrajudicial admission is any other admission.

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Section 26 and 32 of this Rule refer to

Testimony of the accused in a particular case to the effect that he was married to the victim is an admission against his penal interest and sustain his conviction even in the absence of independent evidence to prove such marriage Admission

An admission need to be, although, of course, it will greatly enhance its probative weight if it be so made Made by a party himself, and is a primary evidence and competent though he be present in court and ready to testify Admission can be made any time

Declaration Against Interest The declaration against interest must have been made against the proprietary or pecuniary interest of the parties Must have been made by person who is either deceased or unable to testify The declaration against interest must have been made ante litem motam

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SELF SERVING DECLARATION is one which has been made extrajudicially by The party to favor his interests. It is not admissible in evidence

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The vital objection to the admission of this kind of evidence is its hearsay character. To permit introduction would open the door to frauds and perjuries.

Reasons for the inadmissibility of self-serving declarations: 1. the inherent untrustworthiness of the declarations 2. the fact that to permit their introduction would open the door to fraud and fabrication of testimony. 3. the fact that if testified to by one other than the declarant, they would be hearsay. 

Self serving testimony refers to extrajudicial statement of a party which is being urged for admission in court. It does not include his testimony as a witness in court. It has no application to a court declaration. Where the statement was not made in anticipation of a future litigation, the same cannot be Page 24 of 53

Remedial Law Summer Reviewer ATENEO CENTRAL BAR OPERATIONS 2007 considered self-serving. 

The mere fact of death alone does not render competent self-serving conduct, admissions or declarations of the deceased person during his life-time.

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Unsworn declarations by others for the declarant would be inadmissible.

Persons whose unsworn declarations in behalf of a party are not admissible in favor of the latter: 1) agents, as regards their principals 2) a co-defendant or co-partner, as regards the other 3) a guardian as regards his word. 4) a principal as regards his surety 5) a husband or wife as regards his or her spouse 6) an employee, as regards his employer 7) officers of the corporation 8) public officers as regards public corporation 9) predecessors in title, as regards am owner of property Self serving declarations made by a party are admissible in his own behalf in the ff: 1) When they form part of res gestae, including spontaneous statements and verbal acts

unless they have the nature of books of account; but it has been held that an entry in diary, being in the nature of a declaration, if it was against interest when made, is admissible. 

An invoice prepared by a merchant in the city covering merchandise consigned to his agent in the province, and a letter of said merchant requesting confirmation of the receipt of said merchandise by the agent, are not selfserving if they had been prepared not in anticipation of litigation in which they were presented as evidence. Carbon copies of letters of demands sent to defendant, receipt of which was acknowledged.

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Flight from justice is an admission by conduct and circumstantial evidence of consciousness guilt.

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Evidence of attempts to suppress evidence, as by destruction of documentary evidence are admissible under the same rationale.

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The act of reporting a machine, bridge, or other facility after an injury has been sustained therein is not an implied admission of negligence by conduct. It is merely a measure of extreme caution by adopting additional safeguards since, despite due care and diligence, an unexpected accident can still occur.

2) when they are in the form of complaint and exclamations of pain and suffering 3) when they are part of a confession offered by the prosecution, that his testimony is a recent fabrication, in which case his prior declaration, even of a self serving character, may be admitted, provided they were made at a time when a motive to misrepresent did not exist. 4) where they are offered by the argument. The objections which have been pointed out do not apply against the reception of the statements of one party as evidence when such statements are offered by his adversary. Every written statements of a party in his own favor can be successfully turned when such statements are offered against him.

Section 27. Offer of compromise not admissible COMPROMISE - is an agreement made between two or more parties as a settlement matters in dispute. Civil cases - an offer of compromise is not an admission of any liability, and is not admissible in evidence against the offeror. Criminal cases - except those involving quasioffenses (criminal negligence) or those allowed by law to be compromised, an offer of compromise by the accused may be received in evidence as an implied admission of guilt.

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5) when they are offered without objection, the evidence cannot afterward be objected to as incompetent. 

Diaries, as a general rule, are inadmissible because they are self-serving in nature,

A compromise agreement is valid when the true essence of which resides in reciprocal concessions.

GENERAL RULE – an offer of compromise is not an admission of any liability and is not admissible in evidence against an offeror Page 25 of 53

Remedial Law Summer Reviewer ATENEO CENTRAL BAR OPERATIONS 2007 EXCEPTIONS: 1. an express admission of liability made during negotiations for a compromise; 2. Express and unqualified admission of indebtedness accompanying an offer of compromise; 3. An admission of the correctness of an account or of specific items; 4. admission involving interest in property; 5. admission affecting liability for a tort. 

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It is the policy of the law to favor the settlement of disputes, to foster compromise, and to promote peace. If every offer to buy peace could be used as evidence against him who presents it, many settlements would be prevented, and unnecessary litigation would be produced and prolonged. While a bare offer to compromise does not constitute an admission on the part of the person making it, the fact that a writing contains an offer of compromise does not render it inadmissible in evidence if it is competent evidence for other purposes. If a statement forming part of an offer of compromise or made in the course of negotiations to effect a settlement is an admission of fact pertinent to an issue between the parties, it is admissible on the trial of such issue, unless it is so closely connected with the offer of compromise as to be inseparable therefrom, is a tentative or hypothetical statement as distinguished from a definite statement of fact or is expressly made without prejudice or indicates that it is made in confidence that a compromise will be affected.

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An express admission of liability made during negotiations for a compromise has been held admissible.

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A pedestrian is run over by a driver, he was injured. Later on the driver approached the pedestrian and said sorry because he was drunk that night and offered a payment. The pedestrian may not introduce the fact that he was offered a money to show that driver is liable. However, he can introduce the fact that the driver was drunk.

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In criminal cases, an offer of compromise is an implied admission of guilt, although the accused may be permitted to prove that such

offer was not made under consciousness of guilt but merely to avoid the risks of criminal action against him. 

No compromise may be entered into as regards the penal action, however it may be with respect to the civil liability.

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In criminal cases where compromise is allowed by law as in opium or usury cases, no implied admission of guilt arises against the accused who makes an offer to compromise.

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In prosecution for violation of the internal revenue law, such offers of compromise are not admissible in evidence as the law provides that the payment of any internal revenue tax may be compromised, and all criminal violations may likewise be compromised, except those already filed in court and those involving fraud.

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Actual marriage, in rape case, criminal liability is extinguished. An offer to compromise a monetary consideration and not to marry the victim, is an implied admission of guilt. The attempt of the parents of the accused to settle the case with the complainant was considered an implied admission of guilt. The SC has held that an offer of marriage by the accused, during the investigation of the rape case is also admission of guilt.

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What matter is the fact of marriage and not the intent behind the marriage. Example, it does not matter whether the accused married the victim for the reason of exculpating him from criminal liability.

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The amendment regarding the admissibility of a plea of guilty later withdrawn or an unaccepted offer to plead guilty to a lesser offense as a consequence of the present provisions in criminal procedure on plea bargaining. One of the practical reasons advanced is that encouragement of negotiations between the defense and prosecution counsel with respect to pleas requires flexibility in making and withdrawing them without prejudice.

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The court allows the accused to change plea when the previous plea was made improvidently.

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Remedial Law Summer Reviewer ATENEO CENTRAL BAR OPERATIONS 2007 

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Criminal cases involving criminal negligence, or the quasi-offenses contemplated in Art. 365 of the RPC, are allowed to be compromised under the amendment to this section, hence, an offer of settlement is not an implied admission of guilt. An offer to pay or the actual payment of the medical, hospital or other expenses by reason of the victim’s injuries is not admissible to prove civil or criminal liability therefore. Such humanitarian acts or charitable responses should be encouraged and rewarded, instead of being discouraged or penalized by being considered as admissions of liability. A troublesome question arises when an express admission of liability is coupled with an offer of assistance. Some courts have stated that both should be admitted since the express admission insured that the offer or tender of assistance was “not merely an act of benevolence, but some admission of fault”. If the admission can be disclosed without mentioning the furnishing, offering or promise to pay medical expenses, then it should be admitted.

Section 28. Admissibility by third party 

Unless he assents thereto, a party to an action cannot be affected by the admission of a person who does not occupy toward him any relation of privity, agency or joint interest.

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The act, declaration or omission of another is generally irrelevant, and that in justice a person should not be bound by the acts of mere unauthorized strangers.

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The rule is well-settled that a party is not bound by any agreement of which he has no knowledge and to which he has not given his consent and that his rights cannot be prejudiced by the declaration, act or omission of another, except by virtue of a particular relation between them.

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This section refers to the first branch of the rule of “RES INTER ALIOS ACTA ALTERI NOCERE NON DEBET”. It is corollary known as the second branch of the rule, is

found in Section 34 of Rule 130. EXCEPTIONS TO THIS RULE: 1. are in those instances where the third person is a partner, agent, joint owner, joint debtor or has a joint interest with the party (Section 29); 2. or is a con-conspirator (Section 30) ; 3. or a privy of the party (Section 31). 

The basis of the exceptions is that a third party may be so united in interest with the party-opponent that the other person’s admissions may be receivable against the party himself. The term “privy” is the orthodox catchword for the relation.

Section 29. Admission by co-partner or agent 

The admission of one partner is received against another on the ground that they are identified in interest , and that each is agent for the other and that the acts or declarations of one during the existence of the partnership, while transacting its business and within the scope of the business, are evidence against the others.

REQUISITES: 1. That the partnership, agency, or joint interest is established by evidence other than the act or declaration – partnership relation must be shown 2. the act or declaration is within the scope of the partnership, agency or joint interest – the fact that each has individually made a substantially similar admission does not render the aggregate admission competent against the firm, this is with regard to a nonpartnership affair. 3. Such act or declaration must have been made during the existence of the partnership, agency or joint interest. 

The declaration of one partner, not made in the presence of his co-partner, are not competent to prove the existence of a partnership between them as against such other partner. The existence of a partnership is cannot be established by general reputation, humor or hearsay.

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Even where one partner is shown to be hostile to another, the admissions of such first partner may be received, although, of course, such hostility may affect the question Page 27 of 53

Remedial Law Summer Reviewer ATENEO CENTRAL BAR OPERATIONS 2007 of weight of the evidence. The declarations of a deceased partner, relating to the partnership business, are admissible against his survivors. 

