Evidence Reviewer - regalado.pdf

RULES OF EVIDENCE Based on the Book of Regalado [RULE 128] GENERAL PROVISIONS Sec 1. Evidence defined. Evidence is the means, sanctioned by these rules, of ascertaining in a judicial proceeding the truth respecting a matter of fact. (1) Sec. 2. Scope. The rules of evidence shall be the same: - in all courts and - in all trials and hearings, - EXCEPT as otherwise provided by law or these rules. (2a) Notes: Evidence, defined: Bustos v. Lucero: Evidence is the mode and manner of proving competent facts in judicial proceedings. Proof is the result or effect of evidence. - This is the result when the requisite quantum of evidence of a particular fact has been duly admitted and given weight. Factum Probandum - Ultimate fact or the fact sought to be established - Refers to the proposition Factum Probans - The evidentiary fact or the fact by which the factum probandum is to be established. - Refers to the materials which established the proposition Rules of Evidence as Procedural Law - Amendments in such rules may validly be made applicable to cases pending at the time of such change. Parties have no vested right in the rules of evidence. - HOWEVER, in criminal cases, if the amendment would permit the reception of a lesser quantum of evidence to convict, retroactive application would be unconstitutional for being ex post facto.

Other Laws Governing Evidence - GR: Rules of evidence is governed by the Rules of Court (RoC) - EXC: Application of other laws Examples: - RA 4200 (Anti Wiretapping), - Code of Commerce (weight of entries in merchant books) - Electronic Commerce Act - NCC, RPC - Constitution: Bill of Rights - Art III o Sec 2: The right of people against unreasonable searches and seizures o Sec 3: The privacy of communication and correspondence shall be inviolable (EXC. By order of court or when provided by law for safety and public order) o Evidence obtained in violation of such provisions shall be INADMISSIBLE Applicability of the Rules of Evidence: - GR: Applicable ONLY in judicial proceedings - EXC: In quasi-judicial proceedings o The same apply by analogy, or in a suppletory character and whenever practicable and convenient.(Rule 1 Section 4) o It shall apply also when the governing law of such proceeding specifically adopts such rules o Note: NOT applicable in agrarian cases Classification of Evidence According to Form 1. Object (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 proference” since it proffers or presents in open court the evidentiary articles for observation or inspection 2. Documentary Evidence: Evidence supplied by written instruments or derived from conventional symbols, such as letters, by which ideas are represented on material substances - Rule 130 Sec 2: writings or any material containing letters, words, numbers, figures, symbols or other modes of written expression offered as proof of their contents

Evidence | Judge Bonifacio | 3B 2009-2010 [This reviewer is lifted from the book of regalado and Beda– not plagiarized you fuckers!]

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3. Testimonial Evidence: That which is submitted to the court through the testimony or deposition of a witness. Other Classification of Evidence: 1. Relevant, Material, and Competent Evidence - Relevant: evidence having any value in reason as tending to prove any matter provable in an action. o TEST: 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. - Material: evidence directed to prove a fact in issue as determined by the rules of substantive law and pleadings. o TEST: w/n the fact it intends to prove is an issue or not. o W/N a fact is in issue: Determined by substantive law, pleadings, pre-trial order and by admissions or confessions on file. o Evidence may be relevant BUT may be immaterial. - Competent: one that is not excluded by the Rules, statutes or the Constitution. 2. Direct and Circumstantial Evidence - Direct: that which proves the fact in dispute w/o the aid of any inference or presumption - Circumstantial: proof of a fact or facts from which, taken either singly or collectively, the existence of a particular fact in dispute may be inferred as a necessary or probable consequence. 3. Cumulative and Corroborative Evidence - Cumulative: evidence of the same kind and to the same state of facts. - Corroborative: additional evidence of a different character to the same point. 4. Prima Facie and Conclusive Evidence - Prima Facie: that which, standing alone, unexplained or uncontradicted, is sufficient to maintain the proposition affirmed. - Conclusive: the class of evidence which the law does not allow to be contradicted. 5. Primary and Secondary Evidence - Primary: that which the law regards as affording the greatest certainty of the fact in question. Also known as “best evidence”. - Secondary: that which is inferior to the primary evidence and is permitted by law only when the best evidence is not available. Also known as “substitutionary evidence”.

6. Positive and Negative Evidence - Positive: when the witness affirms that a fact did or did not occur. o 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. o Lesser weight since there is a total disclaimer of personal knowledge, hence without any representation that the fact could or could not have existed or happened. o 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. Sec. 3. Admissibility of evidence. Evidence is admissible when: - it is relevant to the issue AND - is not excluded by the law or these rules. (3a) Sec. 4. Relevancy; collateral matters. Evidence must have such a relation TO: - the fact in issue as to induce belief in its existence or non-existence. Evidence on collateral matters: - shall NOT be allowed, - EXCEPT when it tends in any reasonable degree to establish the probability or improbability of the fact in issue. (4a) Notes: Evidence is ADMISSIBLE when: 2 Requisites (see codal) - When it is Relevant o it must have a relation to the fact in issue as to induce belief of its existence or non-existence o Determined by the rules of logic and human experience. - When it is Competent o When not excluded by the law or by the RoC o Determined by the prevailing exclusionary rules on evidence Note: The weight however of admissible evidence depends on judicial evaluation within the Rule 133 and rules of the SC.

Evidence | Judge Bonifacio | 3B 2009-2010 [This reviewer is lifted from the book of regalado and Beda– not plagiarized you fuckers!]

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While evidence is admissible, it may be entitled to little or no weight at all. Conversely, evidence of great weight may also be inadmissible.

Requisites of Admissibility of Evidence According to Professor Wigmore 1. That none but facts having rational probative value are admissible & 2. That all facts having rational probative value are not forbidden by specific rules Note: Here, Relevant Evidence means any class of evidence which has “rational probative value” to establish the issue in controversy When is admissibility determined? – At the time it is OFFERED to the court - Real Evidence: offered o when the same is presented for its view or evaluation o when the party rests his case and the real evidence consists of objects exhibited in court - Testimonial Evidence: offered by the calling of the witness to the stand - Documentary Evidence: offered by the proponent immediately before he rests his case When should admissibility be objected? - At the time evidence is offered to the court OR - As soon thereafter as the objection to its admissibility shall have become apparent o Objection to the qualification of the witness: made at the time such person is called to the stand o Objection to the testimony: made at the time the question is asked or after the answer is given when the objectionable features become apparent by reason of the answer Note: if not done within such time – right to object is deemed WAIVED Doctrines and Rules of Admissibility Sanctioned by the Supreme Court 1. Conditional Admissibility - When the evidence at the time it is offered appears to be immaterial or irrelevant, such evidence may be received on condition that the other facts will be proved thereafter - IF not proved subsequently: evidence given will be stricken out.

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REQUISITE: There should be no bad faith on the part of the proponent. (necessary to avoid unfair surprises) 2. Multiple Admissibility - When 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 must satisfy all the requirements for its admissibility. 3. Curative Admissibility - 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. - 3 Theories of Curative Admissibility cited by Wigmore o American rule – the admission of incompetent evidence w/out objection by the opponent, does not justify rebutting it by similar incompetent evidence. o English rule – if inadmissible evidence is admitted, the adverse party may resort to similar inadmissible evidence o Massachusetts rule –similar incompetent evidence may be admitted in order to avoid a plain and unfair prejudice caused by the admission of the other party’s evidence - What should be determined to apply the curative admissibility rule? 1. w/n the incompetent evidence was seasonably objected to  Lack of objection: waiver of the right to object admissibility BUT does NOT deprive him to introduce similar rebutting evidence 2. w/n the admission of such evidence will cause a plain and unfair prejudice to the party against whom it was admitted  When the admissible evidence has been improperly excluded, the other party should not be permitted to introduce similar evidence Stonehill, et al. v. Diokno: Documentary evidence illegally obtained, is inadmissible on a timely motion or action to suppress. (Applies to illegally obtained confessions) Collateral Matters, defined: Matters other than the facts in issue and which are offered as a basis for inference as to the existence or non-existence of the facts in issue - GR: Collateral matters are INADMISSIBLE or not allowed

Evidence | Judge Bonifacio | 3B 2009-2010 [This reviewer is lifted from the book of regalado and Beda– not plagiarized you fuckers!]

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EXC: when it tends in any reasonable degree to establish the probability or improbability of the fact in issue (“Circumstantial Evidence” or evidence of relevant collateral facts) Note: What is prohibited – IRRELEVANT collateral facts

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4 Main Divisions of the Rules of Evidence: (1) Admissibility of Evidence Rule 130; (2) Burden of proof and what need not be proved Rule 131 & 129; (3) Presentation of Evidence Rule 132; (4) Weight and Sufficiency of Evidence Rule 133; Note: Rule 134 has been transposed to Part I as Rule 24 [RULE 129] WHAT NEED NOT BE PROVED Sec 1. Judicial notice, when mandatory. A court shall take judicial notice, without the introduction of evidence: - of the existence and territorial extent of states, their political history, forms of government and symbols of nationality, - the law of nations, - the admiralty and maritime courts of the world and their seals, - the political constitution and history of the RP, - the official acts of legislative, - executive and judicial departments of the RP, - the laws of nature, - the measure of time, and - the geographical divisions. (1a)

Sec. 2. Judicial notice, when discretionary. A court MAY take judicial notice of matters which: - are of public knowledge, or - are capable to unquestionable demonstration, or - ought to be known to judges because of their judicial functions. (1a) Sec. 3. Judicial notice, when hearing necessary. During the trial, the court: - on its own initiative, OR on request of a party, may: - announce its intention to take judicial notice of any matter and

allow the parties to be heard thereon.

AFTER the trial and BEFORE judgment OR ON appeal, the proper court: - on its own initiative OR on request of a party, may: - take judicial notice of any matter and - allow the parties to be heard thereon IF such matter is decisive of a material issue in the case.

Notes: Judicial Notice (JN), Defined: cognizance of certain facts which judges may properly take and act on without proof. - JN is based on convenience and expediency. - JN relieves the parties from the necessity of introducing evidence to prove the fact noticed. The fact is proven by JN. - The stipulation and admission of the parties or counsel cannot prevail over the operation of the doctrine of judicial notice, and such are all subject to the operation of the doctrine. Two kinds of JN: - Mandatory - Discretionary How JN May be Taken by the Court: 1. On its own initiative or motion 2. When it is requested or invited by the parties Note: In Either Case, the court may allow the parties to be heard on the matter in question - The purpose of the hearing: NOT for the presentation of evidence o but to afford the parties reasonable opportunity to present information relevant to the propriety of taking such JN or to the tenor of the matter to be noticed o Also to notify them of the court’s intention to take JN (no notice = improper JN) What stage may the court take judicial notice of a fact? - During trial; - After trial and before judgment; - On Appeal Republic v. CA: JN must be exercised with caution and every reasonable doubt on the subject must be resolved in the negative.

Evidence | Judge Bonifacio | 3B 2009-2010 [This reviewer is lifted from the book of regalado and Beda– not plagiarized you fuckers!]

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Judicial Notice of Laws - GR: courts of justice are required to take JN of the laws - EXC: In case of ORDINANCES, the rule is different o MTCs: Required to take JN of the ordinances of the municipality or city wherein they sit. o RTC however, they must take such JN ONLY when:  Required to do so by statute (ex. city charter); and  In a case on appeal before them and wherein the inferior court took JN of an ordinance involved in said case. (only to determine the propriety of taking JN) - Appellate courts may also take JN of municipal and city ordinances not only where the lower courts took JN BEC these are facts capable of unquestionable demonstration. - For the same reason, Courts may take judicial notice of administrative regulations Rule on JN of Decisions of Courts - ALL courts are required to take judicial notice of the decisions of the Supreme Court - Lower courts are to take JN of decisions of higher courts (ex. CA) BUT NOT of the decisions of coordinate trial courts NOR even of a decision or the facts involved in another case tried by the same court o EXCEPT when:  Parties introduce the same in evidence  The court as a matter of convenience, decides to do so Judicial Notice vs. Personal Knowledge of a Judge - The 2 should not be confused - It is not essential that matters of JN be actually known to the judge. The judge may at his discretion, inform himself in any way which may seem best to him, and act accordingly. Foreign Laws may NOT be Taken Judicial Notice - Existence of foreign laws is one of FACT and NOT of LAW - It MUST BE PROVED like any other fact: o EXCEPT: when the laws are within the actual knowledge of the court either because:  They are generally known OR

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They have been actually ruled upon in other cases before it and none of the parties object How WRITTEN Foreign Law May be Proved - Requirements in Sec 24 and 25 of rule 132 must be complied w/: o BY an official publication o BY a duly attested and authenticated copy thereof - Absent the above evidence: The Doctrine of Processual Presumption shall apply o The foreign law is presumed to be the same as that in the RP - Note: Exceptions to the required proof in Sec 24 and 25: o Testimony of a witness who was an active member of the California Bar and who is familiar with the laws with a full quotation of the cited law was accepted as sufficient proof. o An affidavit of an US attorney which does not state the specific law but merely contained his interpretation of the facts of the case is NOT sufficient proof. How UNWRITTEN Foreign Law May be Proved - Rule 130, Sec 46: A published treatise, periodical or pamphlet on a subject of such law or a testimony of a written expert Sec. 4. Judicial admissions. An admission verbal or written, - made by the party in the course of the proceedings in the same case, does not require proof. The admission may be contradicted ONLY by showing: - that it was made through palpable mistake or - that no such admission was made. (2a) Notes: Judicial Admissions May be Made IN: 1. The pleadings filed by the parties 2. In the course of the trial either by verbal or written manifestations or stipulations 3. In other stages of the judicial proceeding, as in pre-trial of the case Note: Depositions, written interrogatories, or requests for admission are also considered judicial admissions To be considered a judicial admission:

Evidence | Judge Bonifacio | 3B 2009-2010 [This reviewer is lifted from the book of regalado and Beda– not plagiarized you fuckers!]

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GR: It must be made in the SAME case in which it is offered EXC: It may be made in another case or another court PROVIDED: o It be proved as in the case of any other fact  IF the judicial admission was made in a judicial proceeding, it is entitled to greater weight. o It is pertinent to the issue involved o There must be no objection - EXC to EXC: 1. The said admissions were made only for purposes of the first case as in the rule on implied admissions and their effects under Rule 26 2. The same were withdrawn with the permission of the court therein 3. The court deems it proper to relieve the party therefrom. Judicial Admissions v. Extrajudicial Admissions: - Judicial: Those so made in the pleadings filed or in the progress of a trial. - Extrajudicial: Those made out of court, or in a judicial proceeding other than the one under consideration

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No such admission was made or In the case of a pre-trial admission in a civil case, to prevent manifest injustice (Sec 7, Rule 18) – Note: applies to criminal cases if the pre-trial admission is reduced into writing and signed by the accused and his counsel.

Rules on Extrajudicial Admissions: - Extrajudicial admissions or other admissions are, as a rule and where elements of estoppel are not present, disputable. - Admissions in a pleading withdrawn are considered extrajudicial admissions – must be proved by a formal offer in evidence of the original pleading - Admissions in a pleading superseded by an amended pleading although filed in the same case are: o judicial admissions (Note: Based on Regalado on his interpretation of Sec 4 as amended, p. 792) o still extrajudicial (If based on Torres v. CA, et al. G.R. No. L-37420-21, July 31, 1984) – also Judge B. Note: When the parties agree on what the foreign law provides, these are admission of facts that the court may rely upon, and hence, they are in estoppel to take a contrary position. Rules on Contradicting Judicial Admissions - GR: Judicial Admissions cannot be contradicted by the admitter who is the party himself - EXC: May be contradicted when: o Such is made through palpable mistake or

Evidence | Judge Bonifacio | 3B 2009-2010 [This reviewer is lifted from the book of regalado and Beda– not plagiarized you fuckers!]

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[RULE 130] RULES OF ADMISSIBILITY A. OBJECT (REAL) EVIDENCE Sec 1. Object as evidence. Objects as evidence are: - those addressed to the senses of the court. When an object is relevant to the fact in issue: - it may be exhibited to, examined or viewed by the court. (1a) Notes: - When an object is relevant to a fact in issue, the court may acquire knowledge thereof by actually viewing the object – the object is called real evidence - Also known as autoptic proference, physical or demonstrative evidence - It is the highest form of evidence - Even if other evidence have been introduced, it will not prevent the court from viewing an object to resolve the issue - Also, the fact that an ocular inspection has been held does not preclude a party from introducing other evidence on the same issue. Requirements of an Ocular Inspection (OI)

An OI conducted by the judge w/o notice to or the presence of the parties is invalid, as an OI is part of the trial. W/N an OI is to be made lies in the discretion of the court.

When can a Court Refuse the Introduction of Object (real) Evidence and Rely on Testimonial Evidence Alone: 1. When the exhibition of such object is contrary to public policy, morals or decency 2. When to require its being viewed in court or in an ocular inspection would result in delay, inconvenience, unnecessary expense out of proportion to the evidentiary value of such object 3. When such object (real) 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 When may object (real) evidence which is repulsive or indecent still be viewed by the court? - IF the view of the same is necessary in the interest of justice - In such case, the court may exclude the public from such view - Note: The view may NOT be refused IF the indecent or immoral objects constitute the very basis of the criminal or civil actions (ex. case against obscene exhibits) What does object (real) evidence include? - Such evidence includes any article or object which may be known or perceived by the use of any of the senses of: hearing (auditory), touch (tactile), taste (gustatory) or smell (olfactory)and sight - It may include: o Examination of the anatomy of a person or any substance taken therefrom o Conducting tests, demonstration or experiments o Examination of representative portrayals of the object in question provided the same are properly authenticated (ex. maps, diagrams, sketches, pictures, audio-visual records) - Note: Such real evidence may be amplified by interpretations afforded by testimonial evidence especially by experts (x-ray interpreted by doctors)

Evidence | Judge Bonifacio | 3B 2009-2010 [This reviewer is lifted from the book of regalado and Beda– not plagiarized you fuckers!]

7|Patiño,Erica

Documents are Considered: - Object (real) Evidence IF their Purpose is: To prove their existence or condition, or the nature of the handwritings thereon or to determine the age of the paper used, or the blemishes or alterations thereon. - Otherwise, They are Considered Documentary Evidence IF their Purpose is: to establish the contents or tenor thereof. Physical Examination of a Person May be Conducted: - BY the court OR under its direction - TO show the nature, extent or location of injuries, facial features, his resemblance or possibility of relationship to another, or his racial origin, his probable age, fact of pregnancy

(b) When the original: - is in the custody or under the control of the party against whom the evidence is offered, and - the latter fails to produce it after reasonable notice; (c) When the original: - consists of numerous accounts or other documents which cannot be examined in court without great loss of time and - the fact sought to be established from them is only the general result of the whole; and (d) When the original: - is a public record - in the custody of a public officer OR is recorded in a public office. (2a)

B. DOCUMENTARY EVIDENCE Sec. 4. Original of document. Sec. 2. Documentary evidence. Documents as evidence consist of: - writing or - any material containing letters, words, numbers, figures, symbols or - other modes of written expression offered as proof of their contents. (n)

(a) The original of the document is: - one 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.

1. BEST EVIDENCE RULE (Primary Evidence Rule) Sec. 3. Original document must be produced; exceptions. When the subject of inquiry is the contents of a document: - no evidence shall be admissible other than the original document itself, EXCEPT in the following cases: (a) When the original: - has been lost or destroyed, or cannot be produced in court, - without bad faith on the part of the offeror;

(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 the entries are likewise equally regarded as originals. (3a) Notes: Document, defined: A deed, instrument or other duly authorized paper by which something is proved, evidenced or set forth. Documentary Evidence, defined: That which is furnished by written instruments, inscriptions and documents of all kinds.

Evidence | Judge Bonifacio | 3B 2009-2010 [This reviewer is lifted from the book of regalado and Beda– not plagiarized you fuckers!]

8|Patiño,Erica

Best Evidence Rule, defined: that rule which requires the highest grade of evidence obtainable to prove a disputed fact. - Purpose: To prevent fraud, perjury, and To exclude uncertainties in the contents of a document Best Evidence Rule is Applied to Documentary Evidence ONLY - Operates as a rule of exclusion - GR: Original writing itself must be produced in court. Secondary/substitutionary evidence cannot inceptively be introduced o Effect: The non-production of the original document gives rise to the presumption of suppression of evidence (Sec 131) - EXC: Secondary evidence may be produced in 4 Instances in Sec 3 Note: In case of real evidence, secondary evidence may be introduced w/o having to account for the non-production of such primary evidence Best Evidence Rule is Applicable ONLY: when the contents of the document is the subject of inquiry. - It does NOT apply when the issue is only as to: o w/n the document exists or w/n it was actually executed or o the circumstances relevant to or surrounding its execution Note: Here, testimonial evidence or other evidence will suffice. When a document is presented to prove existence or condition – It is offered as REAL evidence, NOT documentary evidence - Parol evidence of the fact of execution is allowed - HOWEVER, 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 with the participation as imputed to the accused – the original must be produced (ex. in libel, the newspaper must be presented) o In this case, the presentation of the original should affect ONLY the weight of the evidence intended to establish the execution of the document Affidavits and depositions are not best evidence and hence not admissible, IF the affiants or deponents are available as witnesses - It is not best evidence ONLY when the contents of the affidavits or depositions are NOT the issues in the case BUT are merely used to establish the issues in controversy o Affidavits are regulated by the hearsay evidence rule (Rule 130 Sec 26) to safeguard the right of cross examination. o Depositions are regulated by Rule 23 Sec 4

When “Other Copies of a Document” are Considered Originals (Sec 4) - It includes regular entries in journals and ledgers. - A signed carbon copy executed at the same time as the original is known as a “duplicate original” and may be introduced w/o the original Rules on Carbon Copies Considered as Originals - Documents prepared in several copies through the use of carbon sheets are considered originals: o PROVIDED that the writing of a contract upon the outside sheet, including the signature of the party sought to be charged thereby, produces a facsimile upon the sheets beneath, such signature being thus reproduced by the SAME stroke of the pen - Even if the signature was made through separate acts or separate occasions, ALL the CARBON COPIES are considered originals o IF each copy was intended as a repository of the same legal act of the party thereto. - BUT imperfect carbon copies are merely secondary evidence even if the text was made at the same time as the signed original o Ex. incomplete signatures, something else is left to be done in order that a document could evidence a binding obligation Rules on Telegrams and Cables – W/N the dispatch sent or the dispatch received is the best evidence of the message (depends on the issue) - IF the issue is the contents of the telegrams o as received by the addressee - original dispatch received is the best evidence o as sent by the sender – the original is the message delivered - IF the issue is the inaccuracy of the transmission o BOTH the sent and received dispatch are originals. Provincial Fiscal of Pampanga v. Reyes: in case of libel IF the issue is: - On the contents of the articles sent by the accused for publication o The manuscript is the best evidence - On what was actually published o A copy of the newspaper is the best evidence 2. SECONDARY EVIDENCE Sec. 5. When original document is unavailable. When the original document: - has been lost or destroyed, or

Evidence | Judge Bonifacio | 3B 2009-2010 [This reviewer is lifted from the book of regalado and Beda– not plagiarized you fuckers!]

