Evidence Riano

NOTES ON EVIDENCE Kenneth & King Hizon (3A)

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UNIVERSITY OF SANTO TOMAS Faculty of Civil Law A.Y. 2012-2013 First Semester

LAW ON EVIDENCE

Chapter 1 PRELIMINARY CONSIDERATIONS

judicial proceedings because the findings of the court would depend on the evidence presented before it based on the accepted rules for admissibility.

A. Miscellaneous Basic Principles RULE 128 General Provisions SECTION 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) Note: Not every circumstance which affords an inference as to the truth or falsity of a matter alleged is considered evidence. Q: What is required for a circumstance to be considered as evidence? A: It must be “sanctioned” or allowed by the Rules of Court. It is not evidence if it is excluded by law or by the Rules even if it proves the existence or non-existence of a fact in issue. Thus, hearsay evidence, a coerced extrajudicial confession of the accused and evidence obtained in violation of constitutional rights even if ultimately shown to correspond to the truth is not a n evidence. The definition considers evidence not as an end in itself but merely as a “means” of ascertaining the truth of a matter of fact. This applies to judicial proceedings. Q: What is the purpose of evidence? A: It is to ascertain the truth respecting a matter of fact in a judicial proceeding. Litigations cannot be properly resolved by suppositions, or even presumptions, with no basis in evidence. The truth must be determined by the rules for admissibility and proof. Thus, the parties must prove a fact in issue thru the presentation of admissible evidence. Truth as the purpose of evidence Yet, the truth referred to in the definition is not necessarily the actual truth but one aptly referred to as the judicial or the legal truth. Actual truth may not always be achieved in

Rule 132, Sec. 34. Offer of evidence. — The court shall consider no evidence which has not been formally offered. The purpose for which the evidence is offered must be specified. (35) Thus, a supposed evidence that would undoubtedly show the innocence of the accused will not be considered if not formally offered in evidence. Q: When is evidence required? When is it not required? A: As a means of proving fact, its introduction is needed when the court has to resolve a question of fact. Where no factual issue exists in a case, there is no need to present evidence because where the case presents a question of law, such question is resolved by mere application of the relevant statutes or rules in this jurisdiction to which no evidence is required. Note: When the pleadings in a civil case do not tender an issue of fact, a trial need not be conducted since there is no more reason to present evidence. The case is then ripe for judicial determination through a judgment on the pleadings (Rule 34). Evidence may also be dispensed with by agreement of the parties. They may agree in writing upon the facts involved in the litigation and to submit the case for judgment upon the facts agreed upon, without the introduction of evidence (Rule 30, sec. 6). It is also not required on matters of judicial notice (Rule 129, sec.1) and on matters judicially admitted (Rule 129 Sec. 4). Q: When are the Rules of evidence applicable? A: They apply only to judicial proceedings. Note: Please refer to Rule 1, sec.4.

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NOTES ON EVIDENCE Kenneth & King Hizon (3A)

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Technical rules of procedure and evidence are not strictly applied and administrative due process cannot be fully equated with due process in strict judicial terms. Also, reliance on the technical rules of evidence in labor cases is misplaced.

A: According to such principle, as a general policy, the rules of evidence shall be the same in all courts and in all trials and hearings.

Ong Chia v. Republic (328 SCRA 749)

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)

The rule on formal offer of evidence is not applicable to a case involving a petition for naturalization unless applied by analogy or in a suppletory character and whenever practicable and convenient.

Q: Distinguish between evidence in civil cases from evidence in criminal cases.

Sasan, Sr. v. NLRC (G.R. No. 176240, 2008) Technical rules of evidence are not binding in labor cases. Labor officials should use every reasonable means to ascertain the facts in each case speedily and objectively, without regard to technicalities of law or procedure, all in the interest of due process. The rules of evidence prevailing in courts of law or equity are not controlling in labor cases.

CIVIL CASES The party having the burden of proof must prove his claim by a preponderance of evidence. An offer of compromise is not an admission of any liability, and is not admissible evidence against the offeror (Rule 130, Sec.27).

Clarion Printing House, Inc. v. NLRC (461 SCRA 272) The NLRC is not precluded from receiving evidence, even for the first time on appeal, because technical rules of procedure are not binding in labor cases. Bantolino v. Coca-Cola Bottlers, Inc. (403 SCRA 699) The rules of evidence are not strictly observed in proceedings before administrative bodies where decisions may be reached on the basis of position papers only. In this case, the court disregarded the findings of the CA which considered the affidavits of the petitioners as mere hearsay and thus could not be admitted in evidence against their employers. The Court unequivocally ruled that in a labor case, it is not necessary for an affiant to appear and testify and be crossedexamined by counsel for the adverse party on his affidavit. Administrative bodies are not bound by the technical rules of procedure and the rules obtaining in the courts of law. Within the field of administrative law, while strict rules of evidence are not applicable to quasi-judicial proceedings, nonetheless, in adducing evidence constitutive of substantial evidence, the basic rule that mere allegation is not evidence cannot be disregarded. Application of the Rules on Electronic Evidence Sec.2. Cases covered.- These Rules shall apply to all civil actions and proceedings, as well as quasi-judicial an administrative cases. Scope of the Rules of Evidence

Concept of presumption of innocence does not apply and generally there is no presumption for or against a party except in cases provided for by law (Art. 1756-common carrier).

CRIMINAL CASES The guilt of the accused has to be proven beyond reasonable doubt. An offer of compromise by the accused may be received in evidence as an implied admission of guilt except those involving quasioffenses (criminal negligence) or those allowed by law to be compromised (Rule 130, Sec. 27) The accused enjoys the constitutional presumption of innocence (Sec. 14, Article 3).

Distinction between Proof and Evidence Q: What is proof? A: It is not the evidence itself. There is proof only because of evidence. It is merely the probative effect of evidence and is the conviction or persuasion of the mind resulting from consideration of the evidence. On the other hand, evidence is the medium or means by which fact is proved or disproved. Proof is the effect of evidence because without evidence there is no proof. Falsus in Uno, Falsus in Omnibus It means “false in one thing, false in everything.” It means that if the testimony of a witness on a material issue is willfully false and given with an intention to deceive, the jury may disregard all the witness’ testimony. The witness in such case is considered unworthy of belief as to all the rest of his evidence if he is shown to have testified falsely in one detail.

Q: Explain the Principle of uniformity.

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NOTES ON EVIDENCE Kenneth & King Hizon (3A)

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Yet, this is not an absolute rule of law and is in fact rarely applied in modern jurisprudence. It deals only with the weight of the evidence and is not a positive rule of law. The modern trend favors more flexibility when the testimony of a witness may be partly believed and partly disbelieved depending on the corroborative evidence presented at the trial (People v. Negosa). Q: When can such maxim be applied?

1. 2.

The presence of the accused in another place at the time of the commission of the offense; and The physical impossibility for him to be at the scene of the crime at the time of its commission.

Note: It is not enough that he is somewhere else when the crime was committed. He must prove that it was physically impossible for him to be present at the crime scene or its immediate vicinity at the time of its commission.

A: Before it can be applied, it must be shown that the witness have willfully falsified the truth on one or more material points. The principle presupposes the existence of a positive testimony on a material point contrary to subsequent declarations in the testimony.

The accused should have proven that he was in some place where it was physically impossible for him to at the locus criminis during the commission of the crime.

People v. Letigio (268 SCA 227)

People v. Agustin, G.R. No. 175325

The above maxim does not lay down a categorical test of credibility. While the witness may differ in their recollections of an incident, it does not necessarily follow from their disagreements that all of them should be disbelieved as liars and their testimonies completely discarded as worthless.

When the distance between the place where the crime was committed and the accused said he was only 1 and ½ km, the accused, who at the time had the use of a motorized vehicle, has not established the physical impossibility.

People v. Pacapac (248 SCRA 77) The maxim is not a positive rule of law or of universal application. It should not be applied to portions of the testimony corroborated by other evidence, like where the false portions could be innocent mistakes. It is not mandatory but merely sanctions a disregard of the testimony of a witness of the circumstances so warrant. Alibi As a defense, alibi is inherently weak and crumbles in the light of positive identification by truthful witnesses. It is evidence negative in nature and self-serving and cannot attain more credibility than the testimonies of prosecution witnesses who testify on clear and positive evidence. Alibi may also serve as a basis for acquittal if it can really be shown by clear and convincing evidence that it was indeed physically impossible for the accused to be at the scene of the crime at that time. It cannot prevail over the positive identification of the accused as perpetrator of the crime. Such positive identification destroys the defense of alibi and renders it impotent, especially where the such identification is credible and categorical (People v. Dela Cruz, G.R. No. 173308).

People v. Abellera, G.R. No. 166617

Alibi is not always false and without merit. Sometimes, the fact that the accused was somewhere else may just be the plain and unvarnished truth. Frame Up Frame up is also viewed with disfavor as it can easily be concocted and is commonly used as a defense in most prosecutions arising from the Dangerous Drugs Act. The legal presumption that official duty has been regularly performed exists. For such claim to prosper, the defense must adduce clear and convincing evidence to overcome the presumption that government officials have performed their duties in a regular and proper manner (People v. Del Monte). Self-Defense It is likewise inherently weak because it can easily be fabricated. Alibi is one of the weakest defenses due to its being capable of easy fabrication. It cannot prevail over the positive identification of the accused as perpetrator of the crime. For it to prevail, the defense must establish that was physically impossible for the accused to have been at the scene of the crime at the time of its commission, and not merely that the accused was somewhere else. Delay and initial reluctance in reporting a crime

Q: What must be established for the defense of alibi to prosper? A:

Delayed reporting by witnesses of what they know about the crime does not render their testimonies false or incredible, for delay may be explained by the natural reticence of people and their abhorrence to get involved in a criminal case. More

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than this, there is always the fear of reprisal. This is a matter of judicial notice (People v. Navarro, 297 SCRA 331). Delay in reporting an incident of rape is not necessarily an indiction that the charge is fabricated; it is possible for a rape victim to go through what psychologists describe as a “state of denial” which is a way of coping with the overwhelming emotional stress of an extremely shocking event. Also, it may be on account of fear of the threats posed by her assailant. It must be viewed in the context of the victim’s perception and judgment not only at the time of the commission of the crime but also at the time of the time immediately thereafter. A rape victim is sometimes overwhelmed by fear rather than by reason. Ingal v. People (G.R No. 173282) Initial reluctance to volunteer information regarding a crime due to fear of reprisal is common enough that it has been judicially declared as not affecting a witness’ credibility. Also, people react differently to emotional stress. There is simply no standard form of behavioral response that can be expected from anyone when confronted with a strange, startling or frightful occurrence. See: People v. Teehankee, Jr. (249 SCRA 54); People v. Ortoa (GR. No. 176266); People v. Satioquia (414 SCRA 60); People v. Sanidad (402 SCRA 381) Delay by a witness in divulging what he or she knows about a crime is not by itself a setback to the evidentiary value of such witness’ testimony, where the delay is sufficiently justified by any acceptable explanation. Also, Fear of reprisal or social humiliation are sufficient explanations. Filipinas, especially those in the rural areas, are by nature shy and coy, and rape stigmatizes the victim, not the perpetrator. Delay is not a sign of fabrication. Positive and Negative Defenses In Philippine jurisprudence, a positive testimony normally enjoys more weight than a negative testimony. A testimony that a fact exists enjoys more weight than a testimony that asserts that the same act does not exist. Positive evidence is more credible than negative evidence. The reason for this rule is that the witness who testifies to a negative may have forgotten what actually occurred, while it is impossible to remember what never existed (Gomez v. Gomez-Samson, G.R. No. 156282). A denial evidence is the weakest defense and can never overcome a positive testimony particularly when it comes from the mouth of credible witness. Evidence that is negative

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is self-serving in nature and cannot attain more credibility than the testimonies of witnesses who testify on clear and positive evidence. It is inherently weak vis-à-vis positive identification. Factum Probans and Factum Probandum Evidence signifies a relationship between 2 facts: a. b.

The fact or proposition to be established (Factum probandum); and Facts or material evidencing the fact or proposition to be established (Factum probans).

Q: What is Factum Probandum? A: It refers to the fact to be proved; the fact which is in issue and to which the evidence is directed. Q: What is Factum Probans? A: It is the probative or evidentiary fact tending to prove the fact in issue. E.g. Kimmy claims to have been injured by the negligence of Dora who denies having been negligent, the negligence of Dora and the causal connection between such negligence, and the injuries of Kmmy taken as a whole, constitute the factum probandum of the suit. The evidence offered by Kimmy constitute the materials to prove liability of D. The totality of the evidence to prove the liability refers to the factum probans. Yet, factum probandum in some cases may be affected by the judicial admissions of a party. If the factum probandum “signifies the fact or proposition to be established,” then matters of judicial notice, conclusive presumptions and judicial admissions cannot qualify as parts of factum probandum of a particular case, because such matters need not be established or proved. Factum probandum refers to the elements of a cause of action from the point of view of the plaintiff and the elements of the defense from the standpoint of the defendant. Q: What are the factum probandum in a suit for a collection of money, in the absence of any admission by the defendant? A: 1. 2. 3. 4.

The existence of the debt of the defendant; The maturity of the debt; The demand made by the plaintiff upon the defendant to pay; and The failure to pay despite the demand.

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NOTES ON EVIDENCE Kenneth & King Hizon (3A)

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2. NOTE: From the side of the defendant, the fact of payment of the obligation or the prescription of the debt or the elements of any defense he may interpose would constitute the factum probandum. Q: Under Art. 2176 of the Civil Code, in every tort case, what should be proven by the plaintiff?

The delivery of the things sold and the payment therefor.

Q: Is the presentation of the informant in illegal drug cases indispensable for a successful prosecution? A: No, because his testimony would merely be corroborative and cumulative. Multiple admissibility

A: 1. The damages suffered by the plaintiff 2. The fault or negligence of the defendant or some other person for whose act he must respond 3. The connection of cause and effect between the fault and the damages incurred. Art. 2176, NCC

Q: When is there multiple admissibility? A: There are times when a proffered evidence is admissible for two or more purposes. Thus, depending upon the circumstances, the declaration of a declaration may be admissible for several purposes. It may be offered as a dying declaration, as part of the res gestae, or as a declaration against interest.

XXX

Q: In criminal cases, what does factum probandum include? A: In criminal cases, factum probandum includes all matters that the prosecution must prove beyond reasonable doubt in order to justify a conviction. Q: In case or robbery, what matters should be proven? A: 1. 2. 3. 4.

Evidence may also be admissible against one party but not against another. An extrajudicial statement of a robbery subject is not admissible against his co-accused under the res inter alios acta rule but may be admissible against the declarant himself as an admission pursuant to Sec. 26 of Rule 130. NOTE: If the testimony is offered to prove that the subject was completed pursuant to the contract, it cannot be offered to prove that the project was delayed.

That there be personal property belonging to another That there is unlawful taking of that property That the taking is with intent to gain That there is violence against or intimidation of persons or force upon things (Art. 293, RPC)

It must be noted that the purposes for which evidence is offered must be specified because such evidence may be admissible for several purposes under the doctrine of multiple admissibility, otherwise the adverse party cannot interpose the proper objection.

Q: How about in case of illegal possession of firearms and explosives?

Q: May a private document be offered and admitted in evidence both as documentary and as object evidence?

A: 1. The existence of the subject firearm or explosive which may be proved by the presentation of the subject firearm or explosive or by the testimony of witnesses who saw accused in the possession of the same; 2. The negative fact that the accused had no license or permit to own or possess the firearm or explosive which fact may be established by the testimony or certification of a representative of the PNP Firearms and Explosives Unit that the accused has no license or permit to possess the subject firearm or explosive.

A: A private document may be offered and admitted both as documentary evidence and as object evidence depending on the purpose for which the document is offered. If offered to prove its existence, condition or for any purpose other than the contents of a document, the same is considered as an object evidence. When a private document is offered as proof of its contents, the same is considered as a documentary evidence (Sec. 2, Rule 130 of Rules of Court).

Q: How about in case of prosecution for illegal sale of prohibited or dangerous drugs? A: 1. The identity of the buyer and the seller, the object, and the consideration

Q: To be part of the res gestae, what is the requirement? A: The statement should have been made by a person while a startling occurrence is taking place or immediately prior to or subsequent to such startling occurrence. Q: How about for a dying declaration?

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NOTES ON EVIDENCE Kenneth & King Hizon (3A)

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A: The statement should have been made while the declarant was conscious of an impending death. The facts of the case do not clearly show that this essential element of a dying declaration was met.

contradict or explain the alleged past acts he committed and to show evidence of past acts of diligence of the defendant to counteract the prejudice which the improperly admitted evidence may have caused.

Q: When A was stabbed on the chest during a street brawl, he instinctively shouted for help. B, who was nearby, heard the shout and immediately ran towards A who, upon inquiry by B, stated that C has stabbed him. What rule or rules of evidence could B’s testimony be received, if A dies?

NOTE: If the hearsay evidence prejudicial to the defendant is erroneously admitted despite the objection, under the principle of curative admissibility, the court shall allow hearsay evidence favorable to the same defendant.

A: The testimony could be admitted either as a dying declaration or as part of the res gestae.

Q: Does the doctrine of curative admissibility refer to a situation where incompetent evidence was erroneously received by the court despite the objection from the other party?

Conditional Admissibility Q: What is conditional admissibility? A: It happens frequently enough that the relevance of a piece of evidence is not apparent at the same time it is offered, but the relevance of which will readily be seen when connected to other pieces of evidence not yet offered. The proponent of the evidence may ask that the evidence be conditionally admitted in the meantime subject to the condition that he is going to establish its relevancy and competency at a later time. If the connection is not shown as promised, the court, may upon motion of the adverse party, strike out from the record the evidence that was previously conditionally admitted.

A: Local case law does not extensively address the matter but some American cases, they hold that the doctrine of curative admissibility, in its broadest form, allows a party to introduce otherwise inadmissible evidence when necessary to counter the effect of improper evidence previously admitted by the other party without objection. Another case also allowed curative evidence even if there was a failure to object to the objectionable document. It is submitted in our jurisdiction, the doctrine of curative admissibility should not be made to apply where the evidence was admitted without objection because the failure to object constitutes a waiver of the admissibility of the evidence. In our jurisdiction, admissible evidence not objected to become admissible.

Curative admissibility Q: What is the doctrine of curative admissibility? A: It allows a party to introduce otherwise inadmissible evidence to answer the opposing party’s previous introduction of inadmissible evidence if it would remove any unfair prejudice caused by the admission of the earlier inadmissible evidence (Adams v. Burlington, 1993). Thus, a party who first introduces either irrelevant or incompetent evidence into the trial cannot complain of the subsequent admission of similar evidence from the adverse party relating to the same subject matter. Q: In an action for damages arising from a car accident, the plaintiff, despite objections from the defendant, introduced evidence to show that in the past, the defendant had injured pedestrians because of his negligence. Is this evidence admissible? Discuss the effect of the doctrine of curative admissibility. A: This kind of evidence is admissible because evidence that a person did certain thing at one time is not admissible to prove that he did the same thing. If we follow the doctrine of curative admissibility, the court may be asked to give the party against whom the evidence was admitted the chance to

NOTE: An objection to an otherwise inadmissible evidence is not merely suggested but required by the Rules of Court. Sec. 36, Rule 130, Rules of Court: Objections to evidence offered orally must be made immediately after the offer is made and objections to questions propounded in the course of the oral examination of the witnesses shall be made as soon as the grounds therefor shall become apparent. NOTE: It is only where the objection was incorrectly overruled, the court should allow the other party to introduce evidence to contradict the evidence improperly admitted in order to cure the prejudice caused to the other party against whom the offered evidence was erroneously admitted. Common reason suggests that there is a waiver, there is no defect to cure. Q: What is the reason for the limitation as to the application of the doctrine of curative admissibility? A: If no limitations are placed on the doctrine of curative admissibility, the doctrine will predictably be open to abuse and will encourage counsel not to object to an admissible evidence to “open the door” for him to introduce

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inadmissible evidence. The more logical rule should be done which will not allow a party to be heard through the offering of inadmissible evidence if he declines or fails to timely object to the other party’s inadmissible evidence.

evidence because no greater degree of certainty is required when the evidence is circumstantial than when it is direct. In both types of evidence what is required is proof beyond reasonable doubt.

One American case puts it: “A breach of the rules of evidence by one party does not suspend those rules with respect to the other party”

People v. Darilay (421 SCRA 45) Direct evidence is not dispensable to prove a crime charged. It may be proved by circumstantial evidence.

Direct and Circumstantial Evidence Bastian v. CA (G.R No. 160811) Q: What is direct evidence? A: It means evidence which if believed, proves the existence of a fact in issue without inference or presumption. It proves a fact without the need to make an inference from another fact. Q: What is circumstantial evidence? A: It indirectly proves a fact in issue through an inference which the fact finder draws from the evidence established (People v. Matito).

Direct evidence of the commission of a crime is not the only basis on which a court draws its findings of guilt. Established facts that form a chain of circumstances can lead the mind intuitively or impel a conscious process of reasoning towards a conviction. If direct evidence is insisted on under all circumstances, the prosecution of vicious felons who commit heinous crimes in secret or secluded places will be impossible to prove (People v. Sevilleno). People v. Corpuz (412 SCRA 479)

When the evidence is circumstantial, a fact is established by making an inference from a previously established fact. The court, thus, uses a fact from which an assumption is drawn. Conviction by circumstantial evidence Q: In criminal cases, circumstantial evidence may be sufficient for conviction if certain requisites are present. What are they? A: 1. There is more than one circumstance 2. The facts from which inferences are derived are proven 3. The combination of all the circumstances is such as to produce a conviction beyond reasonable doubt. NOTE: A conviction based on circumstantial evidence must exclude each and every hypothesis consistent with innocence. Hence, if the totality of the circumstances eliminates beyond reasonable doubt the possibility of innocence, conviction is proper. People v. Bernal 388 SCRA 211 Circumstantial evidence may be a basis for conviction and such conviction can be upheld provided the circumstances proven constitute an unbroken chain which leads to one fair and reasonable conclusion that points to the accused to the exclusion of all others as the guilty person.

When the prosecution’s evidence rests on circumstantial evidence alone, it is imperative that the chain of circumstances establish the guilt of the accused beyond reasonable doubt. Accordingly, where the evidence admits 2 interpretations one of which is consistent with guilt and the other with innocence, the accused must be acquitted. Amora v. People (G.R. No. 154466) Direct evidence is not the sole means of establishing guilt beyond reasonable doubt. Established facts that form a chain of circumstances can lead the mind intuitively or impel a conscious process of reasoning towards a conviction. Indeed, rules on evidence and principles in jurisprudence have long recognized that the accused may be convicted through circumstantial evidence. Q: When is circumstantial evidence resorted to? A: When to insist on direct testimony would ultimately lead to setting felons free. For it to be sufficient, the following requisites must be present: Xxx c. The combination of all circumstances results in a moral certainty that the accused, to the exclusion of all others, is the one who has committed the crime. People v. Ochate 385 SCRA 353

Circumstantial evidence is not a weaker defense vis-à-vis direct evidence. As to probative value, the Court considers circumstantial evidence of a nature identical to direct

Q: In the appreciation of circumstantial evidence, what are the 4 guidelines?

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A: 1. 2. 3. 4.

It should be acted upon with caution; All the essential facts must be consistent with the hypothesis of guilt; The facts must exclude every other theory but that of guilt; and Facts must establish such a certainty of guilt of the accused to convince a judgment beyond a reasonable doubt that the accused is the one who committed the offense. Flight or non-flight of the Accused

The fact that the appellants never fled the locality where the crime was committed is not by itself a valid defense against the prosecution’s allegations because non-flight does not signify innocence. Non-flight is simply inaction. While flight indicates guilt, non-flight does not mean innocence (Gulmatico v. People). The defense of non-flight cannot prevail against the weight of positive identification of the appellants (People v. Dacibar). Flight alone is not a reliable indicator of guilt without other circumstances because flight alone is inherently ambiguous (Valdez v. People). Yet, in a case where the accused escaped from detention during the pendency of the case, flight was considered as an indication of guilt or of his guilty mind: “xxx the wicked flee even when no man pursues, but the righteous stand fast as bold as a lion (People v. Isang).

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Corroborative testimony is not always required. There is no law which requires that the testimony of a single witness has to be corroborated, except where expressly mandated in determining the value and credibility of evidence. Witnesses are to be weighed, not numbered (People v. Pabalan). The testimony of a sole eyewitness is sufficient to support conviction so long as it is clear, straightforward and worthy of credence by the trial court (People v. Rama). Q: When is corroborative evidence necessary? A: It is only when there are reasons to suspect that the witness falsified the truth or that his observations are inaccurate (Mangangey v. Sandiganbayan). Corroboration of the testimony of a child witness Under the Rule on Examination of a Child Witness, corroboration shall not be required of a testimony of a child. His testimony if credible by itself, shall be sufficient to support a finding of fact, conclusion, or judgment subject to the standard of proof required in criminal and non-criminal cases (People v. Rama). Positive and Negative Evidence These categories of evidence have been normally associated with testimonial evidence but there is no rule which precludes their application to other forms of evidence. Q: When is it considered as positive evidence?

Cumulative Evidence v. Corroborative Evidence Q: What is cumulative evidence? A: It refers to evidence of the same kind and character as that already given and that tends to prove the same proposition. E.g. Subsequent testimonies of B and C after the testimony of A.

A: It is positive when a witness affirms in the stand that a certain state of facts does not exist or that a certain event happened. Q: When is it considered as negative? A: When the witness states that an event did not occur or that the state of facts alleged to exist does not actually exist.

Q: What is corroborative evidence? A: It is one that is supplementary to that already given tending to strengthen or confirm it. It is additional evidence of a different character to the same point. It is such evidence which tends to confirm, validate, or strengthen evidence already presented. E.g. Findings of the crime laboratory that the gun bears only the fingerprints of the accused which is collaborative of the testimony of A. Note: It is usually different from that previously offered but tends to prove the same fact. E.g. testimonial evidence from an eye witness and testimony from an expert who did not personally witness the signing of the document.

NOTE: Positive and negative evidence may likewise refer to the presence or absence of something. Thus, the presence of fingerprints of a person in a particular place is positive evidence of his having been in said place although absence of his fingerprints does not necessarily mean he was not in the same place. Q: Is a negative finding on a paraffin test a conclusive evidence that one has not fires a gun? A: No, because it is possible for a person to fire a gun and yet bear no traces of nitrates or gunpowder as when the culprit washes his hands or wears gloves (People v. Cerilla, November 28, 2007).

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Q: Is denial a negative or positive evidence?

Q: What is an ex post facto law?

A: It is a negative evidence. It is considered by the Court to be a very weak form of defense and can never overcome an affirmative or positive testimony particularly when the latter comes from the mouth of a credible witness. It is a negative and a self-serving which cannot be given greater weight than the testimony of credible witnesses who testified on affirmative matters (People v. Malicsi, 2008; People v. Mendoza, 450 SCRA 328).

A: It includes that which alters the rules of evidence and receive less or different testimony than that required at the time of the commission of the offense in order to convict the accused (Mekin v. Wolfe, 2 Phil 74).

NOTE: A mere denial, without any strong evidence to support it, can scarcely overcome the positive declaration by the other victim of the identity and involvement of the accused in the crime attributed to him (People v. Nieto, 547 SCRA 511).

A: Yes. When an otherwise objectionable evidence is not objected to, the evidence becomes admissible because of waiver.

Waiver of Rules of Evidence Q: May the rules of evidence be waived?

Q: May the parties stipulate waiving the rules of evidence? Greater probative value is given to evidence that is positive in nature that that which is accorded to evidence that is negative in character. Q: What is the rule regarding contradictory declarations and statements? A: Greater weight is generally given to positive testimonies than to mere denials. Liberal Construction of the Rules of Evidence

A: Art. 6 of the NCC Art. 6. Rights may be waived, unless the waiver is contrary to law, public order, public policy, morals, or good customs, or prejudicial to a third person with a right recognized by law. (4a). As long as no law or principles of morality, good customs and public policy are transgressed or no rights are violated, the rules of evidence may be waived by the parties.

Q: How should the rules of evidence be construed? A: Like all other provisions under the Rules of Court, the rules of evidence must be liberally construed. Rules of Procedure are merely tools intended to facilitate rather than to frustrate the attainment of justice. Strict and rigid application of the rules must always be eschewed if it would subvert their primary objective of enhancing substantial justice. Q: What is the rule in the relaxation of the rules? A: A satisfactory explanation and a subsequent fulfillment of the requirements have always been required (Barcenas v. Tomas, 454 SCRA 593). Absence of a vested right in the rules of evidence

B. Admissibility of Evidence Rule 128 Sec. 3.Admissibility of evidence. — Evidence is admissible when it is relevant to the issue and is not excluded by the law of these rules. (3a) Q: What elements should be present for an evidence to be admissible? A: 1. The evidence is relevant 2. The evidence is not excluded by the rules (competent)

Q: Is there a vested right in the rules of evidence? Q: What are the two axioms of admissibility by Wigmore? A: No, because the rules of evidence are subject to change by the SC pursuant to its powers to promulgate rules concerning pleading, practice and procedure. Q: What is the rule regarding the change in the rules of evidence?

A: 1. That none but facts having rational probative value are admissible 2. That all facts having rational probative value are admissible unless some specific rule forbids them.

A: It is subject to the constitutional limitation on the enactment of ex post facto laws.

NOTE: The first axiom is, in substance, the axiom of relevance while the second axiom is of competence.

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Q: Will relevancy alone make the evidence admissible?

2.

A: No. An item of evidence may be relevant but not admissible. It is not admissible because although relevant, it may be incompetent, i.e., it is excluded by law or by a particular rule or by both.

Q: Does it include the unlawful recording of open and public communications?

Illustrations 1.

2.

3.

4.

In a prosecution for homicide, the witness swears that the accused killed the victim because his ever truthful boyfriend told him so. The testimony although relevant is not admissible because the witness was not testifying based on his personal knowledge of the event. The testimony offered is relevant but incompetent. In the prosecution for robbery, the wife of the accused testified that the husband admitted to her in confidence that it was he who killed their neighbor. This testimony is not admissible. A defense witness testifies having actually seen the alleged victim fire a gun at the accused without the latter’s provocation. The testimony is competent and relevant. Documents obtained in violation of constitution guarantees although containing relevant matters are inadmissible because they are illegally obtained as when evidence is illegally seized.

A: No. What the law protects are private conversations and communications. NOTE: It is considered unlawful to: a. b. c.

A: 1. 2. 3. 4.

Judicial Quasi-judicial Legislative administrative

secretly overhear intercept record private communication or spoken word when doing so is without the authority of all the parties to such private communication.

If there is only one party authorizes the recording and the other does not, there is a violation of law. Salcedo-Ortanez v. CA Absent a clear showing that both parties to the telephone conversations allowed the recording of the same, the inadmissibility of the subject tapes is mandatory under R.A. 4200.

Inadmissible Evidence under Anti-Wiretapping law (RA 4200) Q: To what proceedings this rule apply?

the existence, contents, substance, purport, effect, or meaning of the communication or spoken word or any part thereof.

People v. Navarro This case involves the killing of a reporter preceded by a heated altercation between the accused and the victim in front of several people in a police station. The SC ruled that the tape recording is admissible and is not a transgression of the provisions of R.A. 4200 because the recorded altercation is not a private communication. Since the heated discussion occurred in the presence of other persons, it could not be private. Q: What are the modes of recording private conversations?

Q: Is it applicable in impeachment proceedings? A: A: It is not yet well-settled. According to Chief Justice Puno in the case Francisco v. House of Representatives, impeachment proceedings are sui generis. Q: What do you mean by sui generis?

1. 2. 3. 4.

A: It means “of its own kind or class, i.e., the only one of its kind; peculiar.

Q: Is a telephone extension line embraced by the any devise otherwise described?

Q: What are the kinds of evidence the above rule cover?

A: Yes. An extension telephone line cannot be placed under the category of the enumerated devices (Ganaan v. IAC).

A: 1. any communication or spoken word

To tap any wire or cable; To use a Dictaphone; To use a tape recorder; or To use any device otherwise described.

The law considers it unlawful to knowingly possess any tape record, wire record, disc record, or any such record, or copies thereof of any communication or spoken word secured or

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obtained in a manner violative of the law. It is even also unlawful to communicate the contents thereof either verbally or in writing to another.

2.

The acts mentioned as punishable would not constitute a violation of the law if done by a peace officer authorized by a written order of the court in cases involving:

3.

a. b. c. d. e. f. g. h. i. j. k. l.

Treason Espionage Provoking war and disloyalty in case of war Piracy Mutiny in the high seas Rebellion Conspiracy and proposal to commit rebellion Inciting to rebellion Sedition Conspiracy to commit sedition Inciting to sedition and Kidnapping

Surveillance of suspects and interception and recording of communications under the Human Security Act of 2007 Under the Human Security Act of 2007, the provisions of R.A. No. 4200 notwithstanding, a police or law enforcement official may listen to, intercept, and record any communication, message, conversation, discussion or written or spoken words between: a. b.

Members of a judicially declared and outlawed terrorist organization, association, or Group of persons or of any person charged with or suspected of the crime of terrorism or conspiracy to commit terrorism.

Probable cause to believe that evidence essential to the conviction of the charged or suspected person, or evidence that would solve or prevent the crime will be obtained; and There is no other effective means readily available for acquiring such evidence.

The authorization shall be effective in the written order which shall not exceed 30 days from the date of receipt of the written order by the applicant. It may be renewed for a nonextendible period of 30 days upon proper application under the conditions set forth on Sec.9, No. 9373. The person under surveillance or whose communications are intercepted has the right to be informed of the acts done by the law enforcement authorities or to challenge the legality of the interception before the CA which issued the written order. Inadmissible evidence in connection with arrests, searches and seizures People v. Aminnudin This case demonstrates the inadmissibility of evidence due to the legal infirmity of an arrest for noncompliance with the requisites of the flagrante delicto exception. Accordingly, the accused was not, at the moment of his arrest, committing crime nor was it shown that he was about to do so or that he had just done so. He was like any of the other passengers innocently disembarking from the vessel. Also, from the information received by the officers, they could have obtained a warrant since they had at least 2 days to comply with the bill of rights. See: People v. Molina (352 SCRA 174)

Q: Is the written order f the CA necessary? Malacat v. CA A: Yes. Such written order of a division of the CA shall be granted only upon a written application by a police or law enforcement official. This official must be one who is authorized by the Anti-Terrorism Council to file such application. Note that Sec. 8 of R.A. No. 9371 requires only an ex parte application. Q: For the written order to be issued, what are the matters to be established?