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Declarations or admissions made by a partner after the dissolution of the partnership are not competent against the other partners in the absence of prior authority or subsequent ratification, even though such declarations relate to matters pending at the time of dissolution. With respect to the relevant substantive provisions on these matters, refer to the Civil Code provisions on partners, agents, coowners and solidary debtors As a rule, statements made after a partnership has been dissolved do not fall within this exception, but where the admissions are made in connection with the winding up of the partnership affairs, said admissions are still admissible as the partner is acting as an agent of his co-partners in said winding up. What is done by an agent is done by the principal through him, as through a mere instrument. The admission or declaration of an agent subsequent to a transaction in controversy, or after this agency has terminated are not binding upon, or evidence against his principal. But when the admission or declaration is made at the time of the transaction, or during his employment, when it pertains to the matter in hand, as agent, which is within the cope of his employment, his admissions and declarations are competent, though not conclusive against his principal. When a party to any proceeding expressly refers to any other person for an answer on a particular subject in dispute, such answer, if restricted to the subject matter in relation to which the reference is made, is in general, evidence against said party, for the reason that he makes such third person his accredited agent for the purpose of giving such answer. The admissions of a third person are receivable in evidence against the party who has expressly referred another to him for

information in regard to an uncertain or disputed matter. 

But such a reference does not make the person referred to an agent for the purpose of making general admissions, the declarations are not evidence unless strictly within the subject matter in relation to which reference is made.

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When the reference was not made to any particular person but in general, the rule above-stated is not applicable.

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Admissions by counsel are admissible against the client as the former acts in representation and as an agent of the client, subject to the limitation that the same should not amount to a compromise or confession of judgment

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The phrase “joint debtor” does not refer to mere community of interest but should be understood according to its meaning in the common law system from which the provision was taken, that is, in solidum, and not mancomunada.

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The quantum of interest of the declarant does not affect the application of the rule. It is the fact of joint interest, not the size of the fractional part, which governs. If he is liable to the plaintiff in the same manner that his co-defendants are liable, the extent to which they are bound by his admission cannot be measured or graduated by the quantity of his interest in the contract.

Section 30. Admission by conspirator

 Under the Revised Penal Code, a conspiracy exists when two or more persons come to an agreement concerning the commission of a felony and decide to commit it. 

Conspiracies are generally proved by a number of indefinite acts, conditions, and circumstances which vary according to the purposes to be accomplished. If it be proved that the defendants pursued by their acts the same object, one performing one part and another performing part of the same, so as to complete it, with a view to the attainment of the same object, one will be justified in the conclusion that they were engaged in the conspiracy to effect that object.

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Remedial Law Summer Reviewer ATENEO CENTRAL BAR OPERATIONS 2007 

This rule applies only to extrajudicial acts or statements and not to testimony given on the witness stand at the trial where the party adversely affected thereby has the opportunity to cross-examine the declarant. Hence, the requirement that the conspiracy must preliminary be proved by evidence other than the conspirator’s admission applies only to extrajudicial, but no to judicial, admissions.

REQUISITES: 1. such conspiracy is shown by evidence aliunde – conspiracy must be established by prima facie proof in the judgment of the court. 2. the admission was made during the existence of the conspiracy –after, the termination of a conspiracy, the statements of one conspirator may not be accepted as evidence against any of the other conspirators. 3. the admission related to the conspiracy itselfshould relate to the common object 

These are not required in admissions during the trial as the co-accused can crossexamine the declarant and besides these are admissions after the conspiracy has ended.

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Direct proof is not essential to prove conspiracy.

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The conspiracy may be inferred from the acts of the accused or from the confessions of the accused or by prima facie proof thereof.

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The concurrence of minds essential to conspiracy may be inferred where the parties are apparently pursuing the same object whether acting separately or together by common or different means leading to the same lawful result, and a common purpose is inferable from concerted action converging to a definite objective and whether or not the parties meet, or confer and formulate their plans.

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Conspiracy must be shown to exist as clearly and convincingly as the commission of the offense itself.

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A person charged with conspiracy is presumed to be innocent, and the burden is on the prosecution to establish his guilt.

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The rule of evidence with regard to conspiracy is founded on the principle which

apply to agencies and partnerships, the association should be bound by the acts of one of its members in carrying out the design. 

Where there is no independent evidence of the alleged conspiracy, the extrajudicial confession of an accused cannot be used against his co-accused as the res inter alios rule applies to both extrajudicial confessions and admissions

GENERAL RULE: Extra judicial admissions made by a conspirator after the conspiracy has terminated and even before trial are also not admissible against the co-conspirator EXCEPTIONS: 1. made in the presence of the latter who expressly or impliedly agreed therein, as there would be a tacit admission under Section 32 2. Where the facts stated in said admission are confirmed in the individual extrajudicial confessions made by the co-conspirators after their apprehension (interlocking confessions) 3. as a circumstance to determine the credibility of a witness 4. as circumstantial evidence to show the probability of the latter’s participation in the offense. 

If made after the act designed is fully accomplished and after the object of the conspiracy has been either attained of finally defeated, the declaration will be admissible only against the person who made it.

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In order that the extrajudicial statements of a co-accused may be taken into consideration in judging the testimony of a witness, it is necessary that the statements are made by several accused, the same are in all material respects identical, and there could have been no collusion among said co-accused in making such statements.

If this testimony is introduced to prove the truth of B’s statement, it will be hearsay, but it will fall within the co-conspirator exception to hearsay rule. This is because the statement was: 1) made by a co-conspirator 2) made during the course of the conspiracy 3) made in furtherance of the objectives of the conspiracy 

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Remedial Law Summer Reviewer ATENEO CENTRAL BAR OPERATIONS 2007 Section 31. Admission by privies PRIVITY - mutual succession of relationship to the same rights of property. PRIVIES - those who have mutual or successive relationship to the same right of property or subject matter, such as “personal representatives, heirs, devisees, legatees, assigns, voluntary grantee or judgment creditors or purchasers from them without notices to the fact. REQUISITES: 1. there must be a relation of privity between the party and the declarant 2. The admission was made by the declarant, as predecessor in interest, while holding the title to the property. 3. The admission is in relation to said property. 

The privity in estate may have arisen by succession by acts mortis cause or by acts inter vivos.

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It is an established rule in evidence that the declaration of a person under whom the title is claimed are receivable against the successor so claiming, on the theory that there is sufficient identity of interest to render the statements of the former equally receivable with the admissions of the present owner, and that the rights of the latter are those of the former.

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The principle on which such evidence is received is that the declarant was so situated that he probably knew the truth, and his interest were such that he would not have made the admissions to the prejudice of his title or possession, unless they were true. The regard which one so situated would have to his interest is considered sufficient security against falsehood.

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In order to render an admission of a former owner of property competent against his successor in title, it must have been made at a time when the title was in the declarant.

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An admission of a former owner may not be received against his successor in title, if it was made either before declarant acquired title or after it had passed from him, unless the successor has concurred or acquiesced therein.

GENERAL RULE: Declarations of the transferor,

made subsequent to the transfer, are inadmissible EXCEPTIONS: 1. Where the declarations are made in the presence of the transferee and he acquiesces in the statements or asserts no rights where he ought to speak; 2. Where there has been a prima facie case of fraud established as where the thing granted has a corpus, and the possession of the thing after the sale or transfer, remains with the seller or transferor; 3. Where the evidence establishes a continuing conspiracy to defraud, which conspiracy exists between the vendor and the vendee. Section 32. Admission by silence 

The rule that the silence of the party against whom a claim or a right is asserted may be construed as an admission of the truth of the assertion rests on that instinct of our nature, which leads us to resist an unfounded demand.

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This rule applies in both criminal as well as in civil cases.

REQUISITES: 1. he must have heard or observed the act or declaration of the other person; 2. He must have had the opportunity to deny it 3. He must have understood the statement; 4. He must have an interest to object, such that he would naturally have done so, as if the statement was not true; 5. the facts are within his knowledge 6. The fact admitted or the inference to be drawn from his silence is material to the issue. 

The rule on admission by silence applies where a person was surprised in the act or even if he is already in the custody of the police.



Voluntary participation in a reenactment of the crime conducted by the police is considered a tacit admission of complicity.

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However, for a reenactment to be given any evidentiary weight, the validity and efficacy of the confession must first be shown. The implication of guilt is not derived from mere silence but from appellant’s silent Page 30 of 53

Remedial Law Summer Reviewer ATENEO CENTRAL BAR OPERATIONS 2007 acquiescence in participating reenactment of the crime 





in

the

The rule does not apply if the statements adverse to the party were made in the course of an official investigation, as where he was pointed out in the course of a custodial investigation and was neither asked to reply nor comment on such imputations or where the party had a justifiable reason to remain silent, as where he was acting on advice of counsel, otherwise his right to silence would be illusory. No admission can be implied from silence where the failure to answer was caused by constraint, or the party was not aware at the time that he had an interest, or believed that he had no interest, or was only indirectly affected, or where as the matter was presented, he had no interest to object, for example, where the statement was not addressed to him or was in his favor. The same absence of relevancy occurs where an answer would be unseemly interruption of orderly proceedings then in progress, such as the delivery of a sermon, the taking of the deposition or of testimony in open court or the discharge by a judge, magistrate, counsel, or other person of his proper function in court proceedings.

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It should be kept in mind that a person under investigation for the commission of an offense has the right to remain silent and to be informed of that right.



The rule applies to adverse statements in writing if the party was carrying on a mutual correspondence with the declarant. However, if there was no such mutual correspondence, the rule is relaxed on the theory that while the party would have immediately reacted by a denial of the statement were orally made in his presence, such prompt response can generally not be expected if the party still has to resort to a written reply.

Section 33. Confession CONFESSION - categorical acknowledgement of guilt made by an accused in a criminal case, without any exculpatory statement or explanation. If the accused admits having committed the act in question but alleges a justification therefore, the same is merely an admission.

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There can also be a confession of judgment in a civil case where the party expressly admits his liability.

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Confession may either be oral or in writing and if in writing, it need not be under oath.

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The fact that the extrajudicial confession was made while the accused was under arrest does not render it inadmissible where the same was made and admitted prior to the 1973 Constitution.

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A confession may either be judicial or extrajudicial. JUDICIAL CONFESSION - one made before a court in which the case is pending and in the course of legal proceedings therein and, by itself, can sustain a conviction even in capital offenses.

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EXTRAJUDICIAL CONFESSION - one made in any other place or occasion and cannot sustain a conviction unless corroborated by evidence of the corpus delicti. This section refers to extrajudicial confessions.

REQUISITES: 1. The confession must involve an express and categorical acknowledgment of guilt. 2. The facts admitted must be constitutive of a criminal offense 3. The confession must have been given voluntarily 4. the confession must have been intelligently made, the accused realizing the importance or legal significance of this act. 5. There must have been no violation of Section 12, Art. III of the 1987 Constitution. 

Confessions are presumed to be voluntary and the onus is on the defense to prove that it was involuntary for having been obtained by violence, intimidation, threat or promise of reward or leniency.

