Francisco Book 1 (1)

RULE 128

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EVIDENCE defined•

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Evidence is the means, sanctioned by these rules of ascertaining in a judicial proceeding the truth respecting a matter of fact. Sources of Rules of Evidence The 1987 Constitution of the Philippines Rules 128 and 133 of the Revised Rules of Court Resolution of the Supreme Court dated March 14, 1989 approving the Proposed Rules on Evidence submitted by the Rules of Court Revision Committee on August 31, 1987 Rule 115, Section 1, Formerly Rule III, Section 1 of the Rules of Court (Right of defendant at the trial); Substantive and Remedial Statutes; Judicial decisions

That kind of evidence which in a trial is presented by witnesses verbally. Evidence is the generic term and testimony that of the species.

ARGUMENT•

Argument and evidence, taken together, represent the means by which the tribunal is sought to be persuaded as to some fact-in-issue.

FACTUM PROBANDUM FACTUM PROBANS:

distinguished

from

FACTUM PROBANDUM (Fact in issue)• •

The ultimate fact or the fact sought to be established Refers to proposition

THE RULES OF EVIDENCE ARE SPECIFICALLY APPLICABLE ONLY IN JUDICIAL PROCEEDINGS FACTUM PROBANS“The means of ascertaining in a JUDICIAL PROCEEDING the truth respecting a matter of fact.” The decision of a barrio council, respecting the settlement of ownership and possession of a parcel of land, is ultra vires because a barrio councils, which are not courts, have no judicial powers. – Miguel v Catalino,20 SCRA 234

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Is the evidentiary fact or the fact by which the factum probandum is to be established Materials which establish the proposition

KINDS AND DEGREES OF EVIDENCE Direct Evidence and Circumstantial Evidence:

Therefore, said decision, if introduced as an exhibit is not admissible in a judicial proceeding as evidence for ascertaining the truth respecting a matter of fact of ownership and possession. Supra TRUTH IS BEST ASCERTAINED UNDER AN ADVERSARY SYSTEM OF JUSTICE. –Republic v Valencia, 141 SCRA 462

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DIRECT EVIDENCE – that which proves the fact in dispute without the aid of any interference or presumption (Lake County vs. Nellon.)

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CIRCUMSTANTIAL EVIDENCE – is the proof of a fact or facts from which taken either singly or collectively, the existence or a particular fact, in dispute may be inferred as a necessary or probable consequence (State vs. Avery, 113, Mo., 475, 494, 21, S.W. 193)

EVIDENCE distinguished from: PROOF•

Refers to the degree or kind of evidence which will produce full conviction, or establish the proposition to the satisfaction of the tribunal. Proof is the effect or result of evidence while evidence is the medium of proof.

TESTIMONY-

Primary Evidence and Secondary Evidence: •

PRIMARY EVIDENCE – that which the law regards as affording the greatest certainty of fact in question. Also referred to as the best evidence

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SECONDARY EVIDENCE – that which is inferior to the primary evidence and is permitted by law only when the best evidence is not available. Known as the substitutionary evidence

Positive Evidence and Negative Evidence: •

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POSITIVE EVIDENCE – when the witness affirms that a fact did or did not occur. Entitled to a greater weight since the witness represents of his personal knowledge the presence or absence of a fact

cumulative to that of his teachers and medical men upon the same question.” (Gardner vs. Gardner, 2 Gray (Mass. 434))

Prima Facie Evidence and Conclusive Evidence: •

PRIMA FACIE EVIDENCE – is that which suffices for the proof of a particular fact, until contradicted and overcome by other evidence

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CONCLUSIVE EVIDENCE – is that which is incontrovertible. When evidence is received which the law does not allow to be contradicted.

NEGATIVE EVIDENCE – when the witness did not see or know of the occurrence of a fact. There is a total disclaimer of personal knowledge, hence without any representation or disavowal that the fact in question could or could not have existed or happened. It is admissible only if it tends to contradict positive evidence of the other side or would tend to exclude the existence of fact sworn to by the other side.

Cases: “Accordingly, a party introducing in evidence a letter written by his agent to the adverse party, is bound by the statements contained therein.” (Lilian Realty Co. v. Erdum, 120 N.Y.S. 749) “In an action to recover money paid in settlement of an account in stock transactions, plaintiff is bound by his own testimony that the transactions were gambling transactions, so as to preclude recovery by him. (Atwater v. A.G. Edwards Brokerage Co, 147 Mo. A. 436, 126 S.W. 822)

Corroborative Evidence and Cumulative Evidence: •

CORROBORATIVE EVIDENCE – is additional evidence of a different kind and character tending to prove the same point (Wyne v. Newman, 75, Va., 811, 817)

Case: “The testimonies of the prosecution witnesses that the victimsdied because of stab wounds inflicted by the armed men who entered their residence on the night of December 4, 1965 remain uncontroverted. XXX Their death certificates therefore are only corroborative of the testimonies of the prosecution witnesses.” (People vs. Watson (1965)) •

CUMULATIVE EVIDENCE – evidence of the same kind and to the same stale of facts. Case: “Thus, on the issue of the capacity of a boy to write a certain paper, evidence of his school fellows as to his capacity is

Relevant Evidence and Material Evidence: •

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

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MATERIAL EVIDENCE – evidence directed to prove a fact in issue as determined by the rules of substantive law and pleadings. The test is whether the fact it intends to prove is an issue or not. As to whether a fact is in issue or not is in turn determined by the substantive law, the pleadings, the pre-trial order and by the admissions or confessions on file

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Competent Evidence: Evidence is competent when it is not excluded by law in a particular case (Porter v. Valentine)

Irrelevant, Incompetent, Immaterial Evidence:

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Inadmissible,

and

Irrelevant in strictness, signifies that the offered piece of evidence has no probative value. The rules of circumstantial evidence are what determine the irrelevancy.

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Incompetent, in strictness, signifies that an offered witness is not qualified, under the rule of testimonial evidence.

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Immaterial, in strictness, signifies that the offered evidential fact is excluded by some rule of evidence, no matter what the rule. The rules of substantive law ad of pleading are what determine immateriality.

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Testimonial Evidence: •

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Rebuttal Evidence – is that which is given to explain, repel, counteract or disprove facts given in evidence by the adverse party (State v. Silva). It is also defined as evidence in denial of some affirmative care or fact which the adverse party has attempted to prove. (Carver v. United States, 160 U.S. 553)

Is that which is submitted to the court through the testimony or deposition of a witness

Expert Evidence: •

Is the testimony of one possessing in regard to a particular subject or department of human activity, knowledge not usually acquired by other persons (U.S. v. Gil, 13 Phil. 530)

Substantial Evidence: •

Rebuttal and Sur-rebuttal Evidence: •

Evidence supplied by written instruments or derived from conventional symbols, such as letters, by which ideas are represented on material substances

Is that amount of relevant evidence which a reasonable mind might accept as adequate to justify a conclusion (Philippine Overseas Drilling and Oil Development Corp. v. Ministry of Labor, 146 SCRA 79)

ROLE OF THE RULES OF EVIDENCE: What part does the Rules of Evidence play in the whole system of law? •

Enforcement of the rules requires the application of the law to an individual person.

WHAT THE RULES OF EVIDENCE DETERMINE: Object (Real) Evidence: •

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

Documentary Evidence:

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All rights and liabilities are dependent upon and arise out of facts. • Every judicial proceeding whatever has for its purpose the ascertaining of some right or liability. If the proceeding is Criminal, the object is to ascertain the liability to punishment of the person accused. If the proceeding is Civil, the object is to ascertain some right of property or status, or the right of one party and the liability of other to some form of relief. NECESSITY FOR RULES OF EVIDENCE:

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It is necessary that we have Rules of Evidence which will limit the field of matters that can properly be taken into consideration in determining the guilt or innocence of the accused, and the law of evidence, as we have, is in the shape of a set of primary rules for the exclusion of evidence that is logically probative, which but for such exclusionary rules would be legal evidence, and a further set of exceptions to these rules. To facilitate the ascertainment of truth.

GOOD COMMAND OF THE RULES OF EVIDENCE ESSENTIAL: •

Cases are not always won by the righteousness of the client’s cause but by the evidence which his counsel presents in court to support his claim or defense

RULES OF EVIDENCE NOT STATIC: •

Rules of Evidence…are not static. They are constantly undergoing change, in the interest of the successful development of the truth. The changes are sometimes made by the legislatures, sometimes by the Courts.

Section 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. (Sec. 2, Revised Rules of Court, hereinafter, RROC) REASONS FOR THE RULE: •

The Rules of Evidence must be applied in all courts and in all trials and hearings for the following: 

The relation between the evidentiary fact and a particular proposition is always the same, without regard to the kind of litigation in which that proposition becomes material to be proved;

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If the rules of evidence prescribe the best course to arrive at the truth that

must be ad are the same in all cases and in all civilized countries

DIFFERENCE IN THE RULES OF EVIDENCE IN CRIMINAL AND CIVIL CASES: CIVIL Parties accord

attend

by

There is no presumption as to either party

An offer to compromise does not, as a general rule, amount to an admission of liability Must prove by preponderance of evidence: Reason is that there is no presumption ad due to the fact that the proof will only result in a judgment of pecuniary damages

CRIMINAL The accused attends by compulsion Presumption of innocence attends the accused throughout the trial until the same has been overcome by prima facie evidence of his guilt It is an implied admission of guilt

Guilt beyond reasonable doubt

APPLICABILITY OF RULES OF EVIDENCE: •

The rules of evidence are not strictly applied in proceedings before the Labor Arbiter and the National Labor Relations Commission (Del Rosario & Sons Logging Enterprises, Inc. vs. NLRC, 136 SCRA 669); Employees’ Compensation Commission (Philippine Overseas Drilling and Oil Development Corporation vs. Minister of Labor, 146 SCRA 79); Securities and Exchange Commission; Commission on Elections (Geromo v. COMELEC, et al., 118 SCRA 165); Agrarian Cases (Bagsican v. CA, 141 SCRA 226); Immigration Proceedings (Moy Yoke Shue v. Johnson, 290 Fed. 621); Court of Tax Appeals (Celestino Co. & Company v. Collector of Internal Revenue, BTA Case No. 195, Oct. 4, 1954, affirmed by the Supreme Court on Aug. 31, 1956, G.R. No. L 8506); Probation Court; Board of

Transportation; Police Commission; Oil Industry Commission; and other similar bodies (Aldeguer v. Hoskyn, 2 Phil. 500; Ayala de Roxas v. Case, 8 Phil. 197)

NO VESTED RIGHT OF PROPERTY IN RULES OF EVIDENCE: •

There is no vested right of property in rules of evidence. Hence, any evidence inadmissible according to the laws in force at the time the action accrued, but admissible according to the laws in force at the time of the trial, is receivable.

RULES OF EVIDENCE SANCTIONED BY THE CONSTITUTION CANNOT BE ALTERED BY LEGISLATION: •

A Constitutional provision sanctioning a rule of evidence has the legal effect of making it unalterable by ordinary statutory legislation.

RULES OF EVIDENCE MAY BE WAIVED (when available): • •

The parties may waive such rules during the trial of a case The can also make the waiver in a contract

Case: “A contract of insurance requiring the testimony of eyewitness as the only evidence admissible concerning the death of the insured person is valid.” (National Acc. Soc. V. Ralstin, 101, Ill. App., 192; Connel v. Travelling Men’s Ass’n, 139, 444 N.W. 820) “Contract waiving the privilege against the disclosure of confidential communications made by a patient to a physician is also valid.” (Keeler v. Iss. Co., 95 Mo. App., 627, 69 S.W. 612) “However, if the rule of evidence waived by the parties has been established by law on grounds of public policy, the waiver is void. Accordingly, the waiver of the privilege against the disclosure of state secrets is void.” (Rowland v. Rowland, 40 N.I. Eq., 281) POLICY TO BE OBSERVED BY COURTS IN THE ENFORCEMENT OF THE RULES OF EVIDENCE:

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Reception of evidence of doubtful admissibility is in the long run the less harmful course, since all materials necessary for final adjudication would come before the appellate tribunals (Obispo, et. Al. vs. Obispo, 50 O.G. 614)

Case:“Trial courts are enjoined to observe the strict enforcement of the rules of evidence which crystallized through constant use and practice and are very useful and effective aids in the search for truth and for the effective administration of justice. But in connection with evidence which may appear to be of doubtful relevancy or incompetency or admissibility, it is the safest policy to be liberal, not rejecting them on doubtful or technical grounds, but admitting them…xxx” (Banaria v. Banaria, et. al., CA. No. 4142, May 31, 1950) “Even in case of doubt as to the materiality or relevancy of such question, it would be more in keeping with the administration of justice to allow the answer to such question and render the ruling as to its admissibility when all evidence are in.” (People v. Jaca, et al., G.R. No. L-10971, Nov. 28, 1959) “Where a judge is in doubt as to the admissibility of a particular piece of evidence, he should declare in favor of admissibility rather than nonadmissibility.” (The Collector v. Palakadhari, 12 A. (1899))

RULE 128, Sec. 3.Admissibility of evidence. 1. Requisites of admissibility of evidence. a. Evidence is relevant to the issue b. Evidence is competent, that is, it does not belong to that class of evidence which is excluded by the law or the Rules of Evidence Cases:  People vs. Soriaga (G.R. No. 191392 March 14, 2011). The non-compliance with Section 21 of said law, particularly the making of the inventory and the photographing of the drugs confiscated and/or seized, will not render the drugs inadmissible in evidence. Under Section 3 of

Rule 128 of the Rules of Court, evidence is admissible when it is relevant to the issue and is not excluded by the law or these rules. For evidence to be inadmissible there should be a law or rule which forbids its reception. If there is no such law or rule, the evidence must be admitted subject only to the evidentiary weight that will be accorded it by the courts.