A warrantless arrest cannot be justified where no crime is being committed at the time of the arrest because no crime may be inferred from the fact that the eyes of the person arrested were “moving fast” and “looking at every person “ passing by. See: People v. Mengote (210 SCRA 174) People v. Laguio (G.R. No. 128587)

A: 1.

There is probable cause to believe that the crime of terrorism or conspiracy to commit terrorism has been committed, or is being committed, or is about to be committed. The finding of probable cause must be shown based upon the personal knowledge of the applicant of facts and circumstances indicating the same.

Reliable information alone, absent any overt act indicative of a felonious enterprise in the presence and within the view of the arresting officers, is not sufficient to constitute probable cause that would justify an in flagrante delicto arrest. Valdez v. People (G.R. No. 170180)

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Flight is not a reliable indicator of guilt. When petitioner was arrested without a warrant, he was neither caught in flagrante delicto committing a crime nor was the arrest affected in hot pursuit.

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)

People v. Dela Cruz (G.R. No. 182348)

Evidence to be relevant must have such a relation to the act in issue as to induce the belief in its existence or nonexistence.

Q: What are the elements of illegal possession of dangerous drugs?

Q: Explain the concept of relevance. A: 1. 2. 3.

The accused is in possession of an item or object which is identified to be a prohibited drug; Such possession is not authorized by law; and The accused freely and consciously possessed the said drug. The possession must be with knowledge of the accused or animun possidendi existed with the possession or control of said articles.

In this case, since the accused was not in possession of the illegal drugs when he was arrested, his arrest was illegal and the confiscated drugs cannot be used in evidence against him.

A: It deals with the rational relationship between the evidence and the fact to be proved. Thus, the evidence adduced should be directed to the matters in dispute and any evidence which has neither direct nor indirect relationship to such matters must be set aside as irrelevant. NOTE: The matter of relevance requires the existence of a fact in issue. This fact in issue must be a disputed fact. Thus, it is obvious that the evidence offered to prove an undisputed fact is irrelevant, and as such, is inadmissible. Where there is no issue as to a matter of fact, there exists no purpose for an item of evidence. Q: What is the test for relevance?

Constructive possession In People v. Torres (501 SCRA 591), it was held that there was constructive possession even when the accused was not at home when the prohibited drugs were found in the master’s bedroom of his house. In People v. Tira (430 SCRA 134), there was constructive possession when illegal drugs were found concealed in the bed and room of both accused. People v. Lagman The finding of illicit drugs and paraphernalia in a house or building occupied by a particular person raises the presumption of knowledge and possession thereof. Also, illegal possession of regulated drugs is mala prohibita, and as such, criminal intent is not an essential element, but the prosecution must prove the intent to possess. Possession is not only actual. It may be constructive. Q: When does constructive possession exist? A: It is when he has the right to exercise dominion and control over the place where it is found. Exclusive possession or control is not necessary.

A: If the evidence induces belief as to the existence or the non-existence of the fact in issue, the evidence is relevant. If it does not issue such belief, it is irrelevant. NOTE: Although competency of the evidence is a necessary component of admissible evidence, the question that most often arises in court is the relevance of the evidence. When an advocate offers a piece of evidence for the court’s consideration, he offers the evidence to prove a fact. This may either be: a. Immediate fact in issue b. Ultimate fact in issue Q: Jollibee is indebted to BDO. When the obligation falls due, he fails to pay and the bank sues for collection. As part of the evidence of BDO, the accountant of Jollibee is placed on the stand and in the course of his examination he asked if he, in turn, is also indebted to BDO. The lawyer of Jollibee interposes an objection to the question that it is impertinent. How would you rule on the objection? A: The objection of Jollibee that the question is impertinent or irrelevant should be sustained. The issue in the case is the indebtedness of Jollibee to BDO and not the indebtedness of the accountant of Jollibee to the bank. Test for determining the Relevancy of Evidence

Relevant Evidence Sec. 4.Relevancy; collateral matters. — Evidence must have such a relation to the fact in issue as to induce belief in its

Q: What should be the test in determining the relevancy of evidence?

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A: The relevance is a matter of relationship between the evidence and a fact in issue. The determination of relevance is thus, a matter of inference and not of law. The test would therefore be one of logic, common sense and experience.

Q: What are the instances that questions of the crossexaminer are circumscribed by the matters taken up in the direct examination and thus questions outside the subject matter of direct examination are not allowed?

NOTE: The matter of relevance is a matter that is addressed to the Court (People v. Galleno, 291 SCRA 761). Accordingly, there is no precise and universal test of relevancy provided by law. However, the determination of whether particular evidence is relevant rests largely at the discretion of the court, which must be exercised according to the teachings of logic and everyday experience.

A: 1. An accused may testify as a witness on his own “behalf but subject to cross-examination on matters covered by direct examination” (Sec. 1 [d], Rule 115). 2. A hostile witness may be impeached and cross-examined by the adverse party, but such cross examination must only be the subject of his examination-in-chief (Sec. 12, Rule 132).

Relevance of Evidence on the Credibility of Witness Competent Evidence Q: Evidence on the credibility or lack of it of a witness is always relevant. What is the purpose of the same? A: In every proceeding, the credibility of the witness is always an issue. The credibility of the witness has the inherent tendency to prove and disprove the truthfulness of his assertion and consequently, the probative value of the proffered evidence. Q: What if the credibility of a witness is found wanting? A: Sec. 11 of Art. 132, authorizes his impeachment by contradictory evidence, by evidence that in the past, he has made statements inconsistent with his present testimony or by evidence that his general reputation for truth, honesty or integrity is bad. Q: How should the court assess the testimony of a witness? A: The Court shall be guided by the rule that for evidence to be believed, it must not only proceed from the mouth of credible witness, but must be credible in itself such as the common experience of mankind can approve as probable under the circumstances.

Q: What is a competent evidence? A: Competent evidence is one that is not excluded by law in a particular case. Q: What is the test of competence? A: It is the law or the rules. If the law or a particular rule excludes the evidence, it is incompetent. NOTE: Competence, in relation to evidence in general, refers to the eligibility of an evidence to be received as such. However, when applied to a witness, the term competent refers to the qualifications of the witness. In other words, competence refers to his eligibility to take the stand and to testify. It is in the context that the term is normally associated with. Q: Is objection on the ground that it is incompetent an accepted form of objection? A: No, because it is a general objection. The objection should specify the ground for its incompetence such as leading, hearsay or parol.

Q: What is the purpose of cross-examination? A: The importance of the credibility of a witness in a judicial proceeding is highlighted by rules which allow the adverse party to test such credibility through a process called crossexamination. NOTE: The adverse party can test the credibility of the witness through cross-examination not only on matters taken up in the direct examination. The broad spectrum of the questions allowable in a cross examination of a witness includes questions on matters connected with those taken up by direct examination. It includes questions designed to grant the cross-examiner sufficient fullness and freedom to test the accuracy and truthfulness if the witness, his interest or bias, or the reverse (Sec. 6, Rule 132).

Note that courts neither need nor appreciate generalities. General objections are viewed with disfavor because specific objections are required by Sec. 36, Rule 132. Thus, for purposes of trial objections, evidence is never incompetent. It is people who are. It is a sloppy usage to object to a testimony or a document as incompetent. Such term more appropriately describes a witness who under evidentiary rules, does not possess the qualifications of a witness or suffers from disqualification to be one. Competence of electronic evidence Electronic evidence is competent evidence and is admissible if it complies with the rules on admissibility prescribed by the Rules of Court and is authenticated in the manner prescribed (Sec. 2, Rule 3, Rules on Electronic Evidence).

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NOTES ON EVIDENCE Kenneth & King Hizon (3A)

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Competency of witness v. Credibility of witness Collateral matters Q: When is a matter collateral? A: A matter is collateral when it is on a “parallel or diverging line, merely “additional” or “auxiliary.” This term connotes an absence of a direct connection between the evidence and the matter in dispute. For instance, the motive of a person and in some instances, his reputation are matters that may be considered collateral to the subject of a controversy. A very strong motive to kill the victim does not ipso facto make motive relevant to the issue of guilt or innocence because the person with absolutely no motive to kill could be the culprit. Evidence of the bad reputation of the accused for being troublesome and aggressive does not make the evidence admissible to prove his guilt. After all, the culprit could have been the person with the most endearing reputation. When collateral matters are allowed

Also, the competency of witness differs from his credibility. A witness may be competent, and yet give incredible testimony; he may be incompetent, and yet his evidence if received, is perfectly credible. Admissibility and weight of the evidence Admissibility Refers to the question of whether certain pieces of evidence are to be considered at all Depends on its relevance and competence

Jurisprudential tenets on probative value and credibility 1.

2. A: As a rule, evidence on a collateral matte is not allowed. It is not allowed because it does not have the direct relevance to the issue of the case. 3.

A: No. A collateral matter may be admitted if it ends in any reasonable degree to establish the probability or improbability of the fact in issue. While the evidence may not bear directly on the issue, it will be admitted if it has the tendency to induce belief as to the probability or improbability of the issues of the case as when it would have the effect of corroborating or supplementing facts previously established by direct evidence. In civil cases, evidence of the moral character of a party is admissible when pertinent to the issue of character involved in the case. Also, evidence of the good character has been previously impeached.

4.

5.

Admissible evidence distinguished from credible evidence ADMISSIBLE EVIDENCE Means that the evidence is of such character that the court is bound to receive it or allow it to be introduced at the trial. It does not, however, guarantee credibility.

CREDIBLE EVIDENCE Refers to the worthiness of belief, that quality which renders a witness worthy of belief. It means “believability.”

Pertains to its tendency to convince and persuade

NOTE: To admit evidence and not believe it are not incompatible with each other.

Q: Are collateral matters allowed?

Q: Is this rule absolute?

Probative value Refers to the question of whether the admitted evidence proves an issue.

6.

Whether or not a witness or evidence is credible is an issue addressed to the judgment of the trial court (People v. Castro, 2008). The determination of the credibility of a witness is within the domain of the trial court (Llanto v. Alzona, 450 SCRA 288) and is given great weight and respect because the trial court has the opportunity to observe the witness and their demeanor during the trial. However, where the trial judge did not hear the testimonies himself, he would not be in a better position than SC to assess the credibility of witnesses on the basis of their demeanor (BPI v. Reyes, 2008). It had the unique advantage of having personally observed the witnesses, their demeanor, conduct, and attitude (People v. Nueva, 2008). Testimonies or child-victims are normally given full weight and credit, since where a woman, more so if he is a minor, says that she is raped, she says in effect all that is necessary to show that rape was committed. There could not have been a more powerful testament to the truth than this “public baring of unspoken grief” (People v. Aguilar, 2007). No woman, much less one of tender age, would broadcast a violation of her person, allow an examination of her flesh, and endure public trial of her remaining dignity, unless she is solely impelled by the desire for redress. Thus, when her testimony is plausible, spontaneous, convincing and consistent with human nature and the ordinary course of things, it can indeed beget moral certainty of the guilt of the violator. The court will not disturb the factual finding of the trial court unless there is a showing that the latter had overlooked, misunderstood, or misapplied some fact or circumstance of weight and substance that would have affected the result of the case.

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7.

8.

9.

10.

11.

12.

13.

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Minor inconsistencies are too trivial to affect the credibility of witness, and these may even serve to strengthen their credibility as these negate any suspicion that the testimonies have been rehearsed (Ingal v. People, 2008) Accuracy in accounts had never been applied as a standard to which credibility of witnesses are tested since it is undeniable that human memory is fickle and prone to stresses and passage of time (People v. Tolentino, 2008). Inconsistencies between the sworn statement and the testimony in court do not militate against the witness; credibility since the sworn statements are generally considered inferior to the testimony in open court (People v. Bajada, 2008). The factual findings of quasi-judicial agencies are generally accorded respect and even finality by the SC if supported by substantial evidence in recognition of their expertise on specific matters under consideration (Quiambao v. CA, 454 SCRA 17). A community tax receipt is not credible and reliable in proving the identity of a person who wishes to have his document notarized (Baylon v. Almo, 2008). In determining the value and credibility of evidence, witnesses are to be weighed, not numbered (Bastian v. CA, 2008). The testimony of a single witness, if positive and credible, is sufficient to support a conviction even in the charge of murder (People v. Zeta, 2008).

Chapter II JUDICIAL NOTICE AND ADMISSIONS

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. (n) NOTE: There are matters in litigation which must be admitted without need for evidence. Examples: 1. That a place where the crime was committed, such as Quezon City actually exists 2. There is no need to adduce evidence that the statute allegedly violated exist because the court is charged with knowledge of the law it being the product of an official act of the legislative department of the Philippines 3. There is likewise no need to adduce evidence that there are 24 hours in a day and that the sun rises in the east and sets in the west. 4. The fact the Cebu lies in the Visayan Region needs no further evidence. Q: What is the basis of judicial notice? A: It is based on the maxim, “what is known need not be proved,” hence when the rule is invoked, the court may dispense with the presentation of evidence on judicially cognizable facts. Function of Judicial notice

A. Judicial Notice Q: What is the function of judicial notice? RULE 129 SECTION 1.Judicial notice, when mandatory. — A court shall take judicial notice, without the introduction of evidence, of the existence and territorial extent of states, their political history, forms of government and symbols of nationality, the law of nations, the admiralty and maritime courts of the world and their seals, the political constitution and history of the Philippines, the official acts of legislative, executive and judicial departments of the Philippines, the laws of nature, the measure of time, and the geographical divisions. (1a)

A: To abbreviate litigation by the admission of matters that need no evidence because judicial notice is a substitute for formal proof of a matter by evidence. It takes the place of proof and is of equal force. Evidence shall be dispensed with because the matter is so well known and is of common knowledge not to be disputable. NOTE: Judicial notice cannot be used to fill in the gaps in the party’s evidence. It should not be used to deprive an adverse party of the opportunity to prove a disputed fact. Q: What are the kinds of judicial notice?

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)

A: 1. Mandatory- no motion or hearing is necessary for the court to take judicial notice of a fact because this is a matter which a court ought to take judicial notice of. 2. Discretionary

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NOTES ON EVIDENCE Kenneth & King Hizon (3A)

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Q: What matters are subject to mandatory judicial notice?

2.

A: 1. The existence and territorial extent of states 5. seals 6. The political constitution and the history of the Philippines 7. The official acts of the legislative, executive and judicial departments of the Philippines 8. The law of nature 9. The measure of time 10. The geographical divisions

3. 4.

Siena Realty Corporation v. Gal-lang Even if petitioners did not raise or allege the amendment of the Rules of Court in their motion for reconsideration, the CA should have taken mandatory judicial notice of the same. Under Sec.1 of Rule 129, a court shall take judicial notice among others, of the official acts not only of the legislative and executive departments but also of the judicial department. DENR v. DENR Region 12 Employees A court has the mandate to apply relevant statutes and jurisprudence in determining whether the allegation in a complaint establish a cause of action. A court cannot disregard decisions material to the proper appreciation of the questions before it. Candido v. CA A document, or any article for that matter, is not evidence when it is simply marked for identification; it must be formally offered, and the opposing counsel given an opportunity to object to it or to cross-examine the witness called upon to prove or identify it. A formal offer is necessary since judges are required to base their findings of fact and judgment only and strictly upon the evidence offered by the parties at the trial. Xxx The appellate court will have difficulty reviewing documents not previously scrutinized by the court below. The pertinent provisions of the Revised Rules of Court on the inclusion on appeal of documentary evidence or exhibits in the records cannot be stretched as to include such pleadings or documents not offered at the hearing of the case. Suplico v. NEDA In this case the Court took judicial notice of the declaration of the President that the Philippine government had decided not to continue with the ZTE-NBN Project due to several reasons and constraints. They are official acts and thus, a matter of mandatory judicial notice under Sec. 1 of Rule 129.

The political history, forms of the government and symbols of nationality of sates The law of nations The admiralty and maritime courts of the world and their

Q: When is judicial notice is discretionary? A: A court may take judicial notice of matters which are of public knowledge, or are capable of unquestionable demonstration, or ought to be known to judges because of their judicial functions (Sec. 2, Rule 129). Q: What are the requisites for the principles of discretionary judicial notice to apply? A: 1. The matter must be one of common knowledge 2. The matter must be settled beyond reasonable doubt 3. The knowledge must exist within the jurisdiction of the court. NOTE: The principal guide in determining what facts may be assumed to be judicially known is that of notoriety. Judicially noticed fact must be one not subject to a reasonable dispute that is either: a. Generally known within the territorial jurisdiction of the trial court b. Capable of accurate and ready determination by resorting to sources whose accuracy cannot reasonably be questionable. Facts which are universally known, and which may be found in encyclopedias, dictionaries and other publications, are judicially noticed, provided they are of such universal notoriety and so generally understood that they may be regarded as forming part of common knowledge of every person. On the other hand, matters which are capable of unquestionable demonstration pertain to fields of professional and scientific knowledge. As to matters which ought to be known to judges because of their judicial functions, an example would be facts which are ascertainable from the record of the court proceedings, e.g., as to when the court notices were received by a party (People v. Tundag, 342 SCRA 704). Q: Can a court take judicial notice of a factual matter in controversy? A: No. Before taking such judicial notice, the court must “allow the parties to be heard thereon” (Herrera v. Bollos, 374 SCRA 107). Q: Where does the discretion lie?

When judicial notice is discretionary

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A: Judicial notice rests on the wisdom and discretion of the court. The power to take judicial notice must be exercised with caution and care must be taken that the requisite notoriety exists.

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A: No. A judge must take judicial notice of a fact if it is one which is the proper subject of judicial cognizance even if it is not within the personal knowledge.

Q: In case of doubt, how should the court resolve the same?

A judge may not take judicial notice of a fact which he personally knows if it is not part of evidence or not a fact generally known within its territorial jurisdiction.

A: Any reasonable doubt on the matter sought to be judicially noticed must be resolved against the taking of judicial notice (State Prosecutors v. Muro, 236 SCRA 505).

Q: What is the rule on foreign laws?

NOTE: To say that a court will take judicial notice of a fact is merely another way of saying that the usual form of evidence will be dispensed with if knowledge of the fact can be otherwise acquired. This is because the court assumes that te matter is so notorious that it will not be disputed (Land Bank of the Philippines v. Wycoco, 419 SCRA 67). 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. (n)

A: Courts of the forum will not take judicial notice of the law prevailing in another country. Foreign laws must be alleged and proved. Stage when judicial notice may be taken The court can take judicial notice of a fact during or after trial: 1. Judicial notice may be taken during the trial of the case. The court, during the trial, may announce its intention to take judicial notice of any matter. It may do so on its own initiative or on the request of any party and allow the parties to be heard. Q: In the above rule, what is the purpose of the hearing? A: Only for the purpose of determining the propriety of taking judicial notice of a certain matter and not for the purpose of proving the issues in the case.

Q: Can market value be judicially noticed? 2. A: While the market value may be one of the bases in determining just compensation, the same cannot be arbitrarily arrived at without considering the factors to be appreciated in arriving at the FMV of the property. The court should have allowed the parties to present evidence thereon instead of practically assuming a valuation without the basis. Judicial knowledge and knowledge of the Judge Judicial notice may be taken of a fact which judges ought to know because of their judicial functions (Sec. 2, Rule 129). Q: Is judicial notice the same as judicial knowledge? A: No. The mere personal knowledge of the judge is not the judicial knowledge of the court, and he is not authorized to make his individual knowledge of a fact, not generally or professionally known, the basis of his action (Land Bank of the Philippines v. Wycoco, 419 SCRA 67; State Prosecutors v. Muro, 236 SCRA 505). Q: Is judicial notice limited by the actual knowledge of the individual judge or court?

Judicial notice may also be taken by the proper court after the trial, and before judgment. Judicial notice may also be taken on appeal. The proper court, on its own initiative or on request of any party, may take judicial notice of any matter and allow the parties to be heard thereon if such matter is a decisive of a material issue in the case. Judicial notice of foreign laws; Doctrine of Processual Presumption

Q: What is the rule on foreign laws? A: It is well-settled that our courts cannot take judicial notice of foreign laws. Like any other facts, they must be alleged and proved. Australian marital laws for example, are not among those matters that judges are supposed to know by reason of their juridical functions (Garcia v. Garcia-Recio, 366 SCRA 437). Q: The rule is foreign laws must be alleged and proved. What is the effect of the absence of proof? A: Then, the foreign law will be presumed to be the same as the laws of the jurisdiction hearing the case under the doctrine of processual presumption (Northwest Orient Airlines v. CA, 241 SCRA 192).

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Q: What are the exceptions to this rule? Q: What if the foreign law is within the actual knowledge of the court such as when the law is generally well known? A: The court may take judicial notice of the foreign law (PCIB v. Escolin, 56 SCRA 266). NOTE: When the foreign law is part of a published treatise, periodical, or pamphlet and the writer is recognized in his profession, or calling as expert in the subject, the court may take judicial notice of the treatise containing the foreign law.

A: 1.

2.

Judicial notice of the Law of Nations Q: What is the rule regarding Judicial notice of the Law of Nations? A: When the foreign law refers to the law of nations, said law is subject to a mandatory judicial notice under Se. 1 of Rule 129. Under Sec. 2, Art. II of the Constitution, the Philippines adopts the generally accepted principles of international law as part of the law of the land. Judicial notice of Municipal Ordinances

When in the absence of any objection, with knowledge of the opposing party, the contents if said other cases are clearly referred to by title and number in a pending action and adopted or read into the record of the latter When the original record of the other case or any part of the other case or any part of it is actually withdrawn from the archives at the court’s discretion upon the request, or with the consent, of the parties, and admitted as part of the record of the pending case (Tabuena v. CA, 196 SCRA 650). Rule on Judicial Notice of Post office practices

That a registered letter when posted is immediately stamped with the date of its receipt, indicating therein the number of registry, both on the covering envelope itself and on the receipt delivered the letter to the office is not a proper subject of judicial notice. This post office practice is not covered by any of the instances under the Rules and is not of unquestionable demonstration (Republic v. CA, 107 SCRA 504).

Q: What is the rule regarding Judicial notice of Municipal Ordinances?

Judicial notice of banking practices

A: MTCs must take judicial notice of municipal ordinances in force in the municipality in which they sit (U.S. v. Blanco, 37 Phil 126).

Q: May judicial notice be taken of the practice of banks in conducting background checks on borrowers and sureties?

An RTC must also take judicial notice of municipal ordinances in force in the municipalities within their jurisdiction but only so required by law (City of Manila v. Garcia, 19 SCRA 413).

A: Yes. It is noted that it is their uniform practice, before approving a loan, to investigate, examine, and assess wouldbe borrowers’ credit standing or real estate offered as security for the loan applied for (Solidbank Corp. v. Mindanao Ferroalloy Corp., 464 SCRA 409).

The CA may take judicial notice of municipal ordinances because nothing in the Rules prohibits it from taking cognizance of an ordinance which is capable of unquestionable demonstration (Gallego v. People, 8 SCRA 813). Judicial notice of a Court’s Own acts and records A court may take judicial notice of its own acts and records in the same case (Republic v. CA, 277 SCRA 633). Q: What is the rule regarding contents of the records of other cases?

Judicial notice of financial condition of the government Judicial notice could be taken of the fact that the government is and has for many years been financially strapped, to the point that even the most essential services have suffered serious curtailment (La Bugal-B’laan Tribal Association v. Ramos, 445 SCRA). NOTICE: The official acts of the legislative, executive and judicial departments are proper subjects of mandatory judicial notice (DENR v. DENR Region 12 Employees). Judicial notice of other matters

A: The court is not authorized to take judicial notice of the contents of the records of other cases, even when such cases have been tried or are pending in the same court, and notwithstanding the fact that both cases may have been heard or are actually pending before the same judge (Tabuena v. CA, 196 SCRA 650).

1.

2. 3.

The trial courts can take judicial notice of the general increase in rentals of real estate especially of business establishments. A court cannot take judicial notice of an administrative regulation or of a statute that is not yet effective. Judicial notice of the age of the victim is improper.

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4.

In this age of modern technology, the courts may take judicial notice that business transactions may be made by individuals through teleconferencing. (Expertravel and Tours v. CA, 459 SCRA 147). 5. It can be judicially noticed that the scene of the rape is not always nor necessarily isolated or secluded, for lust is no respecter of time or place (People v. Tundag, 342 SCRA 147). 6. The court has likewise taken judicial notice of the Filipina’s inbred modesty and shyness and her antipathy in publicly airing acts which blemish her honor and virtue. 7. The trial court properly took judicial notice that Talamban, Cebu City is an urban area (Chiongbian-Oliva v. Republic, 2007). 8. It is of judicial notice that the judiciary is beset with the gargantuan task in unclogging dockets, not to mention the shortage of judges occupying positions in far flung areas (GSIS v. Vallrar, 2007). 9. Judicial notice can be taken of the fact that testimonies during the trial are much more exact and elaborate than those stated in sworn statements, usually being incomplete and inaccurate for a variety of reasons. 10. Judicial notice can be had that drug abuse can damage the mental faculties of the user. 11. The court cannot be expected to take judicial notice of the new address of lawyer who has moved or to ascertain on its own whether or not the counsel of record has been changed and who the new counsel could possibly be or where he probably resides or holds office.

B. Judicial Admissions Rule 129

Q: Where can judicial admissions be made? A: A part may make judicial admissions in: a. b. c.

Pleadings; During trial, either verbal or written manifestations or stipulations; or In other stages of the judicial proceedings.

The stipulation of facts at the pre-trial of a case constitutes judicial admissions. They are binding and conclusive upon them. The veracity of judicial admissions requires no further proof and may be controverted only upon a clear showing that the admissions were made through palpable mistake or that no admissions were made. Admission in drafted documents An admission made in a document drafted for purposes of filling as a pleading but never filed, is not a judicial admission. If signed by the party, it is deemed an extrajudicial admission. If signed by the attorney, it is not even an admission by the party. The authority of the attorney to make statements for the client extend only to statements made in open courts or in pleadings filed with the court (Jackson v. Schine Lexington). Admissions made in pleadings and motions GENERAL RULE Admissions made in the pleadings of a party are deemed judicial admissions. This includes admissions made in the complaint. Thus, they cannot be contradicted unless there is a showing that it was made through palpable mistake or that no such admission was made.

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)

Admissions made in a motion are judicial admissions which are binding on the party who made them. Such party is precluded from denying the same unless there is a proof of palpable mistake (Herrera-Felix v. CA, 436 SCRA 87).

Q: What are the elements for a judicial admissions be considered?

In those rare instances when the trial court, in the exercise of its discretion and because of strong reasons to support its stand, may relive a party from the consequences of his admission. It cannot be contradicted unless it can be shown that the admission, the allegations, statements, or admissions contained in a pleading are conclusive as against the pleader (Heirs of Pedro Clemeña v. Heirs of Irene B. Bien, G.R. No. 155508).

A: 1. The same must be made by a party to the case. 2. The admission to be judicial must be made in the course of proceedings in the same case. Otherwise, it will be considered as an extra-judicial admission for purposes of the other proceeding where such admission is offered. 3. Sec. 4 of Rule 129 does not require a particular form for an admission. Such form is immaterial because the provision recognized either a verbal or a written admission.

EXCEPTION

An answer is a mere statement of fact which the party filing it expects to prove, but it is not evidence (Spouses Santos v. Spouses Lumbao, G.R. No. 169129).

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An admission made in a pleading may be an actual admission as when a party categorically admits a material allegation made by the adverse party. An admission may also be inferred from the failure to specifically deny the material allegations in the other party’s pleadings.

Admissions in the Pre-trial of civil cases Admissions in the pre-trial, as well as those made during the depositions, interrogatories or requests for admission, are all deemed judicial admissions because they are made in the course of the proceedings of the case.

Averments in pleadings which are not deemed admissions There are averments in pleadings which are not deemed admitted even if the adverse party fails to make a specific denial of the same like immaterial allegations, conclusions, non-ultimate facts in the pleading as well as the amount of unliquidated damages.

Admissions in pre-trial briefs are judicial admissions and wellsettled is the rule that an admission, verbal or written, made by a party in the course of the proceedings in the same case, does not require proof.

Implied admissions of allegations of usury

The parties are bound by the representations and statements in their respective pre-trial briefs submission of which being mandatory in a pre-trial of a civil case.

Under sec. 11 of Rule 8, if the complaint makes an allegation of usury to recover usurious interest, the defendant must not only specifically deny the same but must also do so under oath. Otherwise, there is an implied admission of the allegation of usury.

G.R: The admissions of the parties during pre-trial as embodied in the pre-trial order are binding and conclusive on them. XPN: Unless there is a clear showing that the admission was entered through palpable mistake.

Rule 8

Admissions in the pre-trial of criminal cases (Rule 118)

Implied admission of actionable documents

An admission made by the accused in the pre-trial of a criminal case is not necessarily admissible against him. To be admissible, the conditions under Sec. 2 of Rule 118 must be complied with:

Sec. 11

When an action or defense is founded upon a written instrument, the genuineness and due execution of the same instrument shall be deemed admitted unless the adverse party, under oath, specifically denies them and set forth what he claims to be the facts. Otherwise, there is a judicial admission pursuant to sec. 8, Rule 9. Failure to deny the genuineness and due execution of an actionable document does not preclude a party from arguing against the document by evidence of fraud, mistake, compromise, payment, statute of limitations, estoppels, and want of consideration. He is however precluded from arguing that the document is a forgery because the genuineness of the document has been impliedly admitted by his failure to deny the same under oath. Q: Does the failure of A to file a reply and deny the dacion and the confirmation statement under oath constituted a judicial admission of the genuineness and due execution of the said documents? A: Yes. Also, in resolving a demurrer, the court should not only consider the plaintiff’s evidence. It should also include judicial admissions, matters of judicial notice, stipulations made during the pre-trial, admissions, and presumptions (Casent Realty Development Corporation v. PhilBanking Corporation, G.R. No. 150731).

Sec. 2. Pre-trial agreement- All agreements or admissions made or entered during the pre-trial conference shall be reduced in writing and signed by the accused and counsel, otherwise they cannot be used against the accused. Q: Does the rule requiring an admission made or entered into during the trial conference to be reduced in writing and signed by the accused and his counsel before the same may be used in evidence against the accused, equally apply to stipulation of facts made during the trial? A: No, a stipulation of facts entered into by the prosecution and defense counsel during trial in open court is automatically reduced in writing and contained in the official transcript of proceedings had in court. The conformity of the accused in the form of his signature affixed thereto is unnecessary in view of the fact than an attorney who is employed to manage a party’s conduct of a lawsuit has a prima facie authority to make relevant admissions by pleadings, by oral or written stipulation which unless allowed to be withdrawn are conclusive. Q: During pre-trial Bimby personally offered to settle the case for 1M to the private prosecutor, who immediately put the offer on record. Is Bimby’s offer a judicial admission of his guilt?

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A: Yes. A judicial admission is one that is verbal or written, made by a party in the course of the proceedings in the same case. Under Sec. 27 of Rule 130, the judicial admission could be considered as an implied admission of guilt. Sec. 27.Offer of compromise not admissible. — In civil cases, an offer of compromise is not an admission of any liability, and is not admissible in evidence against the offeror. In criminal cases, except those involving quasi-offenses (criminal negligence) or those allowed by law to be compromised, an offer of compromised 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.

When a pleading is amended, the amended pleading supersedes the pleading that it amends and the admissions in the superseded pleading may be received in evidence against the pleader. Nature of admissions in superseded pleadings Admissions in a superseded pleading are to be considered as extrajudicial admissions which must be proven. Pleadings that have been amended disappear from the record, lose their status as pleadings and cease to be judicial admissions, and to be utilized as extrajudicial admissions, they must, in order to have such effect, be formally offered in evidence. Admissions in dismissed pleadings Admissions made in pleadings that have been dismissed are merely extrajudicial admissions. Hypothetical admissions in a motion to dismiss

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) Implied admissions in the modes of discovery Admissions obtained through depositions, written interrogatories or requests for admission are also considered judicial admissions.

A motion to dismiss hypothetically admits the truth of the allegations of the complaint (Magno v. CA, 107 SCRA 285). However, the admission extends only to such matters of fact that have been sufficiently pleaded and not to mere epithets charging fraud, allegations of legal conclusions, or erroneous statements of law, inferences from facts not stated, matters of evidence or irrelevant matters (De Dios v. Bristol Laboratories, 55 SCRA 349). Admissions by counsel

Under Sec.3 of Rule 26, any admission made pursuant to the request for admission is for the purpose of the pending action only. The admission shall not be considered as one for any other purpose nor may the same be used against him in any other proceeding. Sec. 2 of Rule 26 requires the other party to file and serve a sworn statement either denying specifically the matter of which an admission or requested or setting forth in detail the reasons why he cannot truthfully either admit or deny those matters. The failure to do so will result into an implied admission of each of the matters of which an admission is requested. Since the defendant failed to comply with the requirements of the Rules, he is deemed to have made an implied admission of the matters subject of the request for admission. Rule 26 Sec. 2 Sec.3 Admissions in amended pleadings

Q: What is the effect of admissions by counsel? A: They are generally conclusive upon a client (De Garcia v. CA, 37 SCRA 129). Even the negligence of counsel binds the client. Q: What is the exception to the rule? A: In case where reckless or gross negligence of counsel deprives the client of due process of law, or when its application will result in outright deprivation of the client’s liberty, or property, or when the interests of justice so require (Salazar v. CA, 376 SCRA 459). NOTE: Admissions made for the purpose of dispensing with proof of some facts are in the nature of judicial admissions. Such admissions are frequently those of counsel, or of the attorney of record, who is, for the purpose of the trial, the agent of his client. When such admissions are made for the purpose of dispensing with proof of some fact, they bind the client, whether made during or even after the trial. Consequences of judicial admissions Q: What is the consequence of judicial admissions?