The following circumstances have been held to be indicia of the voluntariness of a confession: • The confession contains details which the police could not have supplied or invented. • The confession contains details which could have been known only to the accused • The confession contains statements which are exculpatory in nature • The confession contains corrections made by Page 31 of 53

Remedial Law Summer Reviewer ATENEO CENTRAL BAR OPERATIONS 2007

• •

•

•

•

• •



the accused in his handwriting or with his initials and which corrected facts are best known to the accused. The accused is sufficiently educated and aware of the consequences of his act. It was made in the presence of impartial witnesses with the accused acting normally on that occasion There is lack of motive on the part of the investigators to extract a confession, with improbabilities and inconsistencies in the attempt of the accused to repudiate his confession. The accused questioned the voluntariness of the confession only for the first time at the trial of the case. The contents of the confession were affirmed by the accused in his voluntary participation in the reenactment of the crime, as shown by his silent acquiescence thereto. The facts contained in the confession were confirmed by other subsequent facts After his confession, the accused was subjected to physical examination and there were no signs of maltreatment or the accused never complained thereof, but not where he failed to complain to the judge on a reasonable apprehension of further maltreatment as he was still in the custody of his torturers If the extrajudicial confession was obtained before the effectivity of the 1973 Constitution on January 17, 1973, the same is admissible in evidence even if the confessant was not informed of his right to silence and to counsel as this constitutional mandate should be given a prospective, and not a retrospective effective and this doctrine applies even if the confession was made while the accused was under arrest.

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Under the current rule, the confession is inadmissible if there is a violation of the accused’s right to counsel and to silence.



Where, before the statement containing the extrajudicial confession of guilt was taken, the accused was asked whether he was familiar with the provisions of then Section 20, Art. IV of the 1973 Constitution and he answered in the affirmative, and the statement which he signed states that he had been apprised of his constitutional rights with the warning that anything he would say might be used for or against him in court, such extrajudicial confession is admissible in

evidence, especially where he thereafter failed to impugn the same by not taking the witness stand although assisted by counsel. 

Where the verbal extrajudicial confession was made without counsel, but it was spontaneously made by the accused immediately after the assault, the same is admissible not under the confession rule but as part of the res gestae, aside from the consideration that no custodial investigation was involved.

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Where the accused was merely told of his constitutional rights and asked if he understood what he was told, but he was never asked whether he wanted to exercise or avail himself of such rights, his extrajudicial confession is inadmissible.

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Where the extrajudicial confession of the accused while under custodial investigation was merely prefaced by the investigator with a statement of his constitutional rights, to which he answered that he was going to tell the truth, the same is inadmissible as his answer does not constitute a waiver of his right to counsel and he was not assisted by one when he signed the confession. His short answer does not show that he knew the legal significance of what were asked of him, especially where the accused is illiterate and it was not shown how his constitutional rights were explained by the investigator.

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The waiver of the right to counsel during custodial investigation must be made with the assistance of counsel. Counsel must be independent and competent.

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Where a confession was illegally obtained from two of the accused and, consequently, are not admissible against them, with much more reason should the same be inadmissible against third accused who had no participation therein.

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Any form of coercion, whether physical, mental or emotional, renders the extrajudicial confession inadmissible.

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A promise of immunity or leniency vitiates a confession if given by the offended party or by the fiscal, but not if given by a person whom the accused could not have reasonably expected to be able to comply with such promise, such as an investigator Page 32 of 53

Remedial Law Summer Reviewer ATENEO CENTRAL BAR OPERATIONS 2007 who is not a prosecuting or could not bind the offended party which was a corporation 

Where the accused voluntarily made a second extrajudicial confession after he had been maltreated in order to extort the first confession, such second confession is admissible only if it can be proved that he was already relieved of the fear generated by the previous maltreatment.

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The entire confession should be admitted in evidence but the court may, in appreciating the same, reject such portions as are incredible.

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Where the extrajudicial confession was obtained by maltreatment, the judgment based solely thereon is null and void and the accused may obtain his release on a writ of habeas corpus.

GENERAL RULE: The extrajudicial confession of an accused is binding only upon himself and is not admissible against his co-accused EXCEPTIONS: 1. if the latter impliedly acquiesced in or adopted said confession by not questioning its truthfulness, as where it was made in his presence and he did not remonstrate against his being implicated therein 2. If the accused persons voluntarily and independently executed identical confessions without conclusion, commonly known as interlocking confessions which confessions are corroborated by other evidence and without contradiction by the co-accused who was present. 3. If the accused persons voluntarily and independently executed identical confessions without conclusion, commonly known as interlocking confessions, which confessions are corroborated by other evidence, and without contradiction but the co-accused who was present. 4. Where the accused admitted the facts stated by the confessant after being apprised of such confession 5. If they are charged as co-conspirators of the crime which was confessed by one of the accused and said confession is used only as a corroborating evidence. 6. If they are charged as co-conspirators of the crime which was confessed by one of the accused and said confession is used only as a corroborating evidence. 7. Where the confession is used as circumstantial evidence to show the

probability of participation by the coconspirator. 8. where the confessant testified for his codefendant or 9. where the co-conspirator’s extra judicial confession is corroborated by other evidence of record. 

This section, as now amended, declares as admissible the confession of the accused not only with respect to the offense charged but also any offense necessarily included therein. On the other hand, the 1987 Constitution specifically provides that, illegal confessions and admissions are inadmissible against the confessant or the admitter, hence they are admissible against the persons who violated the constitutional prohibition against obtaining illegal confessions or admissions.

Section 34. Similar acts as evidence GENERAL RULE: Evidence that one did or did not do a certain thing at one time is not admissible to prove that he did or did not do the same or a similar thing at another time EXCEPTIONS: Where the evidence or similar acts may prove: 1. a specific intent or knowledge; 2. identity; 3. a plan, system or scheme; 4. a specific habit; 5. stablished customs, usages and the like

 The reason for the rule is to compel the defendant to meet charges of which the indictment gives him no information, confuses him in his defense, raises a variety of issue, and thus diverts the attention of the court from the charge immediately before it. It is an application of the principle that the evidence must be confined to the point in issue in the case on trial. In other words, evidence of collateral offenses must not be received as substantive evidence of the offense on trial.

 SEC. 34 IS THE SECOND BRANCH OF THE RULE OF RES INTER ALIOS ACTA AND APPLIES TO BOTH CIVIL AND CRIMINAL CASES. This section just like the first branch of the res inter alias acta rule provided for in Sec. 28, Rule 130, is strictly enforced in all cases where it is applicable.

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Evidence of similar offenses involving the making of other false representations, is admissible against the prisoner to show that he is aware of the falsity of the statements made by him in the present case and that knowing them to be false, he made them with intent to deceive. Evidence of a number of crimes is admissible in a prosecution for robbery where it has the tendency to identify the accused or show his presence at the scene of the crime but not where the evidence is to prove that the accused committed another crime wholly independent of that for which he is on trial.

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Previous acts of negligence, that is, selling barium chlorate instead of potassium chlorate, is admissible to show knowledge or intent.



In civil cases the rule as to proof of commission of an act by showing the commission of similar acts by the same person at other times and under other circumstances is the same as in a criminal prosecution.

Section 35. Unaccepted offer

 This section complements the rule on tender of payment (Art. 1256, Civil Code) by providing that said offer of payment must be made in writing. Such tender of payment must, however, be followed by consignation of the amount in court in order to produce the effects of valid payment. The rule covers: 1. payment of sum of money - if the amount is short of the amount of liability or not in the currency which is the legal tender here in the Philippines, the creditor has a reason not to accept the tender. Or even if the legal tender is not that one to which the parties agreed 2. delivery of document – if not that agreed document, creditor may refused acceptance; 3. delivery of personal property – creditor may refuse and it does not amount to a tender if the personal property is not that one agreed upon 

Delivery or unaccepted offer does not release the debtor from obligation but it can excuse the debtor from delivery.



Upon a valid unaccepted offer, the creditor shall absorb all the circumstantial damages to the property. However, the debtor must prove that there is no negligent on his part.



The court has to resolve the issue on whether there is a just cause in the refusal if the creditor denied the consignation of the debtor in the basis that there is no just cause.



It should be noted that the requirement that the tender of payment must have been refused without just cause by the creditor does not imply that for the judicial authority to accept consignation it has to examine whether or not the creditor had a just reason for refusing the tender. In order that the consignation of an amount or thing may be made the refusal of the creditor of the tender of payment is enough, without regard to the reason for his refusal, which will only be taken into account to resolve definitely whether the consignation made will be efficacious against his opposition.

Section 36. Testimony generally confined to personal knowledge; hearsay excluded. HEARSAY RULE Any evidence, whether oral or documentary is hearsay if its probative value is not based on the personal knowledge of the witness but on the knowledge of some other person not on the witness stand.

 Hearsay evidence is excluded because the



party against whom it is presented is deprived of his right and opportunity to cross examine the person to whom the statements or writings are attributed. Hearsay evidence not objected to may be admissible but whether objected to or not, has no probative value, and as opposed to direct primary evidence, the latter always prevails.

GENERAL RULE: Hearsay Evidence is inadmissible EXCEPTIONS: 1. Dying Declaration 2. Declaration Against Interest 3. Act Or Declaration Against Pedigree 4. Family Reputation Or Tradition Against Pedigree 5. Common Reputation 6. Res Gestae 7. Entries In The Ordinary Course of Business Page 34 of 53

Remedial Law Summer Reviewer ATENEO CENTRAL BAR OPERATIONS 2007 8. 9. 10. 11.

Entries In Official Records Commercial Lists Learned Treatises Testimony Or Deposition At A Former Proceeding

 The exceptions are admissible for reasons of NECESSITY and TRUSTWORTHINESS. DOCTRINE OF INDEPENDENTLY RELEVANT STATEMENTS The witness may testify to the statements made by a person, if for instance, the fact that such statements were made by the latter would indicate the latter’s mental state and physical condition. Independent of whether the facts stated are true or not, they are relevant since they are the facts in issue or are circumstantial evidence of the facts in issue. TWO CLASSES OF INDEPENDENTLY RELEVANT STATEMENTS 1. 2.