9|Patiño,Erica

- cannot be produced in court, the offeror, upon proof of: - its execution or existence and - the cause of its unavailability without bad faith on his part, may prove its contents: - by a copy, or - by a recital of its contents in some authentic document, or - by the testimony of witnesses in the order stated. (4a) Notes: 1st Exception to the Best Evidence Rule: When the original is lost or destroyed What Must be Proved by Satisfactory Evidence in Order for Secondary Evidence May be Admissible: 1. Due execution of the original : proved through the testimony of either: a. The person/s who executed it b. The person before whom its execution was acknowledged or c. Any person who was present and saw it executed and delivered or who thereafter saw it and recognized the signatures, or d. One to whom the parties previously confessed its execution 2. Loss, destruction or unavailability of all such originals - The cause must NOT be due to the offeror’s bad faith - Loss or Destruction may be Proved BY: o Any person who knew of such fact o Anyone who, in the judgment of the court had made a sufficient examination in the places where the document or papers of similar character are usually kept by the person in whose custody the document was and had been unable to find it o Anyone who has made any other investigation which is sufficient to satisfy the court that the document is indeed lost. - Duplicates must be accounted for: Only when ALL cannot be presented can it be considered unavailable/lost/destroyed 3. Reasonable diligence and good faith in the search for or attempt to produce the original PNB v. Olila: When the original is OUTSIDE the jurisdiction of the court (ex. Abroad), secondary evidence is ADMISSIBLE

What Constitutes Secondary Evidence? (Note: Applies to BOTH 1st and 2nd Exceptions to the Primary Evidence Rule) 1. A copy of said document 2. A recital or its contents in an authentic document or 3. The recollection of witnesses GR: Availment of such secondary evidence MUST be in the aforesaid order EXC: Definite Evidentiary Rule When the law specifically provides for the class and quantum of secondary evidence to establish the contents of a document or bars secondary evidence such requirement is controlling - Example. Lost holographic will must be proved only by a copy, lost notarial will may be proved by the testimony of credible witnesses Contents of a Document may be Proven BY: 1. Any person who read it 2. Any person who heard it read knowing or it being proved from other sources that the document so read was the one in question 3. Any person who was present when the contents of the document were talked over between the parties thereto to such an extent as to give him reasonably full information as to its contents 4. Any person to whom the parties to the instrument have confessed or stated the contents thereof. Sec. 6. When original document is in adverse party's custody or control. IF the document is in the custody or under the control of adverse party: - he must have reasonable notice to produce it. IF after such notice AND after satisfactory proof of its existence, he fails to produce the document: - secondary evidence may be presented as in the case of its loss. (5a)

Notes: 2nd Exception to the Best Evidence Rule: Original is in the custody or under the control of the adverse party who fails to produce it Facts Which Must be Shown by the Party Offering Secondary Evidence 1. The adverse party’s custody or control of the original document;

Evidence | Judge Bonifacio | 3B 2009-2010 [This reviewer is lifted from the book of regalado and Beda– not plagiarized you fuckers!]

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No need to prove actual possession. It is enough to show the circumstances that would indicate his possession. 2. That reasonable notice was given to the adverse party who has the custody or control of the document; 3. Satisfactory proof of the document’s existence; 4. Failure or refusal by the adverse party to produce it in court. o

Requirement of “Notice” Demanding the Original Document: - No particular form of notice is required, as long as it fairly apprises the other party as to what papers are desired. Even an oral demand in court will suffice. - HOWEVER, notice must be given to the adverse party or his attorney even if the document is in the actual possession of a 3rd party - Notice is done by: Motion or Subpoena duces tecum Notice is NOT Required: - When the receipt of the original document is acknowledged on a carbon copy. (The duplicate itself is an original copy and the only issue is the receipt of the original) - When the nature of the action is in itself a notice, as when it is for the recovery or annulment of documents wrongfully obtained or withheld by the other party *See Notes on Section 8 as it relates to Section 6 Effect of JUSTIFIED Refusal of the Adverse Party to the Produce the Document - Does NOT give rise to the presumption of suppression of evidence or create an unfavorable inference against him - IT only authorizes the introduction of secondary evidence Rules on Production of Documents: Rule 130 v. Rule 27 Rule 130 Rule 27 Production is procured by mere notice Production is in the nature of a to the adverse party mode of discovery Requirements of notice must be Can be sought only by proper fulfilled as a condition precedent for motion and only upon good cause the subsequent presentation of secondary evidence Presupposes that the evidence to be Contemplates a situation wherein

produced is intended as evidence

the document is either assumed to be favorable to the party in possession thereof or that the party seeking its production is not sufficiently informed of the contents of the same

3rd Exception to the Best Evidence Rule: When the original consists of numerous accounts or other documents which cannot be examined in court w/out great loss of time Requisites for the 3rd Exception to Apply: 1. The voluminous character of the records must be established and 2. Such records must be made accessible to the adverse party so that their correctness may be tested on cross examination Instances When the Original Must STILL be Produced 1. When the detailed contents of the records of accounts are challenged for being hearsay or 2. Issues are raised as to the authenticity or correctness of the detailed entries Note: Here, a summary of the voluminous records can be considered as secondary evidence Sec. 7. Evidence admissible when original document is a public record. When the original of document: - is in the custody of public officer or - is recorded in a public office, its contents may be proved: - by a certified copy issued by the public officer in custody thereof. (2a) Notes: 4th Exception to the Best Evidence Rule: When the original is a public record in the custody of a public officer or is recorded in a public office

Evidence | Judge Bonifacio | 3B 2009-2010 [This reviewer is lifted from the book of regalado and Beda– not plagiarized you fuckers!]

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Such Document may be Evidenced BY: - An official publication or - A copy attested by the officer having legal custody and - In the case of an authorized public record, by a copy thereof attested by its legal keeper

(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.

Sec. 8. Party who calls for document not bound to offer it. The term "agreement" includes wills. (7a) A party who calls for the production of a document and inspects the same - is not obliged to offer it as evidence. (6a) Note: When the document is produced, it must fulfill the requisites of admissibility to be admitted. The party demanding it is also NOT obliged to offer it.

Notes: Parol Evidence, defined: Any evidence aliunde (oral or written), which is intended or tends to vary or contradict a complete and enforceable agreement in a document Basis and Effect of the Parol Evidence Rule - Basis: When the parties have reduced their agreement into writing, all their previous and contemporaneous agreements on the matter are merged therein. - Effect: Hence, a prior or contemporaneous verbal agreement is not admissible to vary contradict or defeat the operation of a valid instrument.

3. PAROL EVIDENCE RULE Sec. 9. Evidence of written agreements. When the terms of an agreement have been reduced to writing: - it is considered as containing all the terms agreed upon and - there can be, between the parties and their successors in interest, no evidence of such terms other than the contents of the written agreement. HOWEVER, a party may present evidence to: - modify, explain or add to the terms of written agreement - IF he puts in issue in his pleading:

When Can Parol Evidence of a Collateral Agreement (CA) Between the Same Parties on the Same or Related Subject Matter Still be Admissible Notwithstanding the Existence of a Written Agreement? 1. When the CA is not inconsistent with the terms of the written contract 2. When the CA has not been integrated in and is independent of the written contract as where it is suppletory to the original contract 3. When the CA is subsequent to or novatory of the written contract 4. When the CA constitutes a condition precedent which determines whether the written contract may become operative or effective. o No. 4 does not apply to a condition subsequent not stated in the agreement NOTE: In order to apply the above exceptions, evidence thereon may be allowed PROVIDED they have been put in issue (as part of Sec. 9, Par. d) Parol Evidence Rule Also does NOT APPLY (may not be invoked against the other):

Evidence | Judge Bonifacio | 3B 2009-2010 [This reviewer is lifted from the book of regalado and Beda– not plagiarized you fuckers!]

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When at least 1 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. A stranger may introduce extrinsic evidence against the written agreement

Parol Evidence is Admissible PROVIDED Section 9 Paragraphs A to D are put in issue - GR: Such facts must be put in issue by the pleadings - EXCEPTION: Parol Evidence may still be admitted even if the required matters are not put in issue by the pleadings: o If such facts are invoked in his answer (since it also puts it in issue) o When parol evidence is NOT OBJECTED to (waiver of right to object inadmissibility) Requisites for the Admissibility of Parol Evidence 1. There is a valid contract 2. The terms of the agreement were reduced into writing 3. The controversy must be between the parties of the agreement of their successors in interest (parties to the agreement must be the parties to the suit) 4. There is a dispute as to the terms of the agreement Rule on Express Trusts Concerning an Immovable or Any Interest Therein - Cannot be proved by parol evidence - Relief: Reformation of contracts

Parol Evidence Rule v. Best Evidence Rule: Parol Evidence Rule Best Evidence Rule Presupposes that the original Contemplates a situation where the document is available in court original writing is not available and/or there is a dispute as to w/n the said writing is the original Prohibits the varying of the terms of Prohibits the introduction of the written agreement secondary evidence regardless of w/n

it varies the contents of the original Applies ONLY to documents which Applies to all kinds of writings are contractual in nature or “written agreement (EXC. It applies to wills) Can be invoked ONLY when there is Can be invoked by ANY party a controversy bet. the parties to the regardless of w/n such party has written agreement and their privies participated in the writing involved. or any party directly affected thereby 1st Exception to the Parol Evidence Rule: An intrinsic ambiguity, mistake or imperfection in the written agreement (Sec 9 Par A) Ambiguities in the Written Agreement or Will 1. “Latent or Intrinsic Ambiguity” – Contemplated in Sec 9 – Curable by Parol Evidence - When the writing on its face appears to be clear and unambiguous but there are collateral matters or circumstances which make the meaning uncertain - When a writing admits of 2 or more constructions - Ex. “I give my estate to my cousin Jimmy Ibarra” (I have 2 cousins with that same name) 2. “Patent or Extrinsic Ambiguity” – NOT contemplated, Cannot be Cured by Parol Evidence - That which is apparent on the face of the writing and requires something to be added in order to ascertain the meaning. Ex. “I give my estate to my first cousin” 3. “Intermediate Ambiguity” – May also be Cured by Parol Evidence PROVIDED it is also put in issue - Because of the words of the writing, though seemingly clear and with a settled meaning, is actually equivocal and admits 2 interpretations Note: False description shall not vitiate a document IF the subject is sufficiently identified. Note: When the terms of the agreement are clear – the courts have no right to interpret it “Mistake” means “Mistake of Fact” - Such mistake may be a mutual mistake between the parties OR - Where an innocent party was imposed upon by unfair dealing of the other.

Evidence | Judge Bonifacio | 3B 2009-2010 [This reviewer is lifted from the book of regalado and Beda– not plagiarized you fuckers!]

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Such mistake should be alleged and proved by clear and convincing evidence “Imperfection” Includes: - An inaccurate statement in the agreement or - Incompleteness in the writing or - Presence or inconsistent provisions therein Note: Art. 1363 NCC: When one party was mistaken and the other party knew that the instrument did not state the real agreement and concealed such fact – the instrument may be reformed. 2nd Exception to the Parol Evidence Rule: Failure of the written agreement to express the true intent and agreement of the parties Purpose: to enable to court to ascertain the true intention of the parties or the true nature of the transaction 3rd Exception to the Parol Evidence Rule: The validity of the written agreement

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UNLESS the parties intended otherwise. (8)

Sec. 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. (9) Sec. 12. Interpretation according to intention; general and particular provisions. In the construction of an instrument: - the intention of the parties is to be pursued; and when a general and a particular provision are inconsistent, - the latter is paramount to the former. - So a particular intent will control a general one that is inconsistent with it. (10) Sec. 13. Interpretation according to circumstances.

In the inquiry into the Validity if the Agreement, Parol Evidence may be Admitted to Show: - The true consideration of the contract or the want or illegality thereof - The Incapacity of the parties - W/n the contract is fictitious or absolutely simulated - W/n there was fraud in inducement 4th Exception to the Parol Evidence Rule: The existence of other terms agreed to by the parties or their successors in interest AFTER the execution of the written agreement Note: Amendment in Section 9

4. INTERPRETATION OF DOCUMENTS

For the proper construction of an instrument: - the circumstances under which it was made, - including the situation of the subject thereof and of the parties to it, may be shown, so that the judge may be placed in the position of those whose language he is to interpret. (11) Sec. 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: - 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. (12)

Sec. 10. Interpretation of a writing according to its legal meaning. Sec. 15. Written words control printed. The language of a writing is to be interpreted: - according to the legal meaning it bears in the place of its execution,

Evidence | Judge Bonifacio | 3B 2009-2010 [This reviewer is lifted from the book of regalado and Beda– not plagiarized you fuckers!]

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When an instrument consists partly of written words and partly of a printed form, AND the two are inconsistent: - the former controls the latter. (13) Sec. 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. (14) Sec. 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 is to be taken which is the most favorable to the party in whose favor the provision was made. (15) Sec. 18. Construction in favor of natural right. When an instrument is equally susceptible of two interpretations: - one in favor of natural right AND the other against it, - the former is to be adopted. (16) Sec. 19. Interpretation according to usage. An instrument may be construed according to usage, in order to determine its true character. (17)

Sec. 20. Witnesses; their qualifications. EXCEPT as provided in the next succeeding section: - all persons who can perceive, and - perceiving, can make known their perception to others, may be witnesses. - Religious or political belief, - interest in the outcome of the case, or - conviction of a crime UNLESS otherwise provided by law, shall not be a ground for disqualification. (18a) Notes: Witness, defined: Reference to a person who testifies in a case or gives evidence before a judicial tribunal Competence of a Witness, defined: The legal fitness or ability of a witness to be heard on the trial of a case. Rule on Competency of Witness - GR: A person who takes the witness stand is presumed to possess the qualification of a witness (Presumption of Competency) - EXC: Prima Facie Presumption of Incompetency when: o The person has been recently found to be of unsound mind by a court of competent jurisdiction or o One is an inmate of an asylum for the insane Note: The burden is upon the party objecting to the competency of a witness to establish the grounds of incompetency. When are the Qualifications and Disqualifications of Witnesses Determined? - At the time the witnesses are produced for examination in court (called to the stand) OR - At the time of the taking of their depositions. Note: If they are children of tender years – the time of the occurrence to be testified to should also taken into account

C. TESTIMONIAL EVIDENCE 1. QUALIFICATION OF WITNESSES

Note: According to Judge B (different view from other authors) – You must consider the qualifications of the witness BOTH at the time of the occurrence

Evidence | Judge Bonifacio | 3B 2009-2010 [This reviewer is lifted from the book of regalado and Beda– not plagiarized you fuckers!]

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to be testified to and at the time the witness is offered to determine his/her competency. Instances When a Witness is NOT Disqualified from Being a Witness: - Interest of a Witness in the Subject Matter of the Action or its Outcome o GR: Does NOT disqualify a witness from testifying. It affects only his credibility but NOT his competency o EXC: He will be disqualified under those covered by the rule on surviving parties, also known as the “Dead Man Statute” or the “Survivorship Disqualification Rule” (Sec 23) - A Co-defendant Being Declared in Default o GR: A defendant is NOT disqualified from testifying for his non-defaulting co-defendant although he has an interest in the case o Ratio: He may still testify because he is not considered as taking part in trial as understood in the rule on default. - A Witness Being Convicted of a Crime o GR: A person convicted is NOT disqualified from being a witness (it only affects his credibility) BUT:  He must answer to the fact of a previous final conviction (sec 3(5), Rule 132) or  Such fact may be shown by his examination or the record of the judgment (sec 11) o EXC: When otherwise provided by law (ex. Those guilty of perjury, falsification or false testimony are disqualified from being witnesses to a will) - A Lawyer Being a Witness for his Own Client o GR: In such instance, the lawyer must leave the trial of the case to other counsel o EXC. When it concerns merely formal matters When Objection to a Witness be Made: - GR: Objection to the qualification of the witness must be made before he has given any testimony - EXC: IF the incompetency appears during the trial, the objection must be made as soon as it becomes apparent. Note: If not made w/in the said time: right to object is deemed WAIVED

1. Absolute: Forbidden to testify in any matter o By reason of mental incapacity or immaturity (sec 21) o By reason of marriage (sec 22) 2. Relative: Forbidden only on certain matters o By reason of death or insanity of adverse party (Dead Man’s Statute) sec 23 o By reason of Privileged Communication (Sec 24) Sec. 21. Disqualification by reason of mental incapacity or immaturity. The ff persons cannot be witnesses: (a) Those whose mental condition: - at the time of their production for examination, - is such that they are incapable of intelligently making known their perception to others; (b) Children whose mental maturity is such as to render them incapable: - of perceiving the facts respecting which they are examined and - of relating them truthfully. (19a) Notes: Unsound Mind, defined: That which affects the competency of the witness which includes any mental aberration, whether organic or functional, or induced by drugs or hypnosis. Rules on the Qualification of Soundness of Mind - GR: Unsoundness of mind does not per se render a witness incompetent, one may be medically insane but in law capable of giving competent testimony. Note: As long as the witness can convey ideas by words or signs and give sufficiently intelligent answers to questions propounded, she is competent as a witness EVEN if one is feeble-minded, a mental retardate, or is schizophrenic. When Should a Witness be of Sound Mind? - ONLY at the time of their production for examination - Mental unsoundness of the witness at the time the fact to be testified occurred – Affects ONLY his credibility.

2 Kinds of Incompetency to Testify

Evidence | Judge Bonifacio | 3B 2009-2010 [This reviewer is lifted from the book of regalado and Beda– not plagiarized you fuckers!]

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When are Deaf-mutes Competent Witnesses? - When they: (1) 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. Presumption of Soundness of Mind - GR: Every person is presumed to be of sound mind and the person challenging such has the burden of proving otherwise - EXC: Prima Facie Presumption of Incompetency when: o The person has been recently found to be of unsound mind by a court of competent jurisdiction o One is an inmate of an asylum for the insane

facilitator Sec. 22. Disqualification by reason of marriage. During their marriage, neither the husband nor the wife may testify for or against the other: - without the consent of the affected spouse, EXCEPT: - in a civil case by one against the other, or - in a criminal case for a crime committed by one against the other or the latter's direct descendants or ascendants. (20a) Notes:

In the Case of a Child Witness, the Court in Determining his Competency Must Consider his Capacity: - At the time the fact to be testified to occurred, such that he could receive correct impressions thereof; - To comprehend the obligation of an oath; and - To relate those facts truthfully at the time he is offered as a witness. Hence, the court should take into account his capacity for observation, recollection and communication. When is a Child Considered a Competent Witness - GR: A child is competent if he can perceive and make known his perception - EXC: IF the child’s testimony is punctured w/ serious inconsistencies as to lead one to believe that the child was coached. An Intelligent Boy is Undoubtedly the Best Observer - A child is little influenced by the suggestions of others and describes objects and occurrence as he has really seen them - Children of sound mind are likely to be more observant of incidents which take place within their view than older people. Child Witness Only the judge is allowed to ask questions to the child during preliminary examination Leading questions are allowed Testimony in a narrative from is allowed The child witness is assisted by a

Ordinary Witness Opposing counsels are allowed ask

to

Rule on Marital Disqualification (Spousal Immunity): - GR: During the marriage, neither the husband nor the wife may testify for or against the other w/o the consent of the affected spouse EXCEPTIONS: Rule on Disqualification does NOT Apply When: 1. When the testimony was made outside the marriage 2. In a civil case by one spouse against another 3. In a criminal case for a crime committed by one spouse against the other or the latter’s direct descendants or ascendants o Reason: The crime may be considered as having been committed against the spouse and hence, the conjugal harmony sought to be protected no longer exists) o Limited only to direct ascendants and descendants + spouse 4. People v. Castañeda: A complaint filed by a wife against her husband for falsification of her signature in a deed of sale involving their conjugal property. 5. Ordonio v. Daquigan: When the marital relations are so strained, there is no more consideration for applying the said rule. To apply the exception there must be an offense that directly attacks, or directly and vitally impairs, the conjugal relations. 6. When there is imputation of a crime by one spouse against the other Note: “Direct Ascendants and Descendants” = Parents and Children ONLY

They are generally not allowed It is NOT allowed

Nature of Prohibition: Absolute disqualification or prohibition against the spouse’s testifying to any fact affecting the other spouse however the fact may have acquired

An ordinary witness is not assisted

Requisites in Order for Marital Disqualification Rule to Apply:

Evidence | Judge Bonifacio | 3B 2009-2010 [This reviewer is lifted from the book of regalado and Beda– not plagiarized you fuckers!]