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A: A party who judicially admits a fact cannot later challenge that fact, as judicial admissions are waiver of proof; production of evidence is dispensed with. No evidence is needed to prove judicial admission and it cannot be contradicted unless it is shown to have been made through palpable mistake or that no such admission was made but despite the presence of judicial admissions in a party’s pleading, the trial court is still given leeway to consider other evidence presented because admissions may not necessarily prevail over documentary evidence. Q: Under Sec. 4, Rule 129, what are the effects of judicial admissions? A: 1. They do not require proof 2. They cannot be contradicted because they are conclusive upon the party making it Q: What are the exceptions to this? A: 1. Upon showing that the admission was made through palpable mistake 2. When it is shown that no such admission was made. Q: What do you mean by palpable mistake? A: The mistake that would relieve the party from the effects of his admission is not any mistake. It must be one that is palpable, a mistake that is clear to the mind or plain to see. It is a mistake that is readily perceived by the senses or the mind. Q: When can a party use the admission that there is no such admission? A: This may be invoked when the statement of a party is taken out of context or that his statement was made not in the sense it is made to appear by the other party. Here, what he denies is the meaning attached to his statement, a meaning made to appear by the adverse party as an admission.

C.

Admissions, Confessions, and the Res Inter Alios Acta Rule Rule 130

Sec. 26.Admission of a party. — The act, declaration or omission of a party as to a relevant fact may be given in evidence against him. (22)

Sec. 27.Offer of compromise not admissible. — In civil cases, an offer of compromise is not an admission of any liability, and is not admissible in evidence against the offeror. In criminal cases, except those involving quasi-offenses (criminal negligence) or those allowed by law to be compromised, an offer of compromised 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) Sec. 28.Admission by third party. — The rights of a party cannot be prejudiced by an act, declaration, or omission of another, except as hereinafter provided. (25a) 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) 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 coconspirator after the conspiracy is shown by evidence other than such act of declaration. (27) 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) 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) 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) Sec. 34.Similar acts as evidence. — Evidence that one did or did not do a certain thing at one time is not admissible to

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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) Sec. 35.Unaccepted offer. — An offer in writing to pay a particular sum of money or to deliver a written instrument or specific personal property is, if rejected without valid cause, equivalent to the actual production and tender of the money, instrument, or property. (49a) Q: What is an admission? A: It is an act, declaration or omission of a party as to a relevant fact. It is a voluntary acknowledgement made by a party of the existence of the truth of certain facts which are inconsistent with his claims in an action. Q: What is confession? A: It is the declaration of an accused acknowledging his guilt of the offense charged, or of any offense necessarily included therein. It is a statement by the accused that he engaged in conduct which constitutes a crime. Q: What if a person declares in his counter-affidavit that he performed an act like shooting the victim but denies that he did so with criminal intent because the shooting was done in self-defense? A: Such is merely an admission and not an admission (Ladiana v. People, 393 SCRA 419). NOTE: An admission in a general sense includes confessions, the former being a broader term because accordingly, a confession is also an admission by the accused of the fact charged against him or of some fact essential to the charge. A confession is a specific type of admission which refers only to an acknowledgement of guilt. Q: May admission be implied? A: Yes, like an admission by silence. Q: What about confession? A: No, it should be a direct and positive acknowledgment of guilt. Q: Explain confession in criminal cases. A: Confession is an acknowledgment in express terms, by a party in a criminal case, of his guilt of the crime charged. Q: Explain admission in criminal cases.

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A: It is a statement by the accused, direct or implied, of facts pertinent to the issue, and tending, in connection with proof of other facts, to prove his guilt. NOTE: An admission is something less than a confession, and is but an acknowledgment of some fact or circumstance which in itself is insufficient to authorize a conviction, and which tends only to establish the ultimate fact of guilt. Admissions v. Declarations against interest ADMISSION An admission is admissible even if the person making the admission is alive and is in court Made at anytime even during trial Admissible as long as it is inconsistent with his present claim or defense and need not be against one’s pecuniary or moral interest Admissible only against the party making the admission Not an exception to the hearsay rule, and is admissible not as an exception to the rule

DECLARATION AGAINST INTEREST To be admitted as a declaration against interest, the declarant must be dead or unable testify Made before the controversy arises Made against one’s pecuniary or moral interest

Admissible even against third persons An exception to the hearsay rule

Effects of admissions Q: What are the effects of admissions? A: 1. An admission by a party may be given in evidence against him. His admission is not admissible in his favor, because it would be self-serving evidence. Declarations of a party favorable to himself are not admissible as proof of the facts asserted. 2. The act, declaration, or admission of a party as to a relevant fact may be given in evidence against him. This rule is based on the notion that no man would make any declaration against himself, unless it is true. Classification of admissions and confessions Q: What are the classification of and confessions? A: 1. Express – a positive statement or act. 2. Implied – one which may be inferred from the declarations or acts of a person NOTE: A confession cannot be implied. It must be a positive acknowledgment of guilt and cannot be inferred.

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3. 4. 5.

Judicial – when made in the course of a judicial proceeding Extra-judicial – when made out of court or even in the proceeding other than the one under consideration Adoptive- occurs when a person manifests his assent to the statements of another person. A party may, by his own words, or conduct, voluntarily adopt or ratify another’s statement. By adoptive admission, a third person’s statement becomes the admission of the party embracing or espousing it.

Q: When can there be adoptive admission? A: 1. 2. 3. 4.

5.

When a party expressly agrees to or concurs in an oral statement made by another Hears a statement and later on essentially repeats it Utters an acceptance or builds upon the assertion of another Replies by way of rebuttal to some specific points raised by another but ignores further points which he or she has heard the other make Reads and signs a written statement made by another (Republic v. Kenrick Development Corp., 2006).

Example: Alleged admissions made by Pres. Estrada when his options had dwindled (Estrada v. Desierto, 356 SCRA 108). Effect of extra-judicial confession of guilt; Corpus Delicti Q: Is extra-judicial confession sufficient to warrant conviction? A: An extra-judicial confession, unlike judicial confession is not sufficient for conviction. The rule requires that the confession be corroborated by evidence of corpus delicti. Q: What is corpus delicti? A: It means the “body of the crime or the offense. Strictly speaking, it means the actual commission of the crime and someone criminally responsible therefor. It is the substance of the crime.

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A: It may be proven by circumstantial evidence but such proof must be convincing and compatible with the nature of the case. Dangerous Drugs In the prosecution for illegal sale of dangerous drugs, it is not enough to prove that the transaction took place and that the buyer and seller were identified. The corpus delicti must be offered in evidence. The police officer must comply with the proper procedure in the custody of the seized drugs. After the seizure and confiscation, the drugs must be physically inventoried and photograph in the presence of the accused, and or his representative, who shall be required to sign the copies of the inventory and be given a copy thereof. Failure to comply with such requirement raises a doubt whether what was submitted for laboratory examination and presented on court were the one actually recovered from the accused. Theft Corpus delicti has 2 elements: a. b.

That the property was lost by the owner; That it was lost by felonious taking Illegal possession of firearms

The corpus delicti in this crime is the accused’s lack of license or permit to possess or to carry the firearm, as possession itself is not prohibited by law. People v. Sasota (91 Phil 111) It is not necessary to recover the body or to show where it can be found in a case of murder or homicide. There are cases like death at sea, where the finding or the recovery f the body is impossible. It is enough that the death and the criminal agency causing it be proven. Also, the element of eath in the corpus delicti may be established by circumstantial evidence. Thus, facts are admissible to show the impossibility of rescue, as at sea, to show the existence and extent of wounds, and the deceased’s condition of health; and to show that the wound was sufficient to cause death and that the party was reported death.

Q: What are the 2 elements of corpus delicti? Murder or Homicide A: 1. 2.

Proof of the occurrence of a certain event Some person’s criminal responsibility for the act (People v. Boco, 309 SCRA 42).

It is not necessary to recover the body of the victim or show where it can be found. Sec. 2(d) of Republic Act 7438

Q: How can the corpus delicti be proven? Q: What are the requirements in order that an admission of guilt of an accused during a custodial investigation be admitted in evidence?

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A: 1.

2.

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itself to eliciting incriminating statements, that the rule begins to operate. Any extrajudicial confession made by a person arrested, detained, or under custodial investigation shall be in writing an signed by such person in the presence of his counsel or in the latter’s absence, upon a valid waiver, and in the presence of any of the parents, older brothers and sisters, his spouse, the municipal mayor, the municipal judge, district school supervisor, or priest or minister of gospel are chosen by him; otherwise, such extrajudicial confession shall be inadmissible as evidence in any proceeding. The confession must be corroborated by evidence of corpus delicti (Sec.3, Rule 133).

Note: R.A. No, 7438 (Sec.2(f)) has extended the meaning of custodial investigation to include the practice of issuing an invitation to a person who is investigated in connection with an offense he is suspected to have committed. People v. Ador (432 SCRA 1) Any waiver of these rights should be in writing and undertaken with the assistance of counsel. Otherwise, such admissions are barred as evidence even if such confession were gospel truth. Admission by silence

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) Q: Is an oral confession admissible as evidence of guilt? A: The oral confession is not admissible as evidence of guilt. The confession is in the nature of an extrajudicial confession before an investigator while under custodial investigation. Note: The above rights refer to an extrajudicial confession of a person arrested, detained or is under custodial investigation because a confession made by the accused before he is placed under custodial investigation need not comply with the above. People v. Cabiles (284 SCRA 199) Thus, if the accused talks to a person (mayor) in a private meeting and confessed the crime, the constitutional requirements in a custodial investigation do not apply. When the accused talked to the mayor as a confidant and not as a law enforcement officer, the uncounselled confession did not violate his constitutional rights. Constitutional procedures on custodial investigation do not apply to spontaneous statements, not elicited through questioning by authorities, but given in an ordinary manner whereby the accused orally admitted having committed the crime. Thus, the confession is admissible in evidence against him, even when he did so without the assistance of counsel.

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) Q: Is admission by silence“admissible evidence”? A: Yes. The usual pattern for its admissibility involves a statement by a person in the presence of a party to the action, criminal or civil. The statement contains assertions against the party, which, if untrue would be sufficient cause for the party to deny. His failure to speak against the statement is admissible as an admission. The idea of the rule on admission by silence is that if an accusation is made, and a reasonable person would have denied the same if it were false, the failure to deny the accusation by the person accused may be construed as an implied admission of the truth of the accusation and may be given in evidence against him. Not every silence is an implied admission. The silence of a person under investigation for the commission of an offense should not be construed as an admission by silence because of constitutional reasons (R.A. 7438, Sec. 2 (b)). Q: What are the requisites for admission by silence? A:

Aquino v. Paiste (G.R. No. 147782) Custodial investigation involves any questioning initiated by law enforcement officers after a person has been taken into custody or otherwise deprived of his freedom of action in any significant way. It is only after the investigation ceases to be a general inquiry into an unsolved crime and begins to focus on a particular suspect, the suspect is taken into custody, and the police carries out a process of interrogations that lend

1. 2. 3.

4. 5.

That he heard and understood the statement; That he was at liberty to make a denial; That the statement was about a matter affecting his rights or in which he was interested and which naturally calls for a response; That the facts were within his knowledge; and That the fact admitted from his silence is material to the issue.

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Res Inter Alios Acta Res inter alios acta alteri nocere non debet literally means that “things done between strangers ought not to injure those who are not parties to them”

Q: What are the exceptions to the Res Inter Alios Acta Rule (first branch)? A: 1. Admission by a co-partner or agent 2. Admission by a co-inspirator 3. Admission by privies

Q: What are the 2 branches of this rule? Q: What is the basis for the above admissions? A: 1. 2.

The rule that the rights of a party cannot be prejudiced by an act, declaration, or omission of another; The rule that evidence of previous conduct or similar acts at one time is not admissible to prove that one did or did not do same act another time. Sec. 28, Rule 130

Sec. 28.Admission by third party. — The rights of a party cannot be prejudiced by an act, declaration, or omission of another, except as hereinafter provided. (25a) Sec. 34, Rule 130 Sec. 34.Similar acts as evidence. — Evidence that one did or did not do a certain thing at one time is not admissible to prove that he 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) The first branch holds that whatever one says or does or omits to do should only affect him but should not affect or prejudice others. Man’s actions and declarations should affect him alone and should not affect others. Thus, if X makes a statement before the media admitting his participation on a murder, his statement is admissible against him under Sec. 26 of Rule 130. Sec. 26.Admission of a party. — The act, declaration or omission of a party as to a relevant fact may be given in evidence against him. (22) The rest of his statement pointing to Y and Z as coparticipants in the murder are not admissible against Y and Z under the first branch. Under this rule, the statement of X should not affect or prejudice Y and Z. The above rule has reference only to extrajudicial declarations. Thus, statements made in open court by a witness implicating persons aside from his own judicial admissions, are admissible as declarations from one who has personal knowledge of the facts testified to.

A: The person making the statement is under the same circumstances as the person against whom it is offered. Such circumstances gave him substantially the same interest and the same motive to make a statement about certain matters. Admissions by a co-partner or agent Whatever is said by an agent to a third person, during the course of the agency and within the scope of his actual or apparent authority, relative to the business contemplated by the agency, is for legal purposes also the statement of the principal and is therefore, admissible against said principal. The declarations of a partner may be admissible against the other partners of the partnership. Q: Not every declaration or act made or done by a partner or agent is admissible against the other partners or the principal. For the admission of a co-partner or agent to be admissible, what are the requisites which must concur? A: 1. The declaration or act of the partner and agent must have been made or done within the scope of his authority 2. The declaration or act of the partner and agent must have been made or done during the existence of the partnership or agency 3. The existence of the partnership or agency is proven by evidence other than the declaration or act of the partner or agent. Q: What is the rule regarding any declaration made before the partnership or agency existed? A: They are not admissible against the partners or the principal but remains admissible against the partner or agent making the declaration. It is also necessary for the application of the exception that the proof of the agency or partnership be from an source independent of the declaration made by the partner or agent. NOTE: The above rules also apply to the declarations or acts of a joint owner, joint debtor, or other persons jointly interested with the party.

Exceptions to the Res Inter Alios Acta Rule (first branch) Admissions by a co-conspirator

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Q: When is there a conspiracy? A: When two or more persons come to an agreement concerning the commission of a felony and decide to commit it (Art. 8, RPC).

Admission by privies Q: Who are privies? A: They are persons who are partakers or have an interest in any action or thing, or any relation to another.

Q: What is the effect of conspiracy? A: Once conspiracy is proven, the act of one is the act of all. Q: What are the requisites? A: 1. The declaration or act be made or done during the existence of the conspiracy 2. The declaration or act must relate to the conspiracy 3. The conspiracy must be shown by evidence other than the declaration or act. NOTE: Incriminating declarations of co-conspirators made in the absence or without the knowledge of the others after the conspiracy has come to an end is inadmissible. G.R.: An extrajudicial confession made by an accused is admissible against him but not admissible against his coaccused who took no part in the confession XPN: When the declarant or admitter repeats in court his extra-judicial confession during the trial and the other accused is accorded the opportunity to cross-examine the admitter, such confession or admission is admissible against both accused. Q: Distinguish judicial and extra-judicial confession. A: EXTRA-JUDICIAL JUDICIAL May be given in evidence Admissible against the against the confessant but declarant’s co-accused since not against his co-accused the latter are afforded the since the latter are not opportunity to cross-examine afforded the opportunity to the former. cross-examine him When the extra-judicial admission of a conspirator is confirmed at the trial, it ceases to be hearsay. Q: The res inter alios acta provides that the rights of a party cannot be prejudiced by an act, declaration, or admission of another. Consequently, an extra-judicial confession is binding only upon the confession and is not admissible against his co-accused. What is the basis for this?

Examples: 1. A lessor and a lessee; a grantor and grantee; assignor and assignee are privies in an estate or contract 2. Executor or administrator and the estate of the deceased are privies in representation 3. An heir and his ascendant are privies in blood or succession Q: What are the requisites for an admission of a predecessor-in-interest against the successor-in-interest? A: 1. There must be an act, declaration or an omission by a predecessor-in-interest 2. The act, declaration, or omission of the predecessor must have occurred while he was holding the title to the property 3. The act, declaration or omission must be in relation to the property. Offer of compromise in civil cases In civil cases, an offer of compromise is not an admission of any liability, and is not an admission against the offeror. Offer of compromise in criminal cases An offer of compromise by the accused may be received in evidence as an implied admission of guilt. There is no implied admission of guilt if the offer of compromise is in relation to: a. Quasi-offenses (criminal negligence) b. In those cases allowed by law to be compromised. Plea of Guilty later withdrawn Q: May the plea of guilty be withdrawn? A: Yes, Sec. 2 of Rule 116 allows the accused, at arraignment, to plead guilty to a lesser offense with the consent of the offended party and the prosecutor provided that the lessor offense is necessarily included in the offense charged. He may also plead guilty to a lesser offense even after the arraignment after withdrawing his plea of not guilty.

A: On a principle of good faith and mutual convenience, a man’s own acts are binding upon himself, and are evidence against him. So are his conduct and declarations.

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NOTE: In case the accused withdraws his guilty plea, that plea of guilty later withdrawn, is not admissible in evidence against the accused who made the plea.

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Q: What is the purpose of the above rule?

A: The rule does not provide for an adverse consequence of the unaccepted plea. On the contrary, the rule provides that an unaccepted plea of guilty to a lesser offense, is not admissible in evidence against the accused who made the plea or offer.

A: The rule prohibits the admission of the so-called “propensity evidence” which is evidence that tends to show that what a person has done at one time is probative of the contention that he has done a similar act at another time. Evidence of similar acts or occurrences compels the defendant to meet allegations that are not mentioned in the complaint, confuses him in his defense, raises a variety of relevant issues, and diverts the attention of the court from the issues immediately before it. Hence, the evidentiary rule guards the practical inconvenience of trying collateral issues and protracting the trial and prevents surprise or other mischief prejudicial to litigants.

Q: What is the effect of an offer to pay for the medical, hospital or other expenses?

When evidence of similar acts or previous conduct is admissible

A: It is not admissible in evidence as proof of civil or criminal liability for the injured party. In other jurisdictions, this is also known as the Good Samaritan Rule.

Q: In what purposes may evidence of similar facts is admissible?

An unaccepted plea of guilty to a lesser offense Q: What if the plea of guilty to a lesser offense is not accepted?

A: Q: What is the Good Samaritan Rule? A: It refers to the rendering of voluntary aid to a suffering person. Subsequent remedial measures No direct legal provision in this jurisdiction addresses the question as it is. Under U.S. Federal Rules of Evidence (FRE), it is prohibited the admission of evidence of subsequent remedial measures when offered to prove the negligence of the defendant. Evidence of such measures may be admissible to prove some other purpose like the fact that the defendant had ownership of the hotel or control over the same and all the fixtures therein. Q: What is the basis of this rule? A: The rule is based on the policy of encouraging potential defendants to remedy hazardous conditions without fear tat their actions will be used as evidence against them. Evidence of similar conduct (Second branch)

1. 2. 3. 4. 5. 6. 7. 8. 9.

Specific intent Knowledge Identity Plan System Scheme Habit Custom Usage and the like

NOTE: Evidence of similar acts may frequently become relevant especially in actions based on fraud and deceit, because it sheds light on the state of mind or knowledge of person, his motive or intent, or they may uncover the scheme, design, or plan. Q: Where will the admissibility of similar acts or previous conduct? A: It would depend on the purposes for which such acts or conduct are offered. NOTE: The past acts of the accused are inadmissible to prove that he acted in conformity with such previous acts.

G.R.: The law will not consider evidence that a person has done a certain act at a particular time as probative of a contention that he has done a similar act at another time. Sec. 34.Similar acts as evidence. — Evidence that one did or did not do a certain thing at one time is not admissible to prove that he 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)

Chapter III OBJECT AND DOCUMENTARY EVIDENCE I.

Object Evidence Rule 130

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SECTION 1.Object as evidence. — Objects as evidence are those addressed to the senses of the court. When an object is relevant to the fact in issue, it may be exhibited to, examined or viewed by the court. (1a) Q: What is object evidence? A: It is the real thing itself consists of tangible things like gun, a broken glass, a piece of bloody clothing or the defective ladder that caused the fall of the plaintiff. It does not refer to the perception of the witness and recollection of that perception. It is not a reconstruction of past events as related by a witness on the stand. It is not a verbal description of something. It is not a replica or a mere representation of something. NOTE: It appeals directly to the senses of the court. Instead of relying on the recollection of the witnesses, an object evidence will enable the court to have its own first-hand perception of the evidence. Q: What is the effect of object evidence? A: It could have a very persuasive effect on the part of the court. Q: May a human being be a form of real evidence? A: Yes. Where the racial characteristics of a party is at issue, the court may, at its discretion, view the person concerned. The court may likewise allow the exhibition of the weapon allegedly used in attacking the victim, the bloody garment of the victim or the personal effect, like the glove, left by the supposed assailant in the scene of the crime. Q: Is object evidence limited to visual alone? A: No, it covers the entire range of human senses: hearing, taste, smell, and touch. In a case where the issue is infringement of a musical composition, the court may listen to the composition involved. The court may not only look at but also touch the blade of knife to know whether or not it could have produced the incision characteristic of sharp blades. Q: In case of conflict between testimonial and physical evidence, which should prevail? A: Where the physical evidence runs counter to the testimonial evidence, the physical evidence should prevail (BPI v. Reyes, 2008). Physical evidence is a mute but eloquent manifestation of truth, and it ranks high in our hierarchy of trustworthy evidence. Requisites for admissibility of object evidence

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Q: What should be the requisites for admissibility of object evidence? A: 1. The admissibility of object or real evidence like any other evidence requires that the object be both relevant and competent. To be relevant, the evidence must have a relationship to the fact in issue. To be competent, it must not be excluded by the rules or by law. 2. For the object not to be excluded by the Rules, the same must pass the test of authentication. The threshold foundation for real evidence is its being authenticated. To authenticate the object, it must be shown that the object is the very thing that is either the subject matter of the lawsuit or the very one involved to prove an issue in the case. Also, there must be someone who should identify the object to be the actual thing involved in the litigation. This someone is the witness. 3. It must be emphasized that every evidence, whether it be a document or an object, needs a witness. Even object evidence requires statements from witness to make its way into the realm of admissible evidence. In short, testimonial evidence provides the foundation for all types of evidence. The witness should have actual and personal knowledge of the exhibit he is presenting for admission. 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) Thus, the following are the basic requisites for the admissibility of an object or real evidence: a. b. c. d.

The evidence must be relevant The evidence must be authenticated The authentication must be made by a competent witness The object must be formally offered in evidence.

NOTE: After its authentication, the object needs to be offered in evidence at the appropriate time. The formal offer of evidence is particularly a vital act before the admission of evidence because the court shall consider no evidence which has not been formally offered (Sec. 34, Rule 132). Sec. 34.Offer of evidence. — The court shall consider no evidence which has not been formally offered. The purpose for which the evidence is offered must be specified. (35) Q: What is the problem with regard the requirement of relevance and the competence of testimony of the witness? A: The problem commonly lies in showing that the object sought to be admitted is in fact the real thing and not a mere

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substitute or representation of the real thing. This problem is commonly called laying the foundation for the evidence.

identified the chain of custody of physical evidence is irrelevant.

Object evidence and the Right against Self-Incrimination

Since it is called a chain, there must be links to the chain. The links are the people who actually handled or had custody of the object. Each link must show how he received the object, how he handled it to prevent substitution and how it was transferred to another. Each must testify to make the foundation complete. This is the ideal way (though this is not absolutely required.

Q: May the right against self-incrimination be invoked against object evidence? A: No. In People v. Malimit (264 SCRA 167), the court held that the right against self-incrimination finds no application in the case because no testimonial compulsion was involved. Accordingly, such right is a prohibition of the use of physical or moral compulsion, to extort communication from him. It is a prohibition against legal process to extract from the accused’s own lips, against his will, admission of guilt. It does not apply in this case where the evidence sought to be excluded is not an incriminating statement but an object evidence. Categories of Object Evidence Q: What are the classifications of object evidence? A: a. Objects that have readily identifiable marks (unique objects); b. Objects that are made readily identifiable (objects made unique); and c. Objects with no identifying marks and cannot be marked (non-unique marks). If the object has a unique characteristic, it becomes readily identifiable (a serial number of a caliber 45 pistol). So long as the witness testifies that the object has a unique characteristic, he saw the object on the relevant date, remembers its characteristics, asserts that the object shown to him in court is the same or substantially in the same condition as when he first saw it and alleges that those characteristics are those of the object he is identifying in court, the authentication requirement is satisfied. Otherwise, (like a typical kitchen knife without a serial number), the witness may be able to testify the same if he claims that he made the thing acquire a unique characteristic like placing identifying marks on it. All he has to do is to testify as to what he did to make the object identifiable and that the object presented to him for identification in court has the characteristics he made on the object. Chain of custody The third category includes drop of blood or oil, drugs in powder form, fiber, grains of sand and similar objects. In this case, the proponent of the evidence must establish a chain of custody. The purpose is to guaranty the integrity of the physical evidence and to prevent the introduction o evidence which is not authentic but where the exhibit is positively

There is a view that the prosecution is not required to elicit testimony from every custodian or from every person who had an opportunity to come in contact with the evidence sought to be admitted. As long as one of the chains testifies and his testimony negates the possibility of tampering and that the integrity of the evidence is preserved, his testimony alone is adequate to prove the chain of custody. Lopez v. People As a method of authenticating evidence, the chain of custody rule requires that the admission of an exhibit be preceded by evidence sufficient to support a finding that the matter in question is what the proponent claims it to be. It would include the testimony about every link in the chain, in such a way that every person who touched the exhibit would describe how and from whom it was received, where it was and what happened to it while in the witness’ possession, the condition in which it was received and the condition in which it was delivered to the next link in the chain. The witness would describe the precautions taken to ensure that there had been no change in the condition of the item and no opportunity for someone not in the chain to have possession of the same. The chain of custody rule is indispensable and essential when the item of real evidence is not distinctive and is not readily identifiable, or when its condition at the time of testing or trial is critical, or when a witness has failed to observe its uniqueness. The rule also applies in case the evidence is susceptible to alteration, tampering, contamination and even substitution and exchange. Such dictates the level of strictness in the application of the chain of custody rule. A unique characteristic of narcotic substance is that they are not readily identifiable hence a more stringent standard than that applied to readily identifiable object is necessary. This standard entails a chain of custody of the item with sufficient completeness to render it improbable for the original item to be exchanged with another, contaminated or tampered with. Xxx More than just the fact of possession, the fact that the substance said to be illegally possessed is the very same substance offered in court as exhibit. If the object is not readily identifiable, a chain of custody must be shown. To avoid gaps in the chain of custody and

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prevent further evidentiary objections, ideally all the persons who handled the object should be called to the stand although courts no longer require this rigid process. Unless a specific provision of law or rule provides otherwise, the investigator need not testify that the process of sealing the evidence and the submission to the chemist were done in the presence of the accused or his representative. This is because of the presumption that official duty has been regularly performed (Sec. 3 (m), Rule 131). Sec. 3 (m) That official duty has been regularly performed;

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People v. Rivera Failure of the prosecution to show that the police officers conducted the required physical inventory and photograph of the evidence confiscated pursuant to said guidelines, is not fatal and does not automatically render accused’s arrest illegal or that the items seized/confiscated from him inadmissible. Accordingly, non-compliance with the requirements under justifiable grounds, as long as the integrity and evidentiary value of the seized items are properly preserved by the apprehending officer/team, shall not render void and invalid such seizures of and custody over said items.

People v. Tan (348 SCRA 116) The court should be extra vigilant in trying a drug cases so an innocent person is not made to suffer the unusually severe penalties for drug offense. Accordingly, a police buy-but operation carries a built-in danger for abuse because by its very nature, anti-narcotics operation involves the need for entrapment procedures and the use of shady characters as informants and the secrecy that shrouds drug deals enables the planting of marijuana or heroin in the pockets or hands of unsuspecting persons. Chain of custody in drug cases

What is important is the preservation of the integrity and evidentiary value of the seized items, as the same may be utilized in the determination of the guilt or innocence of the accused. This is to remove unnecessary doubts as to the identity of the evidence. The dangerous drugs itself constitutes the very corpus delicti of the crime and the fact of its existence is vital to a judgment of conviction. Accordingly, the prosecution must show by records or testimony, the continuous whereabouts of the exhibit at least between the time it came into possession of the police officers and until it was tested in the laboratory to determine its composition up to the time it was offered in evidence.

Q: What is chain of custody? A: It means the duly recorded authorized movements and custody of seized drugs or controlled chemicals or plant sources of dangerous drugs or laboratory equipment of each stage, from the time of confiscation or seizure to receipt in the forensic laboratory to safekeeping to presentation in court for destruction. It shall also include the identity and signature of the person who held temporary custody of the seized item, the date and time when such transfer of custody were made in the course of safekeeping and use in court as evidence, and the final disposition (People v. Obmiranis, G.R. No. 181492).

Q: When will the non-compliance with the procedure shall not render void and invalid the seizure of and custody of drugs? A: 1. 2.

When such compliance was under justifiable grounds; and Integrity and the evidentiary value of the seized are properly preserved by apprehending team. People v. Del Monte (G.R. No. 179940)

Article II of R.A. No. 9165 The apprehending team having initial custody and control of the drugs shall, immediately after seizure and confiscation, physically inventory and photograph the same in the presence of the accused or the person/s from which such items were confiscated and/or seized, or his/her representative or counsel, a representative from the media and the DOJ, and any elected public official who shall be required to sign the copies of the inventory and be given a copy thereof (Sec. 1, par.1). Note: A mere statement that the integrity and evidentiary value of the evidence is not enough. It must be accompanied by proof.

The issue if there is non-compliance with the law is not admissibility, but weight—evidentiary merit or probative value. Demonstrative Evidence Q: What is demonstrative evidence? A: It is not the actual thing but it is referred to as demonstrative because it represents or demonstrates the real thing. It is not strictly real evidence because it is not the very thing involved in the case. Examples: map, diagram, photograph, model

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(m)That official duty has been regularly performed; NOTE: It is not separately defined in the Rules of Court and appears to have been incorporated under the general term “object” evidence. Q: Where does the admissibility of demonstrative evidence depend? A: It depends on laying the proper foundation for the evidence. The rule boils down to one question: Does the evidence sufficiently and accurately represent the object it seeks to demonstrate or represent? If it does, the evidence would be admissible.

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judicial notice of how motion cameras and tape recorders work and their general reliability and their prevalent use. NOTE: The person present when the activities of taking the pictures and recordings should testify that the motion picture accurately, faithfully, represents the place or person it purports to identify. Q: Does the authentication process need to involve the person who actually made them? A: No, it can be done by some other person as long as he is one who can testify as to its accuracy.

Q: For a photograph to be admissible, what is the rule?

NOTE: There is also a requirement that the recording be shown, presented, or displayed to the court (Sec. 1, Rule 11, Rules on Electronic Evidence).

A: The same must be relevant and competent. It is competent when it is properly authenticated by a witness who is familiar with the scene or person portrayed and who testifies that the photograph faithfully represents what it depicts.

Q: What are the rules regarding diagrams, maps, and models?

Q: Should the photographer testify? A: Some courts insist the photographer to testify but this view has been eroded by the tendency of modern courts to admit as witness one who has familiarity with the scene portrayed (Sison v. People, 250 SCRA 58). Q: What are the requirements for photographic evidence of events, acts, or transactions shall be admissible?

A: These types of evidence are presented to indicate the relative locations, positions of objects and persons. Aside from the requirement of relevance, a diagram, map, and model must be identified by a witness who is familiar with what the evidence depicts, and that the same is an accurate representation of the scene it portrays. NOTE: The question as to the sufficiency authentication is a matter of judicial discretion.

of

the

Q: What is the rule regarding x-ray pictures? A: 1. It shall be presented, displayed, and shown to the court 2. It shall be identified, explained or authenticated by either: a. The person who made the recording, b. Some other person competent to testify on the accuracy thereof (Sec. 1, Rule 11, Electronic Rules of Evidence) NOTE: The admissibility of photographic evidence is within the discretion of the trial court, and its ruling in this respect will not be interfered with except upon a clear showing of an abuse of discretion. Q: What is the rule regarding motion pictures and recordings? A: The rules that apply to motion pictures and recordings. Because of the possibility of tampering and distortion, courts have traditionally required a stricter standard for laying the foundation for motion pictures and tape recordings. Courts then would require detailed testimony as to the qualifications of the operator, a detailed description of the equipment used, the conditions under which the photograph and the recordings were taken. Modern courts however have taken

A: Also known as the skiagraphs or radiographs, x-ray pictures are admissible when shown to have been made under circumstances as to assure their accuracy and where relevant to a material issue in the case. Authenticated x-rays are normally involved in personal injury cases to show the location and the extent of the unjury. Q: Is the testimony of the person who took the x-ray required? A: Because the science of x-ray pictures is now well-founded and generally recognized, almost all courts no longer require testimony as to the reliability of an x-ray machine. NOTE: In-court reenactment of material events by the witness has been held permissible to help illustrate the testimony of a witness. Ephermal Electronic Communications Q: What are Ephermal Electronic Communications?

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A: They refer to telephone conversations, text messages, chatroom sessions, streaming audio, and other forms of electronic communication, the evidence which is not recorded or retained. Thus, a claim that the admission of text messages as evidence constitutes a violation of the right to privacy is unavailing, the messages being evidence under the rules (Vidallon-Magtolis v. Salud, 469 SCRA 439). Q: How shall Ephermal Electronic Communications be proven? A: By the testimony of a person who was a party to the same or by one who has personal knowledge thereof. Q: What requisites should be proven in order for the audio, photographic, and video evidence of events, or transactions be admissible? A: 1. That the recording shall be shown, presented or displayed to the court 2. Shall be identified, explained or authenticated by either: a. The person who made the recording b. By some other person competent to testify on the accuracy thereof. View of an object or scene Courts have recognized that there are times when a party cannot bring an object to the court for viewing in the courtroom. In such a situation, the court may take a view of an object. The court may take an ocular inspection of a contested land to resolve questions of fact raised by the parties. NOTE: The court has an inherent power to order a view when there is a need to do so. Q: Is this mandatory? A: A view disrupts the usual trial process and is timeconsuming. Hence, in almost all jurisdictions, trial judge is granted discretion to grant or refuse a request for a view.

initially considered as not as accurate and authoritative as the scientific forms of identification evidence such as fingerprints. However, in 2001, the SC showed signs of opening up to DNA evidence in Tijing v. CA (G.R. No. 125901), when it recognized the existence of facility and expertise in using DNA test for identification and parentage testing, in Tijing case, the SC held that eventually, courts should not hesitate to rule on the admissibility of DNA evidence. In the case People v. Vallejo (382 SCRA 192, 2002), the court made a landmark decision. It is considered as the first real breakthrough of DNA as admissible and authoritative evidence in Philippine jurisprudence. Vallejo moved towards an open use of DNA evidence in deciding cases. Q: What are the rules or guidelines to be used by courts in assessing the probative value of DNA evidence? A: 1. 2. 3. 4. 5. 6.