Those statement s which are the very fact in issue; Those statements which are circumstantial evidence of the fact in issue. It includes the following: a. Statement of a person showing his state of mind that is, his mental condition, knowledge, belief, intention, ill-will, and other emotions; b. Statements of persons which shows his physical condition as illness and the like; c. Statements of a person from which an inference may be made as to the state of mind of another, that is, knowledge, belief, motive, good/bad faith of the latter; d. Statements which may identify the date, place, person in question; e. Statements showing the lack of credibility of a witness

1. That the death is imminent and the declarant is conscious of such fact 2. That the declaration refers to the cause and the surrounding circumstances of such death 3. That the declaration refers to the facts which the victim is competent to testify to 4. That the declaration is offered in a case wherein the declarant’s death is subject of the inquiry (the victim necessarily must have died) 5. That the statement must be complete in itself. (People vs. De Joya, 203 SCRA 343). Reason for its admission 1. Necessity – because the declarant’s death renders impossible his taking the witness stand 2. Trustworthiness – at the point of death, every motive for falsehood is silenced. The mind is induced by the most powerful consideration to speak the truth. Determination of consciousness of impending death: 1. utterances 2. circumstances – that at the time of the making of the declaration, the declarant did not expect to survive the injury from which he actually died 3. actual character and seriousness of his wounds 4. By his conduct. 5. A dying declaration may be oral or written or made by signs which could be interpreted and testified to by a witness thereto. 

There must be settled, hopeless expectation that death is at hand. It is sufficient that he believed himself in imminent danger of death at the time of such declaration.

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Dying declarations favorable to the accused are admissible.

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Dying declarations may also be regarded as part of the res gestae as they were made soon after the startling occurrence without the opportunity for fabrication or concoction.

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Dying declaration is not considered as a confidential communication between the spouses.

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A dying declaration may be attacked on the

Section 37. Dying declaration. DYING DECLARATION - The ante mortem statements made by a person after the mortal wound has been inflicted under the belief that the death is certain, stating the fact concerning the cause of and the circumstances surrounding the attack. 

It applies to any case where the death of the declarant is the subject of the inquiry.

REQUISITES:

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Remedial Law Summer Reviewer ATENEO CENTRAL BAR OPERATIONS 2007 ground that any of the requisites for its admissibility are not present and the same may be impeached in the same manner as the testimony of any of the witness on the stand. Section 38. Declaration against interest. REQUISITES: 1. That the declarant is dead and unable to testify. 2. That it relates to facts against the interest of the declarant. 3. That at the time he made the said declaration the declarant was aware that the same was contrary to his aforesaid interest; and 4. That the declarant had no motive to falsify and he believed such actual declarant to be true. Reasons for such admission: 1. Necessity – such declarations are the only mode of proof available 2. Trustworthiness – persons do not make statements that are disadvantageous to themselves without substantial reason to believe that the statements are true. Selfinterest induces men to be cautious in saying anything against themselves. In other words, we can safely trust a man when he speaks against his interest. Interest covered: 1. proprietary interest 2. penal interest 3. pecuniary interest 

The declarant must realize at the very time of making the declaration that his declaration is against his interest, that a reasonable man in his position would not have made the declaration unless he believed it to be true.

 It is essential that at the time of the statement, the declarant’s interest affected thereby should be actual/real/apparent not merely contingent, future or unconditional, otherwise, the declaration would not in reality be against interest.

Act or declaration against pedigree Witness need not be a member of the family Testimony is about what declarant, who is dead or unable to testify, he said concerning the pedigree of the declarant’s family

Family reputation or tradition regarding pedigree Witness is a member of the family Testimony is about family reputation or tradition covering matters of pedigree.

PEDIGREE – includes relationship, family genealogy, birth, marriage, death, the dates when, and the placer where these facts occurred and the names of their relatives. It embraces also facts of family history intimately connected with pedigree. Section 41. Common reputation. THE FOLLOWING MAY BE ESTABLISHED BY COMMON REPUTATION: 1. matters of public interest more than 30 years old; 2. matters of general interest more than 30 years old; 3. matters respecting marriage or moral character and related facts; 4. Individual moral character. COMMON REPUTATION – is the definite opinion of the community in which the fact to be proved is known or exists. It means the general or substantially undivided reputation, as distinguished from a partial or qualified one, although it need not be unanimous. As a general rule, the reputation of a person should be that existing in the place of his residence; it may also be that existing in the place where he is best known. EVIDENCE OF NEGATIVE GOOD REPUTE Where the foundation proof shows that the witness was in such position that he would have heard reports derogatory to one’s character, the reputation testimony may be predicated on the absence of reports of bad reputation or on the fact that the witness heard nothing against the person.

Section 39. Act or declaration about pedigree.

Section 42. Part of res gestae

Section 40. Family reputation or tradition.

RES GESTAE – literally means things done; it includes circumstances, facts, and declarations incidental to the main facts or transaction necessary to illustrate its character and also includes acts,

Section 39

Section 40

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Remedial Law Summer Reviewer ATENEO CENTRAL BAR OPERATIONS 2007 words, or declarations which are closely connected therewith as to constitute part of the transaction. TWO TYPES OF RES GESTAE SPONTANEOUS STATEMENTS spontaneous statements in connection with a startling occurrence relating to that fact and in effect forming part thereof;

What the law distrusts is not the “after speech” but the after thought. Distinctions between Res Gestae in connection with a homicidal act and dying declaration

VERBAL ACTS statements accompanied by AN EQUIVOCAL ACT MATERIAL TO THE ISSUE AND giving it a legal significance

REQUISITES 1. there must be a 1. the act or startling occurrence; occurrence 2. the statement must characterized must relate to the be equivocal; circumstances of the 2. verbal acts must startling occurrence; characterize or and explain the 3. The statement must equivocal act; be spontaneous. 3. equivocal act must be relevant to the issue; and 4. Verbal act must be contemporaneous with the equivocal act. Grounds for admissibility 1. Necessity – natural and spontaneous utterances are more convincing than the testimony of the same person on the stand. 2. Trustworthiness – the statement is made indistinctively. The facts speaking thru the party not the party talking about the facts.

 It is essential that spontaneous statements should have been caused by something startling enough to produce nervous excitement. The declarant must be a witness to the event to which the utterance relates. He must have personally observed the fact.

RES GESTAE in connection with a homicidal act May be made by the killer himself after or during the killing OR that of a 3rd person. May precede or be made after the homicidal attack was committed. Justification in the spontaneity of the statement.

Dying declarations Can be made only by the victim. Made only after the homicidal attack has been committed. Trustworthiness based upon in its being given in awareness of impending death.

Distinctions between verbal spontaneous statements VERBAL ACTS The res gestae is the equivocal act. Verbal act must be contemporaneous with or accompany the equivocal act.

acts

and

SPONTANEOUS STATEMENTS The res gestae is the startling occurrence Statements may be made prior, or immediately after the startling occurrence.

Section 43. Entries in the course of business REQUISITES: 1. That the entrant made the entry in his professional capacity or in the performance of a duty; 2. The entry was made in the ordinary course of business or entry; 3. The entries must have been made at or near the time of the transaction to which they relate; 4. The entrant must have been in a position to know the facts stated in the entries; 5. The entrant must be deceased or unable to testify. 

The law does not fix any precise moment when the entry should be made. It is sufficient that the entry was made within a reasonable period of time so that it may appear to have taken place while the Page 37 of 53

Remedial Law Summer Reviewer ATENEO CENTRAL BAR OPERATIONS 2007 memory of the facts was unimpaired. How regularity of the entries proved  It may be proved by the form in which they appear in the corresponding book. Section 44. Entries in official records REQUISITES: 1. that it was made by a public officer or by another person specially enjoined by the law to do so; and 2. that it was made any a public officer in the performance of his duty specially enjoined by law; and 3. The public officer or the other person has sufficient knowledge of the facts by him stated, which must have been acquired by him personally or through official information. Reasons for admission 1. Necessity – practical impossibility of requiring the official’s attendance as a witness to testify to the innumerable transactions occurring in the course of his duty. 2. Trustworthiness – there is a presumption of regularity in the performance of official duty.

 Probative value: only prima facie evidence of the facts stated therein. It is not essential for the officer making the official statement to have a personal knowledge of the facts stated by him, it being sufficient that the official information was acquired by officers who prepared the report from persons who not only have personal knowledge of the facts stated but must have the duty to give such statements for the record. People vs. Cabrera Jr., G.R. No. 138266, April 30, 2003 It is well settled that entries in the police blotter should not be given due significance or probative value as they are not conclusive evidence of the truth of their contents but merely of the fact that they were recorded. Hence, they do not constitute conclusive proof. Section 45. Commercial list and the like REQUISITES: 1. Statements of matters of interest to persons engaged in an occupation; 2. The statements must be contained in a list, register, periodical or other published compilation;

3. The compilation was published for use by persons engaged in that occupation; and 4. Is generally relied upon by them. Reasons for admission: 1. Necessity – because of the unusual accessibility of the persons responsible for the compilation of matters contained in a list, register, periodical or other published compilation and tremendous inconvenience it would cause to the court if it would issue summons to these numerous individuals. 2. Trustworthiness – they have no motive to deceive and they further realize that unless the list, register, periodical or other published compilation are prepared with care and accuracy, their work will have no commercial and probative value. Section 46. Learned Treatises In order that a published treatise, periodical, or pamphlet on a subject of law, history, science, or art may be admissible, it is necessary either: 1. That the court can take judicial notice of it; or 2. A witness expert on the subject testifies that the writer of the statement in the treatise, periodical, or pamphlet is recognized in his profession or calling as expert in the subject. Reasons for admission 1. Necessity – even if such person is legally procurable, the expense is frequently disproportionate. 2. Trustworthiness – learned writers have no motive to misrepresent. He is aware that his work will be carefully scrutinized by the learned members of his profession and that he may be subject to criticisms and ultimately rejected as an authority of the subject matter if his conclusions are found to be invalid. Section 47. Testimony or deposition at a former proceeding REQUISITES: 1. The testimony or depositions of a witness deceased or unable to testify; 2. The testimony was given in a former case or proceeding, judicial or administrative; 3. Involving the same parties; 4. Relating to the subject matter; 5. The adverse party having had an opportunity to cross-examine him. OPINION RULE Page 38 of 53

Remedial Law Summer Reviewer ATENEO CENTRAL BAR OPERATIONS 2007 OPINION – an inference or conclusion drawn from facts observed. Section 48. General Rule GENERAL RULE: Witnesses must give the facts and not their inference, conclusions, or opinions EXCEPTIONS: 1. On a matter requiring SPECIAL knowledge, skill, experience or training which he is shown to possess (Section 49); 2. The identity of a person about whom he ahs adequate knowledge (Section 50[a]); 3. A handwriting with which he has sufficient familiarity (Section 50 [b]); 4. The mental sanity of a person with whom he is sufficiently acquainted (Section 50[c]) 5. The witness’ impressions of the emotion, behavior, condition, or appearance of a person (Section 50[d]) Section 49. Opinion of expert witnesses EXPERT WITNESS – one who belongs to the profession or calling to which the subject matter of the inquiry relates to and who possesses special knowledge on questions on which he proposes to express an opinion. 



There is no definite standard of determining the degree of skill or knowledge that a witness must possess in order to testify as an expert. It is sufficient that the following factors are present: 1. training and education 2. particular, first hand familiarity with the facts of the case 3. presentation of authorities or standards upon which his opinion is based. 