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BSB GROUP, INC vs. Go (G.R. No. 168644 February 16, 2010). The testimony of Marasigan on the particulars of respondent’s supposed bank account with Security Bank and the documentary evidence represented by the checks adduced in support thereof, are not only incompetent for being excluded by operation of R.A. No. 1405. They are likewise irrelevant to the case, inasmuch as they do not appear to have any logical and reasonable connection to the prosecution of respondent for qualified theft.

2. Two axioms of Admissibility a. None but facts having rational probative value are admissible. – It prescribes that whatever is presented as evidence shall be presented on the hypothesis that it is calculated, according to the prevailing standards of reasoning, to effect rational persuasion. b. All facts having rational probative value are admissible, unless some specific rule forbids. – This principle does not mean that anything that has probative value is admissible. But everything having a probative value is ipso facto entitled to be assumed to be admissible, and therefore any rule of policy which may be valid to exclude it is a superadded and abnormal rule. 3. Admissibility of evidence distinguished from weight of evidence Admissibility Evidence

of

Weight of Evidence

The admissibility of evidence is determined by its relevance and competence.

The weight of evidence has to do with the effect of evidence admitted, its tendency to convince and persuade.

The admissibility of evidence does not depend on its weight and sufficiency; credibility and weight being questions of fact.

The weight of evidence is not determined mathematically by numerical superiority of witnesses testifying to a given fact, but depends upon its practical effect in inducing belief on the part of the judge trying the case. It involves credibility of witnesses and all inherent probabilities and improbabilities deducible from the evidence as a whole.

ILLUSTRATION: A defendant is accused of murder and by way of defense, he attempts to establish an alibi. 1. His mother testifies that he was at home in bed at the time the murder was committed; or 2. A distinguished physician testifies that he was attending the defendant in his home at the time the murder was committed. As will be observed, both (1) and (2) are equally admissible. But it is likely that the court would give greater weight to the testimony of a disinterested physician than of a mother, who might be expected to commit perjury in an effort to save her son. Case:  Atienza vs. BOD (G.R. No. 177407 February 9, 2011). Admissibility of evidence refers to the question whether or not the circumstance or evidence is to be considered at all. On the other hand, the probative value of evidence refers to the question of whether or not it proves an issue.

4. Types of Admissibility

A. Multiple Admissibility of Evidence. When a fact is offered for one purpose, and is admissible in so far as it satisfies all rules applicable to it when offered for that purpose, its failure to satisfy some other rule which would be applicable to it if offered for another purpose does not exclude it. B. Conditional Admissibility of Evidence. Where two or more evidentiary facts are so connected under the issues that the relevancy of one depends upon another not yet received, and the party is unable to introduce them both at the same moment, the offering counsel may be required by the court as a condition precedent (1) to state the supposed connecting facts, and (2) to promise to give the evidence later. Effect if condition precedent is not fulfilled: • Upon motion by the opposite party, the court may strike out the evidence thus conditionally admitted C. Curative Admissibility of Evidence. Where an inadmissible fact has been offered by one party and received without objection and the opponents afterwards, for the purpose of negativing or explaining or otherwise counteracting, offers a fact similarly inadmissible, such fact is admissible if it serves to remove an unfair effect upon the court which might otherwise ensue from the original fact. 5. Rules of Exclusion and Exclusionary Rules Rules of Exclusion

Exclusionary Rules

Governed by the rules of evidence

Evidence excluded by the Constitution

Case:  Tolentino vs. Mendoza (ADM. CASE NO. 5151 October 19, 2004). Note that Rule 24, Administrative Order No. 1, series of 1993 only provides for sanctions against persons violating the rule on confidentiality of birth records, but nowhere does it state that procurement of birth records in violation of said rule would render said records inadmissible in evidence. On the other hand, the Revised Rules of Evidence only provides for the exclusion of evidence if it is obtained as a result of illegal searches and seizures. Since both Rule 24, Administrative

Order No. 1, series of 1993 and the Revised Rules on Evidence do not provide for the exclusion from evidence of the birth certificates in question, said public documents are, therefore, admissible and should be properly taken into consideration in the resolution of this administrative case against the respondent.

A. Admissibility of Telephone Conversations. Unless otherwise objectionable, a telephone conversation between a witness and another person is admissible in any case in which a face to face conversation between a witness and another person would be admissible in evidence, provided that the identity of the person with whom the witness was speaking is satisfactorily established, but not otherwise. Proof of Identity – through witness’ recognition of the voice of the person with whom he was speaking, however, it may be established by means other than the recognition of the voice.

B. Admissibility of radio broadcast. Evidence of a message or a speech by means of radio broadcast is admissible as evidence when the identity of the speaker is established by the following: • By the testimony of a witness who saw him broadcast his message or speech • By the witness recognition of the voice of the speaker

C. Admissibility recordings.

of

wiretapping

and

tape

Recording of conversations, statement, confessions, speech, and the sounds of various kinds, are admissible in evidence, subject of course, to the general rules relating to hearsay, best evidence, relevancy, privilege and the like, and subject to the proper authentication by foundation testimony. 1. The wiretapping and other related violations of the privacy of communications are prohibited and penalized by Republic Act No. 4200.

REPUBLIC ACT WIRETAPPING ACT

ANTI-

issued thereunder, or aids, permits, or causes such violation.

A. UNLAWFUL ACTS 1. Section 1, par 1. It shall be unlawful for any person, not being authorized by all the parties to any private communication or spoken word, • to tap any wire or cable, or by using any other device or arrangement, • to secretly overhear, intercept, or record such communication or spoken word by using a device commonly known as a dictaphone or dictagraph or dictaphone or walkie-talkie or tape recorder, or however otherwise described 2. Section 1, par 2. It shall also be unlawful for any person, be he a participant or not in the act or acts penalized in the next preceding sentence,

B. EXEMPTED ACTS 1. Section 3, par 1. Any peace officer, who is authorized by a written order of the Court, to execute any of the acts declared to be unlawful in cases involving: • crimes of 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, • kidnapping as defined by the Revised Penal Code, • and violations of Commonwealth Act No. 616, punishing espionage and other offenses against national security

•

•

4200,

to knowingly possess any tape record, wire record, disc record, or any other such record, or copies thereof, of any communication or spoken word secured either before or after the effective date of this Act in the manner prohibited by this law; or to replay the same for any other person or persons; or to communicate the contents thereof, either verbally or in writing, or to furnish transcriptions thereof, whether complete or partial, to any other person Provided, That the use of such record or any copies thereof as evidence in any civil, criminal investigation or trial of offenses mentioned in section 3 hereof, shall not be covered by this prohibition.

3. Section 2. • Any person who wilfully or knowingly does or who shall aid, permit, or cause to be done any of the acts declared to be unlawful in the preceding section or who violates the provisions of the following section or of any order

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Requirements: That such written order shall only be issued or granted upon written application and the examination under oath or affirmation of the applicant and the witnesses he may produce and a showing: 1. That there are reasonable grounds to believe that any of the crimes enumerated hereinabove has been committed or is being committed or is about to be committed: Provided, however, That in cases involving the offenses of rebellion, conspiracy and proposal to commit rebellion, inciting to rebellion, sedition, conspiracy to commit sedition, and inciting to sedition, such authority shall be granted only

upon prior proof that a rebellion or acts of sedition, as the case may be, have actually been or are being committed; 2. That there are reasonable grounds to believe that evidence will be obtained essential to the conviction of any person for, or to the solution of, or to the prevention of, any of such crimes; and 3. That there are no other means readily available for obtaining such evidence.

C. Admissibility Any communication or spoken word, or the existence, contents, substance, purport, effect, or meaning of the same or any part thereof, or any information therein contained obtained or secured by any person in violation of the preceding sections of this Act shall not be admissible in evidence in any judicial, quasi-judicial, legislative or administrative hearing or investigation. (Section 4, R. A. 4200) 

2. Surveillance of Suspects and Interception and Recording of Communications. (Section 7, Republic Act No. 9372, Human security Act) The provisions of Republic Act No. 4200 (Anti-Wire Tapping Law) to the contrary notwithstanding, a police or law enforcement official and the members of his team may, upon a written order of the Court of Appeals, listen to, intercept and record, with the use of any mode, form, kind or type of electronic or other surveillance equipment or intercepting and tracking devices, or with the use of any other suitable ways and means for that purpose, any communication, message, conversation, discussion, or spoken or written words between 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. Provided, That surveillance, interception and recording of communications between lawyers and clients, doctors and patients, journalists and their sources and confidential business correspondence shall not be authorized.

Gaanan vs. IAC, et al., 145 SCRA 112.The law refers to a “tap” of wire or cable or the use of a device or arrangement” for the purpose of secretly overhearing, intercepting, or recording the communication… The extension telephone cannot be placed in the same category as a Dictaphone, dictagraph or the other devices enumerated in Section 1 of R.A. No. 4200 as the use thereof cannot be considered as “tapping” the wire not installed for that purpose.

2. Requisites to be established before a recording of conversation can be given probative value: a. A showing that the recording device was capable of taking testimony; b. A showing that the operator of the device was competent; c. Establishment of the authenticity and correctness of the recording; d. A showing that changes, additions, or deletions have not been made; e. A showing of manner of the preservation of the recording; f. Identification of the speakers; and g. A showing that the testimony elicited was voluntarily made without any kind of inducement

D. Admissibility of evidence illegally seized. Rights protected under Article III, Bill of Rights of the 1987 Constitution: 1. Right against unreasonable search and seizure. ( Sec. 2) 2. Right to privacy and inviolability of communication ( Sec. 3)

3. Right of a person under investigation for an offense (Sec. 12) 4. Right against self-incrimination (Sec. 17) Case:  Ambre vs. People (G.R. No. 191532 August 15, 2012).Section 2, Article III of the Constitution mandates that a search and seizure must be carried out through or on the strength of a judicial warrant predicated upon the existence of probable cause, absent which such search and seizure becomes "unreasonable" within the meaning of said constitutional provision. Evidence obtained and confiscated on the occasion of such an unreasonable search and seizure is tainted and should be excluded for being the proverbial fruit of a poisonous tree. In the language of the fundamental law, it shall be inadmissible in evidence for any purpose in any proceeding.

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This exclusionary rule is not, however, an absolute and rigid proscription. One of the recognized exception established by jurisprudence is search incident to a lawful arrest. In this exception, the law requires that a lawful arrest must precede the search of a person and his belongings. As a rule, an arrest is considered legitimate if effected with a valid warrant of arrest.

E. Admissibility of Electronic Documents. An electronic document is admissible in evidence if: 1. It complies with the Rules on admissibility prescribed by the Rules and related laws; and 2. It is authenticated in the manner by the Rules on Electronic Evidence F. Scientific Detection Devices. 1. Lie detector 2. Speed detection and recording devices 3. Chemical tests for drunkenness 4. Truth serums and hypnosis 5. Blood grouping tests

RULE 128, maters.

Section

4.Relevancy;

1. Relevancy of Evidence

Collateral

a. Evidence is relevant when it relates directly to a fact in issue; or to a fact which, by the process of logic, an inference may be made as to the existence or non-existence of a fact in issue. b. Evidentiary facts are relevant where there is such rational and logical connection between them and the matter in issue that proof of the former logically tends to make the latter more probable or improbable, that is, where the facts offered in evidence have a legitimate tendency to establish the truth concerning a controversial issue. Case:  Herrera vs. Alba (G.R. No. 148220 June 15, 2005).Evidence is admissible when it is relevant to the fact in issue and is not otherwise excluded by statute or the Rules of Court. Evidence is relevant when it has such a relation to the fact in issue as to induce belief in its existence or nonexistence. Section 49 of Rule 130, which governs the admissibility of expert testimony, provides that the opinion of a witness on a matter requiring special knowledge, skill, experience or training which he is shown to possess may be received in evidence. This Rule does not pose any legal obstacle to the admissibility of DNA analysis as evidence. Indeed, even evidence on collateral matters is allowed "when it tends in any reasonable degree to establish the probability or improbability of the fact in issue. 2. Test of Relevancy a. Every fact or circumstance tending to throw light on the issue is logically inferable b. Any circumstance is relevant from which tends to make the proposition at issue more or less probable, or which is calculated to explain or establish facts pertinent to the inquiry c. The test is whether the evidence conduces to the proof of a pertinent hypothesis being one which, if sustained, would logically influence the issue d. Facts are relevant if they fairly tend to prove the offense charged e. The test is the connection between the fact proved and the offense charged.