How the samples were collected How they were handled The possibility of combination of the samples The procedure followed in analyzing the samples Whether the proper standards and procedure were followed in conducting the tests The qualification of the analyst who conducted the test.

See:  People v. Janson, 400 SCRA 584  Tecson v. COMELEC, 424 SCRA 277  People v. Yatar, 428 SCRA 504, 2004 Rule on DNA evidence (RDE) Rule on DNA Evidence (RDE) was issued by the Court in A.M. No. 06-11-5-SC. Q: In what situations do RDE apply? A: 1. Criminal actions 2. Civil actions 3. Special proceedings Q: What is DNA?

NOTE: The inspection may be made inside or outside the courtroom. An inspection or view outside the courtroom should be made in the presence of the parties or at least with previous notice to them.

A: It refers to deoxyribonucleic acid which is the chain of molecules found in every nucleated cell of the body

DNA Evidence

A: It is the genetic information derived from DNA testing of biological samples obtained from a person where such biological sample is clearly identifiable as originating from that person.

Q: What is the rule regarding DNA evidence? A: In Augustin v. CA (460 SCRA 315), the Court briefly sketched its past decisions on DNA testing which the Court

Q: What is DNA pofile?

Q: What is DNA evidence?

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A: The totality of the DNA profiles, results and other genetic information directly generated from the DNA testing of biological samples. NOTE: It is a scientific fact that the totality of an individual’s DNA is unique for the individual, except for identical twins. Q: How may an order for a DNA testing be obtained? A: A person who has legal interest in the litigation may file an application before the appropriate court, at any time. Q: What are the requisites for the order? A: 1. A biological sample exists that has relevance to the case 2. The biological sample: a. Was not previously subjected to the DNA testing requested b. If it was previously subjected to DNA testing, the results may require confirmation for good reasons. 3. The DNA testing uses a scientifically valid technique 4. The DNA testing has the scientific potential to produce new information that is relevant to the proper resolution of the case 5. The existence of other factors, if any, which the court may consider as potentially affecting the accuracy and integrity of the DNA testing. Q: What may an order contain? A: 1. Take biological samples from any person or crime scene evidence 2. Impose reasonable conditions on the testing to protect the integrity of the biological sample and the liability of the test results. NOTE: The court may motu propio order a DNA testing. Q: Is a court order always required before undertaking a DNA testing?

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A: None. The grant of the DNA testing application shall not be construed as an automatic admission into evidence of any competent of the DNA evidence that may be obtained as a result of the testing. This means that the court will still have to evaluate the probative value of the proposed evidence before its admission. Q: What are the matters to be considered for the determination of the probative value of the DNA evidence? A: 1. The chain of custody, including how the biological samples were collected, how they were handled, and the possibility of contamination of the samples. 2. The DNA testing methodology, including the procedure followed in analyzing the samples, the advantages and disadvantages of the procedure, and the compliance with the scientifically valid standards in conducting the tests. 3. The forensic DNA laboratory, including its accreditation and the qualification of the analyst who conducted the test; if the laboratory is not accredited, the court shall consider the relevant experience of the laboratory in forensic casework and its credibility shall be properly established 4. The reliability of the testing result.

Q: If a person has already been convicted under a final and executor judgment, may he still avail of DNA testing? A: Yes. The test after his conviction is termed a “postconviction.” It may be available to: a. The prosecution b. To the person conviction by final and executory judgment provided that the ff. requisites are present: 1. A biological sample exists 2. Such example is relevant to the case 3. The testing would probably result in the rehearsal of the judgment of conviction. Q: Is a court order required for a post DNA testing? A: No. It may be available without need of prior court order.

A: No. RDE allows a testing without a prior court if done before a suit or proceeding is commenced at the behest of any party including law enforcement agencies. Q: Is the order of the court granting a DNA testing appealable? A: No, it is immediately executor as provided by Sec. 5 of the RDE. Q: Is there an automatic admission of the DNA evidence obtained in the testing?

Q: What remedy is available to the convict if the results of the post DNA testing are favorable to him? A: He may file a petition for a writ of habeas data in the court of origin. The court shall then conduct a hearing and in case the court finds that the petition is meritorious, it shall reverse or modify the judgment of conviction and order the release of the convict, unless his detention is justified for a lawful cause. The rule also allows the petition to be filed either in the CA or the SC, or with any member of said courts. Q: Are the DNA profiles of a person open to public scrutiny?

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A: No, they are confidential.

Q: What is the probative value of paraffin tests?

Q: To whom they may be released?

A: They are merely corroborative, neither proving nor disproving that a person did indeed fire a gun.

A: 1. The person from whom the sample was taken 2. Lawyers representing parties in the case or action where the DNA evidence is offered and presented or sought to be offered and presented 3. Lawyers of private complainants in a criminal action 4. Duly authorized law enforcement agencies 5. Other persons as determined by the Court. Q: May the person from whom the biological sample was taken request that the result be disclosed to the person designated in his request? A: Yes, but such request must be in writing and verified and filed with the court that allowed the DNA testing. Q: What is the duty of the Trial courts? A: They are mandated to preserve the DNA evidence in its totality, including all biological samples, DNA profiles and results or other genetic information obtained from DNA testing in accordance with the RDE. Paraffin tests

Q: What factors may affect the results? A: Factors such as the wearing of gloves, perspiration of hands, wind direction, wind velocity, humidity, climate conditions, the length of the barrel of the firearm, the open or closed trigger guard of the firearm (People v. Buduhan, 2008). Polygraph tests (Lie detector tests) Polygraph test operates on the principle that stress causes physiological changes in the body which can be measured to indicate whether the subject of the examination is telling the truth. Sensors are attached to the subject so that the polygraph can mechanically record the subject’s physiological responses to a series of questions. Q: What is the probative value of polygraph tests? A: Courts uniformly reject the results of polygraph tests when offered in evidence for the purpose of establishing the guilt or innocence of the accused of a crime because it has not yet attained scientific acceptance as reliable and accurate means of ascertaining truth or deception.

Q: State the rule regarding paraffin tests. A: Paraffin tests generally have been considered as inconclusive by the court because scientific experts occur in the view that paraffin tests have proved extremely unreliable in use. The test can only establish the presence or absence of nitrates or nitrites on the hand but the test alone cannot determine whether the source of the nitrates or nitrites was the discharge of the firearm. Q: What is the effect of a negative result? A: The argument that the absence or negative result of gunpowder nitrates from the paraffin test conducted shows an absence of physical evidence that one fired a gun, is untenable as it is possible for one to fire a gun and yet be negative as when the hands are washed before the test (People v. Cajumocan, 430 SCRA 311).

II.

Documentary Evidence

Q: What is the scope of documentary evidence? A: Documents as evidence do not necessarily refer to writings. They may refer to any other material like objects as long as the material contains letters, words or numbers, figures, symbols or other modes of written expression and offered as proof of their contents. Q: What are the categories of documents as evidence? A: 1. Writings 2. Any other materials containing modes of written expressions

Q: What about a positive result? Rule 130 A: The presence should be taken only as an indication of a possibility or even a probability but not of infallibility that a person has fired a gun, since nitrates are also found in substances other than gunpowder such as in explosives, fireworks, fertilizers and pharmaceuticals, tobacco and leguminous plants.

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)

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Q: What are the examples under the first category? A: Written contracts and wills Q: What are the examples under the second category? A: Those which are not traditionally considered as writings but are actually objects but which contain modes of written expressions. NOTE: Being writings or materials containing modes of written expressions do not ipso facto make such materials documentary evidence. For such writings be deemed documentary, the same must be offered as proof of their contents. If offered for some other purpose, the writings or materials would not be deemed documentary evidence but merely object evidence. Q: What if a contract is presented in court to show that it exists or simply to establish its condition? A: It is not offered to prove its contents, therefore, it is not considered a documentary evidence but an object or real evidence. Q: Is the photocopy real (object) evidence or documentary evidence?

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established or an obligation is extinguished, or by which a fact may be proved or affirmed, which is received, recorded, transmitted, stored, processed, retrieved, or produced electronically. It includes digitally signed documents and any print-out or output, readable by sight or other means which accurately reflects the electronic data message, or electronic document. The term “electronic document” may be used interchangeably with “electronic data message.” Q: Does the rule absolutely require that the electronic document be initially generated or produced electronically? A: No. A contract for instance which was prepared through the traditional written way may be converted to an electronic document if transmitted or received or later recorded electronically. Q: 1. To establish a right 2. To extinguish an obligation 3. To prove or affirm a fact NOTE: Electronic documents are functional equivalents of paper-based documents. Sec. 1 of Rule 3 of the Rules on Electronic Evidence ELECTRONIC DOCUMENTS

A: It is a real (object) evidence. Although it is conceded that the bills contain letters, words or numbers and other modes of written expression, these facts alone do not make the bills documentary evidences. To be documentary evidence, the same must be offered as proof of their contents. The bills are obviously presented to show that money exchanged hands in the buy-bust operations and not prove what is written on the bills. Q: May a private document be offered and admitted in evidence both as documentary evidence and as object evidence?

SECTION 1. Electronic documents as functional equivalent of paper-based documents. – Whenever a rule of evidence refers to the term of writing, document, record, instrument, memorandum or any other form of writing, such term shall be deemed to include an electronic document as defined in these Rules. NOTE: The rules of court including the statutes containing rules of evidence are suppletory to the Rules on Electronic Evidence. Q: Who has the burden to prove its authenticity?

A: It depends on the purpose for which the document is offered. If offered to prove its existence, condition or for any other purpose other than the contents of a document, the same is considered as an object evidence. When it is offered as proof of its contents, the same is considered as a documentary evidence. The document may be offered for both purposes under the principle of multiple admissibility. Documents under the Rules on Electronic Evidence Q: What is electronic evidence under Sec. 1 [h] of Rules on Electronic Evidence? A:It refers to information, or the representation, data, figures, symbols, or other modes of written expressions, described or however represented, by which a right is

A: Sec. 1, Rule 5 of the Rules on Electronic Evidence: Sec. 2, Rule 5 the Rules on Electronic Evidence SEC. 2. Manner of authentication. – Before any private electronic document offered as authentic is received in evidence, its authenticity must be proved by any of the following means: (a) by evidence that it had been digitally signed by the person purported to have signed the same; (b) by evidence that other appropriate security procedures or devices as may be authorized by the Supreme Court or by law for authentication of electronic documents were applied to the document; or

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(c) by other evidence showing its integrity and reliability to the satisfaction of the judge. Note: The requirements for the authentication of an electronic document do not apply to all electronic documents. Sec. 2 will only apply when the document is a private electronic document and when the same is offered as an authentic document.

Note: Whenever a documentary evidence is involved, the best evidence rule, the parol evidence rule and hearsay rule, or anyone of these rules may come into play. Yet, where the evidence is offered as an object evidence, best evidence rule, the parol evidence rule and hearsay rule find no application. Q: What are the requisites for admissibility of documentary evidence?

If the electronic document is offered simply for what it is or for what is claimed to be regardless of whether or not it is authentic. Sec. 2 will not apply. The electronic document has only to be identified pursuant to the suppletory application of Sec. 20, Rule 132.

A:

Rule 132

4.

Sec. 20.Proof of private document. — 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. Note: If the document is electronically notarized, the manner of authentication under Sec.3 of Rule 5 will not also apply. When notarized, it is transformed into a public document and is to be proved in accordance with the Rules of Court.

1. 2. 3.

The document must be relevant; The evidence must be authenticated; The document must be authenticated by a component witness; and The document must be formally offered in evidence.

A. Best Evidence Rule Despite the word “best”, the rule does not proclaim itself as the highest and most reliable evidence in the hierarchy of evidence. The word best has nothing to do with the degree of its probative value in relation to other types of evidentiary rules. It does not mean “most superior” evidence. More accurately, it is the original document, or the primary evidence rule. It is not intended to mean that a weaker evidence be substituted by a stronger evidence.

Sec. 3, Rule 5 SEC. 3. Proof of electronically notarized document. - A document electronically notarized in accordance with the rules promulgated by the Supreme Court shall be considered as a public document and proved as a notarial document under the Rules of Court. Sec. 30 of Rule 132 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 facieevidence of the execution of the instrument or document involved. (31a) Evidentiary concepts involved in the presentation of documentary evidence To be admissible, documentary evidence must be relevant and competent. It is subject to general exclusionary rules such as the rule against hearsay, best evidence rule and parol evidence rule.

The only actual rule that such term denotes is the rule requiring that the original of a writing must, as a general rule, be produced. Sec.3 of Rule 130 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; (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)

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There is no reason to apply this rule when the issue does not involve the contents of a writing. The rule will come into play only when the subject of inquiry is the contents of a document. The rule cannot be invoked unless the contents of a writing is the subject of judicial inquiry, in which case, the best evidence is the original writing itself. The Consolidated Bank and Trust Corporation v. Del Monte Motor Works, Inc. (465 SCRA 117) The rule finds no application to a case where a party never disputed the terms and conditions of the promissory note, leaving the court to conclude that as far as the parties are concerned, the wordings or the contents of the note are clear enough and leave no room for disagreement. The defense of lack of consideration and that the signature in the note was made in the personal capacity of the respondent are defenses which do not question the precise wordings of the promissory note which should have paved the way for the application of the “best evidence rule.” NOTE: Where the issue is the execution or existence of the document or other circumstances surrounding its execution, the best evidence rule does not apply and testimonial evidence is admissible. When the subject of the inquiry is the contents of the document, no evidence shall be admissible other than the original thereof (Magdayao v. People, 463 SCRA 677). Any substitutionary evidence likewise admissible without need to account for the original (Chua Gaw v. Chua, 2008). Q: What is the reason for the adoption of the best evidence rule? A: It is to prevent fraud or mistake in the proof of the contents of a writing. Q: What are the 2 requisites for this rule to apply? A: 1. 2.

The subject matter must involve a document; and The subject of the inquiry is the contents of the document.

Thus, where the content of a document is not the issue, the rule cannot be invoked and more so when the evidence does not involve a document. The best evidence rule applies only when the subject inquiry is the contents of a document. It applies only when the purpose is to establish the terms of a writing. When the evidence introduced concerns some external fact about a writing like its existence, execution or delivery without reference to its terms, the rule cannot be invoked.

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Where the subject inquiry is to prove some fact like its existence, or the size of the matter on which it is written, the writing is not a documentary evidence but a mere object evidence. The best evidence rule does not apply to an object evidence. Thus, the original need not be presented. The existence or condition of that writing may be proved by any other evidence like oral testimony. Note: The subject of inquiry is the contents of a writing, not the truth thereof. Where the truth is in issue, the hearsay rule will now be invoked. Q: Is the photocopy admissible in evidence? A: The photocopy of the bills being object evidence, is admissible in evidence without violation of the best evidence rule. The rule applies only to documentary evidence and not to object evidence. Q: When a document is merely collateral in issue, will the rule apply? A: No. A document is collaterally in issue when the purpose of introducing the document is not to establish its terms but to show facts that have no reference to its contents like its existence, condition, execution or delivery. If a witness testifies that the victim was writing a letter when he was shot by the accused, the judge will rule against the party who insists on the presentation of the letter because the letter is not the subject of an important issue in the case and thus is merely collateral. Reason for the Best Evidence Rule Primarily, it is the need to present to the court the exact words of a writing where a slight variation of words may mean a great difference in rights. Secondly, it is the prevention and detection of fraud. It is to avoid unintentional or intentional mistaken transmissions of the contents of a document through the introduction of selected portions of a writing to which the adverse party has no full access. It is also to prevent erroneous interpretations or distortions of a writing, an objection based on this rule prevents a party from proving the contents of a writing by a copy thereof or by oral testimony if the original writing itself is available. As long as the original evidence can be had, the court should not receive in evidence that which is substitutionary in nature, such as photocopies, in the absence of any clear showing that the original writing has been lost or destroyed or cannot be produced in court. Such photocopies must be disregarded, being inadmissible evidence and barren of probative weight. Waiver of the Rule

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Sy v. CA (330 SCRA 550) Although the marriage certificate, license, and other pieces of documentary evidence were only photocopies, the fact that these have been examined and admitted by the trial court, with no objections having been made a to their authenticity and due execution, means that these documents are deemed sufficient proof of the facts contained therein. Q: What to do to apply the Best evidence rule? A: First, determine the matter inquired into. The procedural compliance of the rule requires the presentation of the original document, and not a copy of that document. So long as the original document is available, no other evidence can be substituted for the original.

Sec. 5.When original document is unavailable. — When the original document has been lost or destroyed, or cannot be produced in court, the offeror, upon proof of its execution or existence and the cause of its unavailability without bad faith on his 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) Q: What are the requisites so that secondary evidence may be admitted? A: 1. The offeror must prove the execution and existence of the original document; 2. The offeror must show cause of its unavailability; and 3. The offeror must show that the unavailability was not due to its bad faith.

Q: What if the original cannot be presented in evidence? Q: State the correct order of proof. A: The second step will now come into play. First, find an adequate legal excuse for the failure to present the original; and second, present a secondary evidence sanctioned by the Rules of Court. Present the original, except when you can justify its unavailability in the manner provided for by the Rules of Court. Excuses for not presenting the original document (Please refer to Sec. 3, Rule 30) (a)When the original has been lost or destroyed, or cannot be produced in court, without bad faith on the part of the offeror; (b)When the original is in the custody or under the control of the party against whom the evidence is offered, and the latter fails to produce it after reasonable notice; (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.

A: 1. 2. 3. 4.

Existence; Execution; Loss; and Contents

Q: The due execution and authenticity of the document may be proved by? A: 1. Anyone who saw the document executed or written; or 2. By evidence of the genuineness of the signature or handwriting of the maker. The burden of proof in establishing loss or destruction of the original is on the proponent of the secondary evidence. The loss of the original need not be shown to be beyond all possibility of mistake. A reasonable probability of its loss is sufficient like by showing that there was a bona fide and diligent but fruitless search for the document (Paylago v. Jarabe (22 SCRA 1247). Q: What should be the order of the presentation of secondary evidence by the prosecution?

Loss, destruction or unavailability of the original This exception does not only cover loss or destruction but also other reasons for the failure to produce the original in court even if the original is not lost or destroyed, as when the original is beyond the territorial jurisdiction of the court. The exception also applies where the original consists of inscriptions on immovable objects and monuments such as tombstones because they cannot be produced in court.

A: 1. A copy of the original 2. A recital of the contents of the contents of the document in some authentic document 3. By the testimony of witnesses NOTE: The hierarchy of preferred secondary evidence must be strictly followed. Q: What is secondary evidence?

Sec. 5 of Rule 130

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A: It refers to evidence other than the original instrument or document itself (EDSA Shangri-La Hotel v. BF Corp., 2008). Q: May the presentation or the offer of the original be waived? A: Yes. If the party against whom the secondary evidence is offered does not object thereto when the same is offered in evidence, the secondary evidence becomes primary evidence. But even if admitted as primary evidence, its probative value must still meet the various tests by which its reliability is to be determined. Original is in the Custody or control of the adverse party Q: The party who seeks to present secondary evidence must lay the basis for its introduction. What are the proofs required? A: 1. That the original exists 2. That said document is under the custody or control of the adverse party 3. That the proponent of secondary evidence has given the adverse party reasonable notice to produce the original document 4. That the adverse party failed to produce the original document despite the reasonable notice. Q: How may notice be given? A: The notice may be in the form of a motion for the production of the original, or made in open court in the presence of the adverse party, or via a subpoena duces tecum, provided that the party in custody of the original has sufficient time to produce the same.

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NOTE: The voluminous records must be made accessible to the adverse party so that the correctness of the summary of the voluminous records may be tested on cross-examination (Compania Maritima v. Allied Free Workers Union, 77 SCRA 24). Original document is a public record Public records are generally not to be removed from the places where they are recorded and kept. Thus, the proof of the contents may be done by secondary evidence. This evidence is a certified true copy of the original. This certified copy is to be issued by the public officer in custody of the public records. Q: What is the effect of not offering a document in evidence after calling for its production and inspection? A: No unfavorable inference may be drawn from such failure. This is because under the law, a party who calls for the production of a document is not required to offer it. Rule 130 Sec. 8.Party who calls for document not bound to offer it. — A party who calls for the production of a document and inspects the same is not obliged to offer it as evidence. (6a) Meaning of original (Rule 130)

Q: What are the exceptions to the rule regarding secondary evidence or when is such admissible?

Sec. 4.Original of document. — (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. (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)

A: 1. If the original consists of numerous accounts or other documents 2. They cannot be examined in court without great loss of time 3. The fact sough to be established from them is only the general result of the whole.

NOTE: An original, under the layman’s concept, is the first one written and from which mere copies are made, transcribed, or imitated. Thus, there can only be one original. This is not however so. When an entry is repeated in the regular course of business, one being copied from another at or near time of transaction, all the entries are equally regarded as originals.

Q: What is the reason for the exceptions?

Q: To be considered as originals, what are the requisites?

A: The reason lies in the determination by the court that production of the original writings and their examination in court would result in great loss of time considering that the evidence desired from the voluminous accounts is only the general result of the whole like a summary of accounts.

A: 1. There must be entries made and repeated in the course of business 2. The entries must be at or near the time of the transaction.

When the original consists of numerous accounts

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Thus, when a lawyer writes a pleading in two or more copies which are executed at the same time, with identical contents, each document is an original. So are writings with identical contents made by printing, mimeographing, lithography and other similar methods executed at the same time. Thus, each newspaper sold in the stand is an original in itself.

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SECTION 1. Original of an electronic document. – An electronic document shall be regarded as the equivalent of an original document under the Best Evidence Rule if it is a printout or output readable by sight or other means, shown to reflect the data accurately. Sec.2

Q: What if carbon sheets are inserted between two or more sheets of paper, and the signature on the first sheet being reproduced in the sheets beneath by the same stroke of the pen or writing medium? A: All sheets are deemed as originals. NOTE: Where a document is executed in duplicate or multiplicate form, each one of the parts is primary evidence of the contents of the document, and the other need not to be produced. In such case, each is deemed an original. If several copies of a document are made at the same time by inserting in each page a carbon paper and only one of them is signed, the signed copy is the original and the others are only copies. Q: Which is the original in case of telegraph company who failed to transmit a message? A: The original is the message submitted to the company for transmission. But if the suit is for damages by sender against the company because of delay, the original would be the message as received by the recipient. Q: In an action to collect the promissory note, which is the original copy? A: The original is one typed and signed by both parties and which was lost.

SEC. 2. Copies as equivalent of the originals. – When a document is in two or more copies executed at or about the same time with identical contents, or is a counterpart produced by the same impression as the original, or from the same matrix, or by mechanical or electronic rerecording, or by chemical reproduction, or by other equivalent techniques which is accurately reproduces the original, such copies or duplicates shall be regarded as the equivalent of the original. Notwithstanding the foregoing, copies or duplicates shall not be admissible to the same extent as the original if: (a) a genuine question is raised as to the authenticity of the original; or (b) in the circumstances it would be unjust or inequitable to admit a copy in lieu of the original. Original printout of facsimile transmissions Q: Is a printout of a facsimile transmission an electronic data message or electronic document? A: No, it does not include a facsimile transmission. It is not the functional equivalent of an original under the Best Evidence Rule and is not admissible as electronic evidence. Moreover, a photocopy of such fax transmission cannot be considered as an electronic evidence. Garvida v. Sales, Jr. 338 Phil 484

Q: Can the photocopies in the hands of the parties be considered as duplicate originals? A: No. They cannot be deemed as having been made at the same time with the original because they were not signed unlike the original.

A facsimile is not a genuine and authentic pleading. It is, at best, an exact copy preserving all the marks of an original. Without the original, there is no way of determining on its face whether the facsimile pleading is genuine and authentic and was originally signed by the party and his counsel. It may in fact, be a sham pleading.

Originals under the Rules on Electronic evidence Q: What is the original under the Rules on Electronic evidence?

B. Parol Evidence Rule

A: It is the print-out or output readable by sight or other means, provided it is shown to reflect the data accurately

Among the various evidentiary rules, it is the parol evidence rule that has direct application to the law on contracts.

Sec. 1, Rule 4, Rules on Electronic evidence

Q: When is the rule applicable?

BEST EVIDENCE RULE

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A: It applies only to contracts which the parties have decided to set forth in writing, i.e. as Sec. 9 of Rule 130 provides: Rule 130 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: (a)An intrinsic ambiguity, mistake or imperfection in the written agreement; (b)The failure of the written agreement to express the true intent and agreement of the parties thereto; (c)The validity of the written agreement; or (d)The existence of other terms agreed to by the parties or their successors in interest after the execution of the written agreement. The term "agreement" includes wills. (7a) Q: What if the agreement is oral? A: It does not apply. NOTE: The contract does not define a contract as a document, a deed or an instrument. The document or the deed or instrument are merely the tangible evidences of a contract. It is the meeting of the minds between the parties that constitutes the contract.

purporting to show that different terms were agreed upon by the parties, varying the purport of the written contract. Whatever is not found in the writing is understood to have been waived and abandoned (SeaOil Petroleum Corp. v. Autocorp Group, 2008; Estrada v. Ramos, 468 SCRA 597). In general, the parol evidence rule is designed to give certainty to written transactions, to preserve the reliability and to protect the sanctity of written agreements. NOTE: Not all writings will trigger the application of the parol evidence rule. That writing must embody an agreement. Q: Should the writing that embodies the agreement of the parties be in a particular form? A: No, it only makes reference to writing, not a public writing or private writing. Application of the Rule only to parties and their successorsin-interest Q: Who are bound by the parol evidence rule? A: Only the parties. The rule that the terms of an agreement are to be proven only by the contents of the writing itself refers to suits between parties to the contract and their successors in interest. The rule does not bind suits involving strangers to the contract. Application of the Rule to Wills The parol evidence rule applies to contractual obligations. But, it also includes wills. There can therefore, be no evidence of the terms of the will other than the contents of the will itself.

Q: Is a written form required for the existence of a contract? A: No. The law provides that contracts shall be obligatory, in whatever form they may have been entered into, provided all the requisites for their validity are present such as: a. Consent b. Object c. Cause

Q: May an express trust concerning immovable or any interest therein be proved by parol evidence? A: No. How to introduce parol evidence Q: Is the rule prohibiting parol evidence absolute?

Q: When a written agreement is entered, any extraneous or parol evidence will be inadmissible for what purposes? A: 1. To modify 2. To explain 3. To add to the terms of the written agreement. Q: What is the purpose of the parol evidence rule? A: It forbids any addition to, or contradiction of, the terms of a written agreement by testimony or other evidence

A: No. Q: What are the exceptions? A: A party may present evidence to modify, explain, or add to the terms of the written agreement: 1. An intrinsic ambiguity, mistake, or imperfection in the written agreement 2. The failure of the written agreement to express the true intent and agreement of the parties thereto. 3. The validity of the written agreement

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4.

The existence of other terms agreed to by the parties or their successors-in-interest after the execution of the written agreement.

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written into the Dec.22 agreement are not admissible since these constitute parol evidence. On the other hand, a January 5 the agreement would be admissible because subsequent agreements were not barred by parol evidence rule.

Q: What do you mean by introducing parol evidence? A: It means offering extrinsic or extraneous evidence that would modify, explain or add to the terms of the written agreement but parol evidence may only be allowed of any of the matters mentioned above is put in issue in the pleadings. Otherwise, parol evidence cannot be introduced. Q: What are the issues which should be put before the amendments can be introduced? A: 1. Mistake or imperfection in the writing 2. The failure to express the true agreement of the parties and the validity of the agreement.

The parties to a written agreement may show written agreement, they have entered into an oral contract tending to waive, dissolve, or annul the former agreement, or in any manner to add to, or subtract from or vary or qualify the term thereof. The rule prohibiting the admission of evidence aliunde or extrinsic evidence did not prohibit proof of an agreement entered into after the written instrument was executed, notwithstanding that such agreement may have the effect of adding to, changing or modifying the written agreement of the parties. Thus, parol evidence on subsequent agreements may be admitted. Intrinsic ambiguity in the writing

It is not the province of the courts to amend a contract by construction, or to make a new contract for the parties by interjecting material stipulations, or even to read into the contract words which it does not contain. It is only where a party puts in issue in the pleadings the failure of the written agreement to express the true intent of the parties thereto said party may present evidence to modify, explain or add to the terms of the written agreement. To justify the introduction of parol evidence a party must establish that an alleged agreement failed to express the true intent of the parties. Until and unless this has been successfully carried out, there is no right in esse to speak of. Accordingly, parol evidence cannot serve the prupoe of incorporating into the contract additional contemporaneous conditions which are not mentioned at all in writing unless there has been fraud or mistake.

An instance when evidence aliunde or parol evidence may be allowed to modify, explain or even add to the written agreement is when an intrinsic ambiguity exists in the written agreement. Yet, mere existence of n intrinsic ambiguity will not authorize the admission of parol evidence. It is important tha the intrinsic ambiguity be put in issue in the party’s pleading. It is the raising of the issue of intrinsic ambiguity which will authorize the introduction of parol evidence. Q: What is intrinsic or latent ambiguity? A: It is one which is not apparent on the face of the document but which lies in the person or thing that is the subject of the document or deed. Ambiguity is intrinsic or latent when the language of the writing is clear and intelligible and suggests but a single meaning but some matter extraneous to the writing creates the ambiguity.

Pilipinas Bank v. CA (G.R. No. 141060) For parol evidence to be admissible to vary the terms of the written agreement, the mistake or imperfection thereof or its failure to express the true agreement of the parties should be put in issue by the pleadings. Accordingly, when the terms of an agreement have been reduced to writing, it is considered a containing all the terms agreed upon and there can be, between the parties and their successors-in-interest, no evidence of such other terms other than the contents of the written agreement. Prior, contemporaneous and subsequent agreements Traditional rules limit the inadmissibility of parol evidence or extrinsic evidence to prior or contemporaneous stipulations. Hence, if a written agreement was executed by the parties on Dec.22, 2008, agreements before that date or even on the same date which modify, alter, or contradict the stipulations

In this type of ambiguity, the document is clear on its face but matters extraneous to the agreement create the ambiguity. Note: Where the ambiguity is patent or extrinsic, parol evidence will not be admitted even if the same is put in issue in the pleading. Q: What is extrinsic or patent ambiguity? A: It is that which appears on the very face of the instrument, and arises from the defective, obscure, or insensible language used. Parol evidence is not admissible to explain the ambiguity otherwise the court would be creating instead of construing a contract. Note: The rule only allows parol evidence in the case of an intrinsic or latent ambiguity.

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Mistake or imperfection in the writing and failure to express the true agreement of the parties

2.

The admission of evidence aliunde may be justified where there is a mistake or imperfection in the written agreement. This mistake or imperfection must be put in issue in the pleading by the party who wants to prove the defect in the writing.

3.

Failure of the writing to express the true agreement of the parties is another ground for admitting parol evidence as long as the issue is raised in the pleadings. Q: What does mistake or imperfection in writing here mean? A: This only means that despite the meeting of the minds, the true agreement of the parties is not reflected in the instrument. Q: What are the other reasons which made the instrument unable to express the true intention of the parties? A: 1. 2. 3. 4. 5. 6. 7.

Fraud Inequitable conduct Accident Ignorance lack of skill negligence bad faith on the part of the person drafting the instrument (Arts. 1359 and 1364 of the NCC)

Q: What is the remedy if there is a meeting of minds of the parties but their true intention is not expressed in the instrument because of the above-mentioned causes? A: One of the parties may ask for the reformation of the instrument (Art. 1359, NCC). Q: What if there is no meeting of minds?

An instrument may be reformed if the instrument does not express the true intention of the parties because of lack of skill of the person drafting the instrument If the parties agree upon mortgage or pledge of property, but the instrument states that the property is sold absolutely or with the right to repurchase, reformation is proper

Q: Reformation of the instrument cannot be brought to reform certain things. Give examples: A: 1. Simple donations inter vivos wherein no condition is imposed 2. Wills 3. When the agreement is void

Q: Distinguish between Best Evidence Rule and the Parol Evidence Rule. A: BEST EVIDENCE RULE Establishes a preference for the original document over a secondary evidence thereof Precludes the admission of secondary evidence if the original document is available

Can be invoked by any litigant to an action whether or not said litigant is party to the document involved Applies to all forms of writing

A: The proper remedy is not reformation of the instrument but an action for annulment (Art. 1359, NCC). Q: What is an action for reformation? A: It presupposes that there is nothing wrong with the contract itself because there is a meeting of minds of the parties. Art. 1359 does not in fact refer to a reformation of the contract but of the instrument. Examples: 1. The parties have agreed on the size of the land subject of the sale. By an act of fraud, a smaller area is indicated in the deed.

PAROL EVIDENCE RULE Not concerned with the primacy of evidence but presupposes that the original is available Precludes the admission of other evidence to prove the terms of a document other than the contents of the document itself for the purpose of varying the terms of the writing Can be invoked only by the parties to the document and their successors-in-interest Applies to written agreements (contracts)

Waiver of Parol Evidence Rule Q: Can the parol evidence rule be waived? A: Yes: 1. by failure to invoke the benefits of the rule 2. by failure to object to the introduction of evidence aliunde. Probative value Admissibility is not the equivalent of probative value or credibility. C.

Authentication and Proof of Documents (Rule 132)

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3. Concept of authentication

By other evidence showing its integrity and reliability to the satisfaction of the judge (Sec.2, Rule 5, Rules on Electronic Evidence)

Authentication occupies a vital place in the presentation of evidence.

Concept of document

Q: What may be the object of authentication?

Q: What is a document?

A: Not only documents but also objects introduced in evidence need to be authenticated.

A: It means a deed, instrument, or other duly authorized paper by which something is proved, evidenced or set forth.

Authentication is the preliminary step in showing the admissibility of an evidence.

Q: When may documents be considered as documentary evidence?

Example: A weapon is found in the crime scene. To be admissible in evidence, it must be authenticated. This means that it must be shown to the satisfaction of the court that the weapon in court is the very same weapon found in the scene is the same. Thus, the court must call someone to authenticate the same. He could be the police investigator or someone else who handled the evidence.

A: Only when it is offered as proof of their contents. Otherwise, it is a mere object when the purpose is merely to prove its existence.