An expert witness may base his opinion either on the first-hand knowledge of the facts or on the basis of hypothetical questions where the facts are presented to him and on the assumption that they are true, formulates his opinion on the hypothesis.

Expert evidence is admissible only if: 1. the matter to be testified requires expertise; and 2. The witness has been qualified as an expert. How to present an expert witness

1. Introduce and qualify the witness; 2. Let him give his factual testimony, if he has knowledge of the facts; 3. Begin the hypothetical question by asking him to assume certain facts as true; 4. Conclude the question, by first asking the expert if he has an opinion on a certain point assuming that these facts are true and secondly, asking him, after he has answered affirmatively, to give his opinion on the point; 5. After he has stated his opinion, ask him to give his reasons. Hypothetical questions may be asked on an expert to elicit his opinion. Courts, however, are NOT necessarily bound by the expert’s findings. Section 50. Opinion of ordinary witness ORDINARY OPINION EVIDENCE – that which is given by a witness who is of ordinary capacity and who has by opportunity acquired a particular knowledge which is outside the limits of common observation and which may be of value in elucidating a matter under consideration. CHARACTER AS EVIDENCE Sec 51. Character admissible

evidence

not

generally

CHARACTER – the aggregate of the moral qualities which belong to and distinguish an individual person. GENERAL RULE: character admissible in evidence

evidence

is

not

EXCEPTIONS: CRIMINAL CASES 1. Accused may prove his good moral character which is pertinent to the moral trait involved in the offense charge; 2. The prosecution may not prove bad moral character of the accused unless in rebuttal when the latter opens the issue by introducing evidence of his good moral character; 3. As to the offended party, his good or bad moral character may be proved as long as it tends to establish the probability or improbability of the offense charged. Exceptions to this exception: 1.

proof of the bad character of the victim in a murder case is not admissible if Page 39 of 53

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2.

the crime was committed through treachery and evident premeditation; and In prosecution for rape, evidence of complainant’s past sexual conduct, opinion thereof or of his/her reputation shall not be admitted unless, and only to the extent that the court finds that such evidence is material and relevant to the case. (Rape Shield, RA 8505 Section 6)

CIVIL CASES The moral character of either party thereto CANNOT be proved UNLESS it is pertinent to the issue of character involved in the case. AS TO WITNESSES Both criminal and civil, the bad moral character of a witness may always be proved by either party (Section 11, Rule 132) but not of his good moral character, unless such character has been impeached. (Section 14) RULE 131 BURDEN OF PROOF AND PRESUMPTIONS Section 1. Burden of proof BURDEN OF PROOF/RISK OF NON-PERSUASION – the duty of a party to present evidence on the facts in issue necessary to establish his claim or defense by the amount of evidence required by law. PROOF– the establishment of a requisite degree of belief in the mind of the trier of fact as to the fact in issue. Two separate burdens in burden of proof: 1. burden of going forward – that of producing evidence 2. Burden of persuasion – the burden of persuading the trier of fact that the burdened party is entitled to prevail. UPON WHOM BURDEN OF PROOF RESTS: A. Civil Cases 1. the plaintiff has the burden of proof to show the truth of his allegations if the defendant raises a negative defense; 2. The defendant has the burden of proof if he raises an affirmative defense on the complaint of the plaintiff. NOTE: In a civil case, the plaintiff is always

compelled to allege affirmative assertions in his complaint. When he alleges a cause of action, he will be forced to allege that he has a right and that such right was violated by the other party. Thus he has the duty to prove the existence of this affirmative allegation. When the defendant files his answer and sets up purely a negative defense and no evidence is presented by both sides, it is the defendant who would win the case since the plaintiff has not presented the quantum evidence required by law. On the other hand, when the defendant in his answer sets up an affirmative defense, if there is no evidence presented by both sides, it is the defendant who will lose the case. B. Criminal Cases The burden of proof is on the prosecution by reason of presumption of innocence. The burden of proof as to the guilt of the accused must be borne by the prosecution. It is required that courts determine first if the evidence of the prosecution has at least shown a prima facie case before considering the evidence of the defense. If the prosecution does not have a prima facie case, it is futile to waste time in considering the evidence presented by the defense. Should the prosecution succeed in establishing a prima facie case against the accused, the burden is shifted upon the accused to prove otherwise. Under the Speedy Trial Act, if the accused was NOT brought to trial within the time required, the information shall be dismissed on the motion of the accused. In this case, THE BURDEN OF PROOF of supporting such motion is with the accused (Section 13, Republic Act 8493). DEGREE OF PROOF THAT SATISFIES THE BURDEN OF PROOF A. Civil Cases – Preponderance of evidence B. Criminal Cases To sustain conviction – Evidence of guilt beyond reasonable doubt. Preliminary investigation – Engenders a well founded belief of the fact of the commission of a crime. Issuance of warrant of arrest – Probable cause, i.e. that there is reasonable ground to believe that the accused that committed an offense. C. Administrative Cases – Substantial evidence. Page 40 of 53

Remedial Law Summer Reviewer ATENEO CENTRAL BAR OPERATIONS 2007 EXCEPTION: When such negative allegations are essential parts of the cause of action or defense in a civil case, or are essential ingredients of the offense in a criminal case or defenses thereto.

HIERARCHY OF EVIDENCE 1. proof beyond reasonable doubt 2. clear and convincing evidence 3. preponderance of evidence 4. substantial evidence BURDEN OF EVIDENCE– logical necessity on a party during a particular time of the trail to create a prima facie case in his favor or to destroy that created against him by presenting evidence. In both civil and criminal cases, the burden of evidence lies on the party who asserts an affirmative allegation. Distinctions Between Burden of Evidence BURDEN OF PROOF Does not shift and remains throughout the entire case exactly where the original pleadings placed it. Generally determined by the pleadings filed by the party.

Burden

of

Proof

and

BURDEN OF EVIDENCE Shifts from party to party depending upon the exigencies of the case in the course of the trial Generally determined by the developments of the trial, or by the provisions of substantive law or procedural rules which may relieve the party from presenting evidence on the facts alleged.

UPON WHOM BURDEN OF EVIDENCE RESTS: A. Civil Cases: The plaintiff is to prove his affirmative allegations in his counter claim and his affirmative defenses. B. Criminal Cases: The PROSECUTION has to prove its affirmative allegations in the information regarding the elements of the crime as well as the attendant circumstances; while the DEFENSE has to prove its affirmative allegations regarding the existence of justifying or exempting circumstances, absolutory causes or mitigating circumstances. PRINCIPLE OF NEGATIVE AVERMENTS: GENERAL RULE: Negative allegations need not be proved, whether in a civil or criminal action.

HOWEVER, in CIVIL CASES, even if the negative allegation is an essential part of the cause of action or defense, such negative allegation does not have to be proved if it is only for the purpose of denying the existence of a document which should properly be in the custody of the adverse party. In a CRIMINAL CASE, the rule if the subject of a negative averment inheres in the offense as an essential ingredient thereof, the prosecution has the burden of proving the same. In view however, of the difficult office of proving a negative allegation, the prosecution, under such circumstance, need to do no more than make a prima facie case from the best evidence obtainable. (People vs. Cabral, 68 Phil. 564) PRESUMPTION - An inference as to the existence or non-existence of a fact which courts are permitted to draw from the proof of other facts. A presumption shifts the burden of going forward with the evidence. It imposes on the party against whom it is directed the burden of going forward with evidence to meet or rebut the presumption. CLASSIFICATION OF PRESUMPTIONS: 1. PRESUMPTION JURIS OR OF LAW – is a deduction which the law expressly directs to be made from particular facts. 2. PRESUMPTION HOMINIS OR OF FACT – is a deduction which reason draws from facts proved without an express direction from the law to that effect PRESUMPTIONS OF LAW Certain inference must be made whenever the facts appear which furnish the basis of the inference. Reduced to fixed rules and form a part of the system of jurisprudence.

PRESUMPTIONS OF FACT Discretion is vested in the tribunal as to drawing the inference. Derived wholly and directly from the circumstances of the particular case by means of the common experience of Page 41 of 53

Remedial Law Summer Reviewer ATENEO CENTRAL BAR OPERATIONS 2007 mankind. PRESUMPTION JURIS may be divided into:

1.

2.

CONCLUSIVE PRESUMPTION (juris et de jure) – which is a presumption of law that is not permitted to be overcome by any proof to the contrary; and DISPUTABLE PRESUMPTIONS (juris tantum) - is that which the law permits to be overcome or contradicted by proofs to the contrary; otherwise the same remains satisfactory.

behalf for his freedom is forfeited only if the requisite quantum of proof necessary for conviction be in existence.

 BASIS: founded on the principles of justice and is intended not to protect the guilty but to prevent the conviction of an innocent persons.

 Equipose Rule: Where the evidence gives rise to two probabilities, one consistent with defendant’s innocence, and another indicative of his guilt, that which is favorable to the accused should be considered.

Section 2. Conslusive Presumptions CLASSES OF CONCLUSIVE PRESUMPTIONS

1. ESTOPPEL IN PAIS (Rule 131, Sec. 2(a)) – whenever a party has, by his own declaration, act, or omission, intentionally and deliberately lead another to believe a particular thing to be true and act upon such belief, he cannot, in any litigation arising out of such declaration, act or omission, be permitted to falsify it.

2. ESTOPPEL BY DEED (Rule 131, Sec. 2 (b)) – the tenant is not permitted to deny title of his landlord at the time of the commencement of the land-lord tenant relationship. If the title asserted is one that is alleged to have been acquired subsequent to the commencement of that relation, the presumption will not apply.

Section 3. Disputable presumptions CLASSES OF DISPUTABLE PRESUMPTIONS

1. Presumption of Innocence - Applies to both civil and criminal cases This presumption accompanies the accused throughout the trial down to the moment of conviction. This presumption disappears after conviction and the appellate court then will presume the accused guilty. By reason of this presumption, an accused is not called upon to offer evidence on his

2. Presumption that a person takes ordinary care of his concerns: (Vales vs. Villa, 35 PHIL 769) All men are presumed to be sane and normal and subject to be moved by substantially the same motives. When of age and sane, they must take care of themselves. Courts operate not because one person has been defeated or overcome by another but because he has been defeated or overcome illegally. There must be a violation of law, the commission of what the law known as an actionable wrong before the courts is authorized to lay hold of the situation and remedy it. 3. Presumption from possession of stolen goods: This is not in conflict with the presumption of innocence. At the start of the criminal case, the court will apply the presumption of innocence. But once the prosecution is able to prove that a certain object has been unlawfully taken, that there is a crime of theft committed and that the prosecution has also proven that the accused is in possession of this object unlawfully taken, and then the presumption of innocence disappears. The new presumption of guilt takes place. 4. Presumption that a person in a public office was regularly appointed or elected to it: REASON: It would cause great inconvenience if in the first instance strict proof were required of appointment or election to office in all cases where it might Page 42 of 53

Remedial Law Summer Reviewer ATENEO CENTRAL BAR OPERATIONS 2007 be collaterally in issue.

superior or inferior court.