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1. The marriage is valid and existing at the time of the offer of testimony; and 2. The other spouse is a party to the action. Who may Object: Only the other spouse who is a party to the case. - Note: Objections to the competency of the witness-spouse may also be waived. (Ex. Testimony against a spouse is a waiver of a testimony in rebuttal) Rationale For Having Such Rule - Considering the identity of interest between the spouses, there is consequent danger of committing perjury - Also, the rule is in order to guard marital confidence and to prevent domestic disunion This should NOT be confused w/ “Marital Privilege” (see sec 24 notes)

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Incompetency to Testify Applies: w/n the deceased died before or after the commencement of the action against him provided he is dead at the time of the testimony

Requirements for the Dead Man Statute to Apply: 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; 2. The case is against the executor or administrator or other representative of a person deceased or of unsound mind; 3. The case is upon a claim or demand against the estate of such person who is deceased or of unsound mind 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.

Sec. 23. Disqualification by reason of death or insanity of adverse party. Parties or assignor of parties to a case, OR persons in whose behalf a case is prosecuted: - against an executor or administrator or other representative of a deceased person, or - against a person of unsound mind, upon a claim or demand against the estate of: - such deceased person or against - such person of unsound mind, cannot testify as to any matter of fact OCCURRING: - before the death of such deceased person or - before such person became of unsound mind. (20a) Notes: Survivorship Disqualification Rule or Dead Man Statute - Constitutes only a partial disqualification: A witness is not completely disqualified BUT is only prohibited from testifying in certain matters specified - Disqualification ONLY applies to: A civil case or special proceeding over the estate of a deceased or insane person

Requirement No. 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 -

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Such plaintiff must be the real party in interest and not a mere nominal party. The disqualification does NOT apply: o when the counterclaim has been interposed by the defendant as the plaintiff would thereby be testifying in his defense o when 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. Assignor, defined: Assignor of a cause of action which has arisen, and not the assignor of a right assigned before any cause of action has arisen Interest in the outcome of the suit, per se, does not disqualify a witness from testifying

Requirement No. 2: The case is against the executor or administrator or other representative of a person deceased or of unsound mind;

Evidence | Judge Bonifacio | 3B 2009-2010 [This reviewer is lifted from the book of regalado and Beda– not plagiarized you fuckers!]

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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 property has been judicially adjudicated to the heirs, they are still protected under the rule The protection would extend to the heirs of the deceased and the guardians of persons of unsound mind

Requirement No. 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 the administrator who brings an action to recover property allegedly belonging to the estate or the action is by the heirs of a deceased who represented 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 rendered is a claim against an estate

Requirement No. 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. -

Negative testimony (testimony that a fact did not occur during the lifetime of the deceased) is NOT covered by the prohibition – as such fact exists even after the decedent’s demise

The Rule Does NOT Apply: 1. Land registration cases instituted by the decedent’s representatives (since the oppositors are considered defendants and may therefore testify against the petitioner) 2. It does not apply in cadastral cases – since there is no plaintiff or defendant 3. When 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 against the deceased o Provided such fraud is first established by evidence aliunde o To apply the rule, the testimony must be against the estate 4. When the disqualification is waived - when the defendant: o does not timely object to the admission of such evidence or o testifies on the prohibited matters or cross examines thereon

o

or offers evidence to rebut such prohibited testimony

Reason for the Rule: 1. To prevent perjury 2. To protect the estate from fictitious claims 3. To give the parties an equal opportunity to present evidence

Sec. 24. Disqualification by reason of privileged communication. The ff. persons cannot testify as to matters learned in confidence in the ff. cases: (a) The husband or the wife, during or after the marriage: - cannot be examined w/out the consent of the other - as to any communication received in confidence by one from the other during the marriage EXCEPT: - in a civil case by one against the other, or - in a criminal case for a crime committed by one against the other or the latter's direct descendants or ascendants; (b) An attorney 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; (c) 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 advice or treatment given by him or any information - which he may have acquired in attending such patient in a professional capacity which information:

Evidence | Judge Bonifacio | 3B 2009-2010 [This reviewer is lifted from the book of regalado and Beda– not plagiarized you fuckers!]

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was necessary to enable him to act in such capacity, and which would blacken the reputation of the patient;

d) A minister or priest cannot: - without the consent of the person making the confession, be examined as to: - any confession made to or any advice - given by him in his professional character in the course of discipline enjoined by the church to which the minister or priest belongs; (e) A public officer cannot be examined: - during 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. (21a) Notes: Basis of the Privilege: The confidential nature of the communication Who May Object Under the Disqualification Rules – ONLY by the persons protected thereunder (upon whom the testimony is directed). They may also waive the right to object. [MARITAL PRIVILEGE] Requisites for the Disqualification By Reason of Marital Privilege to Apply: 1. There is 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 consent to such testimony. Instances When the Privilege Cannot Be Claimed: 1. With respect to communications made prior to the marriage of the spouses 2. With respect to communication not intended to be kept in confidence (ex. dying declaration of a husband to his wife as to who was his assailant since it is intended to be reported) 3. When the information is overheard by a third party whether he acquired the information legally or not. (A 3rd person is not covered by the prohibition)

Provided: There must be no collusion between the 3rd person and one of the spouses. 4. In a conspiracy between spouses to commit a crime - since it is not the intention of the law to protect the commission of a crime. 5. When the spouses are living separately and there is an active hostility. But if there is a chance to reconcile, then this privilege will apply. 6. When waived o

Note: Any information received during the marriage is presumed to be confidential Disqualification By Reason of Disqualification By Reason of Marriage (Sec 22) Marital Privilege (Sec 24a) Can be invoked ONLY if one of the Can be claimed w/n the other spouse spouses is a party to the action is a party to the action Applies ONLY if the marriage is Can be claimed even after the existing at the time the testimony is marriage is dissolved offered Constitutes a vital prohibition for or Applies ONLY to confidential against the spouse of the witness communication between spouses Objection would be raised on the The objection of privilege is raised ground of marriage. Even if the when confidential marital testimony is for or against the other communication is inquired into. spouse. Note: Waiving Sec 22 does not prevent the spouse from invoking sec 24 and vice versa. So even if the information is not confidential, the spouse may still invoke sec 22 which is an absolute disqualification. [ATTORNEY-CLIENT PRIVILEGE] Requisites for the Disqualification Based on Attorney-Client (A-C) Privilege to Apply 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. Note: IF the atty’s secretary or clerk is sought to be established – then BOTH the consent of the atty and the client is required.

Evidence | Judge Bonifacio | 3B 2009-2010 [This reviewer is lifted from the book of regalado and Beda– not plagiarized you fuckers!]

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Note: The client owns the privilege and therefore he alone can invoke it. Prohibition is also applicable even to a counsel de oficio. Basis: public policy Confidential Communication: The attorney must have been consulted in his professional capacity EVEN if no fee has been paid. - It includes preliminary communications made for the purpose of creating the A-C relationship. (But if it is not for the purpose of creating the A-C relationship – it will not be protected even if the client subsequently hires the same attorney) - Includes verbal statements as well as documents or papers entrusted to the attorney Instances when the A-C Privilege Does NOT Apply: 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: - the 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 BUT Communication Regarding: - A crime already committed - is privileged communication - Contemplated criminal acts or in aid or furtherance thereof - is not covered. The A-C Privilege Does NOT Attach: - When the attorney is a conspirator - When all the attorney has to do is to either affirm or deny the secret revealed by the client to the court - When the information is voluntarily given after the attorney has refused to accept employment. [PHYSICIAN-PATIENT PRIVILEGE] Purpose: It is intended to facilitate confidential disclosure by a patient to a physician of all facts and symptoms w/o apprehension to the end that the physician may form a correct opinion and may safely treat his patient.

Requisites for the Disqualification Based on Physician-Patient (P-P) Privilege to Apply 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. Note: It is not necessary that the P-P relationship was created through the voluntary act of the patient. Death of the patient does not extinguish the relation. Note: The privilege extends to all forms of communications as well as to the professional observations and examinations of the patient The P-P Privilege Does NOT Attach: 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. 6. Under Rule 28 of the Rules of Court, o The results of the physical and mental examination of a person, when ordered by the court, are intended to be made public, hence not privileged. o Also, result of autopsies or post mortem examinations are generally intended to be divulged in court. The Privilege May Also be Waived: - Ex. Section 4 of said Rule 28: 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.

Evidence | Judge Bonifacio | 3B 2009-2010 [This reviewer is lifted from the book of regalado and Beda– not plagiarized you fuckers!]

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

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Trade Secrets will be covered by this privilege

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Informer’s Privilege: 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.

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Those covered in the Secrecy of Bank Deposits Law

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EO 464: Executive Privilege

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Income Tax returns

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Anti-Graft Cases

[MINISTER/PRIEST-PENITENT PRIVILEGE] Requisites for the Disqualification Based on Minister/Priest-Penitent Privilege to Apply 1. 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 2. They must be confidential and penitential in character. - Ex: under seal of the confessional Note: It is the person making the confession who can invoke the privilege. [PRIVILEGED COMMUNICATION TO PUBLIC OFFICERS] Requisites for the Disqualification Based on Privileged Communication to Public Officers to Apply 1. That it was made to the public officer in official confidence; 2. That public interest would suffer by the disclosure of such communication, as in the case of State secrets. Note: When no public interest will be prejudiced - this rule will NOT apply. [OTHER INSTANCES OF PRIVILEGE]

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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 unless the court or a House or committee of Congress finds that such revelation is demanded by the Security of the State.

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Art. 233 of the Labor Code - All information and statements made at conciliation proceedings shall be treated as privileged communications and shall not be used as evidence in the NLRC, and conciliators and similar officials shall not testify in any court regarding any matter taken up at the conciliation proceedings conducted by them.

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Voters cannot be compelled to reveal their ballots

2. TESTIMONIAL PRIVILEGE Sec. 25. Parental and filial privilege. No person may be compelled to testify against his: - parents, other direct ascendants, children or other direct descendants. (20a) Notes: - It is not a rule of disqualification but was a privilege NOT to testify - hence it was referred to as “filial privilege - 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 or by one parent against the other (Art. 215). - Both parental and filial privileges are granted to any person Reason for the Rule: The reason for the rule is to preserve “family cohesion” Note: The privilege may now be invoked in both civil and criminal cases. 3. ADMISSIONS AND CONFESSIONS Sec. 26. Admission of a party.

Evidence | Judge Bonifacio | 3B 2009-2010 [This reviewer is lifted from the book of regalado and Beda– not plagiarized you fuckers!]

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The act, declaration or omission of a party as to a relevant fact may be given in evidence against him. (22) Notes: Admission, defined: 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.

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 an acknowledgment of guilt or liability

Must be express Can be made only by the party himself and in some instances, is admissible against his co-accused Express Admissions, defined: are those made in definite, certain and unequivocal language. Implied Admissions, defined: 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. Requisites for Admissions to be Admissible 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. Other Forms of Admissions: - Verbal or written, express or tacit, judicial or extrajudicial - Judicial: One made in connection w/ a judicial proceedings (conclusive – does not require proof) - Extrajudicial: Any other admissions (Sec 26 to 32) (Rebuttable – requires proof) Ex. Testimony of the accused in a parricide case to the effect that he was married to the victim is an admission against his penal interest and will sustain his conviction even in the absence of independent evidence to prove such marriage

Admission An admission need not be against one’s proprietary or pecuniary interest, Made by the 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 a person who is either deceased or unable to testify

The declaration against interest must have been made ante litem motam (prior to the controversy)

Self-Serving Testimony, defined: One which has been made extra-judicially by the party to favor his interests. It is not admissible in evidence. - It does not include his testimony as a witness in court - No application to a judicial declaration - When the statement was not made in anticipation of a future litigation – It cannot be considered self-serving 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; 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 4. When the credibility of a party has been assailed on the ground that his testimony is a recent fabrication (Testimonial Rehabilitation) 5. When they are offered by the opponent 6. When they are offered without objection, the evidence cannot afterward be objected to as incompetent. Admission by Conduct - Flight from justice is an admission by conduct and circumstantial evidence of consciousness of guilt - Attempts to suppress evidence (ex. Destruction of evidence) - The act of repairing facilities after an injury has been sustained therein – is NOT an implied admission of negligence by conduct (It is merely a measure of extreme caution) Sec. 27. Offer of compromise not admissible.

Evidence | Judge Bonifacio | 3B 2009-2010 [This reviewer is lifted from the book of regalado and Beda– not plagiarized you fuckers!]

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In civil cases, an offer of compromise: - is not an admission of any liability, and - is not admissible in evidence against the offeror. In criminal cases: EXCEPT: - those involving quasi-offenses (criminal negligence) or - those allowed by law to be compromised, an offer of compromise by the accused: - may be received in evidence as an implied admission of guilt. A plea of guilty later withdrawn OR an unaccepted offer of a plea of guilty to lesser offense: - is not admissible in evidence AGAINST the accused who made the plea or offer. An offer to pay OR the payment of medical, hospital or other expenses occasioned by an injury: - is not admissible in evidence as proof of civil or criminal liability for the injury. (24a) Notes: Compromise, defined: An agreement made between two or more parties as a settlement of the matters in dispute. Civil Cases GR: An offer of compromise is not a tacit admission of liability and is not admissible in evidence against the offeror. It cannot be proved over the objection of the offeror. EXC: Unless the offer is not only to “buy peace” but amounts to an admission of liability (compromise directed only to the amount to be paid). Ratio in Civil Cases: It is the policy of the law to favor the settlement of disputes, to foster compromises and to promote peace.

Criminal Cases GR: An offer of compromise by the accused may be received in evidence as an implied admission of guilt.

avoid criminal action. Instances when Offer of Compromise is Admissible - In cases of violation of the internal revenue laws o Since the law provides that the payment of any IR tax may be compromised, and all criminal violations may likewise be compromised EXC those already filed and those involving fraud. - In rape cases o GR: In effect it may be compromised by actual marriage o EXC: An offer to compromise for monetary consideration is an implied admission. o People v. Valdez: An offer of marriage during the investigation is an admission of guilt Good Samaritan Rule: 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.

No Compromise is Valid Upon the Following Cases: 1. Civil status of persons 2. Validity of marriage or legal separation 3. Any ground for legal separation 4. Future support 5. Jurisdiction of courts 6. Future legitime 7. Habeas Corpus and Election Cases. Sec. 28. Admission by third party.

EXC: (1)Those involving quasioffenses (criminal negligence) or (2)those allowed by law to be compromised In criminal cases however, the accused may be permitted to prove that such offer was not made under consciousness of guilt but merely to

The rights of a party cannot be prejudiced: - by an act, declaration, or omission of another, - EXCEPT as hereinafter provided. (25a) Notes: Principle of Res Inter Alios Acta Alteri Noceree Non Debet: Things done between strangers ought not to injure those who are not parties to it.

Evidence | Judge Bonifacio | 3B 2009-2010 [This reviewer is lifted from the book of regalado and Beda– not plagiarized you fuckers!]

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1st Part: Sec 28, rule 130 2nd Part: Sec 34, rule 130 EXC: to the Rule: When the 3rd person is a o Sec 29: A partner, agent, joint owner, joint debtor, or has a joint interest with the party o Sec 30: A co-conspirator o Sec 31: A privy of the party

Basis of the GR: A party is not bound by any agreement to which he has no knowledge and to which he has not given his consent. His rights cannot be prejudiced by the declaration, act or omission of another EXC by virtue of a particular relation between them. Basis of the EXC: A third party may be so united in interest with the partyopponent that the other person’s admissions may be receivable against the party himself. The term “privy” is the orthodox catchword for the relation.

Sec. 29. Admission by co-partner or agent. The act or declaration of a partner or agent of the party: - within the scope of his authority and - during the existence of the partnership or agency, may be given in evidence against such party AFTER: - the partnership or agency is shown by evidence other than such act or declaration. The same rule applies: - to the act or declaration of a joint owner, joint debtor, or other person jointly interested with the party. (26a) Notes: Requisites for This Exception To Apply: 1. That the partnership, agency, or joint interest is established by evidence other than the act or declaration

o Partnership relation must be shown; 2. The act or declaration is within the scope of the partnership, agency or joint interest o With regard to a non-partnership affair: The fact that each partner has individually made a substantially similar admission does not render the aggregate admission competent against the firm. 3. Such act or declaration must have been made during the existence of the partnership, agency or joint interest. o Statements made after the partnership has been dissolved do not fall within the exception o BUT if they are made in connection with the winding up of the partnership – such admission is STILL admissible. Rule on Admission Made By Counsel - GR: They are ADMISSIBLE against the client as the counsel acts in representation and as an agent of the client - EXC: It must not amount to a compromise or confession of judgment (Because in compromise, the rule requires the consent of the client) Joint Debtor, defined: It does not refer to mere community of interest but should be understood according to its meaning in solidum and not mancomunada. Sec. 30. Admission by conspirator. The act or declaration of a conspirator: - relating to the conspiracy and - during its existence, may be given in evidence: - against the co-conspirator - AFTER the conspiracy is shown by evidence other than such act of declaration. (27) Notes: Application of the Requirement that the Conspiracy must Preliminarily be Proved by Evidence other than the Conspirator’s Admission - Applies ONLY to extrajudicial acts or statements

Evidence | Judge Bonifacio | 3B 2009-2010 [This reviewer is lifted from the book of regalado and Beda– not plagiarized you fuckers!]

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NOT to judicial admission as to a testimony given on the witness stand at the trial where the party adversely effected has the opportunity to cross examine the declarant

An Admission by a Conspirator is Admissible Against his Coconspirator - Such conspiracy is shown by evidence aliunde o Conspiracy must be established by prima facie proof in the judgment of the court; - The admission was made during the existence of the conspiracy o After the termination of a conspiracy, the statements of one conspirator may not be accepted as evidence against any of the other conspirators; - The admission related to the conspiracy itself o Should relate to the common object. Existence of the Conspiracy May be Inferred: - From the acts of the accused - From the confessions of the accused - Or by prima facie proof thereof Note: If there is no independent evidence of the conspiracy – the extrajudicial confession CANNOT be used against his co-accused (res inter alios rule applies to both EXJ and J admissions) - Here, there is no need to produce direct evidence - independent circumstantial evidence will suffice. Quantum of Evidence to Prove Conspiracy: Clear and convincing evidence Rules on Extrajudicial Admissions Made by a Conspirator AFTER the conspiracy had terminated and BEFORE the trial - GR: NOT admissible - EXC: Admissible against the co-conspirator IF: 1. Made in the presence of the co-conspirator who expressly or impliedly agreed therein – as there is tacit admission under Sec 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 coconspirator’s participation in the offense.

In order that the EX-J statements of a co-accused may be taken into consideration in judging the testimony of a witness it is necessary that: 1. The statements are made by several accused, 2. The same are in all material respects identical, and 3. There could have been no collusion among said co-accused in making such statements. Sec. 31. Admission by privies. Where one derives title to property from another: - the act, declaration, or omission of the latter, while holding the title, - in relation to the property, is evidence against the former. (28) Notes: Privity, defined: mutual succession of relationship to the same rights of property. Privies, defined: those who have mutual or successive relationship to the same right of property or subject matter To be Admissible, The Following Requisites Must Concur: 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 arise: by succession, by acts mortis causa or by acts inter vivos. Sec. 32. Admission by silence. An act or declaration: - made in the presence and within the hearing or observation of a party who does or says nothing - when the act or declaration is such as naturally to call for action or comment if not true, and when proper and possible for him to do so, may be given in evidence against him. (23a) Notes:

Evidence | Judge Bonifacio | 3B 2009-2010 [This reviewer is lifted from the book of regalado and Beda– not plagiarized you fuckers!]

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To be Admissible the FF Requisites Must Concur: 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. - Applies to both civil and criminal cases Rules on Voluntary Participation in a Reenactment of the Crime Conducted by the Police - GR: It is considered a tacit admission of complicity. - Note: To be given any evidentiary weight, the validity and efficacy of the confession must first be shown. Note: Implication of guilt is not derived from mere silence but from the acquiescence in participating in the reenactment Application of The Rule: - DOES NOT Apply IF: the statements adverse to the party were made in the course of an official investigation, as where: o he was pointed out in a custodial investigation and was neither asked to reply nor comment on such imputations or o when the party had a justifiable reason to remain silent, as when he was acting on advice of counsel - It May Apply: To adverse statements in writing IF the party was carrying on a mutual correspondence with the declarant. o However, if there was no mutual correspondence, the rule is relaxed since such prompt response can generally not be expected if the party still has to resort to a written reply. Basis of Rule: It is basic instinct or a natural reaction to resist or deny a false statement

Doctrine of Adoptive Admission: A party’s reaction to a statement or action by another person when it is reasonable to treat the party’s reaction as an admission of something stated or implied by the other person. Instances Where There is NO Implied Admission 1. Allegations of unliquidated damages 2. Allegations which are not material to the cause of action 3. Conclusions of fact/law 4. Allegations of usury other than in a complaint 5. If defendant has not filed his answer and is declared in default.

Sec. 33. Confession. The declaration of an accused acknowledging his guilt: - of the offense charged, or - of any offense necessarily included therein, may be given in evidence against him. (29a) Notes: Confession, Defined: A categorical acknowledgement of guilt made by an accused in a criminal case, w/o any exculpatory statement or explanation. - IF the accused admits the act BUT alleges a justification – it is merely an admission - Confession of Judgment in Civil Cases = Admission of Liability Forms of Confession: - Oral and under oath - In writing (need not be under oath) Note: Sec 33 refers to EX-J Confessions Types of Confessions 1. Judicial Confession: One made before a court in which the case is pending and in the course of legal proceedings therein o By itself, can sustain conviction, even for a capital offense o But for Capital Offenses: there must be evidence presented other than the plea of guilty, also proof that such plea was made voluntarily and w/ full comprehension 2. Extrajudicial (EX-J) Confession: One made in any other place or occasion

Evidence | Judge Bonifacio | 3B 2009-2010 [This reviewer is lifted from the book of regalado and Beda– not plagiarized you fuckers!]