Q: Is litigation involved in the authentication of either object or documentary evidence?

Q: What are the classifications of documents? A: 1. 2.

Public Private Rule 132

A: Yes, it is always involved. Q: What is the presumption under our jurisdiction?

Sec. 19.Classes of Documents. — For the purpose of their presentation evidence, documents are either public or private.

A: That objects and documents presented in evidence are, as a rule, counterfeit. Thus, evidence is not presumed to be authentic.

Public documents are:

Q: Does authentication of a private document require a seal? A: No. There shall be no difference between sealed and unsealed private documents insofar as their admissibility is concerned. Authentication under Rules on Electronic Evidence Q: Who bears the burden of proof? A: The person seeking to introduce an electronic evidence. Q: What are the requirements for the authentication of an electronic evidence? A: 1. By evidence that it had been digitally signed by the person purported to have signed the same 2. By evidence that other appropriate security procedures or devices as may be authorized by the SC or by law for authentication an electronic documents were applied to the document

(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 Philippines, or of a foreign country; (b)Documents acknowledge before a notary public except last wills and testaments; and (c)Public records, kept in the Philippines, of private documents required by law to the entered therein. All other writings are private. (20a) Q: Do written official acts, or records of the official acts of the sovereign authority refer only to those of the Philippines? A: No. They refer also to those of a foreign country. Documents acknowledged before a notary public except last wills and testaments which are private documents even if notarized. NOTE: In the case of a public record of a private document required by law to be entered into a public record, the public document does not refer to the private document itself but the public record of that private document. Q: What is a private document?

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A: The law does not give any exact definition. Church registries It is well-settled that Church registries of birth, marriages, and deaths made subsequent to the promulgation of General Orders No. 68 and Act No. 190 are no longer public writings, nor are they kept by duly authorized officials. They are private writings and their authenticity must be proved, as are all other private writings. Importance of knowing whether a document is public or private ( Rule 132) Sec. 20.Proof of private document. — 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) Before the admission of a private document in evidence that is offered as authentic, its due execution and authenticity must be proved. This does not apply to a public document which is admissible without further proof of its due execution and genuineness.

Agagon v. Bustamante (A.C. No. 5510) The notarial seal converts the document from private to public, after which it may be presented as evidence without need for proof of its genuineness and due execution. Rule 132 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) When a public officer in the performance of his duty makes an entry in the public record, the document of such entry is deemed prima facie evidence of the facts stated in the entry. In case of public document, the facts stated therein constitute evidence of the facts that gave rise to the execution of such documents and of the date of the execution of the same. Evidence of official records of official acts; attestation While a public instrument does not require the authentication imposed upon a private document, there is a necessity for showing to the court that indeed a record of the official acts of official bodies, tribunals or public officer exists. Rule 132

Rule 132 The record of a public document may be evidenced by: 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 facieevidence of the execution of the instrument or document involved. (31a) Notarized documents, being public documents, do not require authentication, unlike private documents. They also enjoy prima facie presumption of authenticity and due execution. It enjoys the presumption of regularity. It is a prima facie evidence of the truth of the facts stated therein and a conclusive presumption of its existence and due execution. To overcome this presumption, there must be sufficient, clear and convincing evidence as to exclude all reasonable controversy as to the falsity of the certificate. In the absence of such proof, the document must be upheld. The one who denies the due execution of deed where one’s signature appears has the burden of proving that contrary to the recital in the jurat, one never appeared before the notary public and acknowledge the deed to be a voluntary act.

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 Philippines, with a certificate that such officer has the custody. 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 Philippines stationed in the foreign country in which the record is kept, and authenticated by the seal of his office. (25a) 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

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he be the clerk of a court having a seal, under the seal of such court. (26a)

admissible as evidence that the records of his office contain no such record or entry. (29)

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)

Last wills and testament Last wills and testaments must undergo an authentication process even if they are notarized in accordance with Art. 806 of the NCC.

Special power of attorney executed abroad

Art. 806, NCC

A notary public in a foreign country is not of those who can issue the certificate mentioned in Sec.24. Non-compliance with such rule will render the special power of attorney inadmissible in evidence. The argument that the lack of consular authentication is a mere technicality that can be brushed aside in order to uphold substantial justice is untenable. Failure to have the SPOA authenticated is not a mere technicality but a question of jurisdiction.

Art. 806. Every will must be acknowledged before a notary public by the testator and the witnesses. The notary public shall not be required to retain a copy of the will, or file another with the Office of the Clerk of Court. (n)

Q: What are the evidence of public record of a private document? A: A public record of a private document may be proved by any of the following: a. b.

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 (Sec. 27 of Rule 132).

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) Q: How to prove the lack of record? A: Proof of lack of record of a document consists of written statement signed by an officer having custody of an official record or by his deputy. The written statement must contain the ff. matters: a. b.

There has been a diligent search of the record; That despite the diligent search, no record of entry of a specified tenor is found to exist in the records of his office.

The statement must be accompanied by a certificate that such officer has the custody of official records. Sec. 28.Proof of lack of record. — A written statement signed by an officer having the custody of an official record or by his deputy that after diligent search no record or entry of a specified tenor is found to exist in the records of his office, accompanied by a certificate as above provided, is

The Rules while declaring that the term “public document” includes one acknowledged before a notary public, it nonetheless expressly excludes last wills and testaments (Rule 132, Sec.19 (b). 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 Philippines, or of a foreign country; (b)Documents acknowledge before a notary public except last wills and testaments; and (c)Public records, kept in the Philippines, of private documents required by law to the entered therein. All other writings are private. (20a) Also, substantive law provides that no will shall pass either real or personal property unless proved and allowed in the proper court. The same rule is echoed in Sec. 1 of Rule 75. Art. 838, NCC Art. 838. No will shall pass either real or personal property unless it is proved and allowed in accordance with the Rules of Court. The testator himself may, during his lifetime, petition the court having jurisdiction for the allowance of his will. In such case, the pertinent provisions of the Rules of Court for the allowance of wills after the testator's a death shall govern. The Supreme Court shall formulate such additional Rules of Court as may be necessary for the allowance of wills on petition of the testator. Subject to the right of appeal, the allowance of the will, either during the lifetime of the testator or after his death, shall be conclusive as to its due execution. (n)

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Sec. 1 of Rule 75

Heirs of Amado Celestial v. Heirs of Editha G. Celestial

Sec.1. Allowance of will necessary. Conclusive as to execution.—No will shall pass either real or personal estate unless proved and allowed in the proper court. Subject to the right of appeal, such allowance of the will shall be conclusive as to its due execution.

The rule does not require expert testimony to prove the handwriting of a person. It may be proven by any witness who believes it to be the handwriting of a person because: a. b.

Poof of a Private Document (Rule 132) Sec. 20.Proof of private document. — 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) Where the private document is offered in evidence as authentic, there is a need to prove its due execution and authenticity. Sec. 20 recognizes 2 ways of proving the due execution and genuineness of a private document: a.

b.

Rely on the personal knowledge of the witness (he personally witnessed the execution or writing of the document); and The witness testifies or shows evidence that the signature or handwriting of the maker is genuine.

The rule only applies when a private document is offered as authentic as when it is offered in evidence to prove that the document was truly executed by the person purported to have made the same. Thus, where it is offered in evidence not as authentic, its genuineness and due execution need not be proven as when the only purpose is for the efferor to show that a certain piece of document exists. Q: How to prove the genuineness of a handwriting?

c.

he has seen the person write; or has seen writing purporting to be his upon which the witness has acted or been charged, and has thus acquired knowledge of the handwriting of such person; 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. Ancient documents (Rule 132)

Sec. 21.When evidence of authenticity of private document not necessary. — Where a private document is more than thirty years old, is produced from the custody in which it would naturally be found if genuine, and is unblemished by any alterations or circumstances of suspicion, no other evidence of its authenticity need be given. (22a) This is the exception to the rule requiring proof of the genuineness and due execution of a private document. Accordingly, when a document is ancient, evidence of its authenticity need not be given. There is no necessity for observance of the authentication process. Yet, it must be established that document is ancient and that it has the characteristics of a document provided in Sec. 21. When all these are done, no other evidence of its authenticity need be given. Q: When is a document considered as ancient? A: A private document is considered as ancient when it is more than 30 years old, is produced from a custody in which it would naturally be found if genuine and is unblemished by any alterations or circumstances of suspicion. Yet, while a witness is not needed to prove the due execution and authenticity of the document, a witness is needed to identify the same.

A: Sec. 22 of Rule 132 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 he has seen the person write, or has seen writing purporting to be his upon which the witness has acted or been charged, and has thus acquired knowledge of the handwriting of such person. 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)

Note: If the authenticity of a private document has been admitted by the parties, the rule requires no further authentication. Q: How to explain alterations in a document? A: Sec. 31 of Rule 132 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

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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 innocent made, or that the alteration did not change the meaning or language of the instrument. If he fails to do that, the document shall not be admissible in evidence. (32a) The party introducing the document as genuine but which bears alterations after its execution has the duty to account for any alteration found in the same. He may show any of the following: a. b. c.

that the alteration was made by another, without his concurrence; that the alteration was made with the consent of the parties affected by it; that the alteration was otherwise properly or innocent made, or that the alteration did not change the meaning or language of the instrument.

Failure to do any of the above will make the document inadmissible in evidence. Q: How to prove documents in an unofficial language? A: Sec.33 of Rule 132 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) Impeachment of judicial record Judicial record refers to the record of judicial proceedings. It does not only include official entries or files or the official acts of a judicial officer but also the judgment of the court. 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)

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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)

Chapter IV TESTIMONIAL EVIDENCE A. Qualifications of Witnesses Nature of Testimonial or Oral Evidence Q: What are testimonial or oral evidence? A: It is evidence elicited from the mouth of a witness as distinguished from real and documentary evidence. It is also called as viva voce which means living voice. In this evidence, a human being is called to the stand, is asked questions, and answers the questions asked of him. He is called the witness. Competent witness means evidence that is not excluded by law or by rules. As a applied to a witness, competence means that the witness is qualified to take a stand and testify. It means that he is fit or he is eligible to testify on a particular matter in a judicial proceeding. If a witness cannot perceive or even if he can perceive he cannot remember what he has perceived, he is incompetent to testify. If he has no personal knowledge of an event the truth of which he wants to prove, he is also incompetent to testify. Competence of a witness therefore, refers to his personal qualifications to testify. Competence also includes the absence of any factor that would disqualify him from being a witness. The presentation and introduction of every kind of evidence needs the intervention of a witness. It is a legal truth that identification precedes authentication. Being inanimate, a document or an object cannot speak for itself. Presumption in favor of competence of a witness

Registration of contracts Where a contract is required by law to be registered, the same must be, as a rule, in a public document. For example, for purposes of registration and convenience, acts and contracts which have for their object the creation, transmission, modification or extinguishment of real rights over immovable property must appear in a public document.

A person who takes the stand as a witness is presumed to be qualified to testify. A party who desires to question the competence of a witness must do so by making an objection as soon as the facts tending to show incompetency are apparent. Qualifications of a witness (Rule 130, Sec. 20)

Sec. 23 of Rule 132

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Sec. 20.Witnesses; their qualifications. — Except as provided in the next succeeding section, all persons who can perceive, and perceiving, can make their known perception to others, may be witnesses.

Ability to make known the perception to others Q: What are the factors involving the ability to make known the perception of the witness to the court?

Religious or political belief, interest in the outcome of the case, or conviction of a crime unless otherwise provided by law, shall not be ground for disqualification. (18a)

A: 1. Ability to remember what has been perceived; and 2. The ability to communicate the remembered perception.

Q: What are the qualifications of a witness? A:

People v. Tuangco Deaf-mutes are not necessarily incompetent as witnesses. They are competent where they:

1. 2. 3. 4.

He can perceive; and in perceiving He can make known his perception to others. He must take either an oath or an affirmation (Sec. 1, Rule 132); and He must not possess the disqualifications imposed by law or the rules.

a. b. c.

Can understand and appreciate the sanctity of an oath; Can comprehend facts they are going to testify to; and Can communicate their ideas through a qualified interpreter.

Oath or affirmation (Rule 132) Competency and Credibility SECTION 1.Examination to be done in open court. — The examination of witnesses presented in a trial or hearing shall be done in open court, and under oath or affirmation. Unless the witness is incapacitated to speak, or the questions calls for a different mode of answer, the answers of the witness shall be given orally. (1a) The willingness to take an oath or affirmation is an essential qualification of a witness. No court would and should allow the testimony of someone who desires to testify but who refuses to swear or to make an affirmation. A person is not qualified to be a witness if he is incapable of understanding the duty to tell the truth. An oath or affirmation is necessary for the witness to recognize the duty to tell the truth. It signifies that he is swearing to the Creator “to tell the truth and nothing but the truth” and that if he does not, he will later on answer for all the lies he is guilty of. This understanding is not necessarily inferred from the age of the witness.

Competence A matter of law or a matter or rule In deciding competence of witness, the court will not inquire into the trustworthiness of the witness. Has reference to the basic qualifications of a witness as his capacity to perceive and his capacity to communicate his perception to others. It includes the absence of any of the disqualifications imposed upon a witness.

Credibility Nothing to do with the law or rule Refers to the weight and the trustworthiness or reliability of the testimony

Refers to the believability of the witness and has nothing to do with law or the rules.

Note: One who has contradicting testimony is still competent witness.

Ability to perceive

Sec. 20-24 of Rule 130

A witness must be able to perceive an event. It would be absurd to ask a blind man what he saw, or of a deaf person what he heard. The witness must also have personal knowledge of the facts surrounding the subject matter of his testimony. Otherwise, he lacks the competence to testify.

Sec. 21.Disqualification by reason of mental incapacity or immaturity. — The following persons cannot be witnesses:

Rule 130, 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)

(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) Sec. 22.Disqualification by reason of marriage. — During their marriage, neither the husband nor the wife may testify

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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)

NOTE: Persons covered by the Survivorship Disqualification Rule (Dead Man’s Statute) cannot testify as to any matter of fact occurring before the death or insanity of the adverse party.

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)

Drug abuse will not render a person incompetent to testify. It becomes relevant only if the witness was under the influence of drugs at the same time he is testifying or at the time the events in question were observed.

Sec. 24.Disqualification by reason of privileged communication. — The following persons cannot testify as to matters learned in confidence in the following cases: (a)The husband or the wife, during or after the marriage, cannot be examined without the consent of the other as to any communication received in confidence by one from the other during the marriage except in a civil case by one against the other, or in a criminal case for a crime committed by one against the other or the latter's direct descendants or ascendants; (b)An attorney 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 was necessary to enable him to act in 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) Q: Is bias a basis for declaring a witness incompetent to testify? A: No.

Q: What is the rule regarding questions concerning the credibility of witnesses? A: They are best left to the sound discretion of ht trial court as it is in the best position to observe his demeanor and bodily movements. G.R.: The findings of the trial courts on the credibility of witnesses deserve a high degree of respect and will not be disturbed XPN: When the trial court had overlooked, misunderstood, or misapplied some facts or circumstances of weight and substance which could reverse a judgment of conviction. Q: What is the reason for the general rule? A: The trial courts had observed the witnesses’ deportment and manner of testifying, the furtive glance, blush of conscious shame, hesitation, flippant or sneering tone, calmness, sigh, or the scant or full realization of an oath—all of these are useful aids for an accurate determination of a witness’ honesty and sincerity. Other factors that do not affect the competency of witness Q: What are the factors which do not, as a general rule, affect the competency of witness? A: Sec. 20 of Rule 130: a. b. c. d.

Religious or political belief, interest in the outcome of the case, or conviction of a crime unless otherwise provided by law

Q: Give an example under the phrase “conviction of a crime unless otherwise provided by law”? A: Those who have been convicted of falsification of a document, perjury or false testimony are disqualified from being witnesses at a will (Art. 821, NCC). As a consequence, these persons may not also testify as witnesses in the probate of a will where the subject of the testimony is the very fact of execution of the will in their presence.

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Q: Does relationship of a witness with a party render him, ipso facto, biased? A: No (Northwest Airlines v. Chiong, 2008).

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A: Every child is presumed qualified to be a witness. This is based on Sec. 6, Rule on Examination of a Child Witness, A.M. No. 004-07-SC. Q: Who has the burden of proof to rebut this presumption?

B. Disqualification of witnesses Sec. 21 of Rule 130 Sec. 21.Disqualification by reason of mental incapacity or immaturity. — The following 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)

A: The party challenging his competence. NOTE: When the court finds that substantial doubt exists regarding the ability of the child to perceive, remember, communicate, distinguish truth from falsehood, or appreciate the duty to tell the truth in court, the court shall conduct a competency examination of a child. Q: How will the court conduct the competency examination of a child? A: Motu propio or on motion of a party.

Q: What requisites must concur in order to disqualify a witness by reason of mental incapacity?

Q: What proof is required to prove the necessity of a competency examination of a child?

A: 1. The person must be incapable of intelligently making known their perception to others 2. His incapacity must exist at the time of his production for examination.

A: Proof of such necessity must be grounded on reasons other than age of the child because such age in itself is not a sufficient basis for a competency examination of a child. Q: Is the competency examination of a child open to the public?

Q: What is thus the test to disqualify him? A: No. A: The question is: Is the mental condition of the proposed witness at the time he is to testify such that he is of his perception to others? The answer to this question will determine whether or not a person is a mentally competent witness.

Q: Who are allowed to attend the examination?

Q: Who is a child witness?

A: 1. 2. 3. 4. 5.

A: Any person who at the time of giving testimony is below the age of 18 years old (Sec. 4 [a], Rule on Examination of a Child Witness, A.M. No. 004-07-SC).

Q: Who shall conduct the competency examination of a child?

Child witness meaning

Q: What if he is over 18 years of age, can he be considered as a child? A: Sometimes, he may. If he is found by the court as unable to fully take care of himself or protect himself from abuse, neglect, cruelty, exploitation or discrimination because of physical or mental disability or condition (Sec. 4 [a], Rule on Examination of a Child Witness, A.M. No. 004-07-SC). Competency of a child witness Q: What is the presumption under the law?

The judge and necessary court personnel The counsel for the parties The guardian ad litem One or more support persons for the child The defendant, unless the court determines the competence can be fully evaluated in his absence.

A: Only by the judge. If counsels of the parties desire to ask questions, they cannot do so directly. They are allowed to submit questions to the judge which he may ask the child in his discretion. Q: What should be the nature of the questions? A: They shall be appropriate to the age and developmental level of the child. The questions shall not be related to the issues at the trial but shall focus on the ability of the child to remember, to communicate, to distinguish between truth and falsehood and to appreciate the duty to testify truthfully

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(Sec. 6, [e] Rule on Examination of a Child Witness, A.M. No. 004-07-SC). NOTE: The assessment is designed to be a continuing one. Q: When may the court order that the testimony of a child be taken by live-link television? A: If there is a likelihood that the child would suffer trauma from testifying in the presence of the accused, his counsel or the prosecutor as the case may be. Q: What kind of trauma is contemplated on? A: Such that would impair the completeness or truthfulness of the testimony of the child Survivorship Disqualification Rule or the Dead Man’s Statute (Rule 130) 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) Q: Where does this rule apply? A: 1. Civil case 2. Special proceeding Q: What are the elements for its application? A: 1. The defendant in the case is the executor or administrator or other representative of a deceased person, or against a person of unsound mind, 2. The suit is upon a claim or demand against the estate of such deceased person or against such person of unsound mind 3. The witness is the plaintiff or an assignor of that party, or a person in whose behalf the case is prosecuted 4. The subject of the testimony is as to any matter of fact occurring before the death of such deceased person or before such person became of unsound mind. Q: What is the purpose of this rule? A: To level the playing field between the lucky survivor and the poor deceased, the law-makers devised a rule that would seal the lips of the survivor by declaring him incompetent to

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testify on the transaction between him and the deceased. The rule does not protect the survivor even at the risk of not paying a just and valid claim because it is the survivor who has the stronger reason to file a false claim. The rule is for the protection of the guy who died (Tan v. CA, 295 SCRA 755). Q: How will the rule be applied? A: 1. Determine first who the defendant is. He is the executor or administrator or other representative of a deceased person, or against a person of unsound mind. 2. The rule will not apply if the plaintiff is the executor or administrator or other representative of a deceased person, or the plaintiff is of unsound mind 3. The rule contemplates a suit against the estate, its executor or administrator and not a suit filed by the administrator or executor of the estate. 4. When a counterclaim set up by the executor or administrator of the estate, the case is removed from the operation of the dead man’s statute. 5. The case should be one upon a claim or demand against the estate of such deceased person or against such person of unsound mind 5. The rule does not apply when the action brought is not against the estate or not upon a claim or demand against the estate. Q: What is the nature of the case? A: It is a civil case, not criminal because the estate itself cannot be criminally liable. Q: Who are these persons enumerated by the law? A: These are the persons who had previous dealings with the deceased or the person of unsound mind. It does not prohibit a testimony by a mere witness to the transaction. Thus, offering a disinterested witness is not a transgression of the rule since the prohibition extends only to the party or his assignor or the person in whose behalf the case is prosecuted. Q: To what matter does the incompetency is imposed upon the witness? A: On any matter of fact occurring before the death of such deceased person or before such person became of unsound mind. Hence, if the subject of the testimony is on some other matter, the witness may testify on such matter as when the subject of the testimony is on a fact which transpired after the death of such person. Thus, a testimony favorable to the estate or to the insane person is not barred since the rule is designed to protect the interest of the estate or to the insane person. Q: How may this rule be waived?

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Q: What is the important requisite to claim this privilege? A: 1. Failing to object to the testimony 2. Cross-examining the witness on the prohibited testimony (Santos v. Santos, 366 SCRA 395) 3. Offering evidence to rebut the testimony.

A: It is essential that they be validly married. It requires not only a valid marriage but the existence of that valid marriage at the moment the witness-spouse gives the testimony. Q: Does not apply to illicit cohabitation?

Q: True or False: The surviving parties rule bars Maria from testifying for the claimant as to what the deceased Jose has said to her, in a claim filed by Pedro against the estate of Jose. A: False. The rule bars only a party plaintiff or his assignor or a person in whose behalf a case is prosecuted. Maria is merely a witness and is not one of those enumerated as barred from testifying. Marital Disqualification Rule (Spousal Immunity) (Rule 130) 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)

A: No. NOTE: The prohibited testimony is one that is given or offerd during the existence of the marriage. Thus, it no longer applies after the marriage is dissolved. Q: Should the facts subject of the testimony occurred or came to the knowledge of the witness before the marriage? A: It does not matter if the facts subject of the testimony occurred or came to the knowledge of the witness before the marriage. The affected spouse may still invoke the rule by objecting to the testimony as long as the testimony is offered during the marriage. Q: What if there was no objection on the part of the other spouse?

Q: What is the purpose of this rule?

A: The testimony is admissible where no objection is interposed by the spouse who has the right to invoke the prohibition.

A: It is based on the society’s intent to preserve the marriage relations and promote domestic peace. It is intended to discourage the commission of perjury.

Q: So, may the rule be waived? How? A: Yes, either expressly or impliedly.

Alvarez v. Ramirez (473 SCRA 72) Q: Does the rule apply only to testimony? 1. 2. 3.

4.

There is identity of interests between the husband and wife If one were to testify for or against the other, there is a consequent danger of perjury The policy of law is to guard the security and confidences of private life, even at the risk of an occasional failure of justice, and to prevent domestic disunion and unhappiness Where there is want of domestic tranquility there is danger of punishing one spouse through the hostile testimony of the other.

Q: What is the scope of the rule? A: The rule forbids each spouse to testify for or against the other without the consent of the affected spouse except in cases authorized by the rule. The prohibition extends not only to a testimony adverse to the spouse but also in favor. It also extends both criminal and civil cases because the rule does not distinguish.

A: No, it also covers production of documents (State v. Bramlet). Exceptions to the Marital disqualification rule Q: What are the Exceptions to the Marital disqualification rule? A: 1. in a civil case by one against the other, or 2. in a criminal case for a crime committed by one against the other or the latter's direct descendants or ascendants Q: What is the landmark decision under Ordoño v. Daquigan (62 SCRA 270)? A: The court allowed the wife to testify against her husband who was accused of raping her daughter. Accordingly, “The better rule is that, when an offense directly attacks or directly and vitally impairs the conjugal relations, it comes within the

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exception to the statute. The rule that the injury must amount to physical wrong upon the person is too narrow.” Q: What is the rule regarding a spouse’s testimony in a civil case? A: It contemplates of a situation where one spouse is a plaintiff or a petitioner and the other spouse is a defendant or respondent. Where the civil case is between a spouse and the direct ascendants or descendants of the other, the marital disqualification rule still applies. Q: How about in criminal cases?

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Sec. 24.Disqualification by reason of privileged communication. — The following persons cannot testify as to matters learned in confidence in the following cases: (a)The husband or the wife, during or after the marriage, cannot be examined without the consent of the other as to any communication received in confidence by one from the other during the marriage except in a civil case by one against the other, or in a criminal case for a crime committed by one against the other or the latter's direct descendants or ascendants; Q: For the rule to apply, what are the requisites which should be present?

A: The privilege of one to testify against the other is not confined to crimes committed by one against the other, but covers crimes committed by one against the direct descendants or ascendants of the latter such as the child or the parents. However, crimes committed against a spouse’s collateral relatives such as uncles, aunties, and cousins or nephews and nieces are not covered by the exception because they are neither direct ascendants nor descendants.

A: 1. There must be a valid marriage between the husband and wife 2. There is a communication received in confidence by one from the other 3. The confidential communication was received during the marriage.

Testimony where spouse is accused with others

Zulueta v. CA (253 SCRA 699)

Q: May a spouse testify in a trial where the spouse is a coaccused?

The law insures absolute freedom of communication between the spouses by making it privilege. Neither may be examined without the consent of the other as to any communication received in confidence by one from the other during the marriage, save for specified exceptions.

A: The disqualification is between the husband and the wife, but the rule does not preclude the wife from testifying when it involves other parties or accused. The court stressed that the testimony cannot be used against accused-appellant directly or through the guise of taking judicial notice of the proceedings in the murder case without violating the marital privilege. “What cannot be done directly cannot be done indirectly” (People v. Quidato, 297 SCRA 1). Testimony be the estranges spouse When the marital and domestic relations are so strained that there is no more harmony to be preserved nor peace and tranquility which may be disturbed, the reason based on such harmony and tranquility fails. In such case, identity of interests disappears and the consequent danger of perjury based on the identity is non-existent (Alvarez v. Ramirez, 2005; People v. Castañeda, 271 SCRA 504). Marital Privileged Communications Q: What are the 2 codal provisions which cover marital disqualifications? A: 1. Sec. 22 of Rule 130. 2. Sec. 24 (a) of Rule 130:

Since the application of the rule requires confidential information received by one spouse from the other during the marriage, information acquired by a spouse before the marriage even if received confidentially will not fall squarely with Sec. 24(a) but divulging the same may be objected to under Sec. 22 of Rule 130. The tenor of Sec. 22 distinguish as to when the information subject of the testimony was acquired and thus, may cover matters which occurred or adverse information acquired prior to the marriage. It is sufficient that the witness-spouse testifies during the marriage. It is unlike sec. 22(a) which requires that the confidential information be received during the marriage. Note: Sec.22 (a) is clear: confidential information received from a third person is not covered by the privilege. For the information to be confidential, it must be made during and by reason of the marital relations and is intended not to be shared with others. Otherwise, it is not confidential. Communications in private between husband and wife are presumed to be confidential. But if a third person is present with the knowledge of the communicating spouse, this stretches the web of confidence beyond the marital pair, and the communication is unprivileged. If the children are present this also deprives the conversation of protection unless the children are too young to understand what is said.

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Yet, this may be waived by failure of the claimant to object timely to its presentation or by any conduct that may be construed as implied consent (Lacurom v. Jacoba, A.C. No. 5921). Q: May the court admit the testimony and affidavits of the wife against her husband in the criminal case involving child prostitution? A: If the testimony and affidavit are evidence of the case against her husband for child prostitution, the evidences are admissible. The marital privilege communication rule under Sec. 24 of Rule 130 and the marital disqualification rule under Sec. 22 of Rule 130 do not apply to and cannot be invoked in a criminal case committed by a spouse against the direct descendants of the other (Ordono v. Daquigan). Explanation of distinction between Marital Disqualification Rule and Marital Privilege Communication Rule Sec. 24(a) has reference to confidential communications received by one spouse from the other during the marriage. Sec.22 does not refer to confidential communication between spouses. It will not come into play when the fact pattern in a problem makes reference to confidential communications between H and W during the marriage. Sec. 24(a) will instead apply. Yet, communications that are not intended to be confidential because they were uttered in the presence of third parties are not deemed confidential even when made during the marriage, but Sec. 22 could apply instead of Sec. 24 (a) when used as parts of a testimony for or against the party-spouse. Q: Give the distinctions between the 2 rules. A: Sec. 24(a) Marital Privilege Communication Rule Sec. 24(a) applies only to testimonies of a confidential nature received by 1 spouse from the other during the marriage and obviously does not include acts merely observed by 1 spouse unless such acts are intended as a means of conveying communication by one to the other.

When sec. 24(a) applies, the spouse affected by the disclosure of the information

Sec. 22 Marital Disqualification Rule Sec. 22 includes facts, occurrences or information even prior to the marriage unlike Sec.24(a) which applies only to confidential information during the marriage. The Sec 24(a) is broader because it prevents testimony for or against the spouse on any fact and not merely disclosure of confidential information. Rule 22 on the other hand, can no longer be invoked once marriage is dissolved. It

or testimony may object even after the dissolution of the marriage. The privilege does not cease just because the marriage has ended. Sec. 22 requires that the spouse for or against whom the testimony is offered is a party to the action.

may be asserted only during the marriage.

Sec. 24(a) prohibits the examination of a spouse as to matters received in confidence by one from the other during the marriage.

Under Sec. 22, the prohibition is a testimony for or against the other.

This is not required Sec. 24(a) and applies regardless of whether the spouses are parties or not.

Attorney-Client Privilege (Rule 130) Sec. 24 (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; Q: What are the requisites for the privilege to arise? A: 1. There must be a communication made by the client to his attorney or an advice given by the attorney to his client; 2. The communication or advice must be given in confidence; and 3. The communication or advice must have been given either in the course of the professional employment or with a view to professional employment. Q: Does the rule require a perfected relationship? A: No. Also, the communication between the attorney and client no longer need to be in the course of an actual professional employment. It is enough that the communication or advice be “with a view to” professional employment. Thus, privilege is extended to communications made for the purpose of securing the services of counsel even if the counsel later refuses the professional relationship. This includes preliminary negotiations within the privilege. The relationship between the attorney and the client is said to exist where a person employs the professional services of an attorney or seeks professional guidance, even though the lawyer declines to handle the case (Kier v. State). The privilege is predicated upon the client’s belief that he is consulting a lawyer in that capacity and has manifested his

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intention to seek professional legal advice. For the privilege to exist, payment of a fee is not essential.

A: Yes, as in an action filed for the payment of attorney’s fees or for damages against the negligence of the attorney, the privilege is removed from the attorney’s lips.

US v. Tedder Where a person consults an attorney not as a lawyer but merely as a friend, or a participant in a business transaction, the consultation would not be one made in the course of a professional employment or with a view to professional employment would not be within the ambit of the privilege. The privilege is also not confined to communications regarding actual pending cases. It may refer to anticipated litigations or may not refer to any litigation at all. It is sufficient that the statements have been made in the course f legitimate professional relationship between the A and the C. the communication may be oral or written but it also extends to other forms of conduct like physical demonstration as long as they are intended to be confidential. Furthermore, the communication is not deemed lacking in confidentiality solely because the communication is transmitted by facsimile, cellular telephone, or other electronic means. It does not extend to communications where the client’s purpose is the furtherance of a future intended crime or fraud or for the purpose of committing a crime or a tort. Q: Does the privilege preclude inquiries into the fact that the lawyer was consulted? A: No, they are not privileged. Even the identity of the client is not privileged as well as that of the lawyer. Yet, under the last-link doctrine, non-privilege information, such as the identity of the client is protected if the revelation of such information would necessarily reveal privilege information. Q: Do the statements have to be made personally? A: The statements of the client need not have been made to the attorney in person. Those made to the attorney’s secretary, clerk or stenographer for transmission to the attorney for the purpose of the professional relationship or with a view to such relationship or those knowledge acquired by such employees in such capacity are covered by the privilege. Note: For the statements to be privilege, the same should be confidential. If the communications made by the client to his attorney were also made to third persons, the intention of secrecy does not appear. There can be no attorney-client privilege where the information is given with the expectation that it will be revealed to others. Q: Does the privilege apply in suits between the attorney and the client?

Note: The communication would still be privileged were the suit is by or against a third party. In relation to the attorney, the privilege is owned by the client. It is he who can invoke the privilege. The privilege is personal and belongs to the client. If the latter waives the privilege, no one else can invoke it. Q: Will the death of the client extinguish the privilege? A: The protection of the privilege will generally survive the death of the client. Yet, where there is an attack on the validity of the will, communications made to the attorney on the drawing of the will, while confidential during the lifetime of the client are not intended to require secrecy after his death. Canon 21 of the Code of Professional Responsibility A lawyer shall preserve the confidence and secrets of his client even after the attorney-client relation is terminated. Accordingly, the relation between A and C is one of trust and confidence of the highest degree. A lawyer becomes familiar with all the facts connected with his client’s case. He learns from his client the weak points of the action as well as the strong ones. Mercado v. Vitriolo (p.286) It is the glory of the legal profession that its fidelity to its client can be depend on, and that a man may safely go to a lawyer and converse with him upon his rights or supposed rights in any litigation with absolute assurance that the lawyer’s tongue is tied from ever disclosing it. Q: What are the factors essential to establish the existence of the privilege? A: 1. 2. 3. 4. 5. 6. 7. 8.

Where legal advice of any kind is sought, From a professional legal adviser in his capacity as such, The communications relating to that purpose, Made in confidence, By the client, Are at his instance permanently protected, From disclosure by himself or by the legal advisor, Except the protection be waived.

Q: Are matters disclosed by a prospective client to a lawyer protected by the rule?