3. Relevancy does not generally depend upon its source.

6. Fact defined

Whether evidence offered is relevant does not, as a general rule, depend upon its source. Neither does relevancy depend upon the importance or weight of the evidence, weight being a matter for the court.

It is a thing done, or existing. Facts are thus either: a. Physical, e.g. the existence of visible objects b. Psychological, e.g. the intention or animus of a particular individual in doing a particular act

4. Logical relevancy distinguished form legal relevancy

7. Facts in issue as distinguished from facts relevant to the case

Logical relevancy Means that evidence must be absolutely essential to the fact in issue. The main condition of admissibility

Legal Relevancy Requires a higher standard of evidentiary force and includes logical relevancy. All rules excluding evidence which is logically relevant are exceptions to the general rule. The attribute of all those logically relevant matters which are not declared inadmissible by one or more of the excluding rules.

Case:  People vs. Yatar (G.R. No. 150224 May 19, 2004). Generally, courts should only consider and rely upon duly established evidence and never on mere conjectures or suppositions. The legal relevancy of evidence denotes "something more than a minimum of probative value," suggesting that such evidentiary relevance must contain a "plus value." This may be necessary to preclude the trial court from being satisfied by matters of slight value, capable of being exaggerated by prejudice and hasty conclusions. Evidence without "plus value" may be logically relevant but not legally sufficient to convict. It is incumbent upon the trial court to balance the probative value of such evidence against the likely harm that would result from its admission. 5. Issue defined. It is the point or points in question, at the conclusion of the pleadings which one side affirms, and the other denies. Issues arise upon the pleading where a fact or conclusion of law is maintained by one party, and is controverted by the other.

Facts in issue Those facts the truth or existence of which the right or liability to be ascertained in the proceeding depends

Facts relevant to the issue Facts from the existence of which inference as to the truth or existence of the right or liability to be ascertained may logically be drawn

8. Collateral facts defined Those facts which are outside of the controversy, or are not directly connected with the principal matter in issue in dispute, as indicated in the pleadings of the parties. 9. Collateral facts in evidence General Rule: Collateral facts are not admissible for they tend to draw away the mind of the court and to prejudice and mislead it. Exception: Evidence on collateral matters shall be allowed when it tends in any reasonable degree to establish the probability or improbability of the fact in issue. Relevant collateral matters: a. Intention to commit crime b. Motive and absence of motive c. Circumstances preceding the crime d. Guilty knowledge e. Plan, design or conspiracy f. Opportunity g. Alibi h. Value 10. Probability and improbability of evidential fact The truth of any statement of fact may be considered from the standpoint of the probability or improbability of the fact per se. Its probability or improbability is to be measured by the degree

with which the fact as stated accords with the general experience of mankind. RULE 128, Sec. 3.Admissibility of evidence. 6. Requisites of admissibility of evidence. a. Evidence is relevant to the issue b. Evidence is competent, that is, it does not belong to that class of evidence which is excluded by the law or the Rules of Evidence

Cases:  People vs. Soriaga (G.R. No. 191392 March 14, 2011). The non-compliance with Section 21 of said law, particularly the making of the inventory and the photographing of the drugs confiscated and/or seized, will not render the drugs inadmissible in evidence. Under Section 3 of Rule 128 of the Rules of Court, evidence is admissible when it is relevant to the issue and is not excluded by the law or these rules. For evidence to be inadmissible there should be a law or rule which forbids its reception. If there is no such law or rule, the evidence must be admitted subject only to the evidentiary weight that will be accorded it by the courts.



BSB GROUP, INC vs. Go (G.R. No. 168644 February 16, 2010). The testimony of Marasigan on the particulars of respondent’s supposed bank account with Security Bank and the documentary evidence represented by the checks adduced in support thereof, are not only incompetent for being excluded by operation of R.A. No. 1405. They are likewise irrelevant to the case, inasmuch as they do not appear to have any logical and reasonable connection to the prosecution of respondent for qualified theft.

7. Two axioms of Admissibility a. None but facts having rational probative value are admissible. – It prescribes that whatever is presented as evidence shall be presented on the hypothesis that it is calculated,

according to the prevailing standards of reasoning, to effect rational persuasion. b. All facts having rational probative value are admissible, unless some specific rule forbids. – This principle does not mean that anything that has probative value is admissible. But everything having a probative value is ipso facto entitled to be assumed to be admissible, and therefore any rule of policy which may be valid to exclude it is a superadded and abnormal rule.

8. Admissibility of evidence distinguished from weight of evidence Admissibility Evidence

of

Weight of Evidence

The admissibility of evidence is determined by its relevance and competence.

The weight of evidence has to do with the effect of evidence admitted, its tendency to convince and persuade.

The admissibility of evidence does not depend on its weight and sufficiency; credibility and weight being questions of fact.

The weight of evidence is not determined mathematically by numerical superiority of witnesses testifying to a given fact, but depends upon its practical effect in inducing belief on the part of the judge trying the case. It involves credibility of witnesses and all inherent probabilities and improbabilities deducible from the evidence as a whole.

ILLUSTRATION: A defendant is accused of murder and by way of defense, he attempts to establish an alibi. 1. His mother testifies that he was at home in bed at the time the murder was committed; or 2. A distinguished physician testifies that he was attending

the defendant in his home at the time the murder was committed. As will be observed, both (1) and (2) are equally admissible. But it is likely that the court would give greater weight to the testimony of a disinterested physician than of a mother, who might be expected to commit perjury in an effort to save her son. Case:  Atienza vs. BOD (G.R. No. 177407 February 9, 2011). Admissibility of evidence refers to the question whether or not the circumstance or evidence is to be considered at all. On the other hand, the probative value of evidence refers to the question of whether or not it proves an issue.

9. Types of Admissibility A. Multiple Admissibility of Evidence. When a fact is offered for one purpose, and is admissible in so far as it satisfies all rules applicable to it when offered for that purpose, its failure to satisfy some other rule which would be applicable to it if offered for another purpose does not exclude it. B. Conditional Admissibility of Evidence. Where two or more evidentiary facts are so connected under the issues that the relevancy of one depends upon another not yet received, and the party is unable to introduce them both at the same moment, the offering counsel may be required by the court as a condition precedent (1) to state the supposed connecting facts, and (2) to promise to give the evidence later. Effect if condition precedent is not fulfilled: • Upon motion by the opposite party, the court may strike out the evidence thus conditionally admitted C. Curative Admissibility of Evidence.

Where an inadmissible fact has been offered by one party and received without objection and the opponents afterwards, for the purpose of negativing or explaining or otherwise counteracting, offers a fact similarly inadmissible, such fact is admissible if it serves to remove an unfair effect upon the court which might otherwise ensue from the original fact. 10. Rules of Exclusion and Exclusionary Rules Rules of Exclusion

Exclusionary Rules

Governed by the rules of evidence

Evidence excluded by the Constitution

Case:  Tolentino vs. Mendoza (ADM. CASE NO. 5151 October 19, 2004). Note that Rule 24, Administrative Order No. 1, series of 1993 only provides for sanctions against persons violating the rule on confidentiality of birth records, but nowhere does it state that procurement of birth records in violation of said rule would render said records inadmissible in evidence. On the other hand, the Revised Rules of Evidence only provides for the exclusion of evidence if it is obtained as a result of illegal searches and seizures.Since both Rule 24, Administrative Order No. 1, series of 1993 and the Revised Rules on Evidence do not provide for the exclusion from evidence of the birth certificates in question, said public documents are, therefore, admissible and should be properly taken into consideration in the resolution of this administrative case against the respondent.

G. Admissibility of Telephone Conversations. Unless otherwise objectionable, a telephone conversation between a witness and another person is admissible in any case in which a face to face conversation between a witness and another person would be admissible in evidence, provided that the identity of the person with whom the witness was speaking is satisfactorily established, but not otherwise.

Proof of Identity – through witness’ recognition of the voice of the person with whom he was speaking, however, it may be established by means other than the recognition of the voice.

•

H. Admissibility of radio broadcast. Evidence of a message or a speech by means of radio broadcast is admissible as evidence when the identity of the speaker is established by the following: • By the testimony of a witness who saw him broadcast his message or speech • By the witness recognition of the voice of the speaker I.

Admissibility recordings.

of

wiretapping

and

tape

Recording of conversations, statement, confessions, speech, and the sounds of various kinds, are admissible in evidence, subject of course, to the general rules relating to hearsay, best evidence, relevancy, privilege and the like, and subject to the proper authentication by foundation testimony. 3. The wiretapping and other related violations of the privacy of communications are prohibited and penalized by Republic Act No. 4200. REPUBLIC ACT WIRETAPPING ACT

4200,

ANTI-

D. UNLAWFUL ACTS 4. Section 1, par 1. It shall be unlawful for any person, not being authorized by all the parties to any private communication or spoken word, • to tap any wire or cable, or by using any other device or arrangement, • to secretly overhear, intercept, or record such communication or spoken word by using a device commonly known as a dictaphone or dictagraph or dictaphone or walkie-talkie or tape recorder, or however otherwise described 5. Section 1, par 2.

•

•

It shall also be unlawful for any person, be he a participant or not in the act or acts penalized in the next preceding sentence, to knowingly possess any tape record, wire record, disc record, or any other such record, or copies thereof, of any communication or spoken word secured either before or after the effective date of this Act in the manner prohibited by this law; or to replay the same for any other person or persons; or to communicate the contents thereof, either verbally or in writing, or to furnish transcriptions thereof, whether complete or partial, to any other person Provided, That the use of such record or any copies thereof as evidence in any civil, criminal investigation or trial of offenses mentioned in section 3 hereof, shall not be covered by this prohibition.

6. Section 2. Any person who wilfully or knowingly does or who shall aid, permit, or cause to be done any of the acts declared to be unlawful in the preceding section or who violates the provisions of the following section or of any order issued thereunder, or aids, permits, or causes such violation. E. EXEMPTED ACTS 3. Section 3, par 1.Any peace officer, who is authorized by a written order of the Court, to execute any of the acts declared to be unlawful in cases involving: • crimes of 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, kidnapping as defined by the Revised Penal Code, and violations of Commonwealth Act No. 616, punishing espionage and other offenses against national security Requirements: That such written order shall only be issued or granted upon written application and the examination under oath or affirmation of the applicant and the witnesses he may produce and a showing: 1. That there are reasonable grounds to believe that any of the crimes enumerated hereinabove has been committed or is being committed or is about to be committed: Provided, however, That in cases involving the offenses of rebellion, conspiracy and proposal to commit rebellion, inciting to rebellion, sedition, conspiracy to commit sedition, and inciting to sedition, such authority shall be granted only upon prior proof that a rebellion or acts of sedition, as the case may be, have actually been or are being committed; 2. That there are reasonable grounds to believe that evidence will be obtained essential to the conviction of any person for, or to the solution of, or to the prevention of, any of such crimes; and 3. That there are no other means readily available for obtaining such evidence.

(Section 7, Republic Act No. 9372, Human security Act)

The provisions of Republic Act No. 4200 (Anti-Wire Tapping Law) to the contrary notwithstanding, a police or law enforcement official and the members of his team may, upon a written order of the Court of Appeals, listen to, intercept and record, with the use of any mode, form, kind or type of electronic or other surveillance equipment or intercepting and tracking devices, or with the use of any other suitable ways and means for that purpose, any communication, message, conversation, discussion, or spoken or written words between 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.

•

Provided, That surveillance, interception and recording of communications between lawyers and clients, doctors and patients, journalists and their sources and confidential business correspondence shall not be authorized.