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o o

GR: Cannot sustain a conviction EXC: Unless corroborated by evidence of the corpus delicti

Requirements for the Admissibility of EX-J Confessions 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. (Rights in custodial investigation) Rule on Presumption of Voluntariness: Confessions are presumed to be voluntary and the onus is on the defense to prove that it was involuntary (obtained by violence, intimidation, threat or promise of reward or leniency) Circumstances Held to be Indicia of 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 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. (Estoppel) - 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

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After his confession, the accused was subjected to physical examination and there were no signs of maltreatment or the accused never complained, 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

Abandoned Ruling: Involuntary confessions are admissible if it contains the truth (Prior to Stonehil v. Diokno) Current Ruling: Involuntary Confessions are INADMISSIBLE, Ratio: 1. They are unreliable 2. On grounds of humanitarian considerations, or 3. On legal considerations of their being violative of one’s constitutional right against self incrimination EX-J confession obtained prior to the 1973 Consti: It is admissible even if the confessant was not informed of his right to silence and to counsel and even if made while under arrest (ratio: consti mandate should be given a prospective effect) Rules on EX-J Confession and the Constitution - Verbal EX-JC Made Without Counsel o IF made spontaneously after the assault – admissible as part of res gestae NOT under the confession rule o Provided: It was not made under custodial investigation - IF the accused was informed of his consti rights and was asked if he understood it BUT was not asked if he wanted to exercise it o INADMISSIBLE - EX-JC under Custodial Investigation o If made w/o counsel – Inadmissible o If prefaced by the investigator w/ a statement of his consti rights to which he answered that he was going to tell the truth – Not a waiver of his consti right to counsel o IF accused is illiterate – investigation officer must make sure that his rights were fully explained to him Custodial Investigation (CI), defined: - Questioning initiated by a law officer after a person has been taken into custody or deprived of freedom - Present where the investigation ceases to be a general inquiry and begins to focus on a particular suspect taken into custody and asked questions that lead into eliciting incriminating statements

Evidence | Judge Bonifacio | 3B 2009-2010 [This reviewer is lifted from the book of regalado and Beda– not plagiarized you fuckers!]

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- Includes “invitations” to an investigation Note: There is NO presumption of regularity in CIs Rights of a Person under Investigation 1. Right to be informed of ones right to remain silent, to have competent and independent counsel preferably of his own choice and the charges against him 2. Right to be provided with counsel if accused cannot afford one - Note: Waiver of 1 & 2 must be made: In writing AND in the presence of counsel 3. Right not to be treated with torture, force, violence, threat, intimidation or other means which vitiate free will 4. Right not to be placed under secret detention or under a solitary, incommunicado form of detention NOTE: Confession obtained in violation of these rights is INADMISSIBLE (Art 3 Section 12, 1987 Constitution) Instances of Vitiated Confession – Renders EX-JC INADMISSIBLE - Any form of coercion, whether physical, emotional, or mental - A promise of immunity or leniency IF given by the offended party or by the fiscal (person in a position to give such) vitiates a confession, BUT IF given by: o A person whom the accused could not have reasonably expected to be able to comply with such promise (not a prosecuting officer) or could not bind the offended party IT is ADMISSBLE Note: IF the accused voluntarily made a second confession after he had been maltreated - 2nd confession is ADMISSBLE – Provided it is proven that he was already relieved by the fear caused by the previous maltreatment

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Illegal confessions are inadmissible against the admitter but are admissible against the person who obtained such confession (violator of consti rights) - EX-JC is Binding ONLY Upon HIMSELF and NOT Admissible Against his Co-Accused, EXC: 1. If the latter impliedly acquiesced in or adopted said confession by not questioning its truthfulness 2. If the accused persons voluntarily and independently executed identical confessions w/o collusion (interlocking confessions) which confessions are corroborated by other evidence and w/o contradiction by the co-accused who was present; 3. Where the accused admitted the facts stated by the confessant after being apprised of such confession; 4. 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; 5. Where the confession is used as circumstantial evidence to show the probability of participation by the co-conspirator; 6. Where the confessant testified for his co-defendant; or 7. Where the co-conspirator’s extra judicial confession is corroborated by other evidence of record. Note: For Judicial Confessions: It is binding to BOTH the confessant and the other party Fruit of the Poisonous Tree Doctrine: - Evidence obtained in violation of the right of a person against unreasonable searches and seizures are inadmissible - It refers to an object NOT testimonial evidence - It does not refer to testimony or confessions obtained illegally.

Note: Judgment based solely on a vitiated confession is NULL and VOID - Accused may be released on a writ of habeas corpus

Admissibility of EX-J Confessions - Entire confession should be admitted in evidence – BUT the court may in appreciating the same reject portions which are incredible - Confessions are admissible NOT ONLY to the offense charged BUT also to any offense necessarily included therein

4. PREVIOUS CONDUCT AS EVIDENCE Sec. 34. Similar acts as evidence.

Evidence | Judge Bonifacio | 3B 2009-2010 [This reviewer is lifted from the book of regalado and Beda– not plagiarized you fuckers!]

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Evidence that one did or did not do a certain thing at one time - is not admissible to prove that he did or did not do the same or similar thing at another time; BUT it may be received to prove: - a specific intent or knowledge; identity, plan, system, scheme, habit, custom or usage, and the like. (48a)

An offer in writing: - to pay a particular sum of money or - to deliver a written instrument or specific personal property is, IF rejected without valid cause, equivalent to: - the actual production and tender of the money, instrument, or property. (49a)

Notes:

Notes: - This section complements the rule on tender of payment (Art. 1256, NCC) by providing that said offer of payment must be made in writing. - Such tender must, however, be followed by consignation of the amount in court in order to produce the effects of valid payment.

Principle of Res Inter Alios Acta: Things done between strangers ought not to injure those who are not parties to it. - 1st Part: Sec 28, rule 130; 2nd Part: Sec 34, rule 130 Note: Sec 34 applies to both civil and criminal cases and is strictly enforced in all cases where it is applicable

5. TESTIMONIAL KNOWLEDGE GR: 1st Sentence of Codal EXC: 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; or 5. Established customs, usages and the like Basis: Evidence must be confined to the point in issue in the case on trial. Evidence of collateral offenses must not be received as substantive evidence of the offense on trial. Purpose: To compel the defendant to meet charges of which the indictment gives him no information, confuses him in his defense, raises a variety of issues, and thus diverts the attention of the court from the charge immediately before it.

Examples of the Exceptions: - Evidence of another crime is admissible in a prosecution for robbery: o When it has the tendency to identify the accused or show his presence at the scene of the crime o NOT where the evidence is to prove a commission of another crime wholly independent of that which is on trial. - Previous acts of negligence, is admissible to show knowledge or intent. Sec. 35. Unaccepted offer.

Sec. 36. Testimony generally confined to personal knowledge; hearsay excluded. A witness can testify ONLY to those facts: - which he knows of his personal knowledge; that is, - which are derived from his own perception, EXCEPT as otherwise provided in these rules. (30a) Notes: Hearsay Rule (HR), defined: Any evidence, whether oral or documentary is hearsay of 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. (Including: all assertions not subjected to cross-examination) - GR: Hearsay evidence is excluded or INADMISSIBLE as evidence - Ratio: It is excluded because the party against whom it is presented is deprived of his right to cross-examine the persons to whom the statements or writings are attributed. - Note: If one has personal knowledge – it is not hearsay anymore Inadmissibility of hearsay evidence MAY be WAIVED: By not objecting to such evidence. (Ratio: since the right to cross-examine may also be waived) Repeated failure to cross-examine is an IMPLIED waiver Value of Hearsay Evidence

Evidence | Judge Bonifacio | 3B 2009-2010 [This reviewer is lifted from the book of regalado and Beda– not plagiarized you fuckers!]

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Hearsay Evidence alone is insufficient to establish a fact IF not objected to – it may be considered and given the importance it deserves like any other evidence (Manlilic v. Calaunan, 2007) HOWEVER, it has also been held that even if it may be admissible, whether objected to or not, has NO probative value, and as opposed to direct primary evidence, the latter always prevails. (People v. Willians, 2001) Ex. Newspaper Clippings are hearsay and have no evidentiary weight UNLESS substantiated by person w/ personal knowledge of the facts EXCEPTIONS to the HR: They are hearsay BUT are admissible Preliminary Notes on the Exceptions to the HR: 11 Exceptions to the HR – Sections 37 to 47 (DDECCLARE FT) 1. Dying Declaration 2. Declaration Against Interest 3. Entries In The Ordinary Course of Business 4. Common Reputation 5. Commercial Lists 6. Learned Treatises 7. Act Or Declaration Against Pedigree 8. Res Gestae 9. Entries In Official Records 10. Family Reputation Or Tradition Against Pedigree 11. Testimony Or Deposition At A Former Proceeding (sec 47) Note: Sec 47 logically is not an exception. It merely requires for its admissibility that the party had cross-examined or had the opportunity to do so. Other Exceptions to the HR 1. Special Exception to the HR in child abuse cases: Hearsay testimony of a child describing any act or attempted act of sexual abuse may be admitted in any criminal proceeding. (Sec 28 of the Rule on Examination of a Child Witness, A.M. No. 00-4-07-SC) o SUBJECT to certain prerequisites and the right to cross examine of the adverse party o Admissibility shall be determined by the court in light of specified subjective/objective considerations to determine the reliability of the child 2. Rule 8 of the Rules on Electronic Evidence: Business records as an exception to the HR

3. Statements or writings offered not to prove the truth of the facts stated but only to prove that those statements were actually made or those writings were executed (See doctrine of independently relevant statements) Doctrine of Independently Relevant Statements: 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. - The only question to be answered: W/N the statements were made - Hence, A witness may testify to the statements made by a person if the fact that such statements were made would indicate the latter’s mental state or physical condition 2 Classes of Independently Relevant Statements: 1. Those statements which are the very fact in issue; 2. Those statements which are circumstantial evidence of the fact in issue. It includes the following: a. Statements of a person showing his state of mind that is, his mental condition, knowledge, belief, intention, ill-will, and other emotions; b. Statements of a person 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. Ratio for the Exceptions to the HR: - Necessity for such evidence and - On the assumption that in the ordinary course of events, they are trustworthy (Necessity AND Trustworthiness)

Evidence | Judge Bonifacio | 3B 2009-2010 [This reviewer is lifted from the book of regalado and Beda– not plagiarized you fuckers!]

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6. EXCEPTIONS TO THE HEARSAY RULE EXCEPTION NO. 1: DYING DECLARATION Sec. 37. Dying declaration. The declaration of a dying person, made under the consciousness of an impending death: - may be received in any case wherein his death is the subject of inquiry, - as evidence of the cause and surrounding circumstances of such death. (31a) Notes: Dying Declaration (DD), defined: 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. - Also known as “Ante Mortem Statements” or “Statement in Articulo Mortis” Requisites for DDs to be Admissible 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. 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.

Considerations for the Determination of Whether Statements Were Made in Consciousness of an Imminent or Impending Death: 1. The words or statements of the declarant on the same occasion 2. His conduct at the time the declaration was made 3. Serious nature of his wounds as would necessarily engender a belief on his part that he would not survive. Intervening Time From the Declaration to the Actual Death: An Immaterial Factor in Determining its Admissibility - Immaterial as long as the declaration was made under the consciousness of impending death - This is a question of fact for the courts to determine - No retroaction must be made by the declarant - If the gravity of the wounds did not diminish – DD is still admissible even if the decedent died days after the declaration - Interval of Time is taken into account ONLY when the declaration is ambiguous Question: Do you think you will die?; IF the Answer is - “I will not die if treated” - admissible as part of res gestae or DD - “I cannot ascertain” – admissible as part of res gestae or DD - “I don’t know” – NOT admissible - “It all depends” + condition improved – DDs thereafter are NOT admissible Note: DDs may be regarded as part of res gestae as they were made soon after a startling occurrence w/o any opportunity for fabrication or concoction - If the declarant doesn’t die – it is part of res gesta DD once proved and admitted – its credibility and weight shall be determined like any other testimonial evidence - Circumstances such as surprise, rapidity and confusion should be taken into consideration in giving weigh to the testimony of the declarant when identifying his assailants - It may be impugned: in the same manner as the testimony of any other witness on the stand People v. Mallare: DD has to be admitted with utmost care and should be considered in light of all the facts because the source, accuracy and completeness of the declarant’s knowledge as to the facts asserted could not be tested by cross-examination

Evidence | Judge Bonifacio | 3B 2009-2010 [This reviewer is lifted from the book of regalado and Beda– not plagiarized you fuckers!]

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US v. Antipoli: DD is an exception to the Marital Privilege Rule since it is NOT meant to be confidential communication between spouses. DDs are Admissible: DDs NOT admissible: Only insofar as the DD refers to facts Statements referring to the regarding the cause and surrounding antecedents of the fatal encounter circumstances of the declarant’s death (W/N they are in favor of or Opinions, impressions and against the accused) conclusions of the declarant Note: DDs are admissible in ANY case for as along as the requisites are met. Old rule that it only applies to certain criminal cases is now abandoned. Note: DDs favorable to the accused are admissible Forms of DDs - May be oral or written or - Made by signs which could be interpreted and testified to by a witness Note: - If Oral - It may be testified to w/o the need of repeating the exact words as long as he can give the substance thereof - If unsigned written DD – It may used as a memorandum by the witness who took it down

EXCEPTION NO. 2: DECLARATION AGAINST INTEREST

Sec. 38. Declaration against interest. The declaration made: - by a person deceased OR unable to testify, - against the interest of the declarant, IF the fact asserted in the declaration was at the time it was made: - so far contrary to declarant's own interest, - that a reasonable man in his position would not have made the declaration UNLESS he believed it to be true, may be received in evidence against: - himself or - his successors in interest and - against third persons. (32a)

Notes: Declaration Against Interest - DAI DECLARATIONS Against Interest Made by a person who is neither a party nor in privity with a party to the suite. Secondary Evidence Exception to the Hearsay Rule Admissible ONLY when the declarant is UNavailable as a witness Must be made ante litem motam (before the controversy) May be admitted against himself/successor in interest and against 3rd parties

ADMISSIONS Against Interest Made by a party to a litigation or by one in privity with or identified in legal interest with such party Primary Evidence Covered by the Hearsay Rule Admissible w/n the declarant is available as a witness May be made at any time before/during the trial Used ONLY against the party admitting.

Requisites in Order for a Statement to be Admissible as a DAI 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 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. Self-interest induces men to be cautious in saying anything against themselves. Interest covered: 1. Proprietary interest 2. Penal interest o A justifiable theory because one who is criminally liable is also civilly liable. o People v. Toledo and Holgado: A declaration admitting that he was the one who killed the victim, made by a delcarant who died

Evidence | Judge Bonifacio | 3B 2009-2010 [This reviewer is lifted from the book of regalado and Beda– not plagiarized you fuckers!]

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shortly thereafter, is admissible where another person was subsequently charged as the killer of the same victim 3. Pecuniary interest Note: It is essential that at the time of the statement, the declarant’s interest affected is actual/real/apparent not merely contingent/future/conditional Self Serving Declaration, defined: Statements favorable to or intended to advance the interests of the delcarant - It is inadmissible as being hearsay if the delcarant is unavailable as a witness - Opposite of DAI

EXCEPTION NO. 3: ACT OR DECLARATION ABOUT PEDIGREE Sec. 39. Act or declaration about pedigree. The act or declaration: - of a person deceased OR unable to testify, - in respect to the pedigree of another person related to him by birth or marriage, may be received in evidence where: - it occurred before the controversy, AND - the relationship between the two persons is shown by evidence other than such act or declaration. The word "pedigree" includes relationship, family genealogy, birth, marriage, death, the dates when and the places where these fast occurred, and the names of the relatives. It embraces also facts of family history intimately connected with pedigree. (33a)

4. The act or declaration was made ante litem motam or prior to the controversy Pedigree May be Established or Proved By: 1. The act or declaration of a relative (sec 39) 2. The reputation or tradition existing in his family (sec 40) 3. Entries in Family Bibles (sec 40) 4. With respect to marriage, by common reputation in the community (Sec 41) Note: The relationship must preliminarily be proved by direct or circumstantial evidence. - No specific degree of relationship is required - BUT the weight to which such act or declaration is entitled may be affected by the degree of relationship Note: Reputation between the declarant and the person subject of inquiry must be legitimate unless the issue is the legitimacy itself.

EXCEPTION NO. 4: FAMILY REPUTATION OR TRADITION REGARDING PEDIGREE

Sec. 40. Family reputation or tradition regarding pedigree. The reputation or tradition: - existing in a family previous to the controversy, - in respect to the pedigree of any one of its members, may be received in evidence: - IF the witness testifying thereon be also a member of the family, either by consanguinity or affinity.

Notes: Requisites in Order that Pedigree May be Proved by Acts or Declarations of Relatives 1. The actor or declarant is dead or unable to testify 2. The act or declaration is made by a person related to the subject by birth or marriage 3. The relationship between the declarant or the actor and the subject is shown by evidence other than such act or declaration

Entries in family bibles or other family books or charts, engravings on rings, family portraits and the like: - may be received as evidence of pedigree. (34a) Notes: Requisites W/ Respect to Reputation or Tradition Under Sec 40 1. The witness testifying thereto must be a member, by consanguinity or affinity, of the same family as the subject; and

Evidence | Judge Bonifacio | 3B 2009-2010 [This reviewer is lifted from the book of regalado and Beda– not plagiarized you fuckers!]

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2. Such reputation or tradition must have existed in that family ante litem motam Note: A statement as to one’s date of birth and age as learned from parents or relatives is an ante litem motam declaration of family tradition - Such statement prevails over a mere opinion of a trial judge - BUT cannot prevail over a secondary statement of the father

Section 39 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, said concerning the pedigree of the declarant’s family Relation bet the declarant and the person subject of inquiry must be established by independent evidence

Section 40 Family reputation or tradition regarding pedigree Witness is a member of the family Testimony is about family reputation or tradition covering matters of pedigree.

The witness himself is the one to whom the fact relates. No need to establish relationship by independent evidence.

EXCEPTION NO. 5: COMMON REPUTATION

Sec. 41. Common reputation. Common reputation: - existing previous to the controversy, - respecting facts of public or general interest more than 30 years old, or - respecting marriage or moral character, may be given in evidence. Monuments and inscriptions in public places: - may be received as evidence of common reputation. (35) Notes:

Common Reputation, defined: 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. Common Reputation May be Established: 1. By testimonial evidence of competent witness 2. By monuments and inscriptions in public places 3. By documents containing statement of reputation Common Reputation or General Reputation is Admissible to Prove 1. Facts of public interest more than 30 years old 2. Facts of general interest more that 30 years old 3. Marriage 4. Moral Character Note: Common reputation must have existed ante litem motam Public Interest = Those of National Interest General Interest = Those affecting inhabitants of a particular region or community Character = Inherent qualities of a person Reputation = Opinion of him by others (Should be existing in his place of residence, but may also exist in a place where he is known best) Note: Here, character is permitted to be established by his common reputation 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.

EXCEPTION NO. 6: RES GESTAE Sec. 42. Part of res gestae. Statements made by a person: - while a startling occurrence is taking place OR immediately prior OR subsequent thereto - with respect to the circumstances thereof, may be given in evidence as part of res gestae.

Evidence | Judge Bonifacio | 3B 2009-2010 [This reviewer is lifted from the book of regalado and Beda– not plagiarized you fuckers!]

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So, also, statements accompanying an equivocal act material to the issue, and giving it a legal significance, - may be received as part of the res gestae. (36a) Notes: Res Gestae which means “things done”, TYPES: 1. Spontaneous statements: Statements in connection with a startling occurrence relating to that fact and in effect forming part thereof 2. Verbal Acts: Statements accompanying an equivocal act, on the theory that they are the verbal parts of the act to be explained. Requisites for Res Gestae No 1: Requisites for Res Gestae No 2: Spontaneous Statements Verbal Acts 1. The principal act, the res gestae, be 1. The res gestae or principal act or to a startling occurrence; be characterized must be equivocal; 2. The statements were made before 2. Such act must be material to the issue the delcarant had the opportunity to 3. The statements must accompany the contrive equivocal act. 3. The statements must refer to the 4. The statements give a legal occurrence in question and its significance to the equivocal act attending circumstances 4. The statement must be spontaneous. The res gestae is the startling The res gestae is the equivocal act. occurrence Statements may be made prior, Verbal act must be contemporaneous during or immediately after the with or accompany the equivocal act. startling occurrence. Requisites for Admissibility of Res Gestae, The statement must: 1. Be Spontaneous 2. Made while a startling occurrence is taking place or immediately prior or subsequent 3. Relates to the circumstances of the startling occurrence. 4. Must be involuntary and simultaneously wrung from the witness by the impact of the occurrence Reasons for Admission: 1. Necessity – natural and spontaneous utterances are more convincing than the testimony of a person on the stand.

2. Trustworthiness – the statement is made indistinctively. The facts speaking thru the party and not the party speaking thru the facts. 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. Note: If both elements for res gestae and dying declarations are present – they may be admitted as both. When Must the Statement or Act be Made: GR: While the declarant was under the immediate influence of the startling occurrence. Hence, done immediately prior, during or subsequent to the events. EXC: - If the declarant was unconscious – statements regarding the event will still be admissible - If the declarant did not have the opportunity to concoct or contrive a story – it is still admissible even if statement was made after hours Statements or Outcries as Part of Res Gestae are Admissible: - To establish the identity of the assailant - To prove the complicity of another person in the crime - To establish an admission of liability on the part of the accused

EXCEPTION NO. 7: ENTRIES IN THE COURSE OF BUSINESS Sec. 43. Entries in the course of business. Entries made: - at, or near the time of transactions to which they refer, - by a person deceased, OR unable to testify, who was in a position to know the facts therein stated,

Evidence | Judge Bonifacio | 3B 2009-2010 [This reviewer is lifted from the book of regalado and Beda– not plagiarized you fuckers!]