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A: Yes, even if the prospective client does not thereafter retain the lawyer or the latter declines the employment. Q: Why is such covered by the rule? A: To make the prospective client free to discuss whatever he wishes with the lawyer without fear that what he tells the lawyer will be divulged or used against him, and for the lawyer to be equally free to obtain information from the prospective client. NOTE: A communication from a prospective client other than on account of the prospective lawyer-client relation is not privileged (Pfeider v. Palanca, 35 SCRA 75). Q: What is a confidential communication? A: It refers to information transmitter by voluntary act of disclosure between attorney and client in confidence and by means which, so far as the client is aware, discloses information to no third person other than one reasonably necessary for the transmission of the information or the accomplishment of the purpose for which it was given. Q: Is a compromise agreement prepared by a lawyer pursuant to the instruction of his client and delivered to the opposing party, an offer by client to his counsel for settlement, or a document given by a client to his lawyer not in his professional capacity covered by the confidentiality rule?

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A: To encourage the patient to freely disclose all the matters which may aid in the diagnosis in the treatment of a disease or an injury. For this purpose, it is necessary to shield the patient from embarrassing details concerning his condition (Falkinburg v. Prudential Insurance, Co.). It is designed to promote the health and not the truth. The patient is the person to be encouraged and he is the holder of the privilege (Metropolitan Life and Insurance Co v. Kauffman). Q: What are the kinds of information which are prohibited from disclosure? A: 1. Any advice given to the client 2. Any treatment given to the client 3. Any information acquired in attending such patient provided that the advice, treatment or information was made or acquired in a professional capacity and was necessary to enable him to act in that capacity 4. That the information sought to be disclosed would tend to blacken the reputation of the patient. Q: Does the rule require that the relationship be a result of a contractual relationship? A: No. It could be a result of a quasi-contractual relationship as when the patient is seriously ill and the physician treats him even if he is not in a condition to give his consent as in the situation described in Art. 2167 of the NCC.

A: No, the element of confidentiality not being present. Art. 2167 of the NCC Physician-Patient Privilege (Rule 130) Sec. 24.Disqualification by reason of privileged communication. — The following persons cannot testify as to matters learned in confidence in the following cases:

Q: Are the results of the autopsy deemed covered by the privilege? A: No, autopsies are not intended for treatment.

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

Q: When can it be said that the physician is acting in a professional capacity?

Q: Do this privilege apply to criminal case?

A: Yes. Death does not permit the living to impair the deceased’s name by disclosing communications held confidential by law (Westover v. Aetna Life Ins. Co.).

A: It applies to civil cases, whether the patient is a party or not. The phraseology of the rule implies that the privilege cannot be claimed in a criminal case presumably because the interest of the public in criminal prosecution shall be deemed more important than the secrecy of the communication. Q: What is the purpose of the privilege?

A: When he attends to the patient for either curative or preventive treatment. Q: Does the privilege survive the death of the patient?

Q: May the privilege be waived? A: Yes, either expressly or impliedly. When the patient answers questions on cross on matters which are supposed to be privileged, the waiver exists. Also, when there is

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disclosure by the patient of the information, there is necessarily a waiver. Q: Can there be a waiver by operation of law? A: Yes. Under Rule 28 of the Rules of Court, the court in which the action is pending may in its discretion order a party to submit to a physical or mental examination. This happens when the mental or physical condition of a party is in dispute. The party examined may request a report of the examination. By doing so, he waives any privilege he may have. Priest/Minister-Penitent Privilege (Rule 130) Sec. 24.Disqualification by reason of privileged communication. — The following persons cannot testify as to matters learned in confidence in the following cases: (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; Q: Who holds the privilege? A: The person making the confession holds the privilege and the priest or minister hearing the confession in his professional capacity is prohibited from making a disclosure of the confession without the consent of the person confessing.

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(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) Q: When is the communication privileged? A: When the court finds that the disclosure would adversely affect the public interest. It is in the interest of the public that is sought to be protected by the rule. Hence, the disclosure or non-disclosure is not dependent on the will of the officer but on the determination by a competent court. Q: When is the privileged applicable? A: It can only be invoked not only during the term of the office of the public officer but also after. NOTE: National security and state secrets are confidential and a court will most likely uphold the privilege. Executive Privilege: Presidential communications privilege Q: What is the origin of the executive privilege? A: It originated in the case Senate of the Philippines v. Ermita (488 SCRA 1). Q: What is “executive privilege”?

Q: What is the scope of the privilege? A: It also covers not only a confession made by the penitent and any advice given by the minister or priest. It must have been given pursuant to the course of the discipline of the denomination or sect to which the minister or priest belongs. Thus, the priest must be duly ordained or consecrated by his sect.

A: It is the power of the government to withhold information from the public, the courts, and the Congress. NOTE: It was originally used in Almonte v. Vasquez (244 SCRA 286). The court acknowledged that there are certain types of information which the government may withhold from the public like military, diplomatic, and national security secrets.

Q: Are all kinds of confession covered?

Q: What is the basis of the privilege?

A: No, the communication must be made pursuant to confessions of sins. The rule states any advice given by him in his professional character or in a spiritual capacity.

A: It is rules that the President and those who assist him must be free to explore alternatives in the process of shaping policies and making decisions and to do so in a way many would be unwilling to express except privately.

Q: When a penitent discusses business arrangements with the priest, is this covered by the privilege? a: No. Privileged Communications to Public Officers (Rule 130)

Q: What are the matters involving state secrets? A: 1. Military 2. Diplomatic 3. Other national security matters

Sec. 24.Disqualification by reason of privileged communication. — The following persons cannot testify as to matters learned in confidence in the following cases:

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NOTE: The right to information does not also extend to presidential conversations, correspondences, and discussions in closed-door cabinet meetings.

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A: The standard to be employed in determining whether there is a sufficient interest in favor of disclosure is the strong “sufficient showing of need” which must be shown whether that party is Congress or a private citizen.

Executive Order 464 1. 2.

3. 4. 5.

Conversation and correspondences between the President and the public official covered by the EO Military, Diplomatic, Other national security matters which in the interest of national security should not be divulged Information between inter-government agencies prior to the confusion of treaties and executive agreements Discussions in closed-door cabinet meetings Matters affecting national security and public order

Q: Who are covered by the EO? A: 1. Senior officials of executive departments who in the judgment of the department heads are covered by the Exec. privilege 2. General and flag officers of the AFP and such other officers who in the judgment of the Chief of Staff are covered by the Exec. Privilege 3. PNP officers with rank of chief superintendent or higher and such other officers who, in the judgment of the Chief of PNP are covered by the Exec. Privilege. 4. Senior national security officials who in the judgment of the National Security Adviser are covered by the Exec. Privilege 5. Such other officers as may be determined by the President.

When the government has claimed executive privilege, and it has established that the information is indeed covered by the same, then the party demanding it, if it is to overcome the privilege, must show that the information is vital, not simply for the satisfaction of its curiosity but for its ability to effectively and reasonably participate in social, political and economic decision-making. See:  Chavez v. PCGG, 384 SCRA 152  Akbayan v. A quino, 2008  Neri v. Senate Committee on Accountability of Public Officers and Investigations, 2008 Q: What are the elements of presidential communications privilege as mentioned under U.S. v. Nixon?

Q: What will be secured to disclose the information?

A: 1. The protected communications must relate to a quintessential and non-delegable presidential power 2. The communication must be authored or solicited and received by a close advisor of the President or the President himself. The judicial test is that an advisor must be in “operational proximity” with the President 3. The Presidential communications privilege remains a qualified privilege that may be overcome by a showing of adequate need, such that the information sought likely contains important evidence and by the unavailability of the information elsewhere by an appropriate investigating authority.

A: It requires that all public officials enumerated above shall have to secure prior consent of the President prior to appearing before the House of Congress to give effect to the purpose of the EO.

Q: According to Chief Justice Puno, what are the 2 standards which must be met to show specific need for the information on the part of the branch of the government seeking its disclosure?

Q: When the Congress exercises its powers of judicial inquiry, are the department heads exempt by the mere fact that they are department heads?

A: 1. Evidentiary 2. Constitutional

A: No, only one executive official may be exempted from the power of inquiry of Congress—the President upon whom the executive power is vested is beyond the reach of Congress except through the power of impeachment.

Privileged communications under the Rules on electronic evidence

Section 7, Art. III of the Bill of Rights

SEC. 3. Privileged communication. – The confidential character of a privileged communications is not solely on the ground that it is in the form of an electronic document.

Q: What matters may be disclosed in relation to the right to information on matters of public concern?

Parental and Filial Privilege (Rule 130)

xxx

Sec. 3 of the Rules on electronic evidence

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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) Q: What are the 2 privileges embodied under the above provision? A: 1. Parental privilege rule 2. Filial privilege rule Q: What is parental privilege rule? A: A parent cannot be compelled to testify against his child or direct descendants. Q: What is filial privilege? A: A child may not be compelled to testify against his parents or direct ascendants. Q: May the person voluntarily testify against his parents or children? A: Yes.

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(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 was necessary to enable him to act in 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) Q: What are the different types of disqualifications by reason of privilege communication?

Q: What is the scope of this rule? A: It applies to both criminal and civil cases since the rule does not make any distinction. Art. 215 of the Family Code Q: Under the F.C. no descendant shall be compelled to testify against his parents and grandparents. What are the exceptions?

A: 1. 2. 3. 4. 5.

Others: 1.

A: 1. When such testimony is indispensable in a crime committed against said descendant 2. In a crime committed by one parent against the other (Art. 215, Family Code) Other privileged communications not found in the Rules of Court (Rule 130) Sec. 24.Disqualification by reason of privileged communication. — The following persons cannot testify as to matters learned in confidence in the following cases: (a)The husband or the wife, during or after the marriage, cannot be examined without the consent of the other as to any communication received in confidence by one from the other during the marriage except in a civil case by one against the other, or in a criminal case for a crime committed by one against the other or the latter's direct descendants or ascendants;

Communication between husband and wife; Communication between attorney and client; Communication between physician and patient; Communication between priest and patient; and Public officers and public interest

2. 3. 4. 5. 6.

7.

Editors may not be compelled to disclose the source of published news; Voters may not be compelled to disclose for whom they voted; Trade secrets; Information contained in tax census returns; and Bank deposits. Under Art. 233 of Labor Code, information and statements made at the conciliation proceedings shall be treated as confidential; According to the Anti-Money Laundering Law (Sec.6), institutions covered by the law and its officers and employees who communicate a suspicious transaction to the AMLC, are barred from disclosing the fact of such report to other persons.

C.

Examination of Witness

Open Court examination

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SECTION 1.Examination to be done in open court. — The examination of witnesses presented in a trial or hearing shall be done in open court, and under oath or affirmation. Unless the witness is incapacitated to speak, or the questions calls for a different mode of answer, the answers of the witness shall be given orally. (1a) The Rule provides for the examination of the witness in open court and unless the question calls for a different mode, the answer of the witness shall be given orally. This allows the court to observe the demeanor of the witness and also allows the adverse party to cross-examine the witness. Q: What are those testimonies which need not be given in open court?

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A: The testimony in such case may be barred. No special wording is necessary for an affirmation, provided that the language used is designed to impress upon the individual the duty to tell the truth. It may be an abuse of the court’s discretion to require the use of the words “swear” or “affirm” in the oath if the language would violate the witness’ religious beliefs where the witness could otherwise testify truthfully. Examination of witness and record of proceedings 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

A: 1.

2.

3.

4.

Under the Rules of Summary Procedure, the affidavits of the parties shall constitute the direct testimonies of the witnesses who executed the same (Sec.15); In civil cases, the parties are required to submit the affidavits of their witnesses and other pieces of evidence on the factual issues, together with their position papers, setting forth the law and facts relied upon (Sec.9); Depositions need not be taken in open court. They may also be taken before a notary public or before any person authorized to administer oaths; In criminal case, either party may utilize the testimony of a witness who is deceased, out of the country, or one who is unavailable or unable to testify despite the exercise of due diligence, even if the testimony was one used in another case or proceeding, judicial or administrative, provided the said proceeding involved the same parties and subject matter and the adverse party had the opportunity to cross-examine the witness (Sec. 1(f), Rule 115). Oath or affirmation

The witness must take either an oath or an affirmation but the option to take an oath or affirmation is given to the witness and not to the court. Q: What is an oath? A: It is an outward pledge made under an immediate sense of responsibility to God or a solemn appeal to the Supreme Being in attestation of the truth of some statement. Q: What is an affirmation? A: It is a substitute for an oath and is a solemn and formal declaration that the witness will tell the truth. Q: What if the witness refuses to take either?

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 (Sec. 2, Rule 132). In fact the entire proceedings of the trial or hearing must be recorded. 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. Rights and obligations of a witness (Rule 130) 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) Q: What is the foremost among the rights of the witness? A: The right not to give an answer which will tend to degrade his reputation, unless otherwise provided by law.

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effectively communicate due to embarrassment, fear or timidity.

Republic Act 6981 Witness Protection, Security, and Benefit Act Q: What is the effect of the admission to the witness protection program? A: A witness admitted to the witness protection program cannot refuse to testify or give evidence or produce books, documents, records, or writings necessary for the prosecution of the offense for which he has been admitted on the ground of the right against self-incrimination (Sec. 4, RA 6981). Q: Is there a violation of the right of the accused when blood samples would be extracted from his veins to determine whether he has HIV? A: No (Tijing v. CA, 354 SCRA 17). The right against selfincrimination applies only to testimonial evidence. Q: What is the right of a witness against being degraded? A: It refers to the right to refuse not to give an answer that will degrade him. Q:

What

are

the

exceptions

of

the

rule?

A: 1. If the degrading answer is the very fact in issue 2. If the degrading answer refers to an act from which the act in issue would be presumed (Sec. 3 [5], Rule 132). NOTE: But if the witness is the accused, he may totally refuse to take the stand. This is not the case of a mere witness (Bagadiong v. Gonzales, 94 SCRA 906).

Q: When a child does not understand the English or Filipino language or is unable to communicate in said languages due to his developmental level, fear, shyness, disability, or other similar reason, what is the rule? A: An interpreter whom the child can understand may be appointed by the court, motu propio or ipon motion to interpret for the child. Q: What if the court determines that the child is unable to understand or respond to questions asked? A: The court may appoint a facilitator who may: a. Child psychologist b. Psychiatrist c. Social worker d. Guidance counselor e. Teacher f. Religious leader g. Parent h. Relative NOTE: A child testifying at a judicial proceeding or making a deposition shall have the right to be accompanied by two or more persons of his own choosing to provide him emotional support (Sec. 11, Rule on Examination of A Child). An application for the child may be made for the testimony of the child to be taken in a room outside the courtroom by the prosecutor, counsel or guardian ad litem at least 5 days before the trial. The court may order that the testimony of the child be taken by live-link television.

Examination of a Child Witness Q: When can a live-link television testimony be made? Q: What is the rule regarding the Examination of a Child Witness? A: The examination of a child witness presented in a hearing or any proceeding shall be done in open court. The answer of the witness shall be given orally, unless the witness is incapacitated to speak, or the question calls for a different mode of answer.

A: If there is a likelihood that the child would suffer trauma from testifying in the presence of the accused, his counsel or the prosecutor as the case may be. The testimony of the child shall be preserved on videotape, digital disc, or other similar disc. Q: Who are allowed to attend the examination?

The court may exclude the public and persons who do not have a direct interest in the case, including the members of the press. Q: What shall be the order? A: It shall be determined by the court on the record to testify in open court would cause psychological harm to him, hinder the ascertainment of truth, or result in his inability to

A: 1. 2. 3. 4. 5. 6.

Members of the court staff for administrative use The prosecuting attorney Defense counsel The guardian ad litem Agents of investigating law enforcement agencies Other persons as determined by the court

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Other pertinent provisions of Rule on Examination of A Child

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Sec.31 [d] [g]

A: As a rule, the scope of the cross examination is not confined to the matters stated by the witness in the direct examination.

xxx

Q: What is the reason for this rule? Kinds of examinations (Rule 132)

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)

A: The rule allows questions designed to test the accuracy and truthfulness of the witness, his freedom from interest and bias, or the reverse and to illicit all important facts bearing upon the issue. Q: What is the exception to this rule?

Sec. 6.Cross-examination; its purpose and extent. — Upon the termination of the direct examination, the witness may be cross-examined by the adverse party as to many matters stated in the direct examination, or connected therewith, with sufficient fullness and freedom to test his accuracy and truthfulness and freedom from interest or bias, or the reverse, and to elicit all important facts bearing upon the issue. (8a) 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)

A: Where the witness is an unwilling or a hostile witness as so declared by the court, he may be cross-examined only as the subject matter of his examination-in-chief (Sec. 12). Q: What are the 2 basic purposes of cross-examination? A: 1. To bring out facts favorable to counsel’s not established by the direct testimony 2. To enable counsel to impeach or to impair the credibility of the witness. 3.

Re-direct examination- this is conducted after the cross examination of the witness. The party who called the witness on direct examination may re-examine the same witness to explain or supplement his answers given during the cross-examination. It is the examination of a witness by counsel who conducted the direct examination after the cross examination. Accordingly, the counsel may elicit testimony to correct or repel any wrong impression or inferences that may have been created on the cross-examination. It may also be the opportunity to rehabilitate a witness whose credibility has been damaged. In its discretion, the court may even allow questions on matters not touched in the crossexamination.

4.

Re-cross examination- examination conducted upon the conclusion of the re-direct examination. Here the adverse party may question the witness on matters stated in the re-direct examination

Sec. 8.Re-cross-examination. — Upon the conclusion of the re-direct examination, the adverse party may re-crossexamine the witness on matters stated in his re-direct examination, and also on such other matters as may be allowed by the court in its discretion. (13) Q: What are the kinds of examinations? A: 1. Direct examination- Direct examination is the examination-in-chief of a witness by the party presenting him on the facts relevant to the issue. It is actually the procedure for obtaining information from one’s own witness in an orderly fashion. The purpose is to illicit facts about the client’s cause of action or defense 2.

Cross-examination- Upon the termination of the direct examination, the witness may be cross-examined by the adverse party as to many matters stated in the direct examination, or connected therewith, with sufficient fullness and freedom to test his accuracy and truthfulness and freedom from interest or bias, or the reverse, and to elicit all important facts bearing upon the issue.

Q: What is the scope of a cross-examination?

Death or absence of witness If the witness dies before his cross-examination is over, his testimony on the direct may be stricken out only with respect to testimony not covered by the cross-examination. The absence of the witness is not enough to warrant the striking out of his testimony for failure to appear for further crossexamination where the witness has already been sufficiently cross-examined and the matter on which cross-examination is sought is not in controversy.

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If the witness was not cross-examined because of causes attributable to the cross-examining party and the witness had always made himself available for cross-examination, the direct testimony of the witness shall remain in the record and cannot be ordered stricken off the cross-examiner is deemed to have waived the right to cross-examine. Recalling of a witness Sec. 9.Recalling witness. — After the examination of a witness by both sides has been concluded, the witness cannot be recalled without leave of the court. The court will grant or withhold leave in its discretion, as the interests of justice may require. (14) In the exercise of such discretion, the court shall be guided by the interests of justice. Leading questions 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 is 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)

A: It is because such kind of question allows a witness to explain his or her position, emphasize key points of harmful testimony and control the pace and scope of the examination. It invites the witness to deliver an unwanted “lecture” in the courtroom. Q: When are leading questions allowed in direct examination? A: 1. 2.

3. 4.

On a preliminary matters; When the witness is ignorant, or a child of tender years, or is feeble-minded or a deaf-mute and there is difficulty in getting direct and intelligible answers from such witness; When the witness is a hostile witness; or When the witness is an adverse party, or when the witness is an officer, director, managing agent of a corporation, partnership or association which is an adverse party. Leading questions to a child witness

Under this rule, the court may allow leading questions in all stages of examination of a child under the condition that the same will further the interest of justice. Thus, a leading question may be asked of a child a direct and intelligible answer. Misleading questions Q: What is a misleading question? A: One which assumes as true a fact not yet testified to by witness, or contrary to that which he has previously stated. It is not allowed in any type of examination. D. Impeachment of a witness

Q: What is a leading question? A: It is one that is framed in such a way that the question indicates to the witness the answer desired by the party asking the question. It is not appropriate in direct and re-direct examinations particularly when the witness is asked to testify about a major element of the cause of action or defense. Yet, it is allowed in cross and re-cross examinations. In fact, it is the type of question that should be employed in a cross examination. Q: Explain why a “why” question should not be asked in cross-examination?

Sec. 11.Impeachment of adverse party's witness. — A witness may be impeached by the party against whom he was called, by contradictory evidence, 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) 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.

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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)

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Q: May a witness be impeached by evidence of particular wrongful acts? A: No, except evidence of his final conviction of an offense as disclosed by his examination or by the record of the judgment. Thus, the witness cannot be impeached by enumerating in court specific wrongful acts he had committed. Q: May an unwilling or hostile witness be impeached by evidence of his bad character? A: No.

Q: What is an impeachment? Impeachment by contradictory evidence A: It is basically a technique employed usually as part of the cross-examination to discredit a witness by attacking his credibility. Destroying credibility is vital because it is linked with a witness’ ability and willingness to tell the truth.

Fairness demands that the impeaching matter be raised in the cross-examination of the witness sought to be impeached by allowing him to admit or deny a matter to be used as the basis for impeachment by contradictory evidence.

Q: What are the rules in impeaching a witness? A: 1. The impeachment of a witness is to be done by the party against whom the witness is called (Sec. 11, Rule 132) 2. Subject to certain exceptions, the party producing the witness is barred from impeaching his own witness (Sec. 12) 3. By way of exception to the immediately preceding rule, if the witness is unwilling or hostile, the party calling him may be allowed by the court to impeach the witness. But it is not for the party calling the witness to make a determination that the witness is unwilling or hostile. Whether or not a witness is hostile, is addressed to judicial evaluation and the declaration shall be made only if the court is satisfied that the witness possesses an interest adverse to the party calling him or there is adequate showing that the reluctance of the witness is unjustified or that he misled the party into calling him as a witness. A party may also be allowed to impeach his own witness when said witness is an adverse party or is an officer, director, or managing agent of a corporation, partnership or association which is an adverse party. 4. It is improper for the party calling the witness to present evidence of the good character of his own witness. The same is allowed only if the character Q: How to impeach a witness? A: 1. By contradictory evidence 2. By evidence that his general reputation for truth, honesty, and integrity is bad 3. By evidence that he has made at other times statements inconsistent with his present testimony (Sec. 11, Rule 132).

This mode of impeachment may also be used to contradict conclusions made by expert witnesses during their testimonies. Usually the adverse party may also call another expert to testify to a contrary conclusion, Impeachment by prior inconsistent statements (Rule 132) 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) Q: What are prior inconsistent statements? A: They are statements made by a witness on an earlier occasion which contradict the statements he makes during the trial. These statements are admissible to impeach the credibility of the witness making them. This is the most commonly used method because of its simplicity and the impact it makes when properly used. This requires a laying the proper foundation for the impeachment. Q: What is the other term for laying the foundation?

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A: “Laying the predicate.” It is a preliminary requirement before the impeachment process prospers. Q: What are the elements of this foundation? A: 1. the statements must be related to him, with the circumstances of the times and places and the persons present. If the statements are in writing they must be shown to him; 2. he must be asked whether he made such statements, and if so, allowed to explain them if he admits making those statements. Q: Is the mere presentation of the prior declarations of the witness without the same having been read to him while testifying in court sufficient for the desired impeachment of his testimony if he was not given the ample opportunity to explain the supposed discrepancy?

In a criminal case, the accused may prove his good moral character relevant to the offense charged even before his character is attacked. However, the prosecution cannot initiate proof of bad character of the accused. It can only do so by way of rebuttal. No impeachment by evidence of particular wrongful acts Sec. 11, Rule 142 Just as a witness cannot testify on specific acts of misconduct committed by the witness being impeached, the latter cannot also be examined on particular wrongful acts done by him. To do so would be a contravention of the tenor of Sec. 11 of Rule 132. There is however, a particular wrongful act that is admissible in evidence under the same section—his prior conviction of an offense.

A: No. Q: The prior conviction of a witness is shown in what ways? Q: What is the purpose of the laying the predicate? A: To allow the witness to admit or deny the prior statement and afford him an opportunity to explain the same. Impeachment by showing bad reputation NOTE: Not every aspect of a person’s reputation may be the subject of impeachment. Q: What may be the aspect for the impeachment of bad reputation due to the person’s bad reputation? A: 1. For truth 2. For honesty 3. For integrity (Sec. 11, Rule 132) Q: What is the presumption under the law? A: A witness is presumed to be truthful and of good character, the party presenting him does not have to prove he is good because he is presumed to be one. It is only after his character has been attacked, can he prove his being good. Rule 132 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) NOTE: The rule that bars evidence of the good character of the witness who has not yet been impeached has reference only to a mere witness. It does not refer to an accused in a criminal case.

A: 1. By his examination, i.e., by cross-examining him 2. By presenting the record of his prior conviction Examining another witness to elicit from his lips the prior conviction of another witness is not the correct procedure unless the witness is one who is competent like an official custodian of records. Impeachment of the adverse party as a witness Q: Does the fact that the witness is the adverse party necessarily mean that the calling party will not be bound by the former’s testimony? A: No. The fact remains that it was at his instance that his adverse was put into the witness stand. Under the rule permitting the impeachment of an adverse witness, although the calling party does not vouch for the witness’ veracity, he is nonetheless bound by his testimony if it is not contradicted or remains unrebutted (Gaw v. Chua, 2008). Exclusion and separation of witness (Rule 132) 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) When the witness may refer to a memorandum

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Sec. 16. When witness may refer to memorandum. — 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, 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)

(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. (b)In Civil Cases: 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) Evidence of bad moral character of the accused

E.

Q: Can the prosecution prove the bad character of the accused?

Character Evidence

A: In a criminal case, the prosecution cannot prove the bad moral character of the accused in its evidence-in-chief. It can only do so in rebuttal.

Inadmissibility of Character Evidence Q: What is “character”? A: It is the aggregate of the moral qualities which belong to and distinguish an individual person; the general results of one’s distinguishing attributes. It refers to what a man is and depends on the attributes he possesses.

This means that the prosecution may not offer evidence of the character of the accused unless the accused himself has offered evidence of his good character. Q: State the relevant provision.

Q: Is it the same as reputation? A: A: No. The reputation depends on the attributes which others believe one to possess. Character signifies reality while reputation signifies what is accepted to be reality at present. CHARACTER What the person really is

REPUTATION What he is supposed to be in accordance with what people say he is, and is dependent on how people perceive a person to be

Q: Is character of the accused admissible? A: No. The rule is that the character or reputation of a party is regarded as legally irrelevant in determining a controversy, so that evidence relating thereto is not admissible (People v. Lee, 2002). Rule 130 Sec. 51. Character admissible; exceptions: — (a)In Criminal Cases:

evidence

not

generally

Sec. 51. Character admissible; exceptions: —

evidence

not

generally

(a)In Criminal Cases: (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. Q: What is the reason for this rule? A: It prevents a pronouncement of guilt on account of his being a bad man and instead anchors a conviction on the basis of the sufficiency of evidence of his guilt. It also prevents the inference that being a bad person the accused is more likely to commit a crime. The rule likewise discourages the presentation of the so-called propensity evidence— evidence that one acts in accordance with one’s character. Evidence of good moral character of the accused Sec. 51. Character admissible; exceptions: —

evidence

not

generally

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(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. The rule does not apply to the accused who is allowed to offer evidence of his good character. Not all aspects of the character of the accused may be proven. Q: What may be proven? A: Only those moral traits involved in the offense charged are provable. In doing so, an accused may advance more than one character trait as evidence so long as each trait is germane to some issue in the case.

A: A.M. No. 004-07-SC, Sec. 30 1. Evidence offered to prove that the alleged victim engaged in other sexual behavior 2. Evidence offered to prove the sexual predisposition of the alleged victim Q: What is the exception to this? A: Evidence of specific instances of sexual behavior by the alleged victim is admissible to prove that a person other than the accused was the source of semen, injury, or other physical evidence. Character evidence in civil cases

Q: May he prove his character by evidence of specific instances of good conduct?

Q: In civil cases, when is the evidence of the moral character of a party admissible?

A: No.

A: In civil cases evidence of the moral character of a party is admissible only when the pertinent to the issue of character involved in the case. Thus, evidence of a party’s intemperance may be admitted when his intemperance to the issues involved.

NOTE: The accused may prove his moral character which is pertinent to the moral trait involved in the offense charged. Thus, this may strengthen the presumption of innocence, and where good character and reputation are established, an inference arises that the accused did not commit the crime charged.

Evidence of good moral character of a witness is not admissible until such character has been impeached.

Q: What is the reason for the rule? A: This is intended to avoid unfair prejudice to the accused who might otherwise be convicted not because he is guilty but because he is a person of bad character. Evidence of character of the offended party Sec. 51. Character admissible; exceptions: —

evidence

Evidence of good moral character of a witness

not

generally

F.

Opinion Evidence Rule 130

Sec. 48. General rule. — The opinion of witness is not admissible, except as indicated in the following sections. (42)

(a)In Criminal Cases: (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. NOTE: This provision pertains only to criminal cases, not to administrative cases. The character evidence must be limited to the traits and characteristics involved in the type of an offense charged. Character evidence in child abuse cases (Sexual Abuse Shield Rule) Q: What pieces of evidence are not admissible in any criminal proceeding involving alleged sexual child abuse?

Sec. 49. Opinion of expert witness. — 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) Sec. 50. Opinion of ordinary witnesses. — The 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. The witness may also testify on his impressions of the emotion, behavior, condition or appearance of a person. (44a)

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Admissibility of opinion evidence Q: Is the opinion of the witness admissible? A: As a rule, no. Q: Why is such the rule? A: This is because when a witness testifies, a witness does so with respect to facts personally observed by him and it is for the court to draw conclusions from the facts testified to. Q: What is the exception to this rule?

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Q: If the police officer will testify that he notices Candida to be hysterical and on the verge of collapse, would such testimony be considered as opinion, hence, inadmissible? A: The testimony would be admissible even if it would be an opinion. The opinion of an ordinary witness is admissible when such testimony refers to his impressions of the emotion, behavior, condition or appearance of a person (Sec. 50, Rule 130).

Chapter V HEARSAY EVIDENCE (Rule 130)

A: When the opinion is that of an expert (Expert testimony). Q: What is an expert testimony? A: The opinion of a witness requiring special knowledge, skill, experience, or training which he is shown to possess, it may be received in evidence.

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) Q: What is the basis of the reliability of a witness?

Q: Is the court bound by the opinion of an expert such as a handwriting expert? A: No. Expert opinion evidence is to be considered or weighed by the court like any other testimony, in the light of its own general knowledge and experience upon the subject of inquiry. The probative force does not lie in a mere statement of his theory or opinion but rather in the aid that he can render to the courts in showing the facts which serve as a basis for his criterion and the reasons upon which the logic of his conclusion is founded (Dizon v. Tuazon, 2008). Q: Is the resort to expert witnesses mandatory? A: No. NOTE: Experts opinions are not ordinarily conclusive. When faced with conflicting expert opinions, courts give weight and credence to that which is more complete, through and scientific (Bacalso v. Padigos, 2008). Opinion of an ordinary witness; when admissibe

A: It is based on the personal knowledge of the witness. If a witness testifies on the basis of what others have told him, and not on facts which he knows of his own personal knowledge, the testimony would be excluded as hearsay evidence (Mallari v. People, 446 SCRA 74). Q: When is an evidence called a hearsay? A: When its probative force depends, in whole or in part, on the competency and credibility of some persons other than the witness by whom it is sought to produce it (Estrada v. Desierto, 356 SCRA 108). Q: What are the exceptions to the rule that hearsay evidence is inadmissible also known as “admissible hearsay”? A: 1. The rule on statements that are parts of the res gestae 2. The rule on dying declarations 3. The rule on admissions against interest

Q: When is the opinion of an ordinary witness admissible?

Q: What is the basis for excluding hearsay evidence?

A: 1. The identity of a person about whom the witness has adequate knowledge 2. The handwriting of the person of which the witness has adequate knowledge 3. The material sanity of a person with whom he is sufficiently acquainted 4. The impressions of the witness on the emotion, behavior, condition or appearance of a person (Sec. 50, Rule 130).

A: It rests mainly on the ground that there is no opportunity to cross-examine the outside declarant. Q: What will be violated in case such is admitted? A: It will violate the constitutional right of the accused to confront the witnesses testifying against him and crossexamine them (People v. Mamalias, 328 SCRA 760).

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The hearsay rule therefore bars the admission of evidence that has not been given under oath or solemn affirmation and more important, has not been subjected to crossexamination by opposing counsel.

1.

Q: Can it be waived?

2.

A: If not objected to, it is admissible. However, even if admitted, it has no probative value (Mallari v. People, 446 SCRA 74). When evidence is hearsay NOTE: It is the purpose for which the evidence is offered which would determine whether the same is hearsay or not. Robles v. Lizarraga Hermanos, Estrada v. Desierto A ban on hearsay does not include statements which are relevant independently of whether they are true or not, like statements of a person to show, among others, his state of mind, mental condition, knowledge, belief, intention, ill-will, and other emotions. Q: What is the problem under Sec. 36 of Rule 130? A: It incompletely describes the essence of the hearsay rule because of its failure to embody the element of purpose. As written, it appears more to be a definition of the first-hand knowledge rule which although similar to hearsay rule, is traditionally distinct from it. Q: What is the clearer definition of the hearsay rule under the Federal Rules of Evidence? A: It is a statement, other than the one made by the declarant while testifying at the trial or hearing, offered in evidence to prove the truth of the matter asserted.

There must be an out-of-court statement. It may be oral or written. It may even be a conduct, as long as that conduct is intended by the actor as an assertion. The statement must not be made by the declarant in the hearing or trial. Statement made out of court is repeated and offered by the witness in court to prove the truth of the matters asserted by the statement.

Implied from an out-of-court statement is the fact that the witness has no personal knowledge of the matter testified too. It is someone outside the court and who at the same time is not in the stand who has personal knowledge of the fatcs. That someone outside the court cannot be questioned. His perception cannot be tested. His capacity to remember what he perceived cannot be accurately determined. Neither can his capacity to communicate his remembered perceptions because he is not in court and if he is not in court cannot be crossed-examined. When the second element is absent—the out-of-court statement is not offered to prove the truth of the matter asserted, it is said that the statement is offered for a nonhearsay purpose. If it is offered, it is hearsay because it is offered to prove a hearsay purpose. Where a statement is not offered for the truth of the matter asserted but is offered for an evidentiary purpose not dependent on the truth of the matters asserted, the statement is non-hearsay, Q: Why must a witness testify to matters of his personal knowledge? A: The witness’ credibility, accuracy of perception and recollection, can be tested before the court through crossexamination. Those of the out-of-court declarant cannot. The latter’s statements are unreliable. His statements lack the “indicacia” of trustworthiness. Q: Distinguish between hearsay evidence and opinion evidence.