F. Admissibility Any communication or spoken word, or the existence, contents, substance, purport, effect, or meaning of the same or any part thereof, or any information therein contained obtained or secured by any person in violation of the preceding sections of this Act shall not be admissible in evidence in any judicial, quasi-judicial, legislative or administrative hearing or investigation. (Section 4, R. A. 4200) 

4. Surveillance of Suspects and Interception and Recording of Communications.

•

Gaanan vs. IAC, et al., 145 SCRA 112.The law refers to a “tap” of wire or cable or the use of a device or arrangement” for the purpose of secretly overhearing, intercepting, or recording the communication… The extension telephone cannot be placed in the same category as a Dictaphone, dictagraph or the other devices

enumerated in Section 1 of R.A. No. 4200 as the use thereof cannot be considered as “tapping” the wire not installed for that purpose. 4. Requisites to be established before a recording of conversation can be given probative value: h. A showing that the recording device was capable of taking testimony; i. A showing that the operator of the device was competent; j. Establishment of the authenticity and correctness of the recording; k. A showing that changes, additions, or deletions have not been made; l. A showing of manner of the preservation of the recording; m. Identification of the speakers; and n. A showing that the testimony elicited was voluntarily made without any kind of inducement J. Admissibility of evidence illegally seized. Rights protected under Article III, Bill of Rights of the 1987 Constitution: 5. Right against unreasonable search and seizure. ( Sec. 2) 6. Right to privacy and inviolability of communication ( Sec. 3) 7. Right of a person under investigation for an offense (Sec. 12) 8. Right against self-incrimination (Sec. 17) Case:  Ambre vs. People (G.R. No. 191532 August 15, 2012).Section 2, Article III of the Constitution mandates that a search and seizure must be carried out through or on the strength of a judicial warrant predicated upon the existence of probable cause, absent which such search and seizure becomes "unreasonable" within the meaning of said constitutional provision. Evidence obtained and confiscated on the occasion of such an unreasonable search and seizure is tainted and should be excluded for being the proverbial fruit of a poisonous tree. In the language of the fundamental law, it shall be inadmissible in evidence for any purpose in any proceeding.



This exclusionary rule is not, however, an absolute and rigid proscription. One of the recognized exception established by jurisprudence is search incident to a lawful arrest. In this exception, the law requires that a lawful arrest must precede the search of a person and his belongings. As a rule, an arrest is considered legitimate if effected with a valid warrant of arrest.

K. Admissibility of Electronic Documents. An electronic document is admissible in evidence if: 3. It complies with the Rules on admissibility prescribed by the Rules and related laws; and 4. It is authenticated in the manner by the Rules on Electronic Evidence L. Scientific Detection Devices. 6. Lie detector 7. Speed detection and recording devices 8. Chemical tests for drunkenness 9. Truth serums and hypnosis 10. Blood grouping tests RULE 128, maters.

Section

4.Relevancy;

Collateral

11. Relevancy of Evidence c.

Evidence is relevant when it relates directly to a fact in issue; or to a fact which, by the process of logic, an inference may be made as to the existence or non-existence of a fact in issue. d. Evidentiary facts are relevant where there is such rational and logical connection between them and the matter in issue that proof of the former logically tends to make the latter more probable or improbable, that is, where the facts offered in evidence have a legitimate tendency to establish the truth concerning a controversial issue. Case:  Herrera vs. Alba (G.R. No. 148220 June 15, 2005).Evidence is admissible when it is relevant to the fact in issue and is not otherwise excluded by statute or the Rules of Court. Evidence is relevant when it has such a relation to the fact in issue as to induce belief in its existence or non-

existence. Section 49 of Rule 130, which governs the admissibility of expert testimony, provides that the opinion of a witness on a matter requiring special knowledge, skill, experience or training which he is shown to possess may be received in evidence. This Rule does not pose any legal obstacle to the admissibility of DNA analysis as evidence. Indeed, even evidence on collateral matters is allowed "when it tends in any reasonable degree to establish the probability or improbability of the fact in issue.

12. Test of Relevancy a. Every fact or circumstance tending to throw light on the issue is logically inferable b. Any circumstance is relevant from which tends to make the proposition at issue more or less probable, or which is calculated to explain or establish facts pertinent to the inquiry c. The test is whether the evidence conduces to the proof of a pertinent hypothesis being one which, if sustained, would logically influence the issue d. Facts are relevant if they fairly tend to prove the offense charged e. The test is the connection between the fact proved and the offense charged. 13. Relevancy does not generally depend upon its source. Whether evidence offered is relevant does not, as a general rule, depend upon its source. Neither does relevancy depend upon the importance or weight of the evidence, weight being a matter for the court.

must be absolutely essential to the fact in issue. The main condition of admissibility

standard of evidentiary force and includes logical relevancy. All rules excluding evidence which is logically relevant are exceptions to the general rule. The attribute of all those logically relevant matters which are not declared inadmissible by one or more of the excluding rules.

Case:  People vs. Yatar (G.R. No. 150224 May 19, 2004). Generally, courts should only consider and rely upon duly established evidence and never on mere conjectures or suppositions. The legal relevancy of evidence denotes "something more than a minimum of probative value," suggesting that such evidentiary relevance must contain a "plus value." This may be necessary to preclude the trial court from being satisfied by matters of slight value, capable of being exaggerated by prejudice and hasty conclusions. Evidence without "plus value" may be logically relevant but not legally sufficient to convict. It is incumbent upon the trial court to balance the probative value of such evidence against the likely harm that would result from its admission. 15. Issue defined. It is the point or points in question, at the conclusion of the pleadings which one side affirms, and the other denies. Issues arise upon the pleading where a fact or conclusion of law is maintained by one party, and is controverted by the other. 16. Fact defined It is a thing done, or existing. Facts are thus either: c. Physical, e.g. the existence of visible objects d. Psychological, e.g. the intention or animus of a particular individual in doing a particular act

14. Logical relevancy distinguished form legal relevancy Logical relevancy Means that evidence

Legal Relevancy Requires a higher

17. Facts in issue as distinguished from facts relevant to the case Facts in issue Those facts the truth or existence of which the right or liability to be ascertained in the proceeding depends

Facts relevant to the issue Facts from the existence of which inference as to the truth or existence of the right or liability to be ascertained may logically be drawn

18. Collateral facts defined Those facts which are outside of the controversy, or are not directly connected with the principal matter in issue in dispute, as indicated in the pleadings of the parties. 19. Collateral facts in evidence General Rule: Collateral facts are not admissible for they tend to draw away the mind of the court and to prejudice and mislead it. Exception: Evidence on collateral matters shall be allowed when it tends in any reasonable degree to establish the probability or improbability of the fact in issue. Relevant collateral matters: i. Intention to commit crime j. Motive and absence of motive k. Circumstances preceding the crime l. Guilty knowledge m. Plan, design or conspiracy n. Opportunity o. Alibi p. Value 20. Probability and improbability of evidential fact The truth of any statement of fact may be considered from the standpoint of the probability or improbability of the fact per se. Its probability or improbability is to be measured by the degree with which the fact as stated accords with the general experience of mankind. G.R. No. 191392 March 14, 2011 PEOPLE OF THE PHILIPPINES SORIAGA y STO. DOMINGO

vs.

ROLLY

For evidence to be inadmissible, there should be a law or rule which forbids its reception. If there

is no such law or rule, the evidence must be admitted subject only to the evidentiary weight that will be accorded it by the courts. FACTS: Pursuant to a buy-bust operation conducted by the police, Soriaga was placed under arrest and brought to the office of the Anti-illegal Drugs Special Operation Task Force. The evidence seized was turned over to police investigator PO2 Reynaldo Juan. An examination was conducted on the contents of the plastic sachet which tested positive for Methylamphetamine Hydrochloride.Soriaga was charged with Violation of Section 5, Art. II, RA 9165. In addition to the above-mentioned charge, Soriaga was indicted for illegal use of dangerous drugs under Section 15, Article II, also of R.A. No. 9165. The trial court rendered a decision acquitting Soriaga of this charge of illegal use of dangerous drugs but finding him guilty beyond reasonable doubt of the crime of illegally selling dangerous drugs. Soriaga appealed the decision arguing that that buy-bust team failed to comply with the requisites of Section 21, Article II of R.A. No. 9165 and its implementing rules requiring the immediate inventory and photograph of the items seized in the buy-bust operation. Further, Soriaga proceeds to question the chain of custody of the seized shabu. ISSUE: Whether or not the non-compliance with the prescribed procedures in the inventory of seized drugs render the items seized or confiscated inadmissible as evidence. HELD: No. A buy-bust operation is a form of entrapment whereby ways and means are resorted to for the purpose of trapping and capturing the lawbreakers in the execution of their criminal plan. In this jurisdiction, the operation is legal and has been proved to be an effective method of apprehending drug peddlers, provided due regard to constitutional and legal safeguards is undertaken." The that non-compliance with Section 21 of said law, particularly the making of the inventory and the photographing of the drugs confiscated and/or seized, will not render the drugs inadmissible in evidence. Under Section 3 of Rule 128 of the Rules of Court, evidence is admissible when it is relevant

to the issue and is not excluded by the law or these rules. For evidence to be inadmissible there should be a law or rule which forbids its reception. If there is no such law or rule, the evidence must be admitted subject only to the evidentiary weight that will be accorded it by the courts. There is no provision or statement in said law or in any rule that will bring about the non-admissibility of the confiscated and/or seized drugs due to noncompliance with Section 21 of Republic Act No. 9165. The issue therefore, if there is non-compliance with said section, is not of admissibility, but of weight — evidentiary merit or probative value — to be given the evidence. The weight to be given by the courts on said evidence depends on the circumstances obtaining in each case. G.R. No. 168644 February 16, 2010 BSB GROUP, INC., represented by its President, Mr. RICARDO BANGAYAN, vs. SALLY GO a.k.a. SALLY GO-BANGAYAN The testimony and the documentary evidence presented are not only incompetent for being excluded by operation of R.A. No. 1405. They are likewise irrelevant to the case, inasmuch as they do not appear to have any logical and reasonable connection to the prosecution of respondent for qualified theft. FACTS: Respondent Sally Go, cashier of petioner BSB Group, Inc. was charged with qualified theft. On the premise that respondent had allegedly encashed the subject checks and deposited the corresponding amounts thereof to her personal banking account, the prosecution moved for the issuance of subpoena ducestecum /ad testificandum against the respective managers or records custodians of Security Bank and Metrobank which was granted by the trial court. The prosecution was able to present in court the testimony of ElenitaMarasigan, the representative of Security Bank whose testimony sought to prove that respondent, while engaged as cashier at the BSB Group, Inc., was able to run away with the checks issued to the company by its customers, endorse the same, and credit the corresponding amounts to her personal deposit account with Security Bank. In the course of the testimony, the subject checks were presented to Marasigan for identification and marking as the same checks received by respondent, endorsed, and then deposited in her

personal account with Security Bank. But before the testimony could be completed, respondent filed a Motion to Suppress, seeking the exclusion of Marasigan’s testimony and accompanying documents thus far received, bearing on the subject Security Bank account. This time respondent invokes, in addition to irrelevancy, the privilege of confidentiality under R.A. No. 1405. The trial court in its order denied respondent’s motion to suppress. ISSUE: Whether or not the testimony of Marasigan and the accompanying documents are irrelevant to the case, and whether they are also violative of the absolutely confidential nature of bank deposits and, hence, excluded by operation of R.A. No. 1405. HELD: Yes. In taking exclusion from the coverage of the confidentiality rule, petitioner in the instant case posits that the account maintained by respondent with Security Bank contains the proceeds of the checks that she has fraudulently appropriated to herself and, thus, falls under one of the exceptions in Section 2 of R.A. No. 1405 that the money kept in said account is the subject matter in litigation. What indeed constitutes the subject matter in litigation in relation to Section 2 of R.A. No. 1405 has been pointedly and amply addressed in Union Bank of the Philippines v. Court of Appeals, in which the Court noted that the inquiry into bank deposits allowable under R.A. No. 1405 must be premised on the fact that the money deposited in the account is itself the subject of the action. Given this perspective, the subject matter of the action in the case at bar is to be determined from the indictment that charges respondent with the offense, and not from the evidence sought by the prosecution to be admitted into the records. In the criminal Information filed with the trial court, respondent, unqualifiedly and in plain language, is charged with qualified theft by abusing petitioner’s trust and confidence and stealing cash. The said Information makes no factual allegation that in some material way involves the checks subject of the testimonial and documentary evidence sought to be suppressed. Neither do the allegations in said Information make mention of the supposed bank account in which the funds represented by the checks have allegedly been kept. It comes clear that the admission of testimonial and documentary evidence relative to respondent’s Security Bank account serves no other purpose than to establish

the existence of such account, its nature and the amount kept in it. It constitutes an attempt by the prosecution at an impermissible inquiry into a bank deposit account the privacy and confidentiality of which is protected by law. On this score alone, the objection posed by respondent in her motion to suppress should have indeed put an end to the controversy at the very first instance it was raised before the trial court. In sum, the Court holds that the testimony of Marasigan on the particulars of respondent’s supposed bank account with Security Bank and the documentary evidence represented by the checks adduced in support thereof, are not only incompetent for being excluded by operation of R.A. No. 1405. They are likewise irrelevant to the case, inasmuch as they do not appear to have any logical and reasonable connection to the prosecution of respondent for qualified theft.