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may be received as prima facie evidence, IF such person made the entries: - in his professional capacity or in the performance of duty AND - in the ordinary or regular course of business or duty. (37a) Notes: Shop Book Rule Requisites 1. The person who made the entry must be dead or unable to testify. 2. The entries were made at or near the time of the transaction to which they refer; 3. The entrant was in a position to know the facts stated in the entries; 4. The entries were made in his professional capacity or in the performance of a duty whether legal, contractual, moral or religious; and 5. The entries were made in the ordinary or regular course of business or duty; Rules for Admissibility of Business Entries - If the Entrant is Available as a Witness – the entries will be INADMISSIBLE as an exception to the hearsay rule. o They may be used as a memo to refresh his memory while testifying in the transaction - There is no necessity to bring into court all the clerks or employees who individually made the entries - It is sufficient that the person who supervises the work of the employees testify: o That the account was prepared under his supervision o That the entries were entered in the ordinary course of business - There is no precise moment required when the entries should be made – it is sufficient if it is made w/in a reasonable time while the memory of the facts is unimpaired - Probative Value: Prima Facie of the facts stated therein EXCEPTION NO. 8: ENTRIES IN OFFICIAL RECORDS Sec. 44. Entries in official records. Entries in official records made in the performance of his duty: - by a public officer of the RP or - by a person in the performance of a duty specially enjoined by law, are prima facie evidence of the facts therein stated. (38)

Notes: Requisites for Admissibility of Official Records 1. The entries was made by a public officer in the performance of his duty or by a person specially enjoined by the law to do so; 2. The entrant had personal knowledge of the facts stated by him or such facts were acquired by him from reports made by persons under a legal duty to submit the same 3. Such entries were duly entered in a regular manner in the official records 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. Examples of Official Records: - A register, a cash book, or an official return or certificate, - motor vehicle accident report (if made in the performance of the officer’s duties, at about the time of the accident, based on information given as personal knowledge) - Sheriff’s return (statement in the performance of a duty especially enjoined by law) – no need for the sheriff to testify Entries in the Course of Business (sec 43) Entries are made by a person who is dead or unable to testify Needs authentication Best evidence rule applies Entries are made pursuant to a duty, either legal, contractual, moral or religious

Entries in Official Records (Sec 44) No such requirement No need Exception to the best evidence rule The entrant is a public officer, or if a private individual, must have acted pursuant to a legal duty

Note: The entrant must have been competent with respect to the facts stated in his entries. - Entries made by a priest in the register of the facts of baptism are NOT admissible to prove the date of birth or its relation to persons o A priest is not competent to testify to the truth of these facts.

Evidence | Judge Bonifacio | 3B 2009-2010 [This reviewer is lifted from the book of regalado and Beda– not plagiarized you fuckers!]

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-

-

BUT church registries are ADMISSIBLE as evidence of the facts with respect to marriage solemnized by the priest (BUT needs to be authenticated) If the certificate is transmitted to a public officer – it is admissible w/o a need for prior authentication.

Entries in Official Records May be Proved: See Sec 24 and 25 Rule 132 Probative Value: Also prima facie of the facts stated therein

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. Ex. Mortality tables, annuity tables

EXCEPTION NO. 9: COMMERCIAL LISTS EXCEPTION NO. 10: LEARNED TREATISES Sec. 45.Commercial lists and the like.

Sec. 46. Learned treatises.

Evidence of statements of matters of interest to persons: - engaged in an occupation contained in a list, register, periodical, or other published compilation is admissible as tending to prove the truth of any relevant matter so stated IF that compilation: - is published for use by persons engaged in that occupation AND - is generally used and relied upon by them therein. (39)

A published treatise, periodical or pamphlet on a subject of history, law, science, or art: - is admissible as tending to prove the truth of a matter stated therein IF: - the court takes judicial notice OR - a witness expert in the subject testifies, that the writer of the statement in the treatise, periodical or pamphlet is recognized in his profession or calling as expert in the subject. (40a)

Notes: Notes: Requisites for Admissibility 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.

Requisites for Admissibility 1. That the court takes judicial notice thereof; or 2. The same are testified by a witness expert on the subject Reasons for admission 1. Necessity – even if such person is legally procurable, the expense is frequently disproportionate.

Evidence | Judge Bonifacio | 3B 2009-2010 [This reviewer is lifted from the book of regalado and Beda– not plagiarized you fuckers!]

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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.

3. The former case involved the same subject as that in the present case although on different causes of action 4. The issue testified to by the witness in the former trial is the same issue involved in the present case 5. The adverse party had an opportunity to cross examine the witness in the former case. Inability to Testify: Inability proceeding from a grave cause, almost amounting to death (ex. Losing one’s power of speech) - Subsequent failure or refusal to appear at the second trial, or hostility since testifying at the first trial does NOT amount to such inability Actions may be Essentially Different: Testimony given in a civil case is admissible in a subsequent criminal case PROVIDED the above requisites are met.

EXCEPTION NO. 11: TESTIMONY OR DEPOSITION AT A FORMER PROCEEDING Sec. 47. Testimony or deposition at a former proceeding. The testimony or deposition of a witness deceased or unable to testify: - given in a former case or proceeding, judicial or administrative, - involving the same parties and subject matter, may be given in evidence AGAINST: - the adverse party who had the opportunity to cross-examine him. (41a)

Rule on Admissibility of Prior Judgment (Not testimony) - A judgment in a criminal proceeding cannot be read in evidence in a civil action against a person not a party thereto to establish any fact therein - The mater is res inter alios and cannot invoked as res judicata - It may only be admitted in a civil case by way of inducement or to show a collateral fact relevant to the issue in the civil action - It may not be admitted to prove the plaintiff’s action or the defendant’s defense – it is not binding upon the parties in the civil action - Ratio: Parties are not the same and different rules of evidence are applicable to each HOWEVER, in Miranda v. Malate: Judgment of conviction in the absence of collusion between the accused and the offended party is binding and conclusive to a person subsidiarily liable w/ regard to his liability and to the amount thereof.

Notes: Requisites for Admissibility 1. The witness is dead or unable to testify 2. His testimony or deposition was given in a former case or proceedings, judicial or administrative between the same parties or those representing the same interests

Evidence | Judge Bonifacio | 3B 2009-2010 [This reviewer is lifted from the book of regalado and Beda– not plagiarized you fuckers!]

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3. On the mental sanity of a person, if the witness is sufficiently acquainted with the former or if the latter is an expert witness (Sec 50c) 4. On the emotion, behavior, condition, or appearance of a person which he has observed; and (Sec 50d) 5. On ordinary matters known to all men of common perception, such as the value of ordinary household articles (Galian v. State Assurance Co., Ltd.) Reason for the Rule: It is for the court to form an opinion concerning the facts in proof of which evidence is offered. Witnesses must testify to facts w/in their knowledge and not their opinions.

7. OPINION RULE Sec. 49. Opinion of expert witness. Sec. 48.General rule. The opinion of witness is not admissible EXCEPT as indicated in the following sections. (42)

The opinion of a witness: - on a matter requiring special knowledge, skill, experience or training which he shown to posses, may be received in evidence. (43a)

Notes: Notes: Opinion, defined: An inference or conclusion drawn from facts observed. - GR: Sec 48: Witnesses must give the facts and not their inference, conclusions, or opinions. Opinions are INADMISSIBLE - EXCEPTIONS: Opinion of the Witness is Admissible (Sec 49 &50) 1. On a matter requiring SPECIAL knowledge, skill, experience or training which he is shown to possess, that is when he is an expert (Sec 49); 2. Regarding the identity or the handwriting of a person, when he has knowledge of the person or handwriting, whether he is an ordinary or expert witness (Sec 50 a & b)

Expert Witness, defined: 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. Test: Whether the opinion called for will aid the fact finder in resolving an issue Degree of Skill or Knowledge Required of an Expert Witness

Evidence | Judge Bonifacio | 3B 2009-2010 [This reviewer is lifted from the book of regalado and Beda– not plagiarized you fuckers!]

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-

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. Requisites for Admissibility of Expert Evidence - only if: 1. The matter to be testified to is one that requires expertise, and 2. The witness had been qualified as an expert Value of an Expert Witness: It is NOT conclusive BUT purely advisory. The courts are not bound by the expert’s findings. Rules on Expert Testimony - Courts must consider all the circumstances of the case (expert’s qualifications, experience and degree of learning, the basic and logic of his conclusions and other evidence on record) - The value of expert testimony depends largely on the extent of the experience or studies of such expert. Note: 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. Probative Value of Expert Evidence - W/N the courts are bound by the testimony of an expert: DEPENDS on the nature of the inquiry. o ONLY when the subject of inquiry is of such a technical nature that a layman can possibly have no knowledge thereof that courts must depend and rely upon experts. - Conflicting expert evidence have neutralizing effect on contradictory conclusions. They generate doubt. - A non-expert private individual, may examine certain contested documents, it is not necessarily null and void if there are facts w/in his knowledge which may help the court in the determination of the issue. Rules on Handwriting Expert Evidence - Value of such expert evidence depends upon the assistance that he affords in pointing out distinguishing marks, characteristics,

-

-

-

dissimilarities as regards spontaneity, rhythm, pressure of a pen, loops, strokes, and discrepancies between genuine and false specimens Expert evidence on handwriting is at best weak and unsatisfactory. It is very unreliable. It is not conclusive. It has less weight than direct and credible testimonies of witnesses as to matters w/in their personal observation. It is not necessarily binding especially when the expert was not presented as a witness to give the adverse party an opportunity to cross-examine. When the inquiry merely involves a comparison of existing signatures, an opinion of an expert is not necessary. Other factors that should be considered: The position of the writer, the condition of the surface in which the paper is placed, his state of mind, feelings and nerves, kind of pen and paper. It is common knowledge that the writing of a person changes as time elapses. It changes as one advances in age. From the ink alone, it is impossible to determine the ink writing’s age.

On Paraffin Tests for Firearm Use - Paraffin Tests are NOT conclusive as to the presence of gunpowder since other compounds with nitrates can give the same reaction. It is unreliable since the only thing it can definitely establish is the presence or absence of nitrates BUT not if its source is a firearm - Tobacco, cosmetics, fertilizers, fireworks can give a positive result as well. - It also doesn’t definitely establish the distance where the gun was fired. Blackening and burning around the wound better establishes the short distance of the gunshot. Rules on Paternity Testing - Blood tests on filiation of a child, competently conducted by qualified persons are admissible on the non-paternity of a person - It is however, inconclusive to affirm paternity but can only show a possibility of such fact absent any other evidence. On DNA Testing - DNA evidence based on genetic code is admissible to prove paternity since except for identical twins, each person’s DNA is distinct and unique - In assessing the probative value of DNA evidence, it is necessary to consider how the samples were collected, handled, the possibility of contamination and w/n the standards of procedure were followed

Evidence | Judge Bonifacio | 3B 2009-2010 [This reviewer is lifted from the book of regalado and Beda– not plagiarized you fuckers!]

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-

Obtaining DNA does not violate the right against selfincrimination. The probative value or weight of DNA analysis is subject to the requisites of evaluation o Less than 99.9%: Corroborative Evidence o 99.9% or higher: Rebuttable Presumption

On Evidence Obtained By Sound Recording - Tape Recording is admissible provided the ff requisites are first established: 1. Recording device was capable of taking testimony 2. The operator of the device was competent 3. No changes, additions or deletions have been made 4. The testimony was elicited and voluntarily made w/o any kind of inducement 5. The establishment of the authenticity and correctness of the recoding 6. The identity of the speakers 7. The manner of the preservation of the recording - A witnesses’ declaration that the sound recording represents a true portrayal of the voices satisfies the requirements of authentication.

Notes: Ordinary Opinion Evidence, defined: 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. Shorthand Rendering of Facts: Instantaneous conclusions of the mind. The witness may testify as to the emotion, behavior, condition or appearance of a person

8. CHARACTER EVIDENCE Sec. 51. Character evidence not generally admissible; exceptions: (a) In Criminal Cases: (1)The accused may prove his good moral character which is pertinent to the moral trait involved in the offense charged. (2)UNLESS in rebuttal, the prosecution may not prove his bad moral character which is pertinent to the moral trait involved in the offense charged. (3)The good or bad moral character of the offended party may be proved IF it tends to establish in any reasonable degree the probability or improbability of the offense charged.

Sec. 50. Opinion of ordinary witnesses. (b) In Civil Cases: Opinion of a witness for which proper basis is given, may be received in evidence regarding: (a) The identity of a person about whom he has adequate knowledge; (b) A handwriting with which he has sufficient familiarity; and (c) The mental sanity of a person with whom he is sufficiently acquainted.

Evidence of the moral character of a party in civil case is admissible ONLY when pertinent to the issue of character involved in the case. (c) In the case provided for in Rule 132, Section 14, (46a, 47a) Notes:

The witness may also testify: - on his impressions of the emotion, behavior, condition or appearance of a person. (44a)

Character, defined: The aggregate of the moral qualities which belong to and distinguish an individual person.

Evidence | Judge Bonifacio | 3B 2009-2010 [This reviewer is lifted from the book of regalado and Beda– not plagiarized you fuckers!]

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Rules on the Admissibility of Character Evidence: - GR: Character evidence is NOT admissible in evidence Ratio: The evidence of a person’s character does not prove that such person acted in conformity with such character or trait in a particular occasion. In Criminal Cases - GR: The prosecution may not prove the BAD Moral Character (MC) of the accused which is pertinent to the moral trait involved in the offense charged. - EXCEPTION: o The prosecution may prove BAD MC at the rebuttal stage - IF the accused, in his defense attempts to prove his GOOD MC. o GOOD or BAD MC of the offended party may always be proved if such evidence tends to establish the probability or improbability of the offense charged. - EXC to the EXC: o Proof of the bad character of the victim is not admissible:  In a murder case: If the crime was committed through treachery and evident premeditation  In a rape case: If through violence and intimidation o 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. (RA 8505) Note: In criminal cases - GR: The prosecution cannot initially attack the character of the accused - EXC: ONLY if the accused opens that issue by introducing evidence of his good MC when he makes his defense. Ratio: To avoid unfair prejudice to the accused who may be convicted because of such character In Civil Cases - GR: MC of either party can NOT be proved - EXC: Unless it is pertinent to the issue of character involved in the case Note: Here, the issue involved must be character. (Ex. Civil actions for damages arising from the offenses of libel slander or seduction)

Rules with Respect to the Nature or Substance of the Character Evidence (CE) Person Referred To Nature or Substance of the CE W/ Respect to the Accused:

CE “must be pertinent to the moral trait involved in the offense charged” Ex. In a prosecution for estafa, perjury or false testimony where in the person’s moral trait is involved It is sufficient that CE “may establish in any W/ Respect to the Offended reasonable degree the probability of the offense charged” Person Ex. In a case of rape, the victim’s chastity may be questioned. CE must “refer to his general reputation for W/ Respect to Witnesses truth, honesty or integrity” affecting his credibility

In BOTH Criminal and Civil Cases - BAD MC of a witness may always be proved by either party but NOT evidence of his character, UNLESS it has been impeached.

Evidence | Judge Bonifacio | 3B 2009-2010 [This reviewer is lifted from the book of regalado and Beda– not plagiarized you fuckers!]

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BURDEN OF PROOF AND PRESUMPTIONS Sec 1. Burden of proof. Burden of proof is the duty of a party to present evidence on the facts in issue necessary to establish his claim or defense by the amount of evidence required by law. (1a, 2a) BURDEN OF PROOF Burden of Proof or “onus probandi”, defined: Obligation imposed upon a party who alleges the existence of facts necessary for the prosecution of his action or defense to establish the same by the requisite quantum of evidence. Proof, defined: The establishment of a requisite degree of belief in the mind of the trier of fact as to the fact in issue.

Criminal Cases

To Sustain Conviction Proof beyond reasonable doubt

Preliminary Investigation Evidence as to “engender a well-founded belief” as to the fact of the commission of the crime and the respondent’s probable guilt

Issuance of Warrant of Arrest Probable Cause: Reasonable ground to believe that the accused has committed the offense .

Quantum of Evidence Required: Preponderance of Evidence Civil Cases Clear and Convincing Evidence Charges of Misconduct *For Removal: Proof Beyond Reasonable Doubt Against Judges Substantial Evidence: Such relevant evidence as a Administrative, Quasireasonable mind might accept as sufficient to Judicial and Agrarian support a conclusion Cases Hierarchy of Evidence 1. Proof beyond reasonable doubt 2. Clear and convincing evidence 3. Preponderance of evidence 4. Substantial evidence 2 Separate Burdens in Burden of Proof 1. Burden of Going Forward: Burden 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: Civil Cases Criminal Cases On the party who would be defeated if no The burden of proof is evidence were given on either side. always with the prosecution. Plaintiff

[RULE 131]

Has the burden of proof to show the truth of his allegations if the

Evidence | Judge Bonifacio | 3B 2009-2010 [This reviewer is lifted from the book of regalado and Beda– not plagiarized you fuckers!]

Note: It is required that courts determine first if the

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Defendant

Cross Claimant

defendant raises a negative defense. (w/ respect to his complaint) Has the burden of proof if he raises an affirmative defense on the complaint of the plaintiff. (w/ respect to his counterclaim)

evidence of the prosecution has at least shown a prima facie case before considering the evidence of the defense. *If established – then the burden is shifted upon the accused to prove otherwise

w/ respect to his cross claim

Burden of Evidence, defined: The logical necessity on a party during a particular time of the trial to create a prima facie case in its favor or to destroy that created against him by presenting evidence. In BOTH civil and criminal cases: The BURDEN OF EVIDENCE lies w/ the party who asserts an affirmative allegation. Civil Cases Criminal Cases Must prove the Plaintiff Prosecution Must prove the its affirmative affirmative allegations in allegations in his the indictments (elements of complaint the crime and the attending circumstances) As to the justifying, Defendant In his counterclaim Defense and in his exempting, mitigating, and affirmative defenses absolutory circumstances 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.

The essential ingredients of the offense of the defense (criminal case). Only needs to establish a prima facie case from the best evidence obtainable Example: In breach of contract, non-performance must be proven. In illegal possession of firearms, the lack of license must be proved. - EXC to the EXC: In civil cases, even if the NA is an essential part of the cause of action or defense, it does not need to be proved: o 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. o

Note: It is not incumbent upon the prosecution to adduce positive evidence to support a NA the truth of which is indicated by established circumstances and which if untrue could readily be disproved by documents or other evidence w/in the knowledge or control of the accused. When the negative of an issue does not permit of direct proof or when the facts are more immediately w/in the knowledge of the accused – the onus rests on the accused.

WHAT NEED NOT BE PROVED The Following Facts Need Not be Proved: 1. Facts which are presumed (Rule 131) 2. Facts which are of judicial notice (Rule 129) 3. Facts which are judicially admitted (Rule 129)

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. (ex. Presumptions, judicial notice)

Principle of Negative Averments (NA) - GR: NAs need not be proved (whether in civil or criminal action) - EXC: It has to be proved when such negative allegations are: o The essential parts of the cause of action (civil case) or

PRESUMPTIONS Presumption, defined: An inference as to the existence or non-existence of a fact which courts are permitted to draw from the proof of other facts. Note: 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.

Presumptions The proponent still has to introduce evidence of the basis of the presumption

Judicial Admission and Judicial Notice The proponent does not have to introduce any evidence

Evidence | Judge Bonifacio | 3B 2009-2010 [This reviewer is lifted from the book of regalado and Beda– not plagiarized you fuckers!]

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(evidence of the existence and nonexistence of the facts from which the court can draw the inference of the fact in issue

Classifications of Presumptions Presumptions of Law (praesumptiones juris) Definition: A deduction which the law expressly directs to be made from particular facts. A certain inference must be made whenever the facts appear which furnish the basis of the inference Reduced to fixed rules and form part of the system of jurisprudence

Presumptions of Fact (praesumptiones hominis) Definition: A deduction which reason draws from facts proved without an express direction from the law to that effect 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 mankind

Presumptions of Law Can Be: a. Conclusive or Absolute (juris et de jure) - A presumption of law that is not permitted to be overcome by any proof to the contrary b. Disputable, Rebuttable or Prima Facie (juris tantum) - is that which the law permits to be overcome or contradicted by proofs to the contrary; otherwise the same remains satisfactory.

1. ESTOPPEL IN PAIS (Rule 131, Sec. 2(a)) – The fact which the party in estoppel has represented to be true is conclusively presumed as against him to be true Requisites as to the Party Estopped Requisites as to the Party Claiming Estoppel a. Conduct amounting to false a. Lack of knowledge of truth as to the representation or concealment facts in question b. Intent or at least expectation that the b. Reliance in good faith upon the conduct or statements of the party to conduct shall be acted upon be stopped c. Knowledge, actual or constructive of c. Action or inaction based thereon to the real facts his detriment or prejudice. Note: Estoppel is effective only as between the parties thereto or their successors in interest 2. ESTOPPEL BY DEED (Rule 131, Sec. 2 (b)) – The ownership of the landlord at the start of the tenancy relation is conclusively presumed as against the tenant. Note: 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

Sec. 2. Conclusive presumptions.

Sec. 3. Disputable presumptions.

The ff are instances of conclusive presumptions:

The ff presumptions are satisfactory if uncontradicted, but may be contradicted and overcome by other evidence:

(a)Whenever a party has by his own declaration, act, or omission: - intentionally and deliberately led another: o to believe a particular thing true, and o to act upon such belief, he cannot, in any litigation arising out of such declaration, act or omission, be permitted to falsify it. (b)The tenant is not permitted to deny the title of his landlord: - at the time of the commencement of the relation of landlord and tenant between them. (3a) Notes: Classes of Conclusive Presumptions

(a) That a person is innocent of crime or wrong;

Presumption of Innocence (A) • • •

Applies to both civil and criminal cases The legislature may provide for prima facie evidence of guilt: - Provided: There be a rational connection between the facts proved and the ultimate fact presumed. 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.