Q: What are the elements to constitute hearsay? A: 1. An out-of-court statement, oral, written or non-verbal conduct, made by one other than the one made by the declarant or witness testifying at the trial 2. The out-of-door court statement must be offered to prove the truth of the matter asserted in out-of-court statement.

A: Hearsay evidence is one that is not based on one’s personal perception but based on the knowledge of others to prove the truth of the matter asserted in an out-of-court declaration. An opinion evidence is based on the personal knowledge or personal conclusions of the witness based on his skill. Training or experience (Sec. 49, Rule 130).

People v. De Marco

Rule 130

Hearsay is an out of court statement offered for the truth of the matter asserted.

Sec. 49.Opinion of expert witness. — 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)

Q: What are the specific elements of Hearsay evidence? A:

Examples of non-hearsay evidence

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1. 2.

A statement that is offered to show its patent falsity, so as to suggest the defendant’s conscious guilt; Statements relating to the state of mind of the declarant and the statements relating to the state of mind of the listener. This constitute circumstantial evidence of an assertion and where the making of the statement is the significant fact because it either gives rise to the inference about the declarant’s state of mind or indicates its effect on the hearer. The truth of the statement is not the issue here.

Out-of-court statements offered to prove mental state of the declarant As long as an out-of-court statement is offered for a nonhearsay purpose (a purpose other than to prove the truth of the matter asserted), the statement is admissible if it has relevance to the matter in issue. E.g. a statement which demonstrates by inference from the tenor of the statement the state of mind of the speaker or the declarant. Out-of court statement offered to prove its effect on the listener/hearer An out-of-court statement may be offered not only to prove the state of mind of the declarant. It may also be used to show the state of mind of the hearer or listener. It described in terms of the effect of the declarant’s statement on the hearer and why the listener acted in a particular manner. When the statement is offered for the truth of the matter asserted but is offered to show the mental effect of the statement on the hearer, the statement is not a hearsay. Words offered to prove the effect on the hearer are admissible when they are offered to show their effect on one whose conduct is at issue. It is the bearer’s reaction to the statement which is sought to be proved. It is his reaction to the statement that is relevant, not the truth of the assertion in the statement. Since the hearer is present in court, he can be crossed-examined on whether or not he heard the statement accurately, believed the statement to be true, and whether or not he really acted in conformity with his belief. Out-of-court statement offered to prove that the statement was made Where the statement is not offered for the truth of the matter asserted, but merely to show what was said, the statement is not hearsay. Beyond the mere fact that the words were uttered, the statement proves nothing as to its averments because the out-of-court declaration’s relevance is independent of the truth of its assertion.

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Independent relevant statements It is a rule that a declarant’s statement may have relevance to an issue in a case from the mere fact that the words were spoken or written, irrespective of the truth or falsity of the assertion. This is known as independently relevant statements. These statements are admissible for some relevant reason independent of their truth or falsity. They are relevant because the statement itself is either the very fact in issue or a circumstantial evidence of a fact in issue. Some authorities call such statements as the operative acts which give rise to legal consequences. They are not hearsay. Thus, a witness may be asked questions concerning what the accused told him that other persons are involved in the conspiracy if the purpose of the testimony is not to prove that such persons were really involved but only to prove what the accused had mentioned (People v. Cusi, Jr., 14 SCRA 944). Their relevance to the matter in issue is not dependent on their truth or falsity. Its relevance lies in its tenor or the fact that it was said. E.g: Prior-out of court declarations of a witness inconsistent with his testimony on the stand are admissible, not to prove the truth of what was said. What is important is that the statements were uttered. Estrada v. Desierto Q: What are the 2 classes of independently relevant statements? A: 1. 2.

Those statements which are the very facts in issue; and Those statements which are circumstantial evidence of fact in issue. a. Statements of a person showing his state of mind— his mental condition, knowledge, belief, intention, ill-will and other conditions; 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— knowledge, belief, motive, good or bad faith, etc. of the latter; d. Statements which may identify the date, place and person on question; and e. Statements showing the lack of credibility of a witness.

Q: Is a newspaper clipping of the report to the reporter who was present during the press conference during the press conference stating that X admitted the robbery admissible?

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A: Yes. It is a non-hearsay evidence offered for the purpose of showing that the statement of X was made to a reporter regardless of the truth or falsity of the statement. The admissibility depends now on whether the fact that the statement was made is relevant to the case. It would be hearsay if offered to prove the truth that X was the robber. Also, the statement made by X to a reporter may be admitted as an admission under Sec. 26, Rule 130.

Dying declarations (Rule 130) 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) Q: What is a dying declaration?

Rule 130 Sec. 26.Admission of a party. — The act, declaration or omission of a party as to a relevant fact may be given in evidence against him. (22)

A: It is also known as the ante mortem statement. It is an evidence of the highest order and is entitled to utmost credence since no person aware of his impending death would make a careless and false accusation.

Q: What are the exceptions to the hearsay rule?

Q: What may be the purpose of a dying declaration?

A:

A: To provide the identity of the accused and the deceased, to show the cause of death of the deceased and the circumstances under which the assault was made upon him.

1. 2. 3.

Dying declarations (Sec. 37, Rule 130); Declaration against interest (Sec. 38, Rule 130); Act or declaration against pedigree (Sec. 39, Rule 130); 4. Family reputation or tradition regarding pedigree (Sec.40, Rule 130); 5. Common reputation (Sec.41, Rule 130); 6. Part of the res gestae (Sec.42, Rule 130); 7. Entries in the course of business (Sec.43, Rule 130); 8. Commercial lists and the like (Sec.45, Rule 130); 9. Learned treatises (Sec.46, Rule 130); and 10. Testimony or deposition at a former trial (Sec.47, Rule 130) Q: Is it correct to assert that the exceptions to the hearsay rule are not hearsay? A: No, they are hearsay evidence but they are deemed admissible hearsay for certain reasons. Under appropriate circumstances, a hearsay statement may possess circumstantial guarantees of trustworthiness sufficient to justify non-production of the declarant in person. Another justification may be simply dictated by the necessity to admit an out-of-court statement. Q: Give examples of these exceptions. A: 1. 2. 3. 4. 5. 6.

Declaration against interest Act or declaration about pedigree Entries in the course of business Entries in official records Commercial lists Learned treatises

NOTE: Their admissibility is predicated on a compelling necessity

Q: Why are their admissible? A: On the ground of necessity and trustworthiness. Necessity because the declarant’s death renders it impossible his taking the witness stand. Allowing it therefore, prevents a failure of justice. Trustworthiness, because the declaration is made in extremity, when the party is at the point of death and when every motive to falsehood is silenced and the mind is induced by the most powerful considerations to speak the truth. People v. Cerilla (539 SCRA 251) The law considers the point of death as a situation so solemn and awful as creating an obligation equal to that which is imposed by an oath administered in court. Q: In what proceedings a dying declaration admissible? A: As originally conceived, they are admissible only in criminal cases particularly in homicide cases. However, because of the changes under the Rules of Evidence in 1989, the law allowed the use of dying declarations even in non-criminal cases. Today, the Rules of court no longer places any limitation on the type of action in which a dying declaration may be introduced. As long as the relevance is clear, a dying declaration may now be used or introduced in a criminal or a civil action and the relevance is satisfied where the subject of inquiry is the death of the declarant himself. Q: How should the objection be made? A: It should be premised on any of the requisites for its admissibility embodied under Sec. 37. Thus, a counsel who

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wants to exclude the same must have to deal with the primary question of whether or not the evidentiary foundations for the introduction of a dying declaration where met. Examples: “Objection your honor, there is no foundation for the declaration “Objection, no basis” “Objection, predicate not laid” “Objection. No foundation. Declarant was not under consciousness of an impending death”

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Elements of a dying declaration NOTE: A dying declaration is admissible where the proponent of the evidence shows compliance with the following evidentiary foundations: 1. 2. 3.

4. Q: Is mere consciousness of death enough? A: No, every one of us, at one time or another, has become conscious of death. The kind of death of which the declarant should be conscious is a death that is impending. The declarant must be certain that death is near at hand, and what is said must have spoken in the hush of its impending presence.

5. 6.

That the declaration is one made by a dying person That the declaration was made by said dying person under a consciousness of his imminent death That the declaration refers to the cause and circumstances surrounding the death of the declarant and not of anyone else That the declaration is offered in a case where the declarant’s death is the subject of inquiry The declarant is competent as a witness had he survived The declarant should have died.

People v. Brioso, 37 SCRA 336

Q: Fallen by a bullet upon being fired at, Santos before expiring told Romero, a passerby who came to his rescue, “I was shot by Pablo, our neighbor.” May Romero’s testimony on what was told to him by Santos be offered and amitted in the separate civil action for damages brought by the heirs against Pablo?

To admit a dying declaration in evidence, it must be shown that the declarant believed at the time the statement was made, that he was in a dying condition and had given up the hope of surviving.

A: The statement is admissible. A dying declaration as in the facts in the case at bar, may be offered in a civil case that the cause and circumstances of the death of the declarant are the subjects of the inquiry.

NOTE: It is conceded that in determining the consciousness, the attendant circumstances should be carefully weighed in determining the consciousness of the impending death and the sincerity of such belief.

Q: What is the rationale behind the admissibility of the dying declaration?

Example: the fatal quality of the wound, the statements made by the physician that his situation is hopeless, etc. Q: If declatant’s statement was made under consciousness of an impending death, will a subsequent belief in recovery before his actual death bar the admissibility of his statement? A: No. The admissibility only depends upon whether at the time of the declaration was made the deceased believed that the injury received is fatal. Q: Will the remark “I do not know…I do not know who stabbed me” admissible? A: Yes, there is nothing in the rules which prohibits the admissibility of a dying declaration that is favorable to the accused. It would be unfair to restrict the use of dying declarations by the prosecution. It is well-settled that it will be received on behalf of the defendant (Mattox v. U.S.).

A: As held in the case People v. Lamasan, no person who knows of careless or false accusation. Q: Does the dying declaration need to be directed to a particular person? A: The dying declaration of the deceased need not be directed to a particular person inquiring from the declarant as to the circumstances of his death. Anyone who has knowledge of what the declarant said, whether it be directed to him or not, whether he had made inquiries from the declarant or not, can testify thereto (People v. Valdez, 347 SCRA 594). Assailing a dying declaration Q: Is a dying declaration create a conclusive presumption of credibility of the admitted declaration? A: No. No evidentiary rule grants a dying declaratipm a favored status in the hierarchy of evidence. It may be attacked in the same manner as on would do to a testimony in open court. It may be impeached through the normal methods provided for under the rules.

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1.

2.

3. 4.

For instance, it may be shown that the declarant had previously made a statement inconsistent with his supposedly dying declaration. The objecting counsel may also demonstrate that the declarant has no personal knowledge as to the identity of the assailant. It may also be shown that the declarant would not have been a competent witness even if he had survived. The counsel may show that deceased was in an irrational state because he was under the influence of large dose of sedatives administered in hospital People v. Ador (432 SCRA 1)

The declaration must identify the assailant; otherwise, it loses its significance. Parts of the Res Gestae Q: What is the etymological meaning of res gestae? A: It means things done. It was originally used by the courts in the other side of the world in the early 1800’s to create hearsay exceptions whenever it was difficult to justify the admission of a piece of hearsay evidence at a time when the hearsay theory was far from being developed in the law of evidence.

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Sec. 42.Part of res gestae. — Statements made by a person while a starting 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. 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) Q: Under our jurisdiction, the res gestae is limited to what matters? A: 1. Spontaneous statements 2. Verbal acts While the term remains in our rules, its application is restrictive and no other statement, act or evidence may qualify as part of the res gestae. Talidanao v. Falcom Maritime, 2008 In spontaneous exclamation or statements, the res gestae is the startling occurrence, whereas in verbal acts, the res gestae are the statements accompanying the equivocal act.

A. Spontaneous statements It was used as a justification to escape from the strict application of the hearsay rule. Res gestae is said to have reference to events speaking by themselves through the instinctive words and acts of participants when narrating the events. What is done or said by the participants under the immediate spur of transaction becomes part of the transaction. Q: What is the rationale behind the concept? A: It is the event that speaks for itself through the spontaneous words or instinctive words or conduct of the witness and not the witness for and about the event. The use of the term res gestae has falledn out of favor and acts formerly called parts of the res gestae are now designated by specific names. The judicial dislike for use of the term res gestae is clearly expressed in an Amercian case when it considered the phrase as “accountable for so much confusion that it had best be denied any place whatever in legal terminology; if it means anything but an unwillingness to think at all, what it covers cannot be put in less intelligible terms (U.S. v. Matot). Res gestae under the Rules of Court

Q: What should be the characteristics for a spontaneous statement to be admitted? A: 1. That there is a startling event or occurrence taking place 2. That while the event is taking place or immediately prior to or subsequent thereto, a statement has been made 3. The statements were made before the declarant had the time to contrive or devise a falsehood 4. That the statement relates to the circumstances of the startling event or occurrence or that the statements must concern the occurrence in question and its immediate attending circumstances. Q: Where is the admissibility of a spontaneous statement anchored on? A: It is anchored on the theory that the statement was uttered under the circumstances where the opportunity to fabricate is absent. The statement is a reflex action rather than a deliberate act, instinctive rather than deliberate. Thus, the declaration was made under the conditions suggestive of the truth. The justification for the excited utterance exception is that a spontaneous declaration of an individual who has recently suffered an overpowering and shocking experience is likely to be truthful.

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Q: Can the statement and the event be taken separately in case of a spontaneous statement?

meaning or legal significance only because of the statements that accompany the act. It is the statement contemporaneous with the act that identifies or indicates the character, purpose or motive of the act.

A: No. The statement alone without the event will not qualify

for admission, because it is the circumstances surrounding the making of the statement which makes said statement admissible.

Q: Under this rule, what are the requisites to be admissible? A: 1.

The principle rests on the common experience that utterances made under such circumstances are devoid of selfinterest and are in the same category as exclamations. The probability of falsehood is too remote as to be negligible (People v. Ricaplaza, 23 SCRA 374). NOTE: A counsel who intends to object to the presentation of a spontaneous statement as evidence, need to analyze the evidence sough to be admitted by strictly weighing it according to the standards set by Sec. 42 of Rule 130. A declaration by a deceased person concerning the circumstances of his health may not be considered a dying declaration if it cannot be established that he uttered his statement while conscious of his impending death but the utterance of the victim made immediately after sustaining injuries may be considered the ‘incident’ speaking through the victim. While it may not qualify as a dying declaration, it may nonetheless be admitted in evidence as part of the res gestae. Q: When is a declaration made spontaneously after a startling occurrence deemed as part of the res gestae? A: 1. When the principal act, the res gestae, is a starting occurrence; 2. The statements were made the declarant had time to contrive or devise; and 3. Statements concern the occurrence in question and its immediately attending circumstances (People v. Peña, 376 SCRA 639). Under the Rules, 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 the res gestae.

B. Verbal Acts

2. 3. 4.

The principal act to be characterized must be equivocal; The equivocal act must be material to the issue; The statement must accompany the equivocal act, and The statement gives a legal significance to the equivocal act.

E.g. A witness testifying that he saw the P give money to the D. Yet, this is an equivocal act. Is the money intended as a bride? Is it a payment for debt? We do not know. The act of receiving money in itself has no definite meaning or significance. But the act of receiving money acquires legal significance when the defendant said “thank you. I’ll pay you after a year.” Now, the witness is testifying to that out-ofcourt statement and it is offered to prove the truth of that statement, that the money handed over is a loan to the defendant. It is hearsay, but it is admissible hearsay as part of the res gestae. Q: Distinguish between spontaneous statement and a verbal act. A: A Spontaneous statement may be prior to, simultaneous with, or subsequent to the startling event or occurrence. This is not so in a verbal act. The statement in the latter must “accompany” the equivocal act which evidently means that it must be contemporaneous with the act. Entries in the course if business (business records rule) Rule 130 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, 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) This is commonly encountered in breach of contract suits for collection of a sum of money.

Q: What is a verbal act? A: It is a statement accompanying an equivocal act material to the issue, and giving it a legal significance. It presupposes a conduct that is equivocal or ambiguous, one which in itself does not signify anything when taken separately. It acquires

In this exception, the necessity for the admissibility of such evidence arises from the absence of the person who has personal knowledge of the facts. He is absent because he is dead, outside of the jurisdiction of the court, or otherwise, unable to testify.

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Q: What are the elements of this exception? A: 1. 2. 3. 4.

5.

Entries were made at, or near the time of the transactions referred to; Such entries were made in the regular course of business; The person making the entries was in a position to know the facts stated in the entries; The person making the entries did so in his professional capacity, or in the performance of duty and in the regular course of business; and The person making the entry is now dead or unable to testify.

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the stand on account of death, absence from the jurisdiction or serious illness. It refers to a declaration made by a person who at the time of his declaration is presented in evidence is already dead or is unable to testify. It must be one which when made, was known to the declarant himself to be against his interest, pecuniary or moral, and which would not have been made unless he believed it to be true. It is not enough that a declaration against interest was made. It is necessary that the declarant knew that the statement was against his interest and which he would not have made had it not be true.

Notes: Entries in the payroll, being entries in the ordinary course of business enjoy the presumption of regularity.

E.g. a statement by the debtor that he owes the creditor a sum of money, or an acknowledgement by the principal that he received the money previously entrusted to his agent, are clear declarations against the interest of the person making the statement.

The Rules on Electronic Evidence also expressly exempt business records from the hearsay rule:

Q: Will the same rule apply if the declarant is available as a witness?

RULE 8 BUSINESS RECORDS AS EXCEPTION TO THE HEARSAY RULE SECTION 1. Inapplicability of the hearsay rule. – A memorandum, report, record or data compilation of acts, events, conditions, opinions, or diagnoses, made by electronic, optical or other similar means at or near the time of or from transmission or supply of information by a person with knowledge thereof, and kept in the regular course or conduct of a business activity, and such was the regular practice ot make the memorandum, report, record, or data compilation by electronic, optical or similar means, all of which are shown by the testimony of the custodian or other qualified witnesses, is excepted from the rule or hearsay evidence. Declarations against interest (Rule 130) 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 is 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) People normally speak freely and with untruth when the statement is in their interest, but are usually unwilling to speak falsely against their interest. This is founded on the necessity on account of the impossibility of obtaining other evidence from the same source, the declarant being unavailable in person to testify on

A: No. The declarant must be dead or is unable to testify. Q: What kind of unavailability is sufficient reason to justify the application of the exception? A: 1.

2.

Being outside the territorial jurisdiction of the country—unavailability if the exact whereabouts abroad are unkown. If known, his deposition may be taken and the exception will not apply. Serious physical and mental impairments.

If the declaration is favorable to the interest of the declarant, it is a mere self-serving statement and does not fall as an exception to the hearsay rule. Also, the declaration could be against one’s penal interest because if one admits to a crime, he is also civilly liable, a liability that is pecuniary (People v. Toledo, 51 Phil. 826). Declaration about pedigree (Rule 130) 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)

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Q: To be admissible as an exception to the hearsay rule, what must be shown?

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Common reputation is hearsay but is admissible because of trustworthiness.

A: 1. 2. 3. 4.

That the declarant is dead, or unable to testify; That the declarant is related by birth or marriage to the person whose pedigree is in issue; The declaration was made before the controversy; and The relationship between the 2 persons is shown by evidence other than such act or declaration.

Q: What does pedigree include? A: It includes relationship, family genealogy, birth, marriage, death, the dates when and the places where these facts occurred, and the names of the relatives. It also embraces facts of family history intimately connected with pedigree. Family reputation or tradition regarding pedigree (Rule 130) 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. 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)

Q: Can common reputation establish pedigree? A: No. This is established by reputation in the family and not in the community. Entries of official records (Rule 130) Sec. 44.Entries in official records. — Entries in official records made in the performance of his duty by a public officer of the Philippines, or by a person in the performance of a duty specially enjoined by law, are prima facie evidence of the facts therein stated. (38) Q: When are entries admissible in evidence? A: When they are made in official records by public officer in the Philppines or in the performance of a legal duty. They are admissible as prima facie evidence of the facts stated in the entries. Q: What are the requisites for admissibility under this rule? A: 1. 2.

Q: What does this exception involve? A: 1. 2.

3.

A statement by a member of the family either by consanguinity or affinity; The statement is about the reputation or tradition of the family in respect to the pedigree of any member of the family; and The reputation or tradition is one existing previous to the controversy. Common reputation (Rule 130)

Sec. 41.Common reputation. — Common reputation existing previous to the controversy, respecting facts of public or general interest more than thirty 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)

3.

That the entry was made by a public officer, or by another person specially enjoined by law to do so; That it was made by the public officer in the performance of his duties, or by such other person in the performance of a duty specially enjoined by law; and That the public officer or other person had sufficient knowledge of the facts by him stated, which must have been acquired by him personally or through official information. Commercial lists and the like (Rule 130)

Sec. 45.Commercial lists and the like. — Evidence of statements of matters of interest to persons engaged in an occupation contained in a list, register, periodical, or other published compilation is admissible as tending to prove the truth of any relevant matter so stated if that compilation is published for use by persons engaged in that occupation and is generally used and relied upon by them therein. (39) Q: What is the rule for such commercial lists and reports of matters of interest be admissible?

Q: When is reputation admissible in evidence? A: It is when such reputation refers to a matter of public or general interest, or respecting marriage or moral character and said matter is more than 30 years old. It must exist prior to the controversy. It may be established by monuments and inscriptions.

A: They must be made by persons engaged in that occupation and are generally used and relied upon by them and those lists and reports are published. Learned treatises (Rule 130)

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Sec. 46.Learned treatises. — A published treatise, periodical or pamphlet on a subject of history, law, science, or art is admissible as tending to prove the truth of a matter stated therein if the court takes judicial notice, or a witness expert in the subject testifies, that the writer of the statement in the treatise, periodical or pamphlet is recognized in his profession or calling as expert in the subject. (40a)

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1.

2.

3. History books, published findings of scientists fall within this exception if an expert on the subject testifies to the expertise of the writer or if the court takes judicial notice of such fact.

The proponent shall make known to the adverse party the intention to offer such statement and its particulars to provide him a fair opportunity to object If the child is available the court shall upon motion of the adverse party, require the child to be present at the presentation of the hearsay statement for crossexamination by the adverse party When the child is unavailable, the fact of such circumstance must be proved by the proponent and the hearsay testimony shall be admitted only if corroborated by other admissible evidence (Sec. 28, Rule on Examination of a Child Witness).

Testimony or deposition at a former proceeding (Rule 130) 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)

Q: What must be shown in order for the court to admit videotaped and audiotaped interviews as evidence? A: 1. The child witness is unable to testify 2. The interview was conducted by duly trained members of a multi-disciplinary team or representatives of law enforcement or child protective services

Q: What is the testimony contemplated under this provision?

Q: Also, what are the foundations which must be established?

A: One given in a former case or proceeding, judicial or administrative involving the same parties and subject matter. The testimony was given by one who is now deceased or unable to testify. Said testimony may be given in evidence against the adverse party provides the latter had the opportunity to cross-examine the witness who gave the previous testimony (Samodio v. CA, 454 SCRA 463, 2005).

A: 1. That the party offering the videotape or audiotape, must disclose the identity of the individuals present, and at all times, include their images and voices 2. That the statements of the child were not made in response to a questioning calculated to lead the child to make a particular statement 3. That the videotape or audiotape or device is shown to be capable of recording the testimony 4. That the person operating the device was competent to operate it 5. The videotape or audiotape is authentic and correct 4. That the recording has been duly preserved (Sec. 29, Rule on Examination of a Child Witness).

Q: What requisites should be present for Sec. 47 to apply? A: 1. The witness is dead or unable to testify 2. His testimony or deposition was given in a former case or proceeding, judicial or administrative, between the same parties or those representing the same interests 3. The former case involved the same subject as that in the present case, although in 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 has an opportunity to cross-examine the witness in the former case (Manliclic v. Calaunan, 2007). Exception to the hearsay rule under the rule on examination of a child witness Q: What requisites should be present for a statement made by a child, in a child abuse case, not otherwise admissible under the hearsay rule to be admitted in evidence in a criminal or non-criminal proceeding?

Chapter VI BURDEN OF PROOF, QUANTUM OF EVIDENCE AND PRESUMPTIONS A. Burden of Proof and Burden of evidence Q: What is burden of proof? A: Onus probandi refers to the obligation of a party to the

litigation to persuade the court that he is entitled to relief. Rule 131

A:

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SECTION 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) For the defendant, an affirmative defense is one which is not a denial of an essential ingredient in the plaintiff’s, but one which, if established will be a good defense—i.e., an avoidance of the claim (Supreme Transliner v. CA, 370 SCRA 41).

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Q: Who has the burden of proof in case of eminent domain case? A: The local government that seeks to expropriate private property has the burden to show the existence of compliance with elements for the valid exercise of the right of eminent domain (JIL Christian Foundation v. City of Pasig, 466 SCRA 235). Q: Who has the burden of proof in termination cases?

Q: To whom the burden of proof lies? A: It lies with the party who alleges the existence of a fact or thing necessary in the prosecution or defense of an action.

A: It rests upon the employer to show that the dismissal is for a valid and just cause. Q: Who has the burden of proof in disbarment cases?

A mere allegation is not evidence, and he who has the burden of proving his allegation with the requisite quantum of evidence (Clado-Reyes v. Limpe, 2008). NOTE: In civil cases, plaintiffs have the burden of proving the material allegations of the complaint when those are denied by the answer, and the defendants have the burden of proving the material allegations in the answer when they introduce new matters.

A: It rests on the complainant as held in Santos v. Dichoso (84 SCRA 622). Moreover, the case must be established by clear, convincing and satisfactory proof. Indeed, considering the serious consequences of the disbarment or suspension of a member of the Bar, the SC has held that clearly preponderance of evidence is necessary to justify the imposition of the administrative penalty. Q: Who has the burden of proof in accident insurance?

Q: Is it correct to say that the burden of proof solely rests on the shoulders of the plaintiff? A: No. The burden of proof, under clear terms of Sec. 1 of Rule 131 is the duty of a party to present evidence not only to establish a claim but a defense. Northwest Airlines v. Chiong, 2008 Although initially, the burden of proof was with the passenger to prove that there was a breach of contract of carriage, the burden of evidence shifter to the airline when the former adduced sufficient evidence to prove the fact alleged.

A: The insured’s beneficiary has the burden of proof in demonstrating that the cause of death is due to the covered peril (Vda. De Gabriel v. CA, 264 SCRA 137). Q: How about in question as to constitutionality of a law? A: The one who attacks the constitutionality of a law has the onus probandi to show why the law is repugnant to the constitution. The reason for the rule is the presumption that the legislature intended to enact a valid, sensible, and just law and one which operates no further than may be necessary to effectuate the specific purpose of the law (Perez v. People, 2008).

BPI v. Sps. Royeca, 2008 Test for determining where the burden of proof lies In civil cases, the party having the burden of proof must establish his case by preponderance of evidence, or evidence which is more convincing to the court as worthy of belief than that which is offered in opposition thereto. Thus, the party, whether the plaintiff or plaintiff, has the onus to prove his assertion in order to obtain a favorable judgment. Q: Who has the burden of proof in a case involving nonpayment of obligation? A: The general rule is that the burden rests on the defendant to prove payment, rather than on the plaintiff to prove nonpayment. The debtor has the burden of showing with legal certainty that the obligation has been discharged by payment.

Q: What is the test for determining where the burden of proof lies? A: It is to ask which party to an action or suit will fail if he offers no evidence competent to show the facts averred as the basis for the relief he seeks to obtain (Aznar Brothers Realty v. Aying, 458 SCRA 496). The burden of proof lies on the party who wants to establish a legal right in his favor. If he claims a right granted by law, he must prove his claim by competent evidence, relying on the strength of his own evidence and not upon the weakness of that of his opponent (China Banking Corp. v. Ta Fa Industries, 2008).

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Q: Where is the burden of proof fixed? A: It is fixed by the pleadings. The claim of the plaintiff which he must prove is spelled out in his complaint. The defendant’s defenses which he must prove are to be found in his answer to the complaint. NOTE: The burden of proof may shift from one side to the other as the exigencies of the trial require and shifts with alternating frequency. As the trial progresses, one party may have presented evidence that weigh heavily in his favor and sufficient to convince the court of the justness of the claim. If this occurs, the other party has the burden to come forward in his own evidence to counteract whatever positive impression which the evidence of the other party may have been created in the mind of the court. Q: Distinguish burden of proof and burden of evidence. A: BURDEN OF PROOF The obligation of a party to present evidence on the facts in issue necessary to establish his claim or defense by the amount of evidence required

BURDEN OF EVIDENCE The duty of the party to go forward with the evidence to overthrow any prima facie presumption against him

Equipoise rule or equiponderance doctrine

support a conviction. Where then evidence in a criminal case is evenly balanced, the constitutional presumption tilts the scales in favor of the accused. When moral certainty as to culpability hangs in the balance, acquittal on reasonable doubt inevitably becomes a matter of right (Malillin v. People, G.R. No. 172953). However, the rule does not apply where evidence presented is not equally weighty, such as where the evidence of the prosecution is overwhelming (Malana v. People, G.R. No. 173612). Ubales v. People, G.R. No. 175692 It is better to acquit ten guilty individuals than to convict one innocent person. Every circumstance against guilt and in favor of innocent must be considered. Also, an accused should not be convicted by reason of the weakness of his alibi. It is fundamental that the prosecution must prove its case beyond reasonable doubt and must not rely on the weakness of the evidence of the defense. Mayon Hotel and Restaurant v. Adana (458 SCRA 609) In labor cases, if doubt exists between the evidence presented by the ER and the EE, the scales of justice must be tilted in favor of the latter. The policy is to extend the doctrine to a greater number of employees who can avail of the benefits under the law, which is inconsonance with the avowed state’s policy to give maximum aid and protection to labor (Nicario v. NLRC, 295 SCRA 619).

Q: What is the basis of the Equipoise rule or equiponderance doctrine? A: It is based on Sec. 1 of Art. III of the Constitution which provides that no one shall be deprived of life, liberty or property without due process of law.

B. Quantum of Evidence RULE 133 Weight and Sufficiency of Evidence

Q: What is the Equipoise rule or equiponderance doctrine? PREPONDERANCE OF EVIDENCE A: It refers to a situation where the evidence of the parties are evenly balanced or there is doubt on which side the evidence preponderates. In this case the decision should be against the party with the burden of proof. Q: Apply the Equipoise rule or equiponderance doctrine in a criminal case. A: The Equipoise rule or equiponderance doctrine provides that where the evidence is evenly balanced, the constitutional presumption of innocence tilts the scales in favor of the accused. Thus, where the inculpatory facts and circumstances are capable of 2 or more explanations one of which is consistent with the innocence of the accused and the other consistent with his guilt, then the evidence does not fulfill the test of moral certainty and is not sufficient to

SECTION 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)

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Q: What do you mean by preponderance of evidence? A: It is a quantum of evidence applicable to civil cases. It means “greater or superior weight of evidence.” It is more convincing and more credible than the one offered by the adverse party. It means evidence which is more convincing to the court as worthy of the belief than that which is offered in opposition thereto. Q: What should the court consider to determine the existence of preponderance of evidence? A: 1. All the facts and circumstances of the case; 2. The witness’ manner of testifying, their intelligence, their means and opportunity of knowing the facts to which they are testifying, the nature of the facts to which they testify, the probability or probability of their testimony; 3. The witness’ interest or want of interest, and also their personal credibility so far as the same may ultimately appear in the trial; 4. The number of witnesses, although does not mean that preponderance is necessarily with the greater number. Note: To persuade by preponderance of evidence is not totake the evidence quantitatively but qualitatively. PROOF BEYOND REASONABLE DOUBT 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, 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) It is the constitutional presumption of innocence that lays such burden upon the prosecution. The prosecution must prove its case beyond reasonable doubt and must not rely on the weakness of the evidence of the defense. Yet, when the accused invokes a justifying circumstance like self-defense, the burden of proof rests upon the defense to prove that the killing was justified. Note: Proof beyond reasonable doubt does not mean such a degree of proof that excludes all possibility of error. Only moral certainty is required. Reasonable doubt does not refer to any doubt or a mere possible doubt because everything in human experience is subject to possible doubt. It is that state of case which, after a comparison of all the evidence , does not lead the judge to have in his mind, a moral certainty of the truth of the charge.

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Where there is reasonable doubt as to the guilt of the accused, there must be an acquittal. People v. Ganguso (250 SCRA 268) Reasonable doubt standard is demanded by the due process clause of the constitution which protects the accused from conviction except upon proof beyond reasonable doubt of every fact necessary to constitute the crime which he is charged. Xxx Moral certainty is only required, or that degree of proof which produces conviction in an unprejudiced mind. The conscience must be satisfied that the accused is responsible for the offense charged. People v. Santiago, 420 SCRA 248 (p. 416) SUBSTANTIAL EVIDENCE 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) Q: In what cases does this degree of evidence apply? A: This applies to administrative cases-those filed before administrative and quasi-judicial bodies and which requires that in order to establish a fact, the evidence should constitute that amount of relevant evidence which a reasonable man might accept as adequate to support a conclusion. Tongko v. Manufacturers Life Insurance Company (G.R. No. 167622) The settled rule that in administrative and quasi-judicial proceedings, proof beyond reasonable doubt is not required in determining the legality of the ER’s dismissal of an EE, and not even a preponderance of evidence is necessary as substantial evidence is considered sufficient. Substantial evidence is more than a mere scintilla of evidence or relevant evidence as a reasonable mind might accept as adequate to support a conclusion, even if other minds, equally reasonable, might conceivably opine otherwise. Duduaco v. Laquindanum, 466 SCRA 428 Administrative proceedings against judges are highly penal in character and are to be governed by the rules applicable to criminal cases. The quantum of evidence proof required to support administrative charges against judges should thus be more than substantial and requires proof beyond reasonable doubt.

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This was later on extended to administrative proceedings against judicial employees like sheriffs. Q: Distinguish preponderance of evidence and substantial evidence.