The burden of proof is on the adverse party to show that he was not appointed or designated.

However, jurisdiction to render a judgement in a particular case or against a particular case, or against persons may not be presumed when the record itself shows that jurisdiction has not been acquired or there was something on the record showing the absence of jurisdiction.

5. Presumption that an official duty has been regularly performed Reasons: 1. innocence and not the wrongdoing is to be presumed 2. an official oath will not be violated 3. a republican form of government cannot survive un less a limit is placed upon controversies and certain trust and confidence reposed in each government, department, or agent at least to the extent of such presumption. The presumption of regularity and legality of official acts is applicable to criminal as well as civil cases. This presumption of authority is not confined to official appointees. It has been extended to persons who have been appointed pursuant to a local or special statute to act in quasi-public or quasi-official capacities and to professional men like surgeons and lawyers.

6. Omnia praesumuntur rite et solemniter esse acta donec probetur in contrarium – all things are presumed to have been done regularly and with due formality until the contrary is proved. While ordinarily, irregularity will not be presumed, an adverse assumption may arise when the official act in question appears to be irregular upon its face. 7. Presumptions of regularity of judicial proceedings, that a court, or judge acting as such, whether in the Philippines or elsewhere, was acting in a lawful exercise jurisdiction. The copurt rendering the judgement is presumed to have jurisdiction over the subject matter and the poarties and to have rendered a judgement valid in every respect. Jurisdiction is presumed in all cases, be it

8. Presumption that private transactions have been done fair and regular: An individual intends to do right rather than wrong and intends to only whet he has the right to do. In the absence of proof to the contrary, there is a presumption that all men act fairly honestly, and in good faith.

9. Presumption that an ordinary course of business has been followed: Those who were engaged in a given trade or business are presumed to be acquainted with the general customs and usages of the occupation and with such other facts as are necessarily incident to the proper conduct of the business. RULE 132 PRESENTATION OF EVIDENCE EXAMINATION OF WITNESSES Section 1. Examination to be done in open court. How oral evidence is given: It is usually given orally in open court. Therefore, generally, the testimonies of witnesses cannot be presented in affidavits. One instance when the testimonies of witnesses may be given in affidavits is under the Rules of Summary Procedure. Purpose: to enable the court to judge the credibility of the witness by the witness’ manner of testifying, their intelligence, and appearance. GENERAL RULE: Testimony of witnesses shall be given under oath or affirmation. Two fold object in requiring a witness to be sworn: 1. by affecting the conscience of the witness to compel him to speak the truth; Page 43 of 53

Remedial Law Summer Reviewer ATENEO CENTRAL BAR OPERATIONS 2007 2. if he willfully falsifies that truth, that he may be punished by perjury. The right to have the witness sworn may be waived, if a party fails to object to the taking of the testimony of a witness without the administration of an oath, he will be deemed to have waived his objection. Questions propounded to a witness must: 1. not be indefinite or uncertain; 2. be relevant; 3. not be argumentative; 4. not for conclusion of law; 5. not call for opinion or hearsay evidence; 6. not call for illegal answer; 7. not call for self-incriminating testimony; 8. not be leading; 9. not be misleading; 10. not to tend reputation of witness; 11. not to be repetitions; 12. not call for a narration. Section 2. Proceedings to be recorded Section 3. Rights and obligations of a witness RIGHTS OF A WITNESS 1. To be protected from irrelevant , improper, or insulting questions, and from harsh or insulting demeanor; 2. Not to be detained loinger than the interest of justice require; 3. Not to be examined except only as to matters pertinent to the issue; 4. Not to give an answer which will tend to subject him to a penalty for an offense unless otherwise provided by law; 5. Not to give an answer which will tend to degrade his reputation, unless it be to the very fact at issue or to a fact from which the fact at issue would be presumed. But a witness must answeer to the fact of his previous final conviction for an offense. Right of a witness to be free from personal violence The act of the judge in seizing the witness by the shoulder and turning him about was unwarrante4d and an interference with that freedom from unlawful personal violence to which every witness is entitled while giving the testimony in court, which his attorney had the right to protest and demand that the incident be made of record. Scope of the right against self-incrimination: 1. No person should be compelled to be a witness against himself;

2. The rule may be invoked in any court or proceedings; 3. The rule covers only testimonial compulsion and production by him of incriminating documents and articles. Rationale against testimonial compulsion: The court may not extract from the defendant’s own lips and against his will an admission of his guilt. When is an act testimonial? If it explicitly or implicitly relate a factual assertion or discloses information. When is there compulsion? It is present only when a witness has asserted a right to refuse to disclose selfincriminating information and this refusal has been overridden. Forced Reenactment comes within the ban since prohibition against testimonial compulsion extends to those communicative in nature. Rights of a defendant He has the right to be exempt from being a witness against himself, cannot be compelled be compelled to testify or produce evidence in the criminal case in which he is the accused or one of the accused, he cannot be compelled to do so even by subpoena or other process or order of the court. He cannot be required wither for the prosecution, for coaccused, or even for himself. An ordinary witness of a party in a civil action An ordinary witness may be compelled to testify by subpoena having only the right to refuse to answer a particular incriminating question at the time it is put to him. Limitation if a witness is a party in a civil action: Before the plaintiff can compel the defendant to be a witness, the plaintiff must first prove that he has submitted written interrogatories of the defendant. The exception under no. 4 refers to IMMUNITY STATUTES wherein the witness is granted immunity from criminal prosecution for offenses admitted in his testimony, e.g. under Sec. 8, R.A. 1379, the law providing for the forfeiture of unlawfully acquired property; and under PD 749, in prosecutions for bribery and graft. CLASSIFICATION OF IMMUNITY STATUTES 1. Use Immunity – Only prohibits the unse of Page 44 of 53

Remedial Law Summer Reviewer ATENEO CENTRAL BAR OPERATIONS 2007

2.



witness’ compelled testimony and its fruits in any manner in connection with the criminial prosecution of the witness. It does not render a witness immune from prosecution. Transactional Immunity – grants immunity to the witness from prosecution for an offense to which his compelled testimony relates.

case b. Evidence of prior inconsistent statement c. Evidence of bias, interest, prejudice or incompetence d. Evidence of mental, sensory derangement or defect e. Evidence of conviction of an offense which affects credibility of witness

For purposes of evidence, right against selfincrimination refers only to testimonial compulsion.

People v. Peralta 350 SCRA 198 (Jan. 2001) Facts: A was found guilty of murder. A attempted to impeach the credibility of 3 prosecution witnesses, especially witness W. A pointed out that W testified that as the victim’s fraternity brother, he would do “anything and everything” for the victim. Issue: Whether A was able to properly impeach the witnesses on account of bias. Held: No. A witness may be said to biased when his relation to the cause or to the parties is such that he has an incentive to exaggerate or give false color or pervert the truth, or to state what is false. To impeach a biased witness, the counsel must lay the proper foundation of the bias by asking the witness facts constituting the bias. In this case, there was no proper impeachment by bias of the 3 prosecution witnesses. W’s testimony that he would do anything for his fellow brothers was too broad and general so as to constitute a motive to lie before the court.

 Right against self-incrimination is granted only in favor of individuals.

 Right against self-incrimination extends to administrative proceedings with a criminal or penal aspect. When leading questions allowed: a. On cross b. On preliminary matters c. Difficulty in getting direct and intelligible answers d. Unwilling or hostile witness e. Adverse party or an officer, director or a corporation or partnership which is an adverse party 

A misleading question, though not objected to, will not be evidence of the fact assumed by the improper question.

GENERAL RULE: One who voluntarily offers a witness’ testimony is bound by such (i.e. cannot impeach or contradict), EXCEPTIONS: i. Hostile witness ii. Adverse party or rep. of adverse party iii. Not voluntarily offered but required by law (e.g., subscribing witnesses to a will) People v. Givera 349 SCRA 573 (Jan. 2001) Facts: A was charged with murder. The prosecution formally offered the testimony of the medico-legal officer taken in the first case involving 3 other accused for the death of the same victim. Issue: Whether the said testimony is admissible. Held: No. The defense did not have the opportunity to cross-examine the medico-legal officer so his testimony cannot be used in evidence against the accused. Impeaching witness of adverse party a. Contradictory evidence from testimony in same

People v. Macandog et. al. 6 June 2001 Facts: A was accused of the murder of V. E, a witness of the prosecution, testified that A was among those present at the crime scene. A argued that E’s testimony should not have been given credence because she was biased, as she was the sister of the deceased. Issue: Whether E is a biased witness. Held: No. The fact that E is the sister of deceased does not per se make her a biased witness. Mere relationship of the victim to a witness does not automatically impair her credibility and render her testimony less worthy of credence where no improper motive can be ascribed. Such relationship lends more credence to the testimony considering her natural interest to see the guilty punished. It would be unnatural for a relative who is interested in vindicating the crime to accuse anyone other than the real culprit. IMPEACHING OWN WITNESS GENERAL RULE: A party is not allowed to impeach his own witness EXCEPTIONS: a. Unwilling or adverse witness so declared Page 45 of 53

Remedial Law Summer Reviewer ATENEO CENTRAL BAR OPERATIONS 2007 by the court b. Witness who is also an adverse party c. Witnesses required by law (e.g., subscribing witnesses to a will) May be impeached in all respects as if called by other party, EXCEPT by evidence of bad moral character. When a witness who is partly cross-examined dies, his direct examination cannot be expunged. In People v. Señeris (99 SCRA 92), the direct testimony of a witness who dies before conclusion of the cross can be stricken only insofar as not covered by the cross. However, Professor Bautista does not like this decision because although the cross was substantially complete, still, the court ordered the direct examination to be stricken out. REQUISITES OF REVIVAL OF PRESENT MEMORY: a. Memorandum has been written by him or under his direction; and b. Written by him: i. When the fact occurred or immediately thereafter; or ii. At any other time when the fact was fresh in his memory and he knew that the same was correctly recorded REQUISITES OF REVIVAL OF PAST RECOLLECTION: a. Witness retains no recollection of the particular facts; b. But he his able to swear that the record or writing correctly stated the transaction when made Revival of present memory and Revival of past recollection distinguished Present Recollection Past Recollection Revived Recorded Applies if the witness Applies where the remembers the facts witness does not recall regarding his entries the facts involved Entitled to greater weight Entitled to lesser weight Evidence is the testimony Evidence is the writing or record Rule of evidence affected Rule of evidence affected is competency of is the best evidence rule witness, examination of witness (laying the predicate)