G.R. No. 177407 February 9, 2011 RICO ROMMEL ATIENZA, vs. MEDICINE and EDITHA SIOSON

BOARD

OF

Admissibility of evidence refers to the question whether or not the circumstance or evidence is to be considered at all. On the other hand, the probative value of evidence refers to the question of whether or not it proves an issue. FACTS: A complaint for gross negligence was filed before the Board of Medicine against the doctors, including the petitioner Atienza, who allegedly participated in the fateful kidney operation which led to the removal of the private respondent’s functional right kidney instead of the left non-functioning kidney. The complaint was heard by the BOM. Private respondent Editha filed her formal offer of documentary evidence, which is offered for the purpose of proving that her kidneys were both in proper anatomical locations at the time she was operated. Petitioner objected to the formal offer of exhibits alleging that they are inadmissible because the same are mere photocopies, not properly identified and authenticated, and intended to establish matters which are hearsay and incompetent to prove the purpose for which they are offered. However, the BOM admitted the

documentary exhibits. A motion for reconsideration was filed by the petitioner but was denied by the BOM. Hence, a petition for certiorari was filed before the Court of Appeals but was dismissed by the Court.Hence, this petition. ISSUE: Whether or not the documentary exhibits are inadmissible as evidence and incompetent? HELD: No. As held by the Supreme Court in the case of PNOC Shipping and Transport Corporation v. Court of Appeals, admissibility of evidence is distinguished from probative weight of evidence, as: Admissibility of evidence refers to the question whether or not the circumstance or evidence is to be considered at all. On the other hand, the probative value of evidence refers to the question of whether or not it proves an issue. The fact sought to be established by the admission of Editha’s exhibits, that her "kidneys were both in their proper anatomical locations at the time" of her operation, need not be proved as it is covered by mandatory judicial notice. The rules of evidence are merely the means for ascertaining the truth respecting a matter of fact. Thus, they likewise provide for some facts which are established and need not be proved, such as those covered by judicial notice, both mandatory and discretionary. Laws of nature involving the physical sciences, specifically biology, include the structural make-up and composition of living things such as human beings. In this case, the Court may take judicial notice that Editha’s kidneys before, and at the time of, her operation, as with most human beings, were in their proper anatomical locations. ADM. CASE NO. 5151 October 19, 2004 PEDRO G. TOLENTINO vs. ATTY. NORBERTO M. MENDOZA Since both Rule 24, Administrative Order No. 1, series of 1993 and the Revised Rules on Evidence do not provide for the exclusion from evidence of the birth certificates in question, said public documents are, therefore, admissible as evidence.

FACTS: Respondent Atty. Norberto M. Mendoza was administratively charged with Grossly Immoral Conduct and Gross Misconduct. Complainants alleged that respondent, a former Municipal Trial Court Judge, abandoned his legal wife, Felicitas V. Valderia in favor of his paramour, Marilyn delaFuente, who is, in turn, married to one Ramon G. Marcos. On the other hand, respondent averred that complainants illegally procured copies of the birth certificates of his alleged daughters Mara KhrisnaCharminadelaFuente Mendoza and MyrraKhrisnaNorminadelaFuente Mendoza, in violation of Rule 24, Administrative Order No. 1, series of 1993, thus, such documents are inadmissible in evidence. ISSUE: Whether or not birth certificates are inadmissible in evidence for having been obtained in violation of Rule 24, Administrative Order No. 1, series of 1993 which provides for strict confidentiality of a person’s birth record.

Consequently, in this case where complainants, as private individuals, obtained the subject birth records as evidence against respondent, the protection against unreasonable searches and seizures does not apply. Since both Rule 24, Administrative Order No. 1, series of 1993 and the Revised Rules on Evidence do not provide for the exclusion from evidence of the birth certificates in question, said public documents are, therefore, admissible and should be properly taken into consideration in the resolution of this administrative case against respondent.

G.R. No. 191532 August 15, 2012 MARGARITA AMBRE Y CAYUNI, vs. PEOPLE OF THE PHILIPPINES The exclusionary rule is not, however, an absolute and rigid proscription. One of the recognized exception established by jurisprudence is search incident to a lawful arrest. FACTS:

HELD: No. Section 3, Rule 128 of the Revised Rules on Evidence provides that "evidence is admissible when it is relevant to the issue and is not excluded by the law or these rules." There could be no dispute that the subject birth certificates are relevant to the issue. The only question, therefore, is whether the law or the rules provide for the inadmissibility of said birth certificates allegedly for having been obtained in violation of Rule 24, Administrative Order No. 1, series of 1993. Note that Rule 24, Administrative Order No. 1, series of 1993 only provides for sanctions against persons violating the rule on confidentiality of birth records, but nowhere does it state that procurement of birth records in violation of said rule would render said records inadmissible in evidence. On the other hand, the Revised Rules of Evidence only provides for the exclusion of evidence if it is obtained as a result of illegal searches and seizures. It should be emphasized; however, that said rule against unreasonable searches and seizures is meant only to protect a person from interference by the government or the state.

Ambre was charged with the crime of violation of Section 15, Article II of Republic Act (R.A.) No. 9165. From the testimonies of prosecution witnesses, it appeared that on April 20, 2005, the Caloocan Police Station Anti-Illegal Drug-Special Operation Unit conducted a buy-bust operation pursuant to a tip from a police, the buy-bust operation resulted in the arrest of Ambre having pot session, in particular, was caught sniffing what was suspected to be shabu in a rolled up aluminum foil. The trial court rendered its decision declaring that the prosecution was able to establish with certitude the guilt of Ambre for illegal use of methylamphetamine hydrochloride or violation of Section 15, Article II of R.A. No. 9165, however, acquitted Ambre on the crime of violation of Section 12, Article II of R.A. No. 9165 for failure of the prosecution to prove with particularity the drug paraphernalia found in her possession.

ISSUE: Whether the warrantless arrest of Ambre and the search of her person was valid; and whether the items seized are admissible in evidence. HELD:

Yes. Section 2, Article III of the Constitution mandates that a search and seizure must be carried out through or on the strength of a judicial warrant predicated upon the existence of probable cause, absent which such search and seizure becomes "unreasonable" within the meaning of said constitutional provision. Evidence obtained and confiscated on the occasion of such an unreasonable search and seizure is tainted and should be excluded for being the proverbial fruit of a poisonous tree. In the language of the fundamental law, it shall be inadmissible in evidence for any purpose in any proceeding. This exclusionary rule is not, however, an absolute and rigid proscription. One of the recognized exception established by jurisprudence is search incident to a lawful arrest. In this exception, the law requires that a lawful arrest must precede the search of a person and his belongings. As a rule, an arrest is considered legitimate if effected with a valid warrant of arrest. In this case, there is no gainsaying that Ambre was caught by the police officers in the act of using shabu and, thus, can be lawfully arrested without a warrant. His conviction stands.

G.R. No. 148220 June 15, 2005 ROSENDO HERRERA vs. ROSENDO ALBA Evidence is admissible when it is relevant to the fact in issue and is not otherwise excluded by statute or the Rules of Court. Evidence is relevant when it has such a relation to the fact in issue as to induce belief in its existence or nonexistence. FACTS: Thirteen-year-old Rosendo Alba represented by his mother Armi Alba, filed before the trial court a petition for compulsory recognition, support and damages against petitioner. Petitioner Herrera denied that he is the biological father of respondent and denied physical contact with respondent’s mother.Respondent filed a motion to direct the taking of DNA paternity testing to abbreviate the proceedings.Petitioner opposed DNA paternity testing and contended that it has not gained acceptability and further argued that DNA paternity testing violates his right against self-incrimination. The trial court granted respondent’s motion to conduct DNA paternity testing on petitioner.

Petitioner filed before the appellate court a petition for certiorari under Rule 65 asserting that the trial court acted "in excess of, or without jurisdiction and/or with grave abuse of discretion amounting to lack or excess of jurisdiction”, in issuing the order of DNA testing, however, the petition was denied. ISSUE: Whether or not a DNA test is a valid probative tool to determine filiation and as such be admissible in evidence in a paternity suit. HELD: Yes. Evidence is admissible when it is relevant to the fact in issue and is not otherwise excluded by statute or the Rules of Court. Evidence is relevant when it has such a relation to the fact in issue as to induce belief in its existence or non-existence. Section 49 of Rule 130, which governs the admissibility of expert testimony, provides that the opinion of a witness on a matter requiring special knowledge, skill, experience or training which he is shown to possess may be received in evidence. This Rule does not pose any legal obstacle to the admissibility of DNA analysis as evidence. Indeed, even evidence on collateral matters is allowed "when it tends in any reasonable degree to establish the probability or improbability of the fact in issue." In assessing the probative value of DNA evidence, therefore, courts should consider, among other things, the following data: how the samples were collected, how they were handled, the possibility of contamination of the samples, the procedure followed in analyzing the samples, whether the proper standards and procedures were followed in conducting the tests, and the qualification of the analyst who conducted the tests. DNA analysis that excludes the putative father from paternity should be conclusive proof of non-paternity. If the value of Probability of Paternity (W) is less than 99.9%, the results of the DNA analysis should be considered as corroborative evidence. If the value of Probability of Paternity (W) is 99.9% or higher, then there is refutable presumption of paternity. The policy of the Family Code to liberalize the rule on the investigation of the paternity and filiation of children, especially of illegitimate children, is without prejudice to the right of the putative parent to claim his or her own defenses. Where the evidence to aid this investigation is obtainable through the facilities

of modern science and technology, such evidence should be considered subject to the limits established by the law, rules, and jurisprudence. G.R. No. 150224 May 19, 2004 PEOPLE OF THE PHILIPPINES, vs. JOEL YATAR alias "KAWIT" The legal relevancy of evidence denotes "something more than a minimum of probative value," suggesting that such evidentiary relevance must contain a "plus value." This may be necessary to preclude the trial court from being satisfied by matters of slight value, capable of being exaggerated by prejudice and hasty conclusions. Evidence without "plus value" may be logically relevant but not legally sufficient to convict. FACTS: Joel Yatar was convicted by the trial court with rape with homicide defined and penalized under Article 266-A of the Revised Penal Code, as amended by R.A. 8353, otherwise known as the Anti-Rape Law of 1997, and was accordingly, sentenced to Death. Pursuant to Article 47 of the revised Penal Code, an automatic review was made, the appellant alleging that the trial court gravely erred in giving weight to the evidence presented by the prosecution notwithstanding their doubtfulness and thereby he should be acquitted from the crime charged due to reasonable doubt.

ISSUE: Whether or not the trial court committed reversible error in convicting the accused of the crime charged on the basis of circumstantial evidence. HELD: No. Circumstantial evidence, to be sufficient to warrant a conviction, must form an unbroken chain which leads to a fair and reasonable conclusion that the accused, to the exclusion of others, is the perpetrator of the crime. To determine whether there is sufficient circumstantial evidence, three requisites must concur: (1) there is more than one circumstance; (2) facts on which the inferences are derived are proven; and (3) the combination of all the circumstances is such as to produce a conviction beyond reasonable doubt.

Generally, courts should only consider and rely upon duly established evidence and never on mere conjectures or suppositions. The legal relevancy of evidence denotes "something more than a minimum of probative value," suggesting that such evidentiary relevance must contain a "plus value." This may be necessary to preclude the trial court from being satisfied by matters of slight value, capable of being exaggerated by prejudice and hasty conclusions. Evidence without "plus value" may be logically relevant but not legally sufficient to convict. It is incumbent upon the trial court to balance the probative value of such evidence against the likely harm that would result from its admission. The judgment in a criminal case can be upheld only when there is relevant evidence from which the court can properly find or infer that the accused is guilty beyond reasonable doubt. Proof beyond reasonable doubt requires moral certainty of guilt in order to sustain a conviction. Moral certainty is that degree of certainty that convinces and directs the understanding and satisfies the reason and judgment of those who are bound to act conscientiously upon it. It is certainty beyond reasonable doubt. This requires that the circumstances, taken together, should be of a conclusive nature and tendency; leading, on the whole, to a satisfactory conclusion that the accused, and no one else, committed the offense charged. In view of the totality of evidence appreciated thus far, we rule that the present case passes the test of moral certainty. However, as a matter of procedure, and for the purpose of meeting the requirement of proof beyond reasonable doubt, motive is essential for conviction when there is doubt as to the identity of the culprit. Thus, appellant’s motive to sexually assault and kill the victim was evident in the instant case. It is a rule in criminal law that motive, being a state of mind, is established by the testimony of witnesses on the acts or statements of the accused before or immediately after the commission of the offense, deeds or words that may express it or from which his motive or reason for committing it may be inferred. Accordingly, the Court is convinced that the appellant is guilty beyond reasonable doubt of the special complex crime of rape with homicide. Appellant sexually assaulted KathylynUba, and by reason or on the occasion thereof, in order to conceal his lustful deed, permanently sealed the victim’s lips by stabbing her repeatedly, thereby causing her untimely demise.

RULE 129 What Need Not Be Proved

Section 1.Judicial notice, when mandatory. — A court shall take judicial notice, without the introduction of evidence of the: a. the existence and territorial extent of states; b. their political history, forms of government and symbols of nationality; c.