Olalia, 2007 This standard should be lower than proof beyond reasonable doubt but higher than preponderance of evidence. Q: What is the quantum of evidence to prove allegations of bias?

A: PREPONDERANCE OF EVIDENCE Applies to civil cases

It means greater or superior weight of evidence. It is the more evidence that is more convincing and more credible than the one offered by the adverse party.

SUBSTANTIAL EVIDENCE Applies to cases filed before administrative or qua-judicial bodies Requires that in order to establish a fact, the evidence should constitute the amount of relevant evidence which a reasonable mind might accept as adequate to support a conclusion

Quantum of evidence in a petition for a writ of amparo Q: What is the quantum of evidence in a petition for a writ of amparo? A: The parties shall establish their claims by substantial evidence (Sec. 17, The Rule on the Writ of Amparo). Effect of Failure to prove administrative liability on the criminal case Q: What is the effect of the failure to prove administrative liability on the criminal case? A: The findings and conclusions in one should not necessarily be binding on the other. The evidence presented in the administrative case may not necessarily be the same evidence to be presented in the criminal case. The prosecution is certainly not precluded from, adducing additional evidence to discharge the burden of proof required in the criminal case. Also, the dismissal of the criminal case is not per se bar to administrative sanctions (Paredes v. CA, 2007). Clear and convincing evidence Q: When is an evidence clear and convincing? A: If it produces in the mind of the trier of fact a firm belief or conviction as to allegations sought to be established. It is intermediate, being more than preponderance, but not to the extent of such certainty as is required beyond reasonable doubt as in criminal cases.

A: Bare allegations of bias and partiality of the judge are mot enough in the absence of clear and convincing evidence to overcome the presumption that the judge will undertake his noble role to dispense justice according to law and evidence without fear or favor. Extrinsic evidence is required to establish bias, bad faith, malice or corrupt purposes, in addition to the palpable error that may be inferred from the decisions of the decision or order itself (Rivera v. Mendoza, A.M. No. RTJ-06-2013, 2006. Q: What should be the quantum in case of annulment or reconveyance of title? A: A party seeking it should establish not merely by preponderance of evidence but by a clear and convincing that the land sought to be reconveyed is his. Q: What should be the quantum in case of allegation of frame-up and extortion? A: To substantiate the defense, including instigation, the evidence must be clear and convincing. NOTE: Denial is a weak form of evidence, particularly when it is not substantiated by clear and convincing evidence. A notarized instrument enjoys the presumption of due execution. Only a clear and convincing evidence to the contrary can overcome this presumption (Viaje v. Pamintel, 2006). A person claiming moral damages must prove the existence of bad faith by clear and convincing evidence for the law presumes good faith. Evidentiary weight of electronic evidence Q: What factors should be considered in assessing the Evidentiary weight of electronic evidence? A: 1. The reliability of the manner in which it was generated, stored or communicated 2. The reliability of the manner in which its originator was identified 3. The familiarity of the information and communication system

Government of Hong Kong Special Admin. Region v.

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4.

5. 6.

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The familiarity of the witness or the person who made the entry with the communication and information system The nature and quality of the information which went into the communication and information system Other factors which the court may consider (Sec.1, Rule 7, Rules on Electronic Evidence).

Q: How may matters relating to the admissibility and evidentiary weigh of an electronic document be established? A: By an affidavit stating facts of direct personal knowledge of the affiant or based on authentic records. The affidavit must affirmatively show the competence of the affiant to testify on the matters contained.

a. b. 2.

Conclusive Disputable

Presumptions of fact or presumption hominis

Q: When is a presumption one of law? A: It is an assumption which the law requires to be made from a set of facts Q: When is it one of fact? A: When the assumption is made from the facts without any direction or positive requirement of law. Q: How would you categorize the presumption that an accused is innocent until proven guilty? A: Presumption of law. It is one embodied in the Constitution

C.

PRESUMPTIONS Sec. 14 [2], Art. III of the Constitution

Q: What is a presumption? Q: What is the effect of a presumption? A: It is an assumption of fact resulting from a rule of law which requires such fact to be assumed from another fact or group of facts founded or otherwise established in the action. It is an inference of the existence or non-existence of a fact which courts are permitted to draw from proof of other facts.

A: A party in whose favor the legal presumption exists may rely on and invoke such legal presumption to establish a fact in issue. One need not introduce evidence to prove the fact for a presumption is prima facie proof of the fact presumed. Presumptions under the Rules of Court

Q: Is presumption an evidence? Q: What are the presumptions under the Rules of Court? A: No. They merely affect the burden of offering evidence. A: NOTE: A presumption is an inference which is mandatory unless rebutted. Q: Differentiate inference from a presumption.

Conclusive or presumptions et de jure Disputable or disputable presumptions or presumptions juris tantum

Q: When is a presumptive conclusive?

A: INFERENCE It is a factual conclusion that can rationally be drawn from other facts One that is a result of the reasoning process. It need not have a legal effect because it is mandated by law.

PRESUMPTION Mandated by law and establishes a legal relation between or among the facts It is a conclusion which a rule directs shall be made from proof of certain facts

Kinds of presumption Q: What are the kinds of presumptions? A: 1.

1. 2.

A: When the presumption becomes irrebuttable upon the presentation of the evidence and any evidence tending to rebut the presumption is not admissible. This is a rule of substantive law. It is an inference which the law makes so peremptory that it will not allow them to be overturned by any contrary proof however strong. Q: When is a presumption disputable or rebuttable? A: It may be contradicted or overcome by other evidence. They are satisfactory if uncontradicted, but may be contradicted and overcome by other evidence.

Presumptions of law or presumption juris

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Q: What if the evidence that rebuts the presumption is introduced?

Q: What are the elements in relation to the party claiming the estoppel?

A: The force of the presumption disappears.

A: 1. Lack of knowledge and of the means of knowledge of the truth as to the facts in question 2. Reliance, in good faith, upon the conduct or statements of the party to be estopped 3. Action or inaction based thereon of such character as to change the position or status of the party claiming the estoppel, to his injury, detriment or prejudice (PNB v, Palma, 2005).

Conclusive presumptions under the Rules of Court (Rule 131) Sec. 2. Conclusive presumptions. — The following are instances of conclusive presumptions: (a)Whenever a party has, by his own declaration, act, or omission, intentionally and deliberately led to another to believe a particular thing true, and to act upon such belief, he cannot, in any litigation arising out of such declaration, act or omission, be permitted to falsify it: (b)The tenant is not permitted to deny the title of his landlord at the time of commencement of the relation of landlord and tenant between them. (3a) Q: What is the basis of the Conclusive presumptions under the Rules of Court? A: They are based on the doctrine of estoppel. Under this doctrine, the person making the representation cannot claim benefit from the wrong he himself committed.

NOTE: In estoppel, it is important that the person invoking it has been influenced or relied on the representations or conduct of the person sought to be stopped (Kalalo v. Luz). Q: What is the basis of the doctrine? A: It is based on the grounds of public policy, fair dealing, good faith and justice, and its purpose is to forbid one to speak against his own act, representations, or commitments, to the injury of one to whom they were directed and who reasonably relied thereon (Harold v. Aliba, 2007). Disputable presumptions

Q: What is the common term for the first conclusive presumption? A: Estoppel in pais or estoppel by conduct.

Example: The presumption that official duty has been regularly performed. This includes the presumptions of regularity of service of summons.

Estoppel Q: What is estoppel?

Q: Does the presumption that official duty has been regularly performed applicable to a petition for a writ of amparo?

A: It is an equitable principle rooted upon natural justice, prevents persons from going back on their own acts and representations, to the prejudice of others who have relied on them.

A: No. Under Rule 17 of the Rule on the Writ of Amparo, the respondent public official cannot invoke the presumption that official duty has been regularly performed to evade responsibility or liability.

The essential elements of Estoppel in pais may be considered in relation to the party sought to be estopped, and in relation to the party invoking the estoppel in his favor.

NOTE: The presumption of innocence of the accused prevails over the presumption that law enforcement agents were in the regular performance of their duty.

Q: What are the essential elements of estoppel? A: 1. Conduct amounting to false representation or concealment of material facts; or at least calculated to convey the impression that the facts are otherwise than, and inconsistent with, those which the party subsequently attempts to assert; 2. Intent, or at least expectation, that this conduct shall be acted upon by, or at least influence, of the real facts 3. Knowledge, actual or constructive of the real facts

Examples of Disputable presumptions 1. 2. 3. 4. 5. 6. 7.

That a person is innocent of a crime or a wrong That an unlawful act was done with unlawful intent That a person intends the ordinary consequences of his voluntary act That a person takes ordinary care of his business The evidence willfully suppresses would be adverse if produced; That money paid by one another was due to the latter; That a thing delivered by one to another belonged to the latter;

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8. 9. 10. 11. 12.

13. 14. 15. 16.

That an obligation delivered up to the debtor has been paid; That prior rents or installments had been paid when a receipt for the latter ones is produced That a person acting in a public office was regularly appointed or elected to it; That official duty has been regularly performed; That a court, or judge, acting as such, whether in the Philippines or elsewhere, was acting in the lawful exercise of jurisdiction; That private transactions have been fair and regular; That the ordinary course of business has been followed; That there was a sufficient consideration for a contract; ] That a negotiable instrument was given or indorsed for a sufficient consideration. Disputable presumptions under Sec.3, Rule 131

Sec. 3.Disputable presumptions. — The following presumptions are satisfactory if uncontradicted, but may be contradicted and overcome by other evidence: (a)That a person is innocent of crime or wrong; (b)That an unlawful act was done with an unlawful intent; (c)That a person intends the ordinary consequences of his voluntary act; (d)That a person takes ordinary care of his concerns; (e)That evidence willfully suppressed would be adverse if produced; (f)That money paid by one to another was due to the latter; (g)That a thing delivered by one to another belonged to the latter; (h)That an obligation delivered up to the debtor has been paid; (i)That prior rents or installments had been paid when a receipt for the later one is produced; (j)That a person found in possession of a thing taken in the doing of a recent wrongful act is the taker and the doer of the whole act; otherwise, that things which a person possess, or exercises acts of ownership over, are owned by him; (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; (m)That official duty has been regularly performed; (n)That a court, or judge acting as such, whether in the Philippines or elsewhere, was acting in the lawful exercise of jurisdiction; (o)That all the matters within an issue raised in a case were laid before the court and passed upon by it; and in like manner that all matters within an issue raised in a dispute submitted for arbitration were laid before the arbitrators and passed upon by them; (p)That private transactions have been fair and regular; (q)That the ordinary course of business has been followed; (r)That there was a sufficient consideration for a contract; (s)That a negotiable instrument was given or indorsed for a sufficient consideration; (t)That an endorsement of negotiable instrument was made before the instrument was overdue and at the place where the instrument is dated; (u)That a writing is truly dated; (v)That a letter duly directed and mailed was received in the regular course of the mail; (w)That after an absence of seven 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 ten years. If he disappeared after the age of seventy-five years, an absence of five 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 with is missing, who has not been heard of for four years since the loss of the vessel or aircraft; (2)A member of the armed forces who has taken part in armed hostilities, and has been missing for four years; (3)A person who has been in danger of death under other circumstances and whose existence has not been known for four years; (4)If a married person has been absent for four 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 the circumstances hereinabove provided, an absence of only two 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. (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 without 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.chanrobles virtua law library (dd)That if the marriage is terminated and the mother contracted another marriage within three hundred days after such termination of the former marriage, these rules shall govern in the absence of proof to the contrary: (1)A child born before one hundred eighty days after the solemnization of the subsequent marriage is considered to have been conceived during such marriage, even though it be born within the three hundred days after the termination of the former marriage. (2)A child born after one hundred eighty days following the celebration of the subsequent marriage is considered to have been conceived during such marriage, even though it be born within the three hundred 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 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; (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

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NOTES ON EVIDENCE Kenneth & King Hizon (3A) no particular circumstances from which it can be inferred, the survivorship is determined from the probabilities resulting from the strength and the age of the sexes, according to the following rules: 1.If both were under the age of fifteen years, the older is deemed to have survived; 2.If both were above the age sixty, the younger is deemed to have survived; 3.If one is under fifteen and the other above sixty, the former is deemed to have survived; 4.If both be over fifteen and under sixty, and the sex be different, the male is deemed to have survived, if the sex be the same, the older; 5.If one be under fifteen or over sixty, and the other between those ages, the latter is deemed to have survived. (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 of innocence The presumption of innocence is founded upon the first principles of justice. Its purpose is to balance the scales in what could otherwise be an uneven contest between the lone individual pitted against the People and all the sources at their command. The accused must be acquitted and set free if his guilt cannot be proved beyond the whisper of a doubt. Accordingly, conflicts in evidence must be resolved upon the theory of innocence rather than upon a theory of guilt when it is possible to do so (People v. Alvario, G.R. No. 120437). People v. Mingming, G.R. No. 174195 This presumption is enjoyed by the accused until final conviction and in this regard, the prosecution’s case must rise and fall on its own merits and cannot draw its strength from the weakness of the defense. Q: When does the presumption that evidence when willfully suppresses would be adverse if produced not apply? A: 1. 2. 3. 4.

If the evidence is at the disposal of both parties; If the suppression was not willful; If it is merely corroborative or cumulative; and If the suppression is an exercise of a privilege such as it is covered by the privileged communication between physician and patient.

Intent is a state of mind, and is hidden from the judicial eye. Courts are left to evaluate the overt acts, and on their basis to form a conclusion as to the actor’s intentions. Accordingly, men intend the natural consequences of their voluntary acts and that unlawful acts are done with unlawful intent. A document acknowledged before a notary public enjoys the presumption of regularity. It is a prima facie evidence of the

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facts therein stated. Accordingly, titles in the name of a person, having been registered under the Torrens system, are generally a conclusive evidence of the ownership of the land referred to therein and a strong presumption exists at the titles are regularly issued and valid (Medina v. Greenfield Development Corporation, 443 SCRA 150). When a mail is sent by registered mail there exists a presumption that is was received in the regular course of mail (Sec.3 (v), Rule 131). To raise the presumption, the following facts must be proven: a. b.

That the letter was properly addressed with postage paid; and That it was mailed.

Note: A direct denial of the receipt of the letter shifts the burden upon the party favored by the presumption to prove that the mailed letter was indeed received by the addressee. Cawaling v. COMELEC, 368 SCRA 453 Every statute has in its favor the presumption of constitutionality which is rooted in the doctrine of separation of powers which enjoins upon the 3 coordinate departments of the Government a becoming courtesy for each other’s acts. The grounds for nullity must be beyond reasonable doubt, for to doubt is to sustain. Bare allegations, when unsubstantiated by evidence, documentary or otherwise, are not equivalent proof under our Rules of Court. Article 164 of the Family Code is clear. A child who is conceived or born during the marriage of his parents is legitimate. As a guaranty in favor of the child and to protect his legitimacy status, Art. 167 of the FC provides: Article 167 of the Family Code The child shall be considered legitimate although the mother may have declared against its legitimacy or may have been sentenced as an adultress. The law requires that every reasonable presumption be made in favor of legitimacy. It is grounded on the policy to protect innocent offspring from the odium of illegitimacy. Art. 213 of the Family Code (p. 442) The so-called tender age presumption under Art. 213 of the FC may be overcome only by compelling evidence of the mother’s unfitness. Q: Under what instances is the mother presumed to be unsuitable to have custody of her children?

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A:

2. 1. 2. 3. 4. 5. 6. 7. 8. 9.

Neglect Abandonment Unemployment Immorality Habitual drunkineness Drug addiction Maltreatment of a child Insanity Affliction with a communicable disease.

Whoever alleges fraud or mistake in a transaction must prove the same since it is presumed that a person ordinarily takes care of his concerns and private transactions have been fair and regular. Yet, in Article 1332 of the NCC, if mistake or fraud is alleged, and one of the parties is unable to read, or if the contract is in a language not understandable to him, the person enforcing the contract must show that the terms therof have been fully explained to the former (Cayabyab v. IAC, 232 SCRA 1).

3.

4. 5. 6.

When the vendor remains in possession as lessee or otherwise When upon or after the expiration of the right to repurchase another instrument extending the period of redemption or granting a new period is executed When the purchaser retains for himself a part of the purchase price When the vendor binds himself to pay the taxes on the thing sold In any other case where it may be fairly inferred that the real intention of the parties is that the transaction shall secure the payment of a debt or the performance of any other obligation.

Q: For the above presumptions to apply, what are the requisites? A: 1. That the parties entered into a contract denominated as a sale 2. That their intention was to secure an existing debt by way of mortgage.

Article 1332 of the NCC Article 1381 (3) of the NCC

NOTE: The rule is that he who alleges that a contract does not reflect the true intention of the parties thereto may prove the same by documentary or parol evidence.

Article 1387 of the NCC Q: In what occasions will the law presume that there is fraud of creditors? A: 1. There is alienation of property by gratuitous title by the debtor who has not reserved sufficient property to pay his debts contracted before such alienation 2. There is alienation of property by onerous title made by the debtor against whom some judgment has been rendered in any instance of some writ of attachment has been issued. From the tenor of the law, the decision or attachment need not refer to the property alienated and need not have been obtained by the party seeking rescission Q: Is there a presumption of the compensability of an ailment? A: No. Art. 1602, NCC

The petitioner is burdened to prove, by clear and convincing evidence, the terms of the writings, not by simple declarations of the parties, but by proof of facts and circumstances, inconsistent with the rule of absolute purchase, otherwise, the solemnity of deeds would always be exposed to the slippery memory of witnesses. Q: What is the reason behind the above rule? A: The presumption is that the contract is what it purports to be; and to establish its character as a mortgage, the evidence must be clear, unequivocal and convincing which reasons tending to show that the transaction was intended as a security for debt; and thus to be a mortgage must be sufficient to satisfy every reasonable mind without hesitation. If there is doubt as to the fact whether the transaction is in the nature of a mortgage, the presumption, in order to avoid a forfeiture is always in favor of a position to redeem, to subserve abstract justice and avert injurious consequences.

Q: When will the law presume the existence of an equitable mortgage?

Q: What is the presumption regarding judgment or final order against a person rendered by tribunal of a foreign country with jurisdiction to render said judgment or final order?

A: 1. When the price of a sale with right to repurchase is usually inadequate

A: It is a presumptive evidence of a right as between the parties and their successors in interest. If the judgment is upon a specific thing, said judgment or final order is

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conclusive upon the title to the thing. The presumptions are not, however, irrefutable. Q: How may such judgment be repelled? A: 1. 2. 3. 4. 5.

Want of jurisdiction Want of notice to the party Collusion Fraud Clear mistake of law or fact

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4.

Absence of 4 years- A person is deemed considered dead for all purposes even for the purpose of the division of his estate among his heirs under certain extraordinary circumstances after a relatively shorter time than any of the above periods. In any of the following cases: a.

b.

Q: What is the presumption among common carriers? c. A: Common carriers are presumed to have been at fault or to have acted negligently, unless they prove that they observed extra-ordinary diligence as required by Art. 1733 of the NCC. Q: What is the presumption in case a driver is found guilty of reckless driving or violating traffic regulations at least twice within the next preceding two months? A: It is presumed that a driver was negligent. Q: What is the doctrine of res ipsa loquitur? A: The doctrine establishes a presumption of negligence against the defendant and furnishes a substitute for a specific proof of negligence. Q: What are the four requisites for the doctrine of res ipsa loquitur to apply? A: 1. The accident is of a kind which ordinarily does not occur in the absence of someone’s negligence 2. It is caused by an instrumentality within the exclusive control of the defendant or defendants 3. The possibility of contributing conduct which would make the plaintiff responsible is eliminated (Ramos v. CA, 321 SCRA 584).

d.

If the person on board a vessel lost during a sea voyage, or an aircraft with is missing, who has not been heard of for four years since the loss of the vessel or aircraft; If the person is a member of the armed forces who has taken part in armed hostilities, and has been missing for four years; If the person who has been in danger of death under other circumstances and whose existence has not been known for four years; If the person is married and has been absent for four 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 the circumstances hereinabove provided, an absence of only two 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.

Absence of presumption of legitimacy or illegitimacy (Rule 131) Sec. 4.No presumption of legitimacy or illegitimacy. — There is no presumption of legitimacy of a child born after three hundred 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)

Presumptions of Death 1.

2.

3.

Absence of 7 years- if it is known whether or not the absentee is still alive, he is considered dead for all purposes but not for the purpose of succession Absence of 10 years- the absentee shall be considered dead for the purpose of opening his succession only after an absence of 10 years. Before the lapse of 10 years, he shall not be considered dead if the purpose is the opening of his succession Absence of 5 years- in relation to the immediately preceding number, if the absentee disappeared after the age of 75 years, his absence for 5 years is sufficient for the purpose of opening his succession in which case, it is not necessary to wait for the lapse of 10 years.

Chapter VII OFFER OF EVIDENCE AND TRIAL OBJECTIONS (Rule 132) Sec. 34.Offer of evidence. — The court shall consider no evidence which has not been formally offered. The purpose for which the evidence is offered must be specified. (35) 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

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shall be done orally unless allowed by the court to be done in writing. (n)

circumstances of the witness and the substance of the proposed testimony. (n)

Sec. 36.Objection. — Objection to evidence offered orally must be made immediately after the offer is made.

Importance of Offer of Evidence Q: What is the importance of a formal offer of evidence?

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 three (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) 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) 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, a ruling sustaining the objection on one or some of them must specify the ground or grounds relied upon. (38a) Sec. 39.Striking out answer. — 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. On proper motion, the court may also order the striking out of answers which are incompetent, irrelevant, or otherwise improper. (n) 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 the name and other personal

A: It is important because without such offer, the court cannot determine whether the evidence is admissible or not. Yet, where the absence of an offer of a testimonial evidence was not objected to as when the witness was cross-examined by the adverse party despite failure of counsel to make an offer of the testimony of the witness, the court must consider the testimony. A document, or any article for that matter, is not evidence when it is simply marked for identification; it must be formally offered, and the opposing counsel given an opportunity to prove or identify it. A formal offer is necessary since judges are required to base their findings of fact and judgment only and strictly upon the evidence offered by the parties at the trial. Q: What is the distinction between the identification of documentary evidence and its formal offer as an exhibit? A: The former is done in the course if the trial and is accompanied by the marking of the evidence as an exhibit, while the second is done only when the party rests its case/ Q: When is a formal offer of evidence not required? A: 1. In a summary proceeding because it is a proceeding where there is no fill-blown trial; 2. Documents judicially admitted or taken judicial notice of; 3. Documents, affidavits and depositions used in rendering a summary judgment; 4. Documents or affidavits used in deciding quasi-judicial or administrative cases; 5. Lost objects previously marked, identified, described in the record, and testified by witness who had been subject of cross-examination in respect to said objects. People v. Matte Q: What are the requirements for an evidence not formally offered is allowable? A: 1. The evidence must have been duly identified by testimony duly recorded; and 2. The same must have been incorporated in the records of the case. People v. Libnao, G.R No. 136860

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While under the Rules of Court, the court shall consider no evidence which has not been formally offered, this is true only when the failure to offer an evidence has been objected to. The failure to object to the omission of the prosecutor and the cross-examination of the witness by the adverse party, taken together, constitute a waiver of the defect. Q: When is an evidence considered offered? A: As to when the offer f evidence is made depends upon the nature of the evidence: a. b.

As regards the testimony of witness, the offer is made at the time the witness is called to testify (Sec. 35); As regards documentary and object evidence, they are offered after the presentation of a party’s testimonial evidence. The offer is orally made unless allowed by the court to be in writing (Sec. 35);

Hence, the presentation of a documentary or object evidence for marking and identification during the course of the trial is not the offer contemplated in the rules. Failure to object to the evidence at this time should not be construed as a waiver of the objection to the evidence. Macasiray v. People, 291 SCRA 154 Q: When is an objection to a documentary evidence needed to be made? A: Objections to a documentary evidence shall be made after it is offered and the offer of such evidence shall be made after the presentation of a party’s testimonial evidence. A party is not deemed to have waived objection to admissibility of documents by his failure to object to the same when they were marked, identified and then introduced during the trial, because objection to documentary evidence must be made at the time it is formally offered and not earlier.

The court shall consider the evidence solely for the purpose for which it is offered, not for any other purpose. Purpose of objections Q: What is the purpose of objections? A: 1. Objections are made to keep out inadmissible evidence that would cause harm to a client’s cause. The rules of evidence are not self-operating and hence, must be invoked by way of an objection; 2. Objections are interposed to protect the record—to present the issue of inadmissibility of the offered evidence in a way that if the trial court rules erroneously, the error can be relied upon as a ground for a future appeal; 3. Objections may be made to protect a witness from being embarrassed on the stand or from being harassed by the adverse counsel; 4. Objections are interjected to expose the adversary’s unfair tactics like his consistently asking obviously leading questions; 5. Objections may be made to give the trial court an opportunity to correct its own errors and at the same time warn the court that a ruling adverse to the objector may supply a reason to invoke a higher court’s appellate jurisdiction; and 6. Objections are made to avoid a waiver of the inadmissibility of an otherwise inadmissible evidence. General and Specific Objections An objection must point out the specific ground of the objection, and if it does not do so, no error is committed in overruling it. NOTE: The objection should be specific. Hence, an objector must be explicit as to the legal ground he invokes. He cannot simply manifest that he is interposing an objection. He has to precisely state the exclusionary rule that would justify his opposition to the proffered evidence.

People v. Diaz Q: Give examples of general objections. The mere fact that a document is marked as an exhibit does not mean that it has thereby already been offered as part of the evidence of a party. Yet, where the accused fails to object to the admissibility of certain items during their formal offer, he is deemed to have waived his right against their admissibility.

A: 1. Objection, the evidence is incompetent 2. Objection! Inadmissible! 3. Objection: Incompetent, irrelevant, and immaterial 4. Objection: Improper.

Q: How is an offer of evidence made?

Q: Why are they considered general?

A: When a party makes a formal offer of his evidence, he must state the nature or substance of the evidence, and the specific purpose for which the evidence is offered.

A: They do not clearly indicate to the judge the ground upon which the objections are predicated. They assign no grounds to the objection.

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NOTE: An objection that evidence is incompetent, irrelevant, or immaterial is ordinarily regarded in most jurisdictions, in the absence of any statutory provision to the contrary, as not sufficiently definite to present any question for review.

questions Objections must be timely Q: When should objections be made?

Q: How should a specific objection be made? A: The Rule does not provide for such. Practical reasons however tell us that the objection must be specific enough to adequately inform the court the rule of evidence or substantive law that authorizes the exclusion of the evidence. Q: Give examples of specific objections? A: 1. 2. 3. 4. 5.

Question calls for a hearsay answer Witness cannot testify on a privileged communication The question calls for a conclusion The question is beyond the scope of the direct examination Impeachment is improper

Q: Is the rule that general objection can never be allowed absolute? A: No. The rule on specificity is dictated largely by the need to allow the court to intelligently rule on the objection and give the other party an opportunity to withdraw the evidence or to correct an error in his presentation.

A: It should be timely. The objection must be made at the earliest opportunity. Q: What is the earliest opportunity? A: The earliest opportunity depends on the manner the evidence is offered. a. If the evidence is offered orally, objection to the evidence must be made immediately after the offer is made b. An objection to a question propounded in the course of the oral examination of the witness shall be made as soon as the grounds therefor shall become reasonably present c. An offer of evidence in writing shall be objected to within 3 days after notice of the offer unless a different period is allowed by the court. NOTE: It is presumed that an objection to the evidence before it is offered is premature and no adverse inference may be had against a party who does not object to the evidence before it is offered. Motion to strike

There is no compelling or an absolute need to specify the ground if the ground is for exclusion should have been obvious to the judge or to counsel. There are cases where the incompetency of the evidence is so palpable that a mere general objection is deemed sufficient, and where the portion of evidence objected to is clearly pointed out, and its illegality is apparent on its face, then the objection must be allowed.

Q: What will the counsel do in case the witness is so quick to answer even before the question is over? A: The counsel must nevertheless object, state his reason, and move to strike out the answer. This is a technique which the lawyer avails when he does not have the opportunity to object before the witness responds.

Formal and substantive objections Sec. 39, Rule 133 Q: Distinguish Formal and substantive objections. A: FORMAL One directed against the alleged defect in the formulation of the question.

Examples: Ambiguous questions, leading and misleading questions, repetitious questions, multiple questions, argumentative

SUBSTANTIVE Objections made and directed against the very nature of the evidence, i.e., it is inadmissible either because it is irrelevant or incompetent or both Examples: Parol; not the best evidence, hearsay privileged communication not authenticated, opinion, res inter alios acta

Sec. 39. Striking out answer. — 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. On proper motion, the court may also order the striking out of answers which are incompetent, irrelevant, or otherwise improper. (n) Q: When should you use a motion to strike? A: 1. When the answer is premature

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2. 3. 4.

5.

When the answer of the witness is irrelevant, incompetent or otherwise improper When the answer is unresponsive When the witness becomes unavailable for crossexamination through no fault of the cross-examining party When the testimony was allowed conditionally and the condition for its admissibility was not fulfilled.

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A: No. It does not also mean that the non-objecting party waives his right to present controverting evidence. It only waives objection of 2 matters: a. Relevance b. Competence of the evidence Rule 128

If the answer to a question is damaging, then relief may be obtained by a motion to strike.

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

Waiver of objections; Belated Objections

People v. Valero, 112 SCRA 661

Q: What is the nature of a waiver? A: Waiver implies the existence of a right a claim, a privilege, or something one is entitled to. It is by its nature a unilateral act. Q: Does it have to be a positive act? A: No. A waiver may result from failure to perform an act. When the claim, or privilege is abandoned, repudiated, renounced, or not asserted, there is a waiver.

Admissibility of evidence should not be equated with weight of evidence. Q: Does the rule of waiver by failure to object applicable to the admission of documentary evidence? A: Yes. Failure to object waives an objection that there was an irregularity in the taking of an affidavit or deposition, that the document is not what it purports to be on its face, or that it is not relevant. Rulings on objections

Applied to objections, there is a waiver there is failure to point out some defect, irregularity, or wrong in the admission or exclusion of evidence. Such failure may take various forms and may either be expressed or implied. Q: What if no objection is made to an otherwise inadmissible evidence? A: The objection is deemed to have been waived by the party upon whom making the objection is incumbent. Note that the right to object is merely a privilege which the party may waive. Thus, once admitted, the testimony is in the case for what it is worth, and the judge has no power to disregard it for what it is worth, and the judge has no power to disregard it for the sole reason that it could have been excluded if objected to, nor can he strike it out on his own motion (Marella v. Reyes. 12 Phil 1). Extent of waiver for failure to object

Q: When should the ruling of the court be given? A: Immediately after the objection is made except when the court desires to take a reasonable time to inform itself on the question presented. However, the court must give its ruling during the trial and at such time as will give a party an opportunity to meet the situation presented by the ruling. NOTE: Words like “submitted” or “the objections are noted” are not appropriate rulings and neither sustains or overrules the objections. Q: What do you mean by “sustained”? A: The judge considers the question as improper and the witness will not be allowed to answer the question. This means the exclusion of a testimonial evidence. Q: What do you mean by “overruled”?

Q: When an objection to evidence is deemed waived, what exactly does the non-objecting party waive?

A: This means that for the court, the question is proper and the witness will be allowed to answer.

A: He waives objections to its admissibility. The evidence becomes admissible but the waiver involves no admission that the evidence possesses the weight attributed to it by the offering party.

NOTE: The ruling sustaining the objection must specify the ground or grounds relied upon.

Q: Is waiver an admission that the evidence is credible?

Sec. 40.Tender of excluded evidence. — If documents or things offered in evidence are excluded by the court, the

Tender of excluded evidence (Offer of proof) (Rule 132)

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NOTES ON EVIDENCE Kenneth & King Hizon (3A)

offeror may have the same attached to or made part of the record. If the evidence excluded is oral, the offeror may state for the record the name and other personal circumstances of the witness and the substance of the proposed testimony. (n)

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Note that the first method has the advantage of brevity and efficiency but it does not create as clear a record as the second method. Q: May an objection be interposed to the manner of tender of excluded evidence?

Q: Why make a tender of excluded evidence? A: 1. To allow the court to know the nature of the testimony or the documentary evidence and convince the trial judge to permit the evidence or testimony 2. Even if he is not convinced to reverse his earlier ruling, the tender is made to create and preserve a record for appeal

A: The rules are silent on this issue. However, there is no cogent reason to disallow the objection. If the document tendered is not described, or identified, its substance stated in vague and general terms or when the purpose for which it is offered is not declared, then the evidence has to be objected to. If the testimony is in the form of conclusion, thus, it fails to disclose sufficient information to enable the court and the other party to determine its admissibility, the same may be the target of an objection.

Q: How is the tender done? Q: Distinguish formal offer of evidence from offer of proof. A: It depends. If documents or things offered in evidence are excluded by the court, the offeror may have the same attached to or made part of the record. If the evidence excluded is oral, the offeror may state for the record the name and other personal circumstances of the witness and the substance of the proposed testimony. NOTE: The offering counsel must produce, describe, identify the object or document and in case of the latter, to state the contents of the document that is sought to be admitted where the substance of the same is not apparent on its face. Reading the substance of the document is an accepted way of stating its contents for the record in states which recognize a tender. A disclosure of the contents is necessary in order for the court to determine its competence and relevance. The next step is to state the purpose for which the object or document sought to be attached is offered, and to ask that it be marked for identification and have it attached to the record.

A: Formal offer of evidence Refers either to the offer of the testimony of a witness prior to the latter’s testimony, or the offer of the documentary and object evidence after a party has presented his testimonial evidence

Offer of proof The process by which a proponent of an excluded evidence tenders the same. if what has been excluded is testimonial evidence, the tender is made by stating for the record the name and other personal circumstances of the proposed witness and the substance of his proposed testimony. If the evidence excluded is documentary or things, the offer of proof is made by having the same attached to or made a part of the record.

Q: What are the 2 traditional methods of making the tender?

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A: 1. Where the counsel tells the court what the proposed testimony will be. This is the method prescribed in the Rules of Court. The counsel shall state for the record the name and personal circumstances of the witness. 2. By using the question and answer form

REFERENCE:

NOTE: Whichever method is to be used lies in the discretion of the trial court. Whichever method of tender is used, the advocate must see to it that the offer must be specific enough to contain the facts and circumstances of the matter sought to be proved by the excluded evidence.

Riano, Willard B., EVIDENCE: The Bar Lecture Series, 2009, Rex Book Store.

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