Additional modes of authenticating a private writing: a. Doctrine of self-authentication Where the facts in the writing could only have been known by the writer b. Rule of authentication by the adverse party Where reply of the adverse party refers to and affirms the sending and his receipt of the letter in question, a copy of which the proponent is offering as evidence. People v. Banzales 336 SCRA 64 (July 2000) Facts: A was charged with illegal recruitment. The POEA issued a certificate stating that A was an unlicensed illegal recruiter. A argued that the prosecution filed to establish 1 element of the offense considering that no representative of the POEA was presented in court to testify as to the authenticity of the certificate. Issue: Whether authenticity of the certificate needs to be proved. Held: No. A POEA certification is a public document issued by a public officer in the performance of an official duty; hence it is prima facie evidence of the facts therein stated (Rule 132 § 23). Public documents are entitled to a presumption of regularity; consequently, the burden of proof rests upon him who alleges the contrary. Estrada v. Aniano Desierto 03 Apr. 2001 Facts: The Court, in a previous decision, relied not upon the original but only a copy of the Angara Diary as published in the Philippine Daily Inquirer. Issue: Does the use of the AD violate the rule on authentication of private writings and best evidence? Held: No. 1. The Supreme Court, citing Wigmore, stated that: “ Production of the original may be dispensed with, in the trial court’s discretion, whenever in 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 publication. 2. Estrada had an opportunity to object to the admissibility of the AD when he filed his Memorandum, Supplemental Memorandum and Second Supplemental Memorandum, but he did not object to its admissibility. He was not therefore denied due process. AUTHENTICATION NOT REQUIRED FOR: a. Ancient document i. More than 30 years old ii. Contains no alterations or circumstances of suspicion iii. Produced from a custody in which it would naturally be found if genuine Page 46 of 53

Remedial Law Summer Reviewer ATENEO CENTRAL BAR OPERATIONS 2007 b. Public document or record c. Notarial document acknowledged, proved or certified d. Authenticity and due execution has been expressly or impliedly admitted (e.g., actionable documents, failure to deny under oath) 

Computer printouts are inadmissible unless properly authenticated by a witness attesting that they came from the computer system or that the data stored in the system were not and could not have been tampered with before the same were printed out.

EVIDENCE OF GENUINENESS OF HANDWRITING: a. Witness actually saw person writing the instrument b. Familiar with handwriting and witness can give opinion c. Comparison of questioned handwriting and admitted genuine specimens d. Expert evidence OFFER AND OBJECTION GENERAL RULE: The court shall consider no evidence which has not been formally offered. The purpose for which the evidence is offered must be specified. EXCEPTION: If there was repeated reference thereto in the course of the trial by adverse party’s counsel and of the court, indicating that the documents were part of the prosecution’s evidence. Two requisites must concur (People v. Napta) a. The document must have been duly identified by testimony duly recorded. b. The document must have been incorporated to the records of the case. A party who has introduced evidence is not entitled as matter of right to withdraw it in finding that it does not answer his purpose; BUT he may withdraw an offer of an exhibit any time before the court has passed on its admissibility. Evidence offered is presumed to be admissible or competent until the contrary has been established. Thus, the opposing party must OBJECT to its introduction. Offer

WHEN TO OBJECT Time to Object

Offered orally Question propounded in the course of the oral examination of a witness Offer of evidence in writing

Made immediately after the offer is made Shall be made as soon as the grounds thereof shall become reasonably apparent Shall be objected to within 3 days after notice of the offer unless a different period is allowed by the court.

WHEN A MOTION TO STRIKE OUT ANSWER IS PROPER a. When the witness answered the question before the counsel has a chance to object a. Where a question which is not objectionable may be followed by an objectionable unresponsive answer b. Where a witness has volunteered statements in such a way that the party has not been able to object thereto c. Where a witness testifies without a question being addressed to him d. Where a witness testifies beyond the ruling of the court prescribing the limits within which he may answer e. When a witness dies or becomes incapacitated to testify and the other party has not been given the opportunity to crossexamine the witness.  There must be an objection first before a motion to strike. If the party slept on his right to object, he cannot later on avail a motion to strike to exclude the evidence.

WHEN A MOTION TO STRIKE OUT IS IMPROPER a. A party cannot insist that competent and relevant evidence be stricken out for reasons going to his weight, sufficiency or credibility b. One cannot move to strike it out because it proves unfavorable to him If court improperly excludes otherwise admissible evidence, remedy is to tender the excluded evidence, also known as OFFER OF PROOF: b. Documentary – by attaching the document or making it part of the record c. Testimonial – by stating the personal circumstances of witness and the substance of proposed testimony

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Remedial Law Summer Reviewer ATENEO CENTRAL BAR OPERATIONS 2007 RULE 133 WEIGHT AND SUFFICIENCY OF EVIDENCE 1. PROOF BEYOND REASONABLE DOUBT  Does not mean such degree of proof as, excluding possibility of error, produces absolute certainty  Moral certainty only is required, or that degree of proof which produces conviction in an unprejudiced mind 2. Circumstantial evidence to sustain conviction: a. More than one circumstance b. Facts from which inferences are derived are proven c. Combination of all circumstances such as to produce conviction beyond reasonable doubt 3. SUBSTANTIAL EVIDENCE  That amount of relevant evidence which a reasonable mind might accept as adequate to justify a conclusion. People v. Pedigero 337 SCRA 274 (Aug. 2000) Facts: A was convicted of robbery with homicide. A claimed that the court erred in holding that the circumstantial evidence presented by the prosecution sufficiently established his guilt. Issue: When is circumstantial evidence sufficient to convict? Held: Rule 133 § 4 enumerates the 3 elements that should be present in order for circumstantial evidence to be sufficient for conviction. A judgment of conviction based on circumstantial evidence can be sustained only when the circumstances proved form an unbroken chain that leads to a fair and reasonable conclusion pointing to the accused, to the exclusion of all others, as the culprit. The circumstances proved must be consistent with each other, consistent with the hypothesis that the accused is guilty, and at the same time inconsistent with any other hypothesis except that of guilt. People v. Rayos 7 Feb. 2001 Facts: A was charged and convicted of the rapeslay of a 9-year old mental retardate. He argued that the circumstantial evidence presented by the prosecution was not sufficient to establish his guilt beyond reasonable doubt. Issue: When is circumstantial evidence sufficient to convict? Held: When there are no eyewitnesses to a crime, resort to circumstantial evidence becomes almost certainly unavoidable. In rape with homicide, the evidence against the accused is basically circumstantial because of the nature of the crime. The circumstances must be consistent with each

other from which the only rational hypothesis that can be drawn therefrom would be that the accused is guilty. The circumstances must create a solid chain of events, coherent and intrinsically believable, that pinpoints the accused, to the exclusion of others, as being the perpetrator of the crime and thereby sufficiently overcome the presumption of innocence in his favor. The circumstantial pieces of evidence in this case, taken in their entirety, unmistakably point to the guilt of A. Mollaneda v. Umacob 6 June 2001 Facts: A, the Schools Division Superintendent, was criminally charged before the court. A was acquitted. Complainants filed an administrative case against A to dismiss him from the service. A argued that the dismissal of the criminal case against him meant that the administrative case cannot prosper. Issue: Whether A is correct. Held: No. The dismissal of a criminal case on the ground of insufficiency of evidence against an accused who is a respondent in an administrative case does not foreclose the administrative proceeding against him or give him a clean bill of health in all respects. In dismissing the case, the court is simply saying that the prosecution was unable to prove the guilt of the respondent beyond reasonable doubt. In administrative proceedings, the quantum of proof required is only substantial evidence. A’s culpability has been proven by substantial evidence. The dismissal of the criminal case cannot bind this Court in the disposition of the instant administrative case. There was justifiable ground for A’s dismissal from the service. Pertinent Provisions of the Implementing Rules of the E-Commerce Act: CHAPTER II LEGAL RECOGNITION OF ELECTRONIC DATA MESSAGES AND ELECTRONIC DOCUMENTS Section 7. Legal Recognition of Electronic Data Messages and Electronic Documents Information shall not be denied validity or enforceability solely on the ground that it is in the form of an electronic data message or electronic document, purporting to give rise to such legal effect. Electronic data messages or electronic documents shall have the legal effect, validity or enforceability as any other document or legal writing. In particular, subject to the provisions of the Act and these Rules: a. A requirement under law that information is in writing is satisfied if the information is in the form of an electronic data message Page 48 of 53

Remedial Law Summer Reviewer ATENEO CENTRAL BAR OPERATIONS 2007 or electronic document. b. A requirement under law for a person to provide information in writing to another person is satisfied by the provision of the information in an electronic data message or electronic document. c. A requirement under law for a person to provide information to another person in a specified non-electronic form is satisfied by the provision of the information in an electronic data message or electronic document if the information is provided in the same or substantially the same form. d. Nothing limits the operation of any requirement under law for information to be posted or displayed in specified manner, time or location; or for any information or document to be communicated by a specified method unless and until a functional equivalent shall have been developed, installed, and implemented. Section 8. Incorporation by Reference Information shall not be denied validity or enforceability solely on the ground that it is not contained in an electronic data message or electronic document but is merely incorporated by reference therein. Section 9. Use Not Mandatory Without prejudice to the application of Section 27 of the Act and Section 37 of these Rules, nothing in the Act or these Rules requires a person to use or accept information contained in electronic data messages, electronic documents, or electronic signatures, but a person's consent to do so may be inferred from the person's conduct. Section 10. Writing Where the law requires a document to be in writing, or obliges the parties to conform to a writing, or provides consequences in the event information is not presented or retained in its original form, an electronic document or electronic data message will be sufficient if the latter: a. Maintains its integrity and reliability; and b. Can be authenticated so as to be usable for subsequent reference, in that: a. It has remained complete and unaltered, apart from the addition of any endorsement and any authorized change,

or any change which arises in the normal course of communication, storage and display; and b. It is reliable in the light of the purpose for which it was generated and in the light of all relevant circumstances. Section 11. Original Where the law requires that a document be presented or retained in its original form, that requirement is met by an electronic document or electronic data message if – a. There exists a reliable assurance as to the integrity of the electronic document or electronic data message from the time when it was first generated in its final form and such integrity is shown by evidence aliunde (that is, evidence other than the electronic data message itself) or otherwise; and b. The electronic document or electronic data message is capable of being displayed to the person to whom it is to be presented. c. For the purposes of paragraph (a) above: i. The criteria for assessing integrity shall be whether the information has remained complete and unaltered, apart from the addition of any endorsement and any change which arises in the normal course of communication, storage and display; and ii. The standard of reliability required shall be assessed in the light of the purpose for which the information was generated and in the light of all relevant circumstances. An electronic data message or electronic document meeting and complying with the requirements of Sections 6 or 7 of the Act shall be the best evidence of the agreement and transaction contained therein. Section 12. Solemn Contracts No provision of the Act shall apply to vary any and all requirements of existing laws and relevant judicial pronouncements respecting formalities required in the execution of documents for their validity. Hence, when the law requires that a contract be in some form in order that it may be valid or enforceable, or that a contract is proved in a certain way, that requirement is absolute and indispensable. LEGAL RECOGNITION OF ELECTRONIC SIGNATURES Section 13. Legal Recognition of Electronic Signatures An electronic signature relating to an electronic Page 49 of 53