Evidence | Judge Bonifacio | 3B 2009-2010 [This reviewer is lifted from the book of regalado and Beda– not plagiarized you fuckers!]

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•

An accused is not called upon to offer evidence on his 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 person.

2. When the evidence is merely corroborative or merely cumulative, or is unnecessary 3. When the suppression of evidence is not willful 4. When the suppression is an exercise of privilege

(f) That money paid by one to another was due to the latter; (b) That an unlawful act was done with an unlawful intent; (g) That a thing delivered by one to another belonged to the latter; (c) That a person intends the ordinary consequences of his voluntary act; (h) That an obligation delivered up to the debtor has been paid; (d) That a person takes ordinary care of his concerns; (i) That prior rents or installments had been paid when a receipt for the later one is produced; Presumption That a Person Takes Ordinary Care of his Concerns (D) 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. (e) That evidence willfully suppressed would be adverse if produced;

Presumption of Suppression of Evidence (E) Ratio: The natural conclusion is that the proof if produced, instead of rebutting would support the inference against him and the court is justified in acting upon that conclusion Requisites for Presumption (e) to Apply: 1. That the evidence is material 2. That the party had the opportunity to produce the same 3. That the said evidence is available only to said party When Presumption (e) Will Not Apply: 1. When the evidence in question is equally available to both parties

(j) That a person found in possession of a thing taken in the doing of a recent wrongful act is the taker and the doer of the whole act: - otherwise, that things which a person possess, or exercises acts of ownership over, are owned by him; Presumption from Possession of Stolen Goods (J) 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, then the presumption of innocence disappears. The new presumption of guilt takes place.

Facts to Be Proved By the Prosecution for Presumption (J) to Apply: 1. The crime was actually committed 2. The crime was committed recently 3. The stolen property was found in possession of the accused and 4. The accused is unable to satisfactorily explain his possession there To Conclusively Prove Possession, It is Necessary That: 1. The possession must be unexplained by any innocent origin 2. The possession must be fairly recent and 3. The possession must be exclusive Note: Convictions in these cases are not sustained upon a presumption of law but rest wholly upon an inference of fact as to the guilt of the accused.

Evidence | Judge Bonifacio | 3B 2009-2010 [This reviewer is lifted from the book of regalado and Beda– not plagiarized you fuckers!]

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(k) That a person in possession of an order on himself for: - the payment of the money, or - the delivery of anything, has paid the money or delivered the thing accordingly; (l) That a person acting in a public office was regularly appointed or elected to it; Presumption that a Person in a Public office was Regularly Appointed or Elected to it: (L) Ratio: 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 be collaterally in issue. Burden of Proof: Is on the adverse party to show that he was not appointed or designated.

(m) That official duty has been regularly performed; Presumption that an Official Duty has been Regularly Performed (M) Ratio: 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 unless 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. Note: This presumption applies to both civil and criminal 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.

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. (n) That a court, or judge acting as such, whether in the Philippines or elsewhere, was acting in the lawful exercise of jurisdiction; Presumption of Regularity of Judicial Proceedings (N) The court rendering the judgment is presumed to have jurisdiction over the subject matter and the parties and to have rendered a judgment valid in every respect. - Jurisdiction is presumed in all cases, be it superior or inferior court. - However, jurisdiction 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. (o)That all the matters within an issue raised in a case: - were laid before the court and passed upon by it; and in like manner that all matters within an issue raised in a dispute submitted for arbitration: - were laid before the arbitrators and passed upon by them; (p)That private transactions have been fair and regular; Presumption that Private Transactions have Been done Fairly and Regular (P) An individual intends to do right rather than wrong and intends to do only what 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. (q)That the ordinary course of business has been followed;

Evidence | Judge Bonifacio | 3B 2009-2010 [This reviewer is lifted from the book of regalado and Beda– not plagiarized you fuckers!]

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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.

(r)That there was a sufficient consideration for a contract; (s)That a negotiable instrument was given or indorsed for a sufficient consideration; (t)That an endorsement of a negotiable instrument was made: - before the instrument was overdue and - at the place where the instrument is dated; (u)That a writing is truly dated; (v)That a letter duly directed and mailed was received in the regular course of the mail; Presumption in Paragraph (V) For the Presumption in Par (V) to Arise, It Must Be Proved: - That the letter was properly addressed with postage pre-paid and that it was actually mailed - IF the said letter was not returned to the sender: It is presumed that it was received by the addressee Service of Pleadings By Mail (Sec 10, Rule 13) - Service is complete upon the expiration of 10 days after mailing UNLESS the court otherwise provides - If by registered mail: The service is complete upon actual receipt by the addressee (If he fails to claim his mail from the post w/in 5 days from date of 1st notice – service is complete from the expiration of such time)

(w)That after an absence of 7 years, it being unknown whether or not the absentee still lives: - he is considered dead for all purposes, - EXCEPT for those of succession. The absentee shall not be considered dead for the purpose of opening his succession: - till after an absence of 10 years. IF he disappeared after the age of 75 years: - an absence of 5 years shall be sufficient in order that his succession may be opened. The following shall be considered dead for all purposes including the division of the estate among the heirs: (1) A person on board - a vessel lost during a sea voyage, or - an aircraft which is missing, who has not been heard of for 4 years since the loss of the vessel or aircraft; (2) A member of the armed forces who: - has taken part in armed hostilities, and - has been missing for 4 years; (3) A person who: - has been in danger of death under other circumstances and - whose existence has not been known for 4 years; (4) If a married person has been absent for 4 consecutive years, the spouse present may: - contract a subsequent marriage IF he or she has well-founded belief that the absent spouse is already death. In case of disappearance, where there is a danger of death under the circumstances hereinabove provided:

Evidence | Judge Bonifacio | 3B 2009-2010 [This reviewer is lifted from the book of regalado and Beda– not plagiarized you fuckers!]

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-

an absence of only 2 years shall be sufficient for the purpose of contracting a subsequent marriage. However, in any case, before marrying again, the spouse present must: - institute a summary proceedings as provided in the Family Code and in the rules for declaration of presumptive death of the absentee, - without prejudice to the effect of reappearance of the absent spouse. Ordinary But Continued Absence: (First 2 subpars) The absentee is presumed to have died at the end of the said period Qualified Absence: (In danger of death under the 3 instances contemplated) The absentee is presumed to have died at the time he was exposed to such danger or peril, at the start of the period. Note: Distinction is important for successional rights

(x) That acquiescence resulted from a belief that the thing acquiesced in was conformable to the law or fact; (y) That things have happened according to the ordinary course of nature and ordinary nature habits of life; (z)That persons acting as copartners have entered into a contract of copartneship; (aa) That a man and woman deporting themselves as husband and wife have entered into a lawful contract of marriage; (bb) That property acquired by a man and a woman: - who are capacitated to marry each other and - who live exclusively with each other as husband and wife w/out the benefit of marriage OR under void marriage, has been obtained by their joint efforts, work or industry. (cc) That in cases of cohabitation by a man and a woman: - who are not capacitated to marry each other and - who have acquire properly through their actual joint contribution of money, property or industry, such contributions and their corresponding shares including joint deposits of money and evidences of credit are equal.

(dd) That IF the marriage is terminated and the mother contracted another marriage: - within 300 days after such termination of the former marriage, these rules shall govern in the absence of proof to the contrary: (1) A child born BEFORE 180 days after the solemnization of the subsequent marriage: - is considered to have been conceived during the former marriage, - PROVIDED it be born within the 300 days after the termination of the former marriage. (2) A child born AFTER 180 days following the celebration of the subsequent marriage: - is considered to have been conceived during such marriage, - even though it be born within the 300 days after the termination of the former marriage. (ee) That a thing once proved to exist continues as long as is usual with things of the nature; (ff) That the law has been obeyed; (gg) That a printed or published book, purporting to be printed or published by public authority, was so printed or published; (hh) That a printed or published book, purporting to contain reports of cases adjudged in tribunals of the country where the book is published, contains correct reports of such cases; (ii) That a trustee or other person whose duty it was to convey real property to a particular person has actually conveyed it to him - when such presumption is necessary to perfect the title of such person or his successor in interest;

Evidence | Judge Bonifacio | 3B 2009-2010 [This reviewer is lifted from the book of regalado and Beda– not plagiarized you fuckers!]

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(jj) That EXCEPT for purposes of succession, when: - two persons perish in the same calamity, such as wreck, battle, or conflagration, and - it is not shown who died first, and - there are no particular circumstances from which it can be inferred, the survivorship is determined from the probabilities resulting from the strength and the age of the sexes, According to the following rules: 1. If both were under the age of 15 years: o the older is deemed to have survived; 2. If both were above the age of 60: o the younger is deemed to have survived; 3. If one is under 15 and the other above 60: o the former is deemed to have survived; 4. If both be over 15 and under 60, and the sex be different: o the male is deemed to have survived, o if the sex be the same, the older; 5. If one be under 15 or over 60, and the other between those ages: o the latter is deemed to have survived.

Par (KK) Par (JJ) The parties are NOT required to perish in It is Required that the deaths a calamity occurred during a calamity It only applies to questions of It applies to cases not involving successional rights successional rights Provides a presumption of simultaneity in Provides for presumptions of the deaths of the persons called to succeed survivorship each other Sec. 4. No presumption of legitimacy or illegitimacy.

There is NO presumption of legitimacy of a child: - born after 300 days following the dissolution of the marriage or the separation of the spouses. Whoever alleges the legitimacy or illegitimacy of such child must prove his allegation. (6) Notes: - An exact copy of Art 261 of the CC - Applies when the dissolution of the marriage is by reason of causes other than the death of the husband. - Separation may be: legal separation or a separation de facto

In Order for Presumption (JJ) to Apply, It is Necessary That: 1. The deaths occurred in a calamity and 2. There are no particular circumstances from which it can be inferred that one died ahead of the other (kk) That IF there is a doubt, as between two or more persons who are called to succeed each other, as to which of them died first: - whoever alleges the death of one prior to the other, shall prove the same; - in the absence of proof, they shall be considered to have died at the same time. (5a) Presumption is the same as the rule in Art 43 of the CC

Evidence | Judge Bonifacio | 3B 2009-2010 [This reviewer is lifted from the book of regalado and Beda– not plagiarized you fuckers!]

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[RULE 132] PRESENTATION OF EVIDENCE A. EXAMINATION OF WITNESSES Sec 1. Examination to be done in open court. The examination of witnesses presented in a trial or hearing: - shall be done in open court, and - under oath or affirmation. UNLESS: - the witness is incapacitated to speak, or - the questions calls for a different mode of answer, the answers of the witness shall be given orally. (1a) Sec.2. Proceedings to be recorded. The entire proceedings of a trial or hearing, INC: - the questions propounded to a witness and his answers thereto, - the statements made by the judge or any of the parties, counsel, or witnesses with reference to the case, shall be recorded: - by means of shorthand or stenotype or - by other means of recording found suitable by the court. A transcript of the record of the proceedings: - made by the official stenographer, stenotypist or recorder and - certified as correct by him shall be deemed prima facie a correct statement of such proceedings. (2a)

Evidence | Judge Bonifacio | 3B 2009-2010 [This reviewer is lifted from the book of regalado and Beda– not plagiarized you fuckers!]

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Notes: Rules For Admissibility - GR: The testimony of the witness must be given in open - EXC: Such requirement may be supplanted o In civil cases, by depositions pursuant to and under the limitations of Rules 23 and 24 o In criminal cases, by depositions or conditional examinations, pursuant to Sec 12 to 15 Rule 119 and Rule 123, or by the records of the preliminary investigation

How Oral Evidence is Given - GR: It is usually given orally in open court. Therefore, generally, the testimonies of witnesses cannot be presented in affidavits. - EXC: Testimonies of witnesses may be given in affidavits is under the Rules of Summary Procedure (BP 129) Purpose: to enable the court to judge the credibility of the witness by the witness’ manner of testifying, their intelligence, and appearance. GR: 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; 2. If he willfully falsifies that truth, that he may be punished by perjury. - The right to have the witness sworn may be waived o 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. How Testimony of the Witness Should be Elicited - By question of counsel - The court may also propound questions either on the direct or crossexamination of the witness or suggest questions to counsel. Note: The testimony of a witness cannot be considered self-serving if he is subjected to cross-examination. Questions propounded to a witness must: 1. Not be indefinite or uncertain;

2. 3. 4. 5. 6. 7. 8. 9. 10. 11. 12.

Be relevant; Not be argumentative; Not for conclusion of law; Not call for opinion or hearsay evidence; Not call for illegal answer; Not call for self-incriminating testimony; Not be leading; Not be misleading; Not to tend reputation of witness; Not to be repetitions; Not call for a narration.

Sec. 3. Rights and obligations of a witness. A witness MUST answer questions: - although his answer may tend to establish a claim against him. However, it is the right of a witness: (1) To be protected from irrelevant, improper, or insulting questions, and from harsh or insulting demeanor; (2) Not to be detained longer than the interests of justice require; (3) Not to be examined EXCEPT ONLY as to matters pertinent to the issue; (4) Not to give an answer which will tend to subject him to a penalty for an offense UNLESS otherwise provided by law; or (5) Not to give an answer which will tend to degrade his reputation - UNLESS it to be the very fact at issue or to a fact from which the fact in issue would be presumed. But a witness must answer to the fact of his previous final conviction for an offense. (3a, 19a) Notes: GR: A witness cannot refuse to answer questions material to the inquiry even if it may tend to establish a claim against him EXC: He may validly refuse to answer: 1. Under the right against self-incrimination (If it will subject him to punishment for an offense) - Available in civil, criminal and administrative cases

Evidence | Judge Bonifacio | 3B 2009-2010 [This reviewer is lifted from the book of regalado and Beda– not plagiarized you fuckers!]

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-

May be with reference to the offense involved in the same case where he is charged or in another case - It may be waived however in immunity statutes wherein the witness is granted immunity from criminal prosecution for offenses admitted in his testimony 2. Under the right against self-degradation (If it will have a direct tendency to degrade his character) UNLESS: - Such question is directed to the very fact at issue or to a fact from which the fact at issue would be presumed or - It refers to his previous final conviction for an offense Note: Right should be seasonable invoked and may be waived.

Classification of Immunity Statutes 1. Use Immunity – Only prohibits the use of witness’ compelled testimony and its fruits in any manner in connection with the criminal prosecution of the witness. It does not render a witness immune from prosecution. 2. Transactional Immunity – grants immunity to the witness from prosecution for an offense to which his compelled testimony relates. 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. (Forced Reenactment comes within the ban since prohibition against testimonial compulsion extends to those communicative in nature) Note: Right against self-incrimination is granted only in favor of individuals.

Right of Self-Incrimination Distinguished Accused Cannot be compelled to testify or produce evidence even by subpoena or other process or order of the court. He cannot be required either for the prosecution, for co-accused or even for himself.

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.

Sec. 4. Order in the examination of an individual witness. The order in which the individual witness may be examined is as follows; (a) Direct examination by the proponent; (b) Cross-examination by the opponent; (c) Re-direct examination by the proponent; (d) Re-cross-examination by the opponent. (4) Sec. 5. Direct examination. Direct examination is the examination-in-chief of a witness by the party presenting him on the facts relevant to the issue. (5a)

Sec. 6. Cross-examination; its purpose and extent. When is an act testimonial: If it explicitly or implicitly relate a factual assertion or discloses information. Rationale against testimonial compulsion: The court may not extract from the defendant’s own lips and against his will an admission of his guilt. 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.

UPON the termination of the direct examination the witness may be crossexamined BY the adverse party - as to many matters stated in the direct examination, or connected therewith, - with sufficient fullness and freedom o to test his accuracy and truthfulness and freedom from interest or bias, or the reverse, and o to elicit all important facts bearing upon the issue. (8a)

Evidence | Judge Bonifacio | 3B 2009-2010 [This reviewer is lifted from the book of regalado and Beda– not plagiarized you fuckers!]

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Notes: Purposes of Cross Examination 1. To discredit the witness 2. To discredit the testimony of the witness 3. To clarify certain matters 4. To elicit admissions from witnesses

elements of the crime) and thereafter failed to appear and cannot be produced despite a warrant for his arrest – striking out is not warranted (Pp v. Gorospe, 1984) When direct-examination may be stricken out for lack of crossexamination: Depends on who is at fault: - IF it is on the party presenting the witness – it may be expunged - IF it is on the adverse party: There can be no forfeiture of direct testimony.

Scope and Limits of Cross Examination - American Rule: Restricts cross-examination to facts which are connected with the matters that have been stated in the direct examination of the witness - English Rule: A witness may be cross-examined, not only upon matters testified to by him on his direct examination, BUT ALSO on all matters relevant to the issue What Rule Do we Follow? - BOTH - GR: We follow the English Rule – However, it does not mean that the party is making the witness his own, as stated in Sec 5 - EXC: We follow the American Rule (may only be cross-examined on matters covered by direct examination )when: o The witness is an unwilling or hostile witness as so declared by the court OR is an adverse party o The witness is an accused who testifies as a witness in his own behalf Hostile Witness, defined: One declared so by the court upon adequate showing of his – adverse interest, unjustified reluctance to testify or his having misled the party into calling to the stand. Misleading Facts (Questions which assumes facts not on record), IF asked: - On cross-examination: Objectionable for being misleading - On direct-examination: Objectionable for lack of basis Doctrine of Incomplete Testimony: When cross-examination cannot be done or completed due to causes attributable to the party who offered the witness, the incomplete testimony is rendered incompetent - GR: Such testimony should be stricken from the record. - EXC: However, in criminal cases when the prosecution witness was extensively cross-examined on the material points (essential

Sec. 7. Re-direct examination; its purpose and extent. AFTER the cross-examination of the witness has been concluded, he may be re-examined BY the party calling him: - to explain or supplement his answers given during the crossexamination. On re-direct-examination: - questions on matters NOT dealt with during the cross-examination, - may be allowed by the court in its discretion. (12) Principal Object: To prevent injustice to the witness and the party who has called him by affording an opportunity to the witness: - To explain/amplify/reaffirm the testimony which he has given on Cross-E - To explain any apparent contradiction or inconsistency in his statements

Sec. 8. Re-cross-examination. UPON the conclusion of the re-direct examination, the adverse party may: - re-cross-examine the witness o on matters stated in his re-direct examination, and also

Evidence | Judge Bonifacio | 3B 2009-2010 [This reviewer is lifted from the book of regalado and Beda– not plagiarized you fuckers!]

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o

on such other matters as may be allowed by the court in its discretion. (13)

Purpose: To overcome the other party’s attempt to rehabilitate a witness or to rebut damaging evidence brought out on Cross-E It is NOT a Matter of Right on Re-Cross-E for Counsel to Touch on Matters NOT Brought on Re-Direct-E - Re-Cross-E is limited to new matters brought out on the Re-Direct-E and such matters as may be allowed by the court Sec. 9. Recalling witness. AFTER the examination of a witness by both sides has been concluded: - the witness cannot be recalled w/out leave of the court. The court will grant or withhold leave in its discretion, as the interests of justice may require. (14) -

GR: After the examination of a witness by both sides has been concluded, the witness, CANNOT be recalled W/O leave of court EXC: When a recall of the witness has been expressly reserved – recall is a matter of right

Sec. 10. Leading and misleading questions. A question: - which suggests to the witness the answer which the examining party desires is a leading question. It is not allowed, EXCEPT: (a) On cross examination; (b) On preliminary matters; (c) When there is a difficulty in getting direct and intelligible answers from a witness who is ignorant, or a child of tender years, or is of feeble mind, or a deaf-mute; (d) Of an unwilling or hostile witness; or (e) Of a witness who is an adverse party or an officer, director, or managing agent of a public or private corporation or of a partnership or association which is an adverse party. A misleading question is one which assumes as true a fact:

- not yet testified to by the witness, or - contrary to that which he has previously stated. It is not allowed. (5a, 6a, and 8a) Leading Question, defined: One which suggests to the witness the answer desired. GR: It is not allowed - Ratio: It causes the witness to testify in accordance with the suggestion rather than a genuine recollection of events EXC: Leading Questions are Allowed: 1. On cross-examination 2. On preliminary matters 3. Difficulty in getting direct and intelligible answers 4. Unwilling or hostile witness 5. Adverse party or an officer, director or a corporation or partnership which is an adverse party Note: For Nos. 3 and 4: There is no need of a preliminary showing of hostility before leading questions can be asked Leading questions have been allowed by the SC when the witness is: immature, aged and infirm, in bad physical condition, uneducated, ignorant unaccustomed to court proceedings, feeble-minded, confused, has slow comprehension, deaf and dumb, unable to speak or understand English. (People v. Dela Cruz, 2002) Note: A question that merely suggests a subject w/o suggesting an answer or a specific thing is NOT a leading question Misleading Question, defined: One which assumes facts not in evidence or w/o sufficient basis or which assumes testimony or proof which has not been given. – It has little probative value - GR: It is NOT allowed as well - EXCEPTIONS: 1. When waived; 2. When asking questions to an expert witness Sec. 11. Impeachment of adverse party's witness. A witness may be impeached: - by the party against whom he was called, - by contradictory evidence,

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by evidence that his general reputation for truth, honestly, or integrity is bad, or - by evidence that he has made at other times statements inconsistent with his present, testimony, BUT NOT: - by evidence of particular wrongful acts, EXCEPT that it may be shown: - by the examination of the witness, or the record of the judgment, - that he has been convicted of an offense. (15) Notes: GR: One who voluntarily offers a witness’ testimony is bound by such (i.e. cannot impeach or contradict), EXCEPTIONS: 1. In case of a hostile witness or an unwilling witness 2. Where the witness is an adverse party or the representative of a juridical person which is the adverse party or 3. When the witness required is NOT voluntarily offered but is required by law to be presented (ex. Subscribing witness to the will) A Party Can Impeach a Witness of the Adverse Party BY: 1. Contradictory evidence from testimony in same case 2. Evidence of prior inconsistent statement 3. Evidence of bad character and 4. Evidence of bias, interest, prejudice or incompetence 5. Evidence of mental, sensory derangement or defect 6. Evidence of conviction of an offense which affects credibility of witness. (People v. Givera 349 SCRA 573 (2001) Other Modes of Impeaching Aside From Sec 11 1. By involving him during Cross-E in contradiction 2. By showing the impossibility or improbability of his testimony 3. By proving action or conduct of the witness inconsistent with his testimony 4. By showing bias, interest or hostile feeling against the adverse party Note: Impeachment is LIMITED to bad reputation for lack of veracity and NOT for lack of morals Rehabilitation of Witnesses: An impeached witness may be allowed on redirect to attempt to rehabilitate (to restore the witness’ credibility) by the party who called the witness to the stand Note: An impeached witness does not stricken his testimony

Sec. 12. Party may not impeach his own witness. EXCEPT with respect to witnesses referred to in paragraphs (d) and (e) of Section 10: - the party producing a witness is NOT allowed to impeach his credibility. A witness may be considered as unwilling or hostile only if so declared by the court UPON adequate showing of: - his adverse interest, unjustified reluctance to testify, or - his having misled the party into calling him to the witness stand. The unwilling or hostile witness so declared OR the witness who is an adverse party, may be impeached: - BY the party presenting him in all respects as if he had been called by the adverse party, - EXCEPT by evidence of his bad character. He may ALSO be impeached and cross-examined: - BY the adverse party, - but such cross-examination must ONLY be on the subject matter of his examination-in-chief. (6a, 7a) Notes: A Party Can Impeach His Own Witness ONLY By: 1. Evidence contradictory to his testimony or 2. Evidence of prior inconsistent statements Note: In Case of Hostile Witnesses, Adverse Witnesses or Involuntary witnesses – They may be impeached other than by #1 & #2 Sec. 13. How witness impeached by evidence of inconsistent statements. BEFORE a witness can be impeached by evidence that he has made at other times statements inconsistent with his present testimony: - the statements must be related to him, with the circumstances of the times and places and the persons present, and - he must be asked whether he made such statements, and IF so, allowed to explain them. If the statements be in writing : - they must be shown to the witness BEFORE any question is put to him concerning them. (16)

Evidence | Judge Bonifacio | 3B 2009-2010 [This reviewer is lifted from the book of regalado and Beda– not plagiarized you fuckers!]