-it is mandatory as far as those matters enumerated in Sec. 1, Rule 129;

the law of nations;

- Under Sec. 2, on matters which are of public knowledge, or are capable of unquestionable demonstration, ought to be known to judges because of their judicial functions.

d. the admiralty and maritime courts of the world and their seals; e. the political constitution and history of the Philippines the official acts of legislative, executive and judicial departments of the Philippines; f.

the laws of nature;

g. the measure of time; h. and the geographical divisions. Judicial Notice, defined: -It is the cognizance of certain facts which judges may properly take and act on without proof because they already know them.

-It is the notice taken by the court, without the production of evidence, of facts, which are within common knowledge and experience.

KINDS OF JUDICIAL NOTICE MANDATORY

DISCRETIONARY

Note: The application of the doctrine of judicial notice is not confined to the courts of record. Certain special tribunals which are not strictly courts but which partake of their nature and the findings of which partake of the nature of judgments may take judicial notice on certain matters. Points to Remember: a. All courts of justice are bound to take judicial notice of the territorial extent of the jurisdiction exercised by the government the laws of which they administer and of the extent and boundaries of the territory under which they themselves can exercise jurisdiction; b. It is without an exception for the court to take judicial notice without of those great historical events which have affected the destiny of our nation or other nations; c. The rule must be taken with the qualification that it relates only to such governments as have been recognized by the home government. The recognition of a foreign government is a political

rather than a judicial matter and therefore courts follow the determination of the executive department of the forum;

conduct of the litigant or witness in a similar matter.

d. In conformity to the law of nations all courts in a government, where that government has recognized the existence of a foreign nation, but not in the absence of such recognition will take cognizance of the flag and great seal of that nation or provinces;

General Rule: Courts are not authorized to take judicial knowledge of contents of the other cases, in the adjudication of cases pending before them, even though the trial judge in fact knows or remember the contents thereof;

e. Foreign law must be proved as facts, those rules which by common consent of mankind have been acquiesced in as las stand upon an entirely different footing; Note: It is well settled that foreign laws do not prove themselves in our jurisdiction and our courts are not authorized to take judicial notice of them. Like any other fact, they must be alleged and proved. f. No proof need be given of the seals of foreign maritime and admiralty courts. By common consent and general usage, the seal of a court of admiralty has been considered as sufficiently authenticating its records;

i.

j.

k. l.

g. Matters relating to: 1. Legislative Department

2. Executive Department

3. Department

Judiciary

Courts are bound to take judicial notice, as a matter of law, of dates when Congress begins and closes its session, the number, function, privileges of its members; Courts judicially recognize all public matters which will affect the government of the country. On this principle, the accession and death of the sovereign and principal officers of the state are recognized;

The Supreme Court has taken judicial notice of its record in a previous case in connection with the

Courts judicially recognize all public matters which will affect the government of the country. On this principle, the accession and death of the sovereign and principal officers of the state are recognized; Judicial Notice is taken of the familiar and unquestionable laws of nature and of the existence of fact which happened according to the course of nature; Courts will judicially notice the things belonging to the almanac. Calendar of the periods within the calendar. Judicial Notice is taken of the fact that the Philippines is divided into provinces, municipalities, cities, and cities is divided into lots, blocks, streets;

JURISPRUDENCE Judicial notice may be taken of petitioner's oath taking as evidenced by a certification from the Records Officer of the office of the Provincial Governor. The oath taking partakes of an official act, while the certification is an official act of an official of the Executive Department of the government.( Lopez v. Sandiganbayan, GR No. 103911) We uphold the submission that the factual defenses of petitioner are matters within the concept of mandatory judicial notice. While it is true that, as pontificated by the Court a quo, factual defenses on the part of the accused are evidentiary matters which may be presented only during trial on the merits, the facts alleged by the accused are facts admitted, whether directly or impliedly, in pleadings of the prosecution.( Lopez v. Sandiganbayan, GR No. 103911) Section 2.Judicial notice, when discretionary, generally: a. Matters which are of public knowledge;

- Judicial knowledge of facts is measured by general knowledge of the same fact. A fact is generally known when its existence or operation when it is accepted by public without qualification or contention. The doctrine of judicial notice rests on the wisdom and discretion of the courts. The power to take judicial notice is to be exercised by courts with caution; care must be taken that the requisite notoriety exists; and every reasonable doubt on the subject should be promptly resolved in the negative. Generally speaking, matters of judicial notice have three material requisites: (1) the matter must be one of common and general knowledge; (2) it must be well and authoritatively settled and not doubtful or uncertain; and (3) it must be known to be within the limits of the jurisdiction of the court. The principal guide in determining what facts may be assumed to be judicially known is that of notoriety. Hence, it can be said that judicial notice is limited to facts evidenced by public records and facts of general notoriety. (Latip vs. Chua) Things of "common knowledge," of which courts take judicial notice, may be matters coming to the knowledge of men generally in the course of the ordinary experiences of life, or they may be matters which are generally accepted by mankind as true and are capable of ready and unquestioned demonstration. Thus, facts which are universally known, and which may be found in encyclopedias, dictionaries or 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 the common knowledge of every person.( Latip vs. Chua, GR NO. 177809) b. Matters capable Demonstration -

of

1. When in the absence of any objection, with the knowledge of the opposing party, the contents of said other case are clearly referred to by title and number in a pending action and adopted or read into the record of the latter; 2. when the original record of the other case or any part of it is actually withdrawn from the archives at the court’s discretion upon the request, or with the consent of the parties and admitted as part of the record of the pending case. Note: Judicial notice is not judicial knowledge. The mere personal knowledge of the judge is not judicial knowledge of the court; judicial cognizance is taken only of those matters which are “commonly” known. SECTION 3 – JUDICIAL HEARING NECESSARY

c. Matters ought to be known by judges by reason of their judicial function

WHEN

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, or its own initiative or on the 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 or in the case.  PURPOSE OF HEARING

•

Unquestionable

This refers o facts, theories and conclusions which have come to be established and accepted by the specialists in the areas of natural science, natural phenomena, technology, history, geography, scientifically facts and other fields of scientific knowledge.

NOTICE,

To afford the parties reasonable opportunity to present information relevant to the propriety of taking such judicial notice or to the tenor of the matter to be noticed.

 TIME WHEN JUDICIAL NOTICE MAY BE TAKEN: •

During trial

Judicial Notice of Proceedings in Another Case.

•

After trial and before judgment

GENERAL RULE: Court is not authorized to take judicial notice of the contents of another case even if said case was heard by he same judge.

•

On appeal

•

In all instances, the court may act on its own initiative or on request of a party.

Exception:

1. Oral as a verbal waiver of proof made in open court

 JUDICIAL NOTICE TAKEN DURING TRIAL DISTINGUISHED FROM THAT TAKEN AFTER BUT BEFORE JUDGMENT OR ON APPEAL

2. A withdrawal of a contention 3. A disclosure made before a court 4. Admission made by a witness in the course of testimony or deposition

•

DURING TRIAL – any matter

•

AFTER TRIAL BUT BEFORE JUDGMENT OR ON APPEAL – Any matter if such decisive of a material issue in the case.

5. In writing as in pleadings 6. Bill of particulars 7. Stipulation of facts 8. Request for admission

 DETERMINATION OF FACTS SUBJECT OF JUDICIAL NOTICE –

The court may refer to appropriate and reliable sources of information. Where judicial notice must be taken of a fact, the court is required to pursue inquiries sufficient to make that knowledge real as far as possible. SECTION 4 – An admission, verbal or written, made by or a party in the course of the proceedings in the same case, does not require proof of the admission may be contradicted only by showing that it was made through palpable mistake or that no such admission was made.  JUDICIAL AND EXTRA ADMISSIONS DEFINED.

JUDICIAL

JUDICIAL – is one made in the pleadings filed or in the progress of a trial. It is conclusive upon the party making them.

EXTRA JUDICIAL ADMISSION – one made out of court. As a rule, is disputable except on estoppel.

 FORM OF JUDICIAL ADMISSION –

JUDICIAL ADMISSIONS MAY BE:

9. Judicial admission contained in an affidavit used in a case.

 CONCLUSIVENESS ADMISSION

OF

JUDICIAL

Cannot be contradicted unless previously shown to have been made through a palpable mistake or that no such admission was made.

 ADMISSION IN PLEADINGS –

•

May be made by an express acknowledgement of some fact or facts set forth in the pleading of the opposite party.

•

By failure to deny or otherwise controvert the truth of such fact or facts.

 NO ADMISSION DEFENDANT IS DEFAULT.

ARISES WHEN ADJUDGED IN

Such failure to answer does not amount to an admission of the facts alleged in the complaint.

 BILL OF PARTICULARS –

Written statements in nature of bill of particulars, purporting to be signed by a party’s attorney, and which the opposing party claims was delivered to his counsel as a bill of particular was been held admissible.

 VERIFIED AND PLEADINGS –

UNVERIFIED

Verification is considered essential to the admission of statements in a pleading against the pleader. If a party does not verify, authorize or adopt a pleading, allegations thereof are not admissible against him.

 ADMISSIONS BY ATTORNEY –

Admissions by counsel made in the trial of a cause may be conclusive on the party unless withdrawn or set aside by the court for good cause shown as mistake or lack of authority.

 ADMISSIONS SUPERSEDED PLEADING

IN WITHDRAWN, OR AMENDED

The pleading which has been withdrawn or stricken out or superseded by amendment, still remain as statements seriously made and are admissible in evidence, on behalf of the opposite party as admissions by the pleader, where he is a party to the subsequent litigation, where the statements are material and relevant to the issues in connection with which they are sought

to be introduced, and where, in case of a pleading withdrawn by leave of court, no order is made relieving the pleader from the admissions made; and the probative force of such statements has even been given a prima facie value.

 ADMISSIONS IN STIPULATION OF FACTS –

Stipulations of facts in a case are agreements or admissions regarding certain facts included in the litigation and are conclusive between the parties. Acts or facts admitted do not require proof and cannot be contradicted, unless it be shown that the admission was made through a palpable mistake, for parties are not allowed to gain say their own acts or deny rights which they have previously recognized. A party may not withdraw from an agreement of facts without the consent of the other party or without leave of court on justifiable reasons.

 BINDING EFFECT OF STIPULATION OF FACTS –

A concession or stipulation as to a fact made for the purpose of trial has the force and effect of an established fact binding on the party making the same, as well as on the court, unless the court in its reasonable discretion allows the concession to be later withdrawn, explained, or modified if it appears to have been made by improvidence or mistake.  AFFIDAVITS, DEPOSITIONS AND TESTIMONY –

A judicial admission in an affidavit used in the case is admissible against the party making or adopting the affidavit, and it may also be admitted in another action to which he is a party. Statements made in a deposition, relevant to the issues, may be admitted

against the deponent as admissions against the interest in the same or another action to which he is a party, even though he is present in court and able to testify, or has testified The testimony given by or for a party at the trial of a case may be used against him as an admission in the same, or on a subsequent trial, or even in another action, provided such testimony is material and relevant.

 PROOF OF PLEADING, DEPOSITION –

ADMISSION AFFIDAVIT

IN OR

Where a pleading, affidavit or depositionis offered in evidence, the statements relied on as admissions and the qualifying statements must be construed together. The party offering written admissions is not stopped to disprove them.

 COMPROMISE AGREEMENT -

A judicial admission in a compromise agreement submitted to the court cannot be contradicted unless previously shown to have been made through palpable mistake.

 JUDICIAL ADMISSION OF A FACT DISTINGUISHED FROM AN ADMISSION THAT A CERTAIN WITNESS, IF CALLED, WOULD SO TESTIFY.

In the first case, there is a judicial admission of the facts, and they cannot be contradicted. In the second case, it will only have the same effect as if the witness had testified to the facts. Such testimony of the party is free to contradict. Constitutional Right not violated by inspection of scene of crime, provided that the same is with consent of and accompanied by counsel for the accused, it further appearing that no evidence was taken during the inspection. Information obtained on a view is independent evidence to be taken into consideration by the curt in determining the issues in the case. Order denying or granting view not reviewable when it appears that the condition of the premises or property has changed since the time of occurrence in issue and before the demand for a view, or that the facts involved are such that they can be accurately described to the court by oral testimony, or by the use of maps or diagrams with proper explanations, or view would be unreasonable expensive or cause unreasonable delay, or serve no useful purpose, unless here appears a clear abuse of discretion. DOCUMENTARY EVIDENCE Section 2 Documentary evidence

 STIPULATION OF CRIMINAL CASES –

FACTS

IN

It is not proper to consider a case closed, or to render judgment therein, by virtue of an agreement entered into between the fiscal and counsel for the accused with reference to facts some of which are favorable to the defense, and others related to the prosecution, without any evidence being adduced or testimony taken from the witnesses mentioned in the agreement; such practice is not authorized and defeats the purposes of the criminal law.