Remedial Law Summer Reviewer ATENEO CENTRAL BAR OPERATIONS 2007 document or electronic data message shall be equivalent to the signature of a person on a written document if the signature: a. Is an electronic signature as defined in Section 6(g) of these Rules; and b. Is proved by showing that a prescribed procedure, not alterable by the parties interested in the electronic document or electronic data message, existed under which: i. A method is used to identify the party sought to be bound and to indicate said party’s access to the electronic document or electronic data message necessary for his consent or approval through the electronic signature; ii. Said method is reliable and appropriate for the purpose for which the electronic document or electronic data message was generated or communicated, in the light of all circumstances, including any relevant agreement; iii. It is necessary for the party sought to be bound, in order to proceed further with the transaction, to have executed or provided the electronic signature; and, iv. The other party is authorized and enabled to verify the electronic signature and to make the decision to proceed with the transaction authenticated by the same. v. The parties may agree to adopt supplementary or alternative procedures provided that the requirements of paragraph (b) are complied with. For purposes of subparagraphs (i) and (ii) of paragraph (b), the factors referred to in Annex “2” may be taken into account. Section 14. Presumption Relating to Electronic Signatures In any proceeding involving an electronic signature, the proof of the electronic signature shall give rise to the rebuttable presumption that: a. The electronic signature is the signature of the person to whom it correlates; and b. The electronic signature was affixed by that person with the intention of signing or approving the electronic data message or electronic document unless the person

relying on the electronically signed electronic data message or electronic document knows or has notice of defects in or unreliability of the signature or reliance on the electronic signature is not reasonable under the circumstances. MODES OF AUTHENTICATION Section 15. Method of Authenticating Electronic Documents, Electronic Data Messages, and Electronic Signatures Electronic documents, electronic data messages and electronic signatures, shall be authenticated by demonstrating, substantiating and validating a claimed identity of a user, device, or another entity in an information or communication system. Until the Supreme Court, by appropriate rules, shall have so provided, electronic documents, electronic data messages and electronic signatures, shall be authenticated, among other ways, in the following manner: a. The electronic signature shall be authenticated by proof that a letter, character, number or other symbol in electronic form representing the persons named in and attached to or logically associated with an electronic data message, electronic document, or that the appropriate methodology or security procedures, when applicable, were employed or adopted by a person and executed or adopted by such person, with the intention of authenticating or approving an electronic data message or electronic document; b. The electronic data message or electronic document shall be authenticated by proof that an appropriate security procedure, when applicable was adopted and employed for the purpose of verifying the originator of an electronic data message or electronic document, or detecting error or alteration in the communication, content or storage of an electronic document or electronic data message from a specific point, which, using algorithm or codes, identifying words or numbers, encryptions, answers back or acknowledgement procedures, or similar security devices. Section 16. Burden of Authenticating Electronic Page 50 of 53

Remedial Law Summer Reviewer ATENEO CENTRAL BAR OPERATIONS 2007 Documents or Electronic Data Messages The person seeking to introduce an electronic document or electronic data message in any legal proceeding has the burden of proving its authenticity by evidence capable of supporting a finding that the electronic data message or electronic document is what the person claims it to be. MODES FOR ESTABLISHING INTEGRITY Section 17. Method of Establishing the Integrity of an Electronic Document or Electronic Data Message In the absence of evidence to the contrary, the integrity of the information and communication system in which an electronic data message or electronic document is recorded or stored may be established in any legal proceeding, among other methods a. By evidence that at all material times the information and communication system or other similar device was operating in a manner that did not affect the integrity of the electronic document or electronic data message, and there are no other reasonable grounds to doubt the integrity of the information and communication system; b. By showing that the electronic document or electronic data message was recorded or stored by a party to the proceedings who is adverse in interest to the party using it; or c. By showing that the electronic document or electronic data message 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 the record. ADMISSIBILITY AND EVIDENTIAL WEIGHT Section 18. Admissibility and Evidential Weight of Electronic Data Messages and Electronic Documents For evidentiary purposes, an electronic document or electronic data message shall be the functional equivalent of a written document under existing laws. In any legal proceeding, nothing in the application of the rules on evidence shall deny the admissibility of an electronic data message or electronic document in evidence: a. On the sole ground that it is in electronic

form; or b. On the ground that it is not in the standard written form. The Act does not modify any statutory rule relating to the admissibility of electronic data messages or electronic documents, except the rules relating to authentication and best evidence. In assessing the evidential weight of an electronic data message or electronic document, the reliability of the manner in which it was generated, stored or communicated, the reliability of the manner in which its originator was identified, and other relevant factors shall be given due regard. Section 19. Proof by Affidavit and CrossExamination The matters referred to in Section 12 of the Act on admissibility and evidentiary weight, and Section 9 of the Act on the presumption of integrity of electronic signatures, may be presumed to have been established by an affidavit given to the best of the deponent’s or affiant’s personal knowledge subject to the rights of parties in interest to cross-examine such deponent or affiant as a matter of right. Such right of cross-examination may likewise be enjoyed by a party to the proceedings who is adverse in interest to the party who has introduced the affidavit or has caused the affidavit to be introduced. Any party to the proceedings has the right to cross-examine a person referred to in Section 11, paragraph 4, and sub-paragraph (c) of the Act. RETENTION DOCUMENT

OF

ELECTRONIC DATA MESSAGE

AND

ELECTRONIC

Section 20. Retention of Electronic Data Message and Electronic Document Notwithstanding any provision of law, rule or regulation to the contrary: a. The requirement in any provision of law that certain documents be retained in their original form is satisfied by retaining them in the form of an electronic data message or electronic document which: i. Remains accessible so as to be usable for subsequent reference; ii. Is retained in the format in which it was generated, sent or received, or in a format which can be demonstrated to accurately represent the electronic data message or electronic document generated, sent or received; and, iii. Where applicable, enables the Page 51 of 53

Remedial Law Summer Reviewer ATENEO CENTRAL BAR OPERATIONS 2007 identification of its originator and addressee, as well as the determination of the date and the time it was sent or received. b. The requirement referred to in paragraph (a) is satisfied by using the services of a third party, provided that the conditions set forth in subparagraphs (i), (ii) and (iii) of paragraph (a) are met. c. Relevant government agencies tasked with enforcing or implementing applicable laws relating to the retention of certain documents may, by appropriate issuances, impose regulations to ensure the integrity, reliability of such documents and the proper implementation of Section 13 of the Act.

Proof of Previous Conviction People v. FELWA 20 Apr. 2001 Facts: A was charged with kidnapping and serious illegal detention. In the course of the trial, the prosecution attempted to bring out A’s former conviction of another crime. Issue: Can the proof of A’s past conviction be used to prove his guilt of the crime charged? Held: No. A previous decision or judgment, while admissible in evidence, may only prove that an accused was previously convicted of a crime. It may not be used to prove that the accused is guilty of a crime charged in a subsequent case. Recantation People v. Nardo 1 Mar. 2001 Facts: A was charged with rape by his 14-year old daughter. He was convicted by the TC and sentenced to death. A raised the defense that the victim desisted in pursuing the case against her father by showing two letters. However, these were not subscribed and sworn to by the victim. Issue: Should the letters be admitted in order to acquit the accused? Held: No. A recantation of a testimony is exceedingly unreliable for there is always the probability that such recantation may later on be itself repudiated. Courts look with disfavor upon retractions because they can easily be obtained from witnesses through intimidation or for monetary consideration. A retraction does not necessarily negate an earlier declaration. Especially, recantations made after the conviction of the accused deserve only scant consideration. Even if sworn to, the victim’s recantation could hardly suffice to overturn the

finding of guilt by the TC which was based on her own clear and convincing testimony given during a full-blown trial. An affidavit of recantation, being usually taken ex parte, would be considered inferior to the testimony given in open court. Credibility People v. Buenaflor 27 June 2001 Facts: RTC found A guilty for raping 14-yr. old V who was asleep at the time of the commission of the crime. During the initial reception of evidence for the prosecution, V said she did not know A because it was her first time to see his face at the time the incident took place, but later on cross-examination, she admitted that what she said was false because actually A is their neighbor. The TC thought that considering that the offended party is a very young girl of 15 years, it is not uncommon for the young girl to conceal the assaults because of the rapist's threats on her life. Issue: Whether V is a credible witness. Held: No. In a prosecution for rape, the complainant's credibility becomes the single most important issue. In this case, the testimony of the complainant is not credible because it is replete with inconsistencies, and narrations that are contrary to common experience, human nature and the natural course of things. Alibi People v. Abendan et. al. 28 June 2001 Facts: RTC found A et. al. guilty of murder. The trial court gavwe credence to the testimonies of the prosecution witnesses that there was treachery and conspiracy in the killing of the victim, who was asleep when he was fatally shot. A argued that the trial court erred in ignoring his alibi. Issue: Whether the trial court was correct in not giving weight to A’s alibi. Held: Yes. Positive identification, where categorical and consistent and without any showing of ill motive on the part of the eyewitness testifying on the matter, prevails over alibi and denial which, if not substantiated by clear and convincing evidence, are negative and self-serving evidence undeserving of weight in law. Alibi becomes unworthy of credit when it is established mainly by the accused himself and his relative, and not by credible persons. Medical/Chemical Evidence People v. Nubla 19 June 2001 Facts: A was convicted for the rape of V, committed Page 52 of 53

Remedial Law Summer Reviewer ATENEO CENTRAL BAR OPERATIONS 2007 by means of force and intimidation; in particular, by inducing V to drink iced tea laced with drugs causing the latter to lose consciousness. A denied that V was drugged and pointed to the absence of any medical or chemical evidence to support her claim. Issue: Whether the fact that V was drugged was sufficiently proven. Held: Yes. While no chemical analysis was conducted on the blood of the complainant immediately after the incident, the physical manifestations (dizziness, bodily weakness, strong desire to sleep) were proved during the trial.

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