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Notes: Contradictory Evidence: Refers to other testimony of the same witness, or other evidence presented by him in the same case Prior Inconsistent Statement: Refers to statements oral or documentary, made by the witness sought to be impeached on occasions other than trial in which he is testifying. Impeaching under is done by “laying the predicate”: 1. By confronting him with such statements, with the circumstances under which they were made 2. By asking him whether he made such statements and 3. By giving him as chance to explain the inconsistency Note: Unless the witness is given the opportunity to explain the discrepancies, the impeachment is incomplete - HOWEVER, such defect is deemed WAIVED if no objection on that ground is raised when the document involved is offered for admission

Sec. 14. Evidence of good character of witness. Evidence of the good character of a witness is not admissible UNTIL such character has been impeached. (17) Sec. 15. Exclusion and separation of witnesses. On any trial or hearing, the judge may: - exclude from the court any witness not at the time under examination, so that he may not hear the testimony of other witnesses. The judge may also: - cause witnesses to be kept separate and to be prevented from conversing with one another - until all shall have been examined. (18) Notes: Application of the Power of Exclusion: Applies only to the witnesses and not to the parties to a civil action.

Laying the Predicate Refers only to impeachment of a witness through PIS

Laying the Foundation or Bases Refers to a situation where evidence which is incompetent will be introduced in evidence because it fails under the exceptions to the rule on exclusion

Impeaching “by laying the predicate” May be Dispensed With In case of Prior Inconsistent Statements (PIS) - As to the testimony of the Adverse Party: If the PIS appears in a disposition of the adverse party and not a mere witness (the deposition may be used by any party for any purpose) - When the previous statements of a witness are offered as evidence of an admission, and not merely to impeach him - When such PIS is admissible as independent evidence (Beda, p308) Ratio for Laying the Predicate 1. To avoid unfair surprise to the adversary 2. To save time (an admission will make extrinsic proof unnecessary) 3. To give the witness a chance to explain

Power Does NOT Apply: - To Parties: They have a right to be present at the trial either by themselves or their attorneys, as well as reasonable notice of the time fixed thereof. Parties CANNOT be divested by an exclusion order. - To an Accused in a Criminal Case: He has the right to be present and defend in person and by counsel at every stage of the proceedings. If the Witness Violates the Order of Exclusion: Court may: - Bar him from testifying - Give little weight to his testimony aside from his liability for contempt Note: It is within the power of the judge to refuse to order the exclusion of the principal witness during the hearing of a criminal case Sec. 16. When witness may refer to memorandum.

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A witness may be allowed to refresh his memory respecting a fact: - by anything written or recorded by himself or under his direction at the time: - when the fact occurred, or - immediately thereafter, or - at any other time when the fact was fresh in his memory and knew that the same was correctly written or recorded; but in such case: - the writing or record must be produced and may be inspected BY the adverse party, who may, IF he chooses: o cross examine the witness upon it, and may read it in evidence. So, also, a witness may testify from such writing or record, though he retain no recollection of the particular facts: - IF he is able to swear that the writing or record correctly stated the transaction when made; - but such evidence must be received with caution. (10a)

Evidence is the testimony Rule of evidence affected is competency of witness, examination of witness (laying the predicate) The witness simply testifies that he knows that the memorandum is correctly written by him or under his direction: No need to swear

Evidence is the writing or record (the memorandum) Rule of evidence affected is the best evidence rule Witness must swear that the writing correctly states the transaction

Value of the Memorandum: It is STILL testimonial in character - The memorandum used to refresh the memory of the witness does not constitute evidence, and may not be admitted as such - The memorandum is NOT admissible as corroborative evidence since a witness cannot be corroborated by any written statement prepared wholly by him Note: The memorandum NEED NOT be the original writing. A copy will suffice.

Notes: Application of the Article – ONLY when it is shown beforehand that there is a need to refresh the memory of the witness. Revival of Present Memory

Revival of Past Recollection

Present Recollection Revived (1st Sentence)

Past Recollection Recorded (2nd Sentence)

Applies if the witness remembers the Applies where the witness does not facts regarding his entries recall the facts involved Requisites: Requisites: 1. Memorandum has been written by 1. Witness retains no recollection him or under his direction; and of the particular facts 2. Written by him: 2. But he his able to swear that o When the fact occurred or the record or writing correctly immediately thereafter; or stated the transaction when o At any other time when the made fact was fresh in his memory and he knew that the same was correctly recorded Entitled to greater weight Entitled to lesser weight

Sec. 17. When part of transaction, writing or record given in evidence, the remainder, the remainder admissible. When part of an act, declaration, conversation, writing or record is: - given in evidence by one party, - the whole of the same subject may be inquired into by the other, and when a detached act, declaration, conversation, writing or record is given in evidence: - any other act, declaration, conversation, writing or record necessary to its understanding - may also be given in evidence. (11a) Sec. 18. Right to respect writing shown to witness.

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Whenever a writing is shown to a witness, it may be inspected by the adverse party. (9a)

B. AUTHENTICATION AND PROOF OF DOCUMENTS Sec. 19. Classes of Documents. For the purpose of their presentation evidence, documents are either public or private. Public documents are: (a) The written official acts, or records of the official acts of the sovereign authority, official bodies and tribunals, and public officers, whether of the RP, or of a foreign country; (b) Documents acknowledge before a notary public: - EXCEPT last wills and testaments; and (c) Public records, kept in the RP, of private documents required by law to be entered therein. All other writings are private. (20a) Notes: Authentication, defined: The process of proving the due execution and genuineness of the document Document, defined: A deed, instrument or other duly authorized paper by which something is proved, evidenced or set forth. Classes of Documents - Public Documents: A document acknowledged before persons authorized to administer oaths. “Official Documents” o A document to be public must be an official written act of a public officer o A foreign decision purporting to be the written record of an act of an official body or tribunal of a foreign country is a public writing. - Private Documents: Includes commercial documents

However, private documents required by law to be entered in public records may be considered “public documents” - Note: If a private writing itself is inserted officially into a public record, its record, its recordation or its incorporation into the public record becomes a public document BUT that does NOT make the private writing itself a public document so as to make it admissible w/o authentication. For the purpose of their presentation in evidence: PUBLIC DOCUMENTS PRIVATE DOCUMENTS GR: Admissible in evidence NOT Self Authenticating. It As to must be proved relative to Authenticity w/o further proof of its genuineness and due its due execution and execution genuineness, before it may EXC: Where a special rule be received in evidence of law requires proof thereof despite its being a document acknowledged (ex. Probate of notarial wills) Evidence even against 3rd Binds only the parties who As to persons, of the fact which executed it or their privies, Persons gave rise to its due execution insofar as due execution Bound and to the date of the latter and date of the document concerned Note: Certain transactions must be in a public document; otherwise they will not be given any validity. Requisites for the Admissibility of a Copy of a Foreign Official Document: 1. It must be attested by the officer having legal custody of the records or by his deputy and 2. It must be accompanied by a certificate of the Philippine diplomatic and consular representative to the foreign country certifying that such attesting officer has the custody of the document, Ratio of #2: Not a mere technicality but is intended to justify the giving of full faith and credit to the genuineness of a document in a foreign country. Sec. 20. Proof of private document.

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BEFORE any private document offered as authentic is received in evidence, its due execution and authenticity must be proved either: (a) By anyone who saw the document executed or written; or (b) By evidence of the genuineness of the signature or handwriting of the maker. Any other private document: - need only be identified as that which it is claimed to be. (21a) Sec. 21. When evidence of authenticity of private document not necessary. Where a private document: 1. is more than 30 years old, 2. is produced from the custody in which it would naturally be found if genuine, and 3. is unblemished by any alterations or circumstances of suspicion, no other evidence of its authenticity need be given. (22a) Sec. 22. How genuineness of handwriting proved. The handwriting of a person may be proved: - by any witness who believes it to be the handwriting of such person because: o he has seen the person write, OR o has seen writing purporting to be his upon which the witness has acted or been charged, AND o has thus acquired knowledge of the handwriting of such person.

Evidence respecting the handwriting may also be given by a comparison, made: - by the witness or the court, - with writings admitted or treated as genuine by the party against whom the evidence is offered, or proved to be genuine to the satisfaction of the judge. (23a) Sec 20, 21, 22: Rules on Authentication of Private Documents Doctrine of Self Authentication: Where the facts in the writing could only have been known to the writer

Doctrine of Authentication of the Adverse Party: Where the reply of the adverse party refers to and affirms the transmittal to him and his receipt of the letter in question, a copy of which the proponent is offering in evidence. Authentication of a Document is NOT Required When: 1. The writing is an Ancient Document (Sec 21) 2. When the writing is a public document on record (Sec 19) 3. When it is a notarial document, acknowledged, proved and certified in accordance with Sec 30 4. When the authenticity and due execution of the document has been expressly and impliedly admitted by failure to deny the same under oath (ex. Actionable documents) Additional Ground in Beda Reviewer: 5. When such genuineness and due execution are immaterial to the issue Authenticity and Proved by: Evidence of the genuineness of the Due Execution of a handwriting of the maker Private Document Proved by: 1. Testimony of the purported writer 2. A witness who actually saw the person writing the instrument (Sec 20a) Handwriting 3. A witness familiar with such handwriting (Sec 22) and who can give his opinion thereon, such opinion being an exception to the opinion rule 4. A comparison by the court of the questioned handwriting and admitted genuine specimens thereof (Sec 22) 5. Expert Evidence (Sec 49) Note: Sec 22 merely enumerated the methods of proving handwriting but it does not give preference or priority to a particular method Handwriting Experts – NOT Mandatory; Weight of Expert Testimony: It depends upon the assistance he may afford in pointing out distinguishing marks, characteristics, discrepancies in and between genuine and false specimen of writings which would ordinarily escape notice or detection by an untrained observer Ancient Documents - 3 Requirements (See codal Sec 21)

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An ancient document is said to be in the proper custody if it is in the place in which and under the care of the person with whom it would naturally be. Ratio: The fact of its coming from the natural and proper place tends to remove presumptions of fraud and strengthen the belief of its genuineness By merely producing the document: it establishes prima facie its own authenticity. The burden then shifts to the adverse party to prove otherwise.

Sec. 23. Public documents as evidence. Documents consisting of entries in public records made in the performance of a duty by a public officer: - are prima facie evidence of the facts therein stated. All other public documents are evidence: - even against a third person, - of the fact which gave rise to their execution and of the date of the latter. (24a) Notes: Public documents are admissible w/o further proof of their due execution and genuineness Ratio: - 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 - Trustworthiness: There is a presumption of regularity, legality and accuracy

IF the office in which the record is kept is in foreign country: - the certificate may be made BY a secretary of the embassy or legation, consul general, consul, vice consul, or consular agent or by any officer in the foreign service of the RP stationed in the foreign country in which the record is kept, and - authenticated by the seal of his office. (25a) Whether the Record if Domestic or Foreign – It may be Evidenced By: 1. An official publication 2. A copy thereof duly attested by the proper officers Note: Absent the attestation of the proper officer, a mere copy of the foreign document is not admissible as evidence to prove the foreign law. Sec. 25. What attestation of copy must state. Whenever a copy of a document or record is attested for the purpose of evidence, the attestation must state, in substance: - that the copy is a correct copy of the original, or a specific part thereof, as the case may be. The attestation: - must be under the official seal of the attesting officer, IF there be any, or - IF he be the clerk of a court having a seal, under the seal of such court. (26a) Sec. 26. Irremovability of public record. Any public record, an official copy of which is admissible in evidence: - must not be removed from the office in which it is kept, - EXCEPT upon order of a court where the inspection of the record is essential to the just determination of a pending case. (27a)

Sec. 24. Proof of official record. The record of public documents referred to in paragraph (a) of Section 19, when admissible for any purpose, may be evidenced: - by an official publication thereof or - by a copy attested by the officer having the legal custody of the record, or by his deputy, and accompanied, IF the record is not kept in the RP, with: - a certificate that such officer has the custody.

Irremovability of Public Record - GR: A public record cannot be removed from the office which it is kept - EXC: It may be removed by order of the court BUT ONLY when essential to the just determination of a pending case (ex. subpoena duces tecum) Note: The rule however, refers only to a public record, an official copy of which could be made available to the interested party and is admissible in evidence.

Evidence | Judge Bonifacio | 3B 2009-2010 [This reviewer is lifted from the book of regalado and Beda– not plagiarized you fuckers!]

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Ratio: 1. To enable others to use the record; 2. To prevent the serious risk of loss; 3. To prevent its exposure to wear and tear Sec. 27. Public record of a private document. An authorized public record of a private document may be proved: - by the original record, or - by a copy thereof, attested by the legal custodian of the record, with an appropriate certificate that such officer has the custody. (28a)

Sec. 30. Proof of notarial documents. Every instrument: - duly acknowledged or proved and - certified as provided by law, may be presented in evidence: - without further proof, - the certificate of acknowledgment being prima facie evidence of the execution of the instrument or document involved. (31a) Notes:

Note: If a private writing itself is inserted officially into a public record, its record, its recordation or its incorporation into the public record becomes a public document BUT that does NOT make the private writing itself a public document so as to make it admissible w/o authentication.

Notarial Document, defined: One which is duly acknowledged before a notary public. (It is a public document) - The notary must be duly authorized and must have notarized said document in accordance with the Notarial Law.

Sec. 28. Proof of lack of record.

Probative Value of a Notarial Document: It is evidence of the facts expressed therein

A written statement: - signed by an officer having the custody of an official record or by his deputy - that after diligent search, no record or entry of a specified tenor is found to exist in the records of his office, - accompanied by a certificate as above provided, is admissible as evidence that the records of his office contain no such record or entry. (29)

Sec. 29. How judicial record impeached. Any judicial record may be impeached by evidence of: (a) want of jurisdiction in the court or judicial officer, (b) collusion between the parties, or (c) fraud in the party offering the record, in respect to the proceedings. (30a)

When a Certified True Copy is Presented It Should Comply With the FF to be Admissible: 1. The provisions that should appear in the certification or attestation of the said copy (Sec 24 & 25) 2. It must have the documentary stamp affixed unless specifically exempted as in the case of baptismal or birth certificate. Note: It is presumed that the requisite stamps have been affixed to the original copy of a document where only the carbon copies thereof are available Note: When a special power of attorney is executed and acknowledged before a notary public or other competent officer in a foreign country, it cannot be admitted in evidence in RP courts unless it is certified as such in accordance with Sec 24. Public Instruments do NOT Have Uniform Probative Value - The law does not specifically provide that the contents of public instruments w/o distinction are equally evidence against 3rd parties - The probative value of public instruments depends on the kind of document that is presented in evidence.

Evidence | Judge Bonifacio | 3B 2009-2010 [This reviewer is lifted from the book of regalado and Beda– not plagiarized you fuckers!]

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Rules on Baptismal Certificates (BC) - Issued by priests during the Spanish regime: Considered public documents - Issued after the Spanish regime: Considered private documents and cannot even be considered as prima facie evidence of the fact that gave rise to its execution (it is considered hearsay unless the priest who performed the baptismal rites are produced) Note: - BCs are not sufficient proof of paternity or recognition of a child. It is only proof of the baptism administered but not the veracity of the statements in the certificate concerning the relationship of the person baptized. (OLD RULE) - NOW, Art 172 of the Family Code provides: “Filiation of legitimate children is established by the record of birth in the civil registry” Note: BCs may be used to determine the minority of the victim in statutory rape Note: Death Certificates is not proof of the cause of death – its probative value being confined only to the fact of death - Statements therein regarding the duration of illness and the cause of death are mere hearsay. - However, it is admissible to prove residence of decedent at the time of death.

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that the alteration did not change the meaning or language of the instrument. If he fails to do that: - the document shall NOT be admissible in evidence. (32a) Sec. 32. Seal. There shall be no difference between sealed and unsealed private documents: - insofar as their admissibility as evidence is concerned. (33a) Sec. 33. Documentary evidence in an unofficial language. Documents written in an unofficial language: - shall not be admitted as evidence, - UNLESS accompanied with a translation into English or Filipino. To avoid interruption of proceedings: - parties or their attorneys are directed to have such translation prepared before trial. (34a) Note: Under the 1987 Constitution: “The official languages are Filipino and, until otherwise provided by law, English, with the regional languages as auxiliary official languages in the region”

Sec. 31. Alteration in document, how to explain. The party producing a document as genuine: - which has been altered and - appears to have been altered after its execution, - in a part material to the question in dispute, must account for the alteration.

He may show that the alteration: - was made by another, without his concurrence, or - was made with the consent of the parties affected by it, or - was otherwise properly or innocently made, or

C. OFFER AND OBJECTION Sec. 34. Offer of evidence.

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The court shall consider NO evidence which has not been formally offered. The purpose for which the evidence is offered: - must be specified. (35) Notes: GR: The court shall consider no evidence which has not been formally offered. The purpose for which the evidence is offered must be specified. EXC: 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: (Pp v. Napta) 1. The document must have been duly identified by testimony duly recorded. 2. The document must have been incorporated to the records of the case. Ex. Presented and marked in the pre-trial and testified as to the details and contents and was cross examined. Purpose Why Offer Must be Specified: To determine whether that piece of evidence should be admitted or not because such evidence may be admissible for several purposes under the doctrine of multiple admissibility. You Follow What is Stated in the Offer: It must be rejected if it is inadmissible for the purpose stated even if it is admissible for another purpose.

Testimonial/Oral Evidence At the time the witness is called to testify Oral Evidence is Always Offered 2x: 1. Before the witness testified 2. Every time a question is asked of him (implied offer)

Documentary and Object Evidence After the party has presented his testimonial evidence, before he rests Offered only once

Procedure Before Documentary and Object Evidence Can be Considered by the Court 1. Marking: To facilitate their identification. May be made during pretrial or trial. 2. Identification: Proof that the document being presented is the same one referred to by the witness in his testimony 3. Authentication: Proof of a document’s due execution and genuineness. 4. Formal Offer: After the termination of the testimonial evidence, the proponent will then make a formal offer and state the purpose for which the document is presented. 5. If the evidence is excluded, an offer of proof 6. Objections: It is only when the proponent rests his case and formally offers the evidence that an objection may be made. Objection prior thereto is premature Identification and Authentication is Not needed in private documents: If there is a stipulation on its due execution and genuineness. Authentication is Not needed in public documents

Sec. 35. When to make offer. As regards the testimony of a witness, the offer must be made: - at the time the witness is called to testify. Documentary and object evidence shall be offered: - AFTER the presentation of a party's testimonial evidence. - Such offer shall be done orally UNLESS allowed by the court to be done in writing. (n)

Marking and identifying of evidence as an exhibit does NOT mean that it has been offered as part of evidence. - Evidence identified and marked as exhibits may be withdrawn before the formal offer thereof or may not at all be offered as evidence. - If they are not formally offered in evidence – such cannot be considered as evidence nor can they be given any evidentiary value. Note: The SC has admitted evidence to prove mitigating circumstance even if they are not presented or offered in evidence considering the gravity of the offense and the interest of justice.

When to Make an Offer: Depends on its form:

Evidence | Judge Bonifacio | 3B 2009-2010 [This reviewer is lifted from the book of regalado and Beda– not plagiarized you fuckers!]