DOCUMENT – any substance having any matter expressed or described upon it by marks capable of being read. If it is produced without regard to the message which it contains, it is treated as real evidence. DOCUMENTARY EVIDENCE- evidence supplied by written instruments, or derived from the conventional symbols, such as letters, by which ideas are represented on material substances; documents; documents produced for the inspection of the court or judge. ADMISSIBILITY OF DOCUEMNTARY EVIDENCEsubject to the same basic rules on relevancy, materiality, exclusionary rules and court discretion as determined by the issues in the particular case. Identity and authenticity of the document must be

reasonably established as a pre-requisite to its admission.

with identical contents, all such copies are equally regarded as originals; and

IMPORTANT EVIDENCE-

(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.

RULES

ON

DOCUMENTARY

1. 2. 3. 4.

Best Evidence Rule Rule on Secondary Evidence Parol Evidence Rule Rule on Authentication and Proof of Documents 5. Inadmissibility of written document in an unofficial language unless translated in English and Filipino 1. Best Evidence Rule BEST EVIDENCE or PRIMARY EVIDENCEparticular means of proof which is indicated by the nature of the fact under investigation as the most natural and satisfactory that affords the greatest certainty of the fact in question and on its face indicates that no better evidence remains behind. BEST EVIDENCE RULE - is that rule which requires the highest grade of evidence obtainable to prove a disputed fact. Purpose of the rule requiring the production of the best evidence: prevention of fraud, because if the best evidence is not presented then the presumption of suppression of evidence will be present. Best evidence rule applies only when the purpose of the proof is to establish the terms of writing, therefore NOT applicable to external or collateral facts about the document such as its existence, execution or delivery. People v. Tandoy (1990) The Best Evidence Rule applies only when the contents of the document are the subject of inquiry. It does not apply when the issue is only as to whether or not such document was actually executed or in the circumstances relevant to its execution. An objection by the party against whom secondary evidence is sought to be introduced is essential to bring the best evidence rule into application. Where secondary evidence has been admitted, the rule of evidence might have been successfully invoked if proper and timely objection had been taken WHAT CONSTITUTES THE ORIGINAL: (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,

Note: > Original may depend on the substantive law applicable > Original may depend on the act of the parties >where there may be duplicate original, either is an original ad may be used without accounting for another >Whenever a document is executed in several parts, each part is a primary evidence > Whenever a document is executed in counterpart, each part executed by one or more of the parties only, each counterpart is primary evidence as against the parties who executed it People vs Sto. Tomas 138 SCRA 206 The trial court correctly rejected the xerox copy of the marriage certificate, since the admission would violate the best evidence rule. For the application of the best evidence, it is essential that: the original writing or if it is a private document, be first duly identified, and a sufficient and a sufficient foundation be laid, so as to entitle the writing to be admitted in evidence, and it must be available to the opposite party for cross-examination. Best Evidence Rule in Criminal Cases- In criminal cases, where the issue is not only with respect to the contents of the document but also as to whether such document actually existed, the original itself must be presented. US vs Gregorio 17 Phil 522 For only only presenting the Xerox copy of the falsified documents, prosecution failed to prove the corpus delicti of the crime charged. In the absence of the original document, it Is improper to conclude, with only copy of the said original in view, that there has been a falsification of the document which was neither found nor exhibited, because in such a case, even the existence of such document may be doubted. Non-production of the original document unless justified in Section 3, gives rise to the presumption of suppression of evidence.

Amended Documents- where a duplicate or copy is amended or altered by the party or parties, it becomes the original.

has been signed by the physician who executed the same and his signature was identified b him at the witness stand.

Document executed in two or more identical contents each one of the parts is primary evidence and the other need not be proved.

Provincial Fiscal of Pampanga vs Reyes August 5, 1931

Mechanically reproduced copies: a) Carbon copy- admissible as duplicate original when executed at the same time or about the same time. Imperfect carbon copies, although made at the same time as the original but if there is something else to be done for it to be binding or there is incomplete signature, it’s not the best evidence. b) Reproduction from the same matrix i.e. mimeograph, hectograph- admissible as duplicate original when produced from the same matrix as original c) Blueprints and vellum tracings- have been held to be originals rather than copies d) Telegraph and cable messagesif the issue is the contents of the telegram • as received by the addressee- then the original dispatch is the copy of the message sent to the addressee; • as sent by the sender- the original is the message delivered if the issue is the inaccuracy of transmission, • both telegrams as sent and received are originals e) Letter press copies- merely secondary evidence as its prone to improper reproduction and are not produced simultaneously as the original f) Thermofax- merely secondary evidence as it lacks satisfactory reproduction as some portions are not clearly printed g) Photographs and Xeroxmerely secondary evidence since they are reproduced at a latter time but if authenticated photostatic copy of income tax returns, public and business records are allowed as evidence

The provincial fiscal of Pampanga filed two informations for libel against Guevarra. The informations alleged that the defendant, with malicious intent, published on page 9 of the weekly paper Ing Magumasid. The defendant demurred on the ground of duplicity of informations, he having published only one libelous article in the Ing Magumasid for July 13, 1930. The fiscal attempted to present as evidence for the prosecution Exhibits A, B, C, and D, which are copies of the Ing Magumasid containing the libelous article with the innuendo. Counsel for the defendant objected to this evidence, which objection was sustained. Petitioner contends that the exhibits in question are the best evidence of the libel, the subject matter of the information, and should therefore be admitted.

People vs Mangulabnan 52 OG 6532 At the trial, presented as evidence a post-mortem report of the injuries received by the deceased. This was admitted over the objection of the accused, who contend that a mere carbon copy is inadmissible. The court ruled that the fact the post-mortem report is a mere carbon copy is also of no moment for it

Issue: Whether the exhibits are admissible. Ruling: The rule of procedure which requires the production of the best evidence, is applicable to the present case. And certainly the copies of the weekly where the libelous article was published, and its translation, constitute the best evidence of the libel charged. The newspaper itself is the best evidence of an article published in it. Thus if the issue is the contents of the articles sent for publication, the best evidence is the manuscript. But is if issue is on what was actually published, then the best evidence is the copy of the news paper. Respondent judge of the CFI was required to admit Exhibits A, B, C, and D, in question. Manchester & Lawrence vs Fisk (1856) A copy of the standard tariff rate posted at the railway depots, the court held them to be the best evidence in an action over a railway freight charge as each of the printed copies as original and the whole of the natre of duplicates, so that the proof of anyone would be competent evidence of the contents of the whole; there being necessary in the whole nature of the process of printing strong presumptive evidence that the impression from the same types must be similar. Section 3. Original document must be produced; exceptions

GENERAL RULE: when the subject of the inquiry is the contents of the document, the original document must be produced. EXCEPTIONS: When secondary evidence be admitted 1. When the original has been lost or destroyed, or cannot be produced in court, without bad faith on the part of the offeror; 2. When the original is in the custody or under the control of the party against whom the evidence is offered, and the latter fails to produce it after reasonable notice; 3. When the original consists of numerous accounts or other documents which cannot be examined in court without great loss of time and the fact sought to be established from them is only the general result of the whole; and 4. When the original is a public record in the custody of a public officer or is recorded in a public office Compania Maritima vs Allied Free Workers Union 77 SCRA 24 (1977) Facts: In 1952, Compania Maritima (CM) and Allied Free Workers Union (AFWU) entered into a written contract whereby the Union agreed to perform arrastre and stevedoring work in Iligan, effective for one month. It was stipulated that the Company would revoke the contract before the expiration of the agreed term, if the Union failed to render proper service. After a month, the contract was verbally renewed. In 1954, the Union sent a letter to CM requesting to recognize it as the exclusive bargaining unit, to load and unload he cargo of its vessels in Iligan. CM ignored the request. The Union subsequently filed in CIR a petition for certification election. Despite the certification case, CM sent notice to the Union for termination of their contract and entered into a new contract with another stevedoring association. CM assailed that the termination of the contract was due to Union worker’s inefficiency and that the Company suffered financial losses due to such service. To ascertain its annual losses, CM’s manager hired auditors. CM relied only upon such auditors’ report and presented in court only a summary of damages. The sales invoices were not produced. Issue: WON the non-submission as evidence of the records of the alleged losses of the Company is excused because of the rule exempting voluminous records from being produced in court. Ruling: The best evidence of the Company’s losses would have been the sales invoices instead of the Manager’ oral testimony. The rule that 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 in only the general result of the whole, the original writings need not be produce, CANNOT BE APPLIED because the voluminous character f the records was NOT DULY ESTABLISHED. It is also a requisite for the application of the rule that the records of accounts should be made accessible to the adverse party so that the correctness of the summary may be tested on cross-examination. When an entry is repeated in the regular course of business, one being copied from another at or near the time of the transaction, all the entries are regarded as originals. For as long as they are made within reasonable time, it is sufficient. A much longer but reasonable delay and when entries appear to have been made while the memory as to the transaction as clear or the source of such knowledge was unimpaired, still makes it admissible. However, a book of account containing only a single entry, or charge of money lent, which show no mutual recourse of dealing between the parties, is not admissible. RULES OF ADMISSIBILITY A. OBJECT (REAL EVIDENCE) SECTION 1, RULE 130 Object as evidence – object 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. Source – This provision is a reproduction of Section 1, Rule 130 of the Rules of Court with the following differences: a.

The title of the section “View of an object,” has been changed to “Object as evidence,” in the present provision;

b. The phrases “as to afford reasonable grounds of belief respecting the latter; such object”; or its existence, situation, condition, or character proved by witnesses, as the court in its discretion may determine;” and “has such a relation”, have been deleted in the present provision; c.

The phrase “Objects as evidence are those addressed to the senses of the court” and the words “is relevant”; “it”; “examined” have been added in the present provision.

Object (real) evidence defined – Object (real) evidence is that which is addressed to the senses of the tribunal, as where objects are presented for the inspection of the court. Object (real) evidence may consist of articles or persons, which may be exhibited inside or outside the courtroom; it may also consist in the mere inspection of an object; or in an experiment. Scope of object (real) evidence -- This source of persuasion has been resorted to in a great number of instances. A witness may use his own body, or an article, to illustrate or explain the evidence. In the same way counsels, to show its meaning on their theory of the case, may make any use of the court room or furniture; and it has also been held permissible to use the furniture from the room where a crime was committed, arranged so as to illustrate the testimony of a witness. Object (real) evidence is not limited to that which may be known by the sense of vision; it extends to what is perceived by the senses of hearing, taste, smell or touch. Any article made important by the evidence or by the nature of the investigation may be produced for inspection, or where the circumstances are such that it cannot be or should not be brought to the court, it may be inspected at the place where it is to be found. Inspection evidence of this character may range over any line of human activity, as building or mechanical trades, the medical or surgical profession, or nautical affairs. A frequent application of the rule is found in the production of the tools or implements with which as certain act was, or is claimed to have been worn by a person at the time of an occurrence in controversy. Where properly identified and where relevant to a material issue, objects such as the following have been received in evidence: a. In abortion cases, the instrument or medicine with which the crime was committed, and the clothing of the victim;

found on or near the victim, to show self-defense; d. In cases involving an assault or a homicide, the clothing of the victim to show the location of wounds, the manner or means of death, the relative positions of the victim and his assailant or the distance between them, or to throw light on any material issue; also the clothing of the victim’s companion where relevant; e. In homicide, the bones or flesh of the victim, to show the character and location of wounds (it is within the court’s discretion to order the victim’s skull exhumed so it may be offered in evidence); objects used to help hide the body; f.

In theft cases, the stolen goods, burglars’ tools, other objects which help accomplish the theft;

g. In a hit-and-run case, headlight glass partly recovered from the scene and partly from the garage where repairs were made; h. In a drunken driving case, liquor, tools to aid in its manufacture, marked money used in its purchase; i.

In liquor cases, the liquor, tools to aid in its manufacture, marked money used in its purchase;

j.

In narcotics trials, the drug, a drug container, the syringe, needle and spoon, marked money used to purchase the drug;

k.

In fraud and cheating cases, any object which shows how the result was accomplished;

l.

In counterfeiting; machine;

the

counterfeiting

b. In arson, articles used in starting the fire, and burned objects;

m. In gambling cases, paraphernalia;

c.

n. In rape, any weapon used to subdue or intimidate the victim, the clothing of the victim, the clothing of the accused;

In any case where a weapon is used, the weapon, including, if it is a firearm, bullets and shells; weapons other than the one used, to show intent; weapons

the

gambling

o. In sex cases other than rape, objects which throw light on the crime; p. The clothing of the accused, to identify him or to throw light on other issues; q. Any object which is accomplishing the crime;

used

in

r.

Drawings and maps which help explain the crime or the defendant’s escape route;

s.

Objects which illustrate a consciousness of guilt on defendant’s part;

t.

Objects which corroborate or illustrate verbal testimony.

Reason for admissibility of object (real) evidence – to a rational man of perfect organization the best and highest proof of which any fact is susceptible is the evidence of his senses. This is the ultimate test of truth, and is therefore the first principle in the philosophy of evidence. Hence, the evidence of one’s own senses, furnishes the strongest probability and indeed the perfect and indubitable certainty of the existence of any sensible fact. Physical evidence is evidence of the highest order. It speaks more eloquently than a hundred witnesses.

Requisites for admissibility of object (real) evidence – an object may be exhibited, examined or viewed by the court when (1) it is relevant to the fact in issue, and (2) the present condition of the object is the same at the time in issue.

If, by some principle of relevancy, a fact offered to be shown is not admissible, because irrelevant, it cannot be shown, either in this or in any other way. For example, whether a person’s color is black or white is best ascertained by inspecting the person; but if his color when ascertained would be irrelevant for the purpose concerned, an inspection to learn his color would obviously be unnecessary, and therefore improper. Thus, his color might be relevant to show his race-ancestry, but not to show his state of health; in the former case inspection would be allowed in the latter case not, the ruling in

each instance depending on the admissibility of the fact shown by inspection. In a large number of instances this is the real question. Admission of clothing worn by plaintiff at time of accident has been held improper where the fact of injury was uncontroverted. The present condition of an object offered may not be the same as to be proper evidence of its former condition; accordingly, autoptic preference is allowable only on the assumption that the condition is the same or sufficiently similar. Experiments to show the quality or operation of a substance, a machine, etc., are often excluded because of the dissimilarity of circumstances or because of probable confusion of issues; and for this reason the exhibition of such experiments before the tribunal may of course be forbidden. As a general rule it seems essential that articles shown to the court be connected, at least prima facie, with the crime in issue. An article of personal property, the relevancy of which has been shown by its identification with the subject-matter of the crime, may be exhibited in the courtroom, whether as direct evidence of a relevant fact, or to enable them to understand the evidence or to realize more completely its cogency and force, or to assist the court in solving a material, controverted or doubtful point. Admission of visual, exhibitive or demonstrative evidence is much within the discretion of the court, and the extent of identification of such articles necessary before admission varies with circumstances. The court may inspect and smell the contents of a bottle properly identified and admitted in evidence. Comparison of materials may also be made by the court, aided by the evidence of expert witnesses. So in case the quality of an article, or its adaptability to a specific use or purpose, is in issue, a sample may be shown to the court, together with a specimen of a like material which is shown to be of good quality or adapted to the required purpose, and the court may then make a comparison to ascertain possible points of difference. Exhibition of person – Trial courts, in actions to recover damages, have an inherent discretionary power to order a reasonable physical examination of the plaintiff to be made before trial by competent physicians and surgeons whenever such examination is necessary to ascertain the nature, extent, or permanency of alleged injuries. Trial courts also are generally deemed to have power to compel the exhibition of the plaintiff’s person, under proper restrictions, in the trial of a personal-injury action; and it is within the discretion of the trial judge,

when the physical condition of a party is in question, as in personal-injury actions, to permit the injured party to exhibit his person to the court in order to show the extent and nature of his injury. Such exhibitions of part of the plaintiff’s person are often permitted without objections. Under the rule stated, the plaintiff may be permitted to exhibit an arm, hand, leg, foot, and other parts of the body, such as the shoulder, head, etc., provided the exhibition is not objectionable on the ground of indecency. Where an arm or a leg has been amputated, the exhibition of the naked remnant may be permissible. The extent to which one may be allowed to exhibit his person to the court on the trial is a matter largely of discretion of the court. If it appears that the exhibition by the plaintiff would necessitate an exposure which would be indecent, the court, in the exercise of its discretion, should not permit the exhibition before the court. Where an issue as to personal injuries or disability is involved, the injured person may be permitted to exhibit to the court the wound or injury, or the member or portion of his body on which such wound or injury was inflicted. Thus, the court has permitted the exhibition of an ankle, a knee, a foot, a leg, an arm, a hand, an eye socket, and various other parts of the body. A similar exhibition may be made where the injury has resulted in the death of the injured person or the loss of a member or part of his body. Indecency or impropriety as ground for disallowing the introduction of object (real) evidence; exception – when the object produced as evidence is indecent, or improper, it should be excluded, unless the same is necessary for ascertaining the truth. But when justice and the discovery of truth, are at stake, the ordinary canons of modesty and delicacy of feeling cannot be allowed to impose a prohibition upon necessary measures. If such matters were not unshrinking discussed and probed, many kinds of crime would remain unpunished. Nevertheless, needless spectators having no responsibility for the course of justice may well be avoided. Where it is a question of what would otherwise be an indecency, two limitations seems appropriate: (a) there should be fair necessity for inspection, the trial court to determine; (b) the inspection should take place apart from the public courtroom, in the sole presence of the tribunal and the parties. Introduction of object (real) evidence for the purpose of arousing undue prejudice – The

object of all evidence is to inform the trial tribunal of the material facts, which are relevant as bearing upon the issue, in order that the truth may be elicited and that a just determination of the controversy may be reached. It is not objectionable, in these cases, which the evidence may go beyond the oral narrative and may be addressed to the senses; provided that it is kept within reasonable limits by the exercise of a fair judicial discretion. It should be only of a nature to assist the court to an understanding of a situation, of an act, or to comprehend objective symptoms resulting from an injury. Examples of this class of evidence are frequent; in the viewing of the place of an occurrence, in the exhibition of the person and of the marks, or obvious evidences, of injuries sustained. Personal injuries may be simulated and deception may be practiced in such exhibitions; but that cannot more be prevented, than can perjury in testimony. When, however, proof is attempted to be made by allowing the plaintiff to act out upon a judicial stage before the court what he or his physicians, have testified to be some nervous affection, resulting from an injury, the exhibition is improper because it is unfair. As something under the sole control of the witness himself, it is beyond the ordinary tests of examination. Nor does such evidence allow any record, beyond the reporter’s notes of what he saw upon the trial. It is intended to prejudice the mind of the judge and it is calculated to affect the calm judicial atmosphere of a court of justice. The plaintiff, in such cases, has sufficient advantages without adding to them a spectacular illustration of his symptoms. The exhibition of the weapons or tools of a crime, or of the clothing or the mutilated members of the victim of the crime, has often been objected to on grounds of Undue Prejudice. The objection thus indicated seems to be two-fold. First, there is a natural tendency to infer from the mere production of any material object, and without further evidence, the truth of all that is predicated on it. Secondly, the sight of deadly weapons or of cruel injuries tends to overwhelm reason and to associate the accused with the atrocity without sufficient evidence. The objection in its first phase may be at least partly overcome by requiring the object to be properly authenticated, before or after the production; and this requirement is constantly enforced by the courts. The objection in its second phase cannot be entirely overcome, even by express instruction from the Court; but it is to be doubted whether the necessity of thus demonstrating the method and results of the crime should give way to this possibility or undue prejudice. No doubt such an effect may be

occasionally and in an extreme case be produced; and no doubt the trial court has a discretion to prevent the abuse if the process. But, in the vast majority of instances where such objection is made, it is frivolous and there is no ground for apprehension. Accordingly, such objections have almost invariably been repudiated by the Courts. Where it appears that the real evidence is produced merely for the purpose of arousing feeling, admission has been held error. For example, where the plaintiff, a little girl, sues for the loss of her leg, and the defendant admits the fact of amputation and the child is present in court, the introduction of the amputated limb as preserved in spirits warrants a new trial. Of such a case, the court said that, it may however, be assumed that technically the rule of evidence authorized the exhibition of the foot. Such rule, however, is without force when the legitimate purpose for which the exhibit may be made is light, and the strong tendency is to work improper and illegitimate results. It is perfectly clear in the present case that the direct tendency of the exhibition of this mangled foot, coupled with the other considerations already noted, was to arouse the prejudice and inflame the passions of the court into an angry resentment against the author of the misfortune. This condition far overbalanced any legitimate purpose for which the exhibit might have been made, and made the exhibition of this foot, under the circumstances of this case, improper. Other grounds for denying application for the production of object (real) evidence – Beyond question it rests in the discretion of the court to deny applications for the production of real evidence in cases where the order will cause great inconvenience, or where, for other reasons, it is unjust. Thus, in Mississippi case, the court refused to order the exhumation of a dead body; although the defendant, an insurance company, claimed that the deceased had made admissions that he had in childhood received a severe injury to the skull which could only be prove by an examination. It may happen that it is impracticable to bring an animal into the room where the court is sitting, and in such cases the examination need not necessarily be has in the courtroom, so long as it is under the direction of the court and in the presence of the parties. Similar holdings may be found with reference to articles of great weight, such as large steel bars. Photographs – the courts take judicial notice that all civilized communities rely on photographic pictures for presenting resemblances

of persons and animals, scenery, natural objects, buildings, and other artificial objects. It is accordingly well established that photographs of persons, things, and places, when duly verified and shown by extrinsic evidence to be faithful representations of the subjects as of the time in question, are, in the discretion of the trial court, admissible in evidence as aids to it in arriving at an understanding of the evidence, the situation or condition of objects or premises, the circumstances of an accident, or the condition or identity of a person when any such matter is relevant to the issues being litigated. Where depositions of subscribing witnesses to a will are taken, a photographic copy of the will may be presented to the witnesses on their examination and they may be asked the same questions with respect to said copy as if it were the original will and testimony as to the identity of the photographic copy shown to the witnesses is admissible in evidence. In the case of Rodelas vs. Aranza; G. R. No. L58509 December 7, 1982:

The appellant Marcela Rodelas filed a petition for the probate of the holographic will of Ricardo B. Bonilla and the issuance of letter testamentary in her favor. However, it was opposed on the following ground: a.) Can a holographic will which was lost be proved by means of a photostatic copy?

Held: The Supreme Court ruled in the affirmative. It is necessary that there be a comparison between sample handwritten statements of the testator and the handwritten will. But, a photostatic copy of a holographic will may be allowed because comparison can be made with the standard writings of the testator. The facts as depicted by photographs are usually reasonably correct representations and constitute evidence of a satisfactory and conclusive nature. Photographs of any place which may be viewed by the trial court are admissible in evidence upon proof of their exactness and accuracy. The logic underlying the admission of photographs which have been authenticated by the operator of the camera, or by some other witness who can testify from personal knowledge as to the

accuracy of the representation, is drawn principally from the cases admitting maps and diagrams. There are, however, two fundamental distinctions between diagrams, or drawings, and photographs, which emphasize the prejudicial implications to the latter: (1) the photograph is generally accepted by courts as an accurate machine-made reproduction of nature; while the diagram or drawing is recognized by them as man-made and considerably less accurate; a slight inaccuracy or distortion of size, distance or shape in a photograph is thus far more objectionable that an error of similar degree in a diagram; (2) the vital, mirror-like appearance of a photograph makes it capable of inciting passions and prejudices of a court, whereas a lifeless map or drawing of the same subject would not have this effect. Thus, while photographs may be of a fairly similar evidential character as diagrams, and maps, there is little room for comparison as to their respective degrees of probative force. The court has in effect an eye witness view of the subject matter. Photographs are admissible in evidence in criminal cases upon the same principles and rules governing their admission in civil cases. The test of admissibility is whether the photograph accurately portrays the scene at the time of the crime, and the photographer is not a necessary witness. Photographs of the scene, taken several months after the crime was committed, were properly admitted where it appeared that the condition of the premises has not materially changed in the meantime. If the correctness of the photograph as a likeness shown prima facie, either by the testimony of the person who made it or by other competent witnesses, to the effect that it faithfully represents the object portrayed, it should go to the court subject to impeachment as to its accuracy. Whether the photograph is an accurate likeness then becomes a question of fact to be determined by the court. The photograph or must be relevant as well as correct. Its relevancy will depend on the relevancy of the scene or object it represents. If a photograph purports to represent a relevant scene or object, but portrays it in a grossly inaccurate manner, so that it practically represents something else, and the scene or object would scarcely be recognized thereby, the non-reliability of the photograph as a correct likeness may almost be considered as producing irrelevancy. But usually the question of relevancy is distinct from that of correctness, and is for the judge exclusively. It is to be determined upon the considerations which

govern when the relevancy of any other sort of evidence is corrected. Photographs are received in evidence for the following purposes: a. To show the scene of the crime (the picture need not show the complete premises) sometimes with the body of the victim still at the scene; b. To show the victim of an assault or a homicide; c.

To show the identity of persons alive or dead, including the defendant and the victim or his remains, even when decomposed;

d. To show wound or other physical injuries, or that a child or an animal has been ill-treated or not properly fed; e. To show the fruits of the crime, contraband, and the weapons used; f.

To supply facsimiles of public records;

g. To illustrate handwriting testimony and fingerprint testimony; h. To rebut testimony of the other side.

Use of devices to accentuate photographic evidence – In many instances a photograph will not sufficiently depict important details of a scene to give it significance in the eyes of the court. This is especially true in cases involving skid marks, scratches, gouges, and other marks left on the road by tires or other parts of vehicles involved in a collision. In such instances it is