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Sec. 36. Objection. Objection to evidence offered orally must be made: - immediately after the offer is made. Objection to a question propounded in the course of the oral examination of a witness shall be made: - as soon as the grounds therefor shall become reasonably apparent. An offer of evidence in writing shall be objected to: - within 3 days AFTER notice of the - UNLESS a different period is allowed by the court. In any case, the grounds for the objections must be specified. (36a) Notes: Classifications of Objections: 1. General Objection – It does not go beyond declaring the evidence as immaterial, incompetent, irrelevant or inadmissible. It does not specify the grounds for objection. “Broadside Objection” 2. Specific Objection – It states why or how the evidence is irrelevant or incompetent. Requirements to Exclude Inadmissible Evidence: 1. One has to object to the evidence 2. The objection must be timely made and 3. The grounds for the objection must be specified (specific objections) Effect of General Objection: - Failure to specify the grounds is a waiver of objection - BUT when evidence is excluded upon a mere general objection, the ruling will be upheld IF any ground in fact existed for the exclusion. When to make Objection: (If not made w/in such time = waived) Offer Time to Object Offered orally Made immediately after the offer is made Question propounded in the course Made as soon as the grounds thereof shall of the oral examination of a witness become reasonably apparent Offer of evidence in writing W/in 3 days after notice of the offer unless a different period is allowed by the

court. Note: the formal offer of evidence at the time the witness is called to testify is necessary to enable the court to intelligently rule on any objection. - Proponent must: Show its evidence, materiality and competence - Adverse party must: Promptly raise any objection thereto Note: A document admitted not as an independent evidence but merely as part of the testimony of a witness does NOT constitute proof of the facts related therein.

Sec. 37.When repetition of objection unnecessary. When it becomes reasonably apparent in the course of the examination of a witness: - that the question being propounded are of the same class as those to which objection has been made, - whether such objection was sustained or overruled, it shall NOT be necessary to repeat the objection: - it being sufficient for the adverse party to record his continuing objection to such class of questions. (37a) Note: Here, the party may just enter a general and continuing objection to the same class of evidence and the ruling of the court shall be applicable to all such evidence of the same class. - The court may also motu proprio treat the objection as a continuing one, Sec. 38.Ruling. The ruling of the court must be given: - immediately AFTER the objection is made, - UNLESS the court desires to take a reasonable time to inform itself on the question presented; but the ruling shall ALWAYS be made: - during the trial and - at such time as will give the party against whom it is made an opportunity to meet the situation presented by the ruling. The reason for sustaining or overruling an objection need not be stated. - However, IF the objection is based on two or more grounds: o a ruling sustaining the objection on one or some of them must specify the ground or grounds relied upon. (38a)

Evidence | Judge Bonifacio | 3B 2009-2010 [This reviewer is lifted from the book of regalado and Beda– not plagiarized you fuckers!]

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Note: The court should only consider evidence for the purpose for which it was offered. When Should the Ruling Be Made? GR: Parties who object is entitled to a ruling at the time the objection is made - If no ruling is made, it would prejudice the rights of the client since there would be no way of knowing if one would be compelled to meet any evidence. - The attorney must inform the court of the lack of ruling – IF NOT: o gr: The case cannot be reopened on such ground. The right to object is deemed waived and cannot be raised on appeal o exc: When there is a serious prejudice on substantial rights – the appellate court may consider it a reversible error. EXC: Unless the parties present a question to which the court desired to inform itself before making its ruling. - Here, it is proper for the court to take reasonable time to study the questions

d. Uncompleted testimonies where there was no opportunity for the party to cross-examine e. Conditionally admitted evidence not later substantiated.

Sec. 40.Tender of excluded evidence. IF documents or things offered in evidence are excluded by the court: - the offeror may have the same attached to or made part of the record. IF the evidence excluded is oral, the offeror may state for the record: o the name and other personal circumstances of the witness and o the substance of the proposed testimony. (n)

Sec. 39.Striking out answer.

Rationale of the Requirement of Attaching Evidence: So that in case of appeal, the appellate court may be able to examine the same and determined the propriety of their rejection - Since Documents forming no part of proofs before the appellate court cannot be considered in disposing of the case, otherwise that would infringe upon the constitutional right of the adverse party to due process.

Should a witness answer the question: - BEFORE the adverse party had the opportunity to voice fully its objection to the same, and - such objection is found to be meritorious, the court shall: - sustain the objection and - order the answer given to be stricken off the record.

Erroneous Admission or Rejection of Evidence - GR: New Trial is warranted - EXC: Not a ground for new trial or reversal: o IF there are other independent evidence to sustain the decision or o IF in correcting it, would not have changed the decision Note: IF the court discovered such error BEFORE judgment had become final or BEFORE an appeal had been perfected – it may reopen the case

On proper motion, the court may also: - order the striking out of answers which are incompetent, irrelevant, or otherwise improper. (n)

Policy of “Por lo Que Puedo Valer” - The practice of excluding evidence on doubtful objections should be avoided. - It is impossible for the judge of first instance to known with certainty whether testimony is relevant or not and when there is no indication of bad faith on the attorney offering such evidence – the court as a rule may safely accept the testimony upon the statement that the proof offered will be connected later. - Greater reason to adhere to such policy in criminal cases when it can lead to the erroneous acquittal of the accused which the People can no longer appeal.

Mode of Excluding Inadmissible Evidence 1. Objection when the evidence is offered 2. Motion to strike out or Expunge – proper in the following cases: a. When the witness answers prematurely before there is reasonable opportunity for the party to object (Sec 39) b. Unresponsive answers c. Answers that are incompetent, irrelevant, or improper (Sec 39) Note: There must be an objection before motion to strike.

Evidence | Judge Bonifacio | 3B 2009-2010 [This reviewer is lifted from the book of regalado and Beda– not plagiarized you fuckers!]

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The ruling of the court on procedural questions and on admissibility of evidence during the course of the trial is interlocutory. - They may not be the subject of a separate appeal - They are to be assigned as errors and reviewed in the appeal taken from the trial court on the merits of the case. [RULE 133] WEIGHT AND SUFFICIENCY OF EVIDENCE Sec 1.Preponderance of evidence, how determined. In civil cases, the party having burden of proof: - must establish his case by a preponderance of evidence. In determining where the preponderance or superior weight of evidence on the issues involved lies, the court may consider: - all the facts and circumstances of the case, - the witnesses' manner of testifying, - their intelligence, - their means and opportunity of knowing the facts to which there are testifying, - the nature of the facts to which they testify, - the probability or improbability of their testimony, - their interest or want of interest, and also - their personal credibility so far as the same may legitimately appear upon the trial. The court may also consider: - the number of witnesses, though the preponderance is not necessarily with the greater number. (1a) Sec. 2.Proof beyond reasonable doubt. In a criminal case, the accused: - is entitled to an acquittal, - UNLESS his guilt is shown beyond reasonable doubt. Proof beyond reasonable doubt: - does not mean such a degree of proof as, excluding possibility of error, produces absolute certainly. Moral certainly ONLY is required, OR that degree of proof which produces conviction in an unprejudiced mind. (2a)

Requirements for Evidence to Be Worthy of Credit - Must not only proceed from a credible source but must, in addition, be credible in itself – It must be natural, reasonable and probable as to make it easy to believe. - It should be in accord with the common knowledge and experience of mankind GR: Findings of the judge who tried the case and heard the witnesses are not to be disturbed on appeal EXC: It may be disturbed for good cause: if there are substantial facts and circumstances which have been overlooked and which, if properly considered, might effect the result of the case ISSUE: Credibility of the Witness - Defined: The witnesses’ is meant his integrity, disposition and intention to tell the truth in the testimony he has given GR: The findings of the TC will not be disturbed on appeal since it is in a better position to decide the question, having heard and observed the demeanor of each witness - For the same reason, the matter of assigning values to declarations at the witness stand is best and competently performed by the TC EXCEPTIONS: 1. It may be disturbed if the TC has plainly overlooked certain facts of substance and value which, if properly considered, might effect the result of the case 2. Also, when the identification of the accused or credibility of witness and one judge heard the testimony of the prosecution witness BUT different judge penned the decision – GR rule does not apply Competency of a witness does not mean that the witness is credible or will be believed by the court. - Facial expressions are not necessarily indicative of one’s feelings. The TC should not however discredit a witness by the supposed expression of lack of sincerity in his face, the judge should put that fact on the record and allow the witness to explain - Demeanor, emphasis gestures, inflection of the voice aids the proper evaluation of credibility - The fact that a person has reached the “twilight of his life” (advance age) is not always a guaranty that he would tell the truth

Notes:

Evidence | Judge Bonifacio | 3B 2009-2010 [This reviewer is lifted from the book of regalado and Beda– not plagiarized you fuckers!]

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The facts adduced in a record of a preliminary investigation are evidence ONLY for the purpose of testing the credibility of the witness

ISSUE: Number of Witness - GR: The number of witness should not in and by itself determine he weight of evidence - EXC: In case of conflicting testimonies of witness – such factor may be given certain weight Note: The failure of a party to present merely corroborative or cumulative evidence does not give rise to any adverse or unfavorable presumption 2 Conflicting Testimonies of 1 Witness

2 Witnesses w/ Conflicting Testimonies The court shall adopt the testimony which he believes to be true

The court can accept either statement as proof Note: If the witness gives a false testimony he impeaches his own testimony and the court should exclude it from all consideration Note: The most subtle and prolific of all fallacies of testimony arises out of “unconscious partisanship” (ex. Passengers and driver in an accident)

Bias, defined: That which motivates the disposition to see and report matters as they are wished for rather than as they are - It is present when a witnesses’ relation to the cause or to the parties is such that he has an incentive to exaggerate or give false color to his statements or to suppress or pervert the truth, or to state what is false. - Bias is NOT a factor: When the witnesses on both sides are equally interested or biased, especially if there is no numerical preponderance on either side. - The testimony of an interested witness is not necessarily biased, incredible or self-serving Testimonies in Criminal Cases - Testimony of a co-conspirator or an accomplice is admissible – since it comes from a polluted source, it must be scrutinized with caution - The testimony of a SINGLE witness may be sufficient to produce conviction IF:

It appears to be trustworthy and reliable, clear and convincing o NOT if there is unexplained contradictions on an important detail - Testimony of the offended party is not essential to convict an accused if there are already other evidence to prove such guilt - The fact that the prosecution w/o explanation failed to call several witnesses mentioned in the information – gives rise to the presumption that their testimonies would not be favorable to the prosecution’s cause. - Delays of a witness in revealing what he knows about a crime does not render his testimony false since there is always the inherent fear or reprisal in criminal cases. Such delay if satisfactorily explained does not undermine her credibility - The refusal of a person to submit to investigation to explain the innocent role he professes is inconsistent with the normal reaction of an innocent man. - GR: The mere relationship of the witness to the victim does not impair his positive and clear testimony nor render the same less worthy of credit; EXC: When there is a showing of improper motive - Using as witnesses persons who were accomplices w/o including them in the information – does not render the testimony inadmissible - The identity of the offender like the crime must be proved beyond reasonable doubt Rules on Conspiracy - Conspiracy need not be established by direct evidence - It may be proved by: A number of indicative acts, conditions and circumstances - It may be proved by circumstantial evidence but it must be proved with as much certainty as the crime itself. - It may be deduced from the mode and manner in which the offense was committed Rule on Qualifying or Aggravating Evidence: - It must be proved in an evident and incontestable manner. - It must be proved as conclusively as the acts constituting the offense. Rule on Proving Self-defense - The one claiming self-defense must rely on the strength of his own defense and not on the weakness of the prosecution - Self-defense must be proved by “clear and convincing” evidence Rule on Alibi o

Evidence | Judge Bonifacio | 3B 2009-2010 [This reviewer is lifted from the book of regalado and Beda– not plagiarized you fuckers!]

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Alibi is one of the weakest defense since it is easily susceptible of concoction – hence must be viewed w/ suspicion - It may be considered ONLY: by “positive, clear and satisfactory evidence” - The accused must not only prove his alibi but also that it was physically impossible for him to be at the scene of the crime - Such defense becomes weaker when not corroborated - Still, the prosecution still has the onus probandi in establishing the guilt of the accused and the weakness of the defense does not relieve it from such responsibility - Defense of alibi must be predicated on substantial and reliable evidence sufficient and reliable to engender reasonable doubt Note: When the accused withdraws his appeal after realizing the futility of his defense and the other escapes from confinement – said acts are unmistakable signs of guilt. - Flight of the accused is evidence of guilt; however, non-flight is not indicative of innocence. Rules on Inconsistent or Contradictory testimony - If they refer to mere insignificant details – they do not materially impair the credibility of witness o It does not affect the material points. o They indicate veracity rather than prevarication and only tend to bolster the probative value of such testimony “Falsus in Uno, Falsus in Omnibus”: When testimony is believed in part and disbelieved in part depending upon the corroborative evidence and the probabilities of the case - Deals only with the weight of evidence and is not a positive rule of law. It is not an absolute one nor mandatory and binding upon the court which may accept or reject the witnesses’ testimony - Does NOT Apply: o When the challenged testimony is sufficiently corroborated on many grounds o When such mistakes do not arise from an apparent desire to pervert the truth but from innocent lapses and the desire of the witness to exculpate himself although not completely Rules on Corroborative Testimonies - Non-production of a corroborative witness w/o any explanation – weakens the testimony of the witness to be corroborated

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Corroboration is NOT required in the crime of rape (EXC. when the point at issue is whether the act was committed w/ or w/o the use of force or threat – such testimony should be scrutinized with the greatest caution)

Note: The testimony of persons accidentally present at the time of the execution of the will is not weighty as that of the subscribing witness Affirmative Testimony v. Negative Testimony - Affirmative testimony has greater weight than negative testimony - Negative testimony cannot prevail over positive statements - In weighing contradictory declarations – greater weight is given to positive testimony Note: Witnesses admittedly present while a fact is taking place may not coincide in describing all the details of the occurrence. It doesn’t necessarily imply falsehood. Effect of Falsehood - When a party resorts to falsehood to advance his suit – it is presumed that he knows perfectly well that his cause is groundless - Falsehood, fraud, fabrication or suppression of evidence are receivable as indications of his consciousness that his cause is weak or unfounded Rules on Affidavits - They are subordinated in importance to open court declarations (Since they are oftentimes executed when the affiant is at a high pitch of excitement and when his mental state is not as to afford him a fair opportunity of narrating in full the incident when it transpired) - They are not complete reproductions of what the declarant has in mind (since the are generally prepared by the administering officer) - Ex parte affidavits are generally incomplete, hence discrepancies between the statements of the affiant and that made on the witness stand do not necessarily discredit him - It is an affidavit is only prima facie evidence of weak probative force - When the affidavit is inconsistent with the testimony – the latter is invariably believed. - Omissions and misunderstandings by the writer are not infrequent. Note: These rules do not apply when the omission in the affidavit refers to a very important detail

Evidence | Judge Bonifacio | 3B 2009-2010 [This reviewer is lifted from the book of regalado and Beda– not plagiarized you fuckers!]

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Non-Payment of Taxes: Indicative of the fact that the claimant does not believe himself to be the owner of the property. Continuous Payment: Great weight in favor of ownership Tax declarations: NOT conclusive evidence of ownership BUT if accompanied by open, adverse and continued possession in the concept of an owner – they constitute evidence of great weight On the Motive of the Accused in a Criminal Case GR: Motive is immaterial and since it is not an element of a crime – it need not be proved - Mere proof of motive, no matter how string, cannot sustain a conviction if there is no other evidence establishing the guilt of the accused EXC: Evidence of motive is relevant or essential in the ff instances: 1. When the identity of the assailant is in question 2. To determine the voluntariness of the criminal act or the sanity of the accused 3. To determine from which side the unlawful aggression commenced, as where the accused invoked self-defense wherein unlawful aggression on the part of his opponent is an essential element 4. To determine the specific nature of the crime committed (ex. When murder is during a rebellion) 5. To determine whether a shooting was intentional or accidental 6. When the accused contends that he acted in defense of a stranger since he must not have been motivated by revenge 7. When the evidence is circumstantial or inconclusive and there is a doubt whether a crime has been committed or whether the accused has committed it. 8. When it is an element of the offense (ex. To show malice in libel) Rule on Identification of Suspects: The “Totality of Circumstances” Test - Such test utilizes the following factors 1. The witness’ opportunity to view the criminal at the time of the crime 2. The witness’ degree of attention at that time 3. The accuracy of any prior description given by the witness 4. The level of certainty demonstrated by the witness at the identification 5. The length of time between the crime and the identification and

6. The suggestiveness of the identification procedure 12 Danger Signals That the Identification May be Erroneous 1. The witness originally stated that he could not identify anyone 2. The witness knew the accused before the crime but made no accusation against him when questioned by the police 3. A serious discrepancy exists between the witness’ original description and his actual description of the accused 4. Before identifying the accused at the trial, the witness erroneously identified some other person 5. Other witnesses of the crime fail to identify the accused 6. Before trial, the witness sees the accused but fails to identity him 7. Before the commission of the crime, the witness had limited opportunity to see the accused 8. The witness and the person identified are of different racial groups 9. During his original observation of the offender, the witness was unaware that a crime was involved 10. A considerable time elapsed between the witness’ view and his identification of the accused 11. Several persons committed the crime 12. The witness failed to make a positive trial identification Res Ipsa Loquitor (“the thing speaks for itself”) - Rule that the fact of the occurrence of an injury taken with the surrounding circumstances, may permit an inference or raise a presumption of negligence, or make out a plaintiff’s prima facie case - The rule is however, considered as merely evidentiary or in the nature of a procedural rule – the application does NOT dispense with the requisite of proof of negligence. Sec. 3.Extrajudicial confession, not sufficient ground for conviction. An extrajudicial confession made by an accused: - shall not be sufficient ground for conviction, - UNLESS corroborated by evidence of corpus delicti. (3)

Corpus Delicti, defined: Actual commission of someone of the particular crime charged. - Literally means “The body or the substance of the crime”

Evidence | Judge Bonifacio | 3B 2009-2010 [This reviewer is lifted from the book of regalado and Beda– not plagiarized you fuckers!]

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It is the actual commission by someone of the particular crimes charged. Elements: 1. The existence of a certain act or result forming the basis of the criminal charge and 2. The existence of a criminal agency as the cause of the act or result (someone criminally responsible) Note: The identity of the accuse is NOT a necessary element How Proved?: When the evidence on record shows that the crime prosecute had been committed Corpus Delicti in THEFT 1. That the property was lost by the owner and 2. That it was lost by a felonious taking Note: The fact of the crime of theft may be established even w/o recovery of the thing stolen Corpus Delicti in ILLEGAL POSSESSION OF A FIREARM 1. The existence of the firearm 2. That it has been actually held with animus possidendi by the accused w/o the corresponding license. Corpus Delicti in MURDER - The fact of death - Note: If there is doubt as to the identity of the cadaver – there is no corpus delicti

(a)There is more than one circumstance; (b)The facts from which the inferences are derived are proven; and (c)The combination of all the circumstances is such as to produce a conviction beyond reasonable doubt. (5) Notes: In Order to Convict on the Strength of Circumstantial Evidence (CE) Alone: - It is incumbent on the prosecution to present such CE which will and must necessarily lead to the conclusion that the accused is guilty of the crime charged beyond reasonable doubt. GR: CE is sufficient even for a capital offense EXC: When the law specified the species and quantum of evidence (ex. Treason)

When CE does NOT suffice to sustain conviction: - Falsification - Bigamy, adultery, parricide (evidence of 1st marriage is necessary), - libel through written publications Note: Not only prior and coetaneous actuations of the accused in relation to the crime but also his acts or conduct after thereto can be considered as CE of Guilt

Requirement of Independent Evidence of the Corpus Delicti - Mere EX-J confession uncorroborated by independent proof of corpus delicti is NOT sufficient to sustain a judgment of conviction - The evidence may be circumstantial, but just the same, there must be some evidence substantiating the confession - Corpus Delicti is NOT synonymous with the whole charge so as to require that all the elements of the crime be established (Hence for a complex crime of robbery with murder – corpus delicti of only murder will still be admissible although there is no independent evidence of robbery)

Note: Motive becomes important when the evidence of the crime is purely circumstantial

Sec. 4.Circumstantial evidence, when sufficient.

Note: Substantial Evidence does not necessarily mean preponderant proof as required in ordinary civil cases, but:

Sec. 5.Substantial evidence. In cases filed before administrative or quasi-judicial bodies, a fact may be deemed established IF: - it is supported by substantial evidence, or - that amount of relevant evidence which a reasonable mind might accept as adequate to justify a conclusion. (n)

Circumstantial evidence is sufficient for conviction if:

Evidence | Judge Bonifacio | 3B 2009-2010 [This reviewer is lifted from the book of regalado and Beda– not plagiarized you fuckers!]

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1. That amount of relevant evidence which a reasonable mind might accept as adequate to justify a conclusion or 2. Evidence commonly accepted by reasonably prudent man in the conduct of their affiants In Civil Cases: The proponent must establish the case by preponderance of evidence - If there is an equiponderance of evidence (same weight) – the court will find for the defendant – same rule will apply in criminal cases – if there is an equiponderance , the prosecution will lose Sec. 6.Power of the court to stop further evidence. The court may stop the introduction of further testimony upon any particular point when: - the evidence upon it is already so full that more witnesses to the same point cannot be reasonably expected to be additionally persuasive. - But this power should be exercised with caution. (6) Note: The court has the power to stop the introduction of testimony which will merely be cumulative Sec. 7.Evidence on motion. When a motion is based on facts not appearing of record: - the court may hear the matter on affidavits or depositions presented by the respective parties, - BUT the court may direct that the matter be heard wholly or partly on oral testimony or depositions. (7) Note: If the affidavits contradict each other on matters of fact – the court can have no basis to make its findings of fact and the prudent course is to subject the affiants to cross-examination

Evidence | Judge Bonifacio | 3B 2009-2010 [This reviewer is lifted from the book of regalado and Beda– not plagiarized you fuckers!]

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Evidence | Judge Bonifacio | 3B 2009-2010 [This reviewer is lifted from the book of regalado and Beda– not plagiarized you fuckers!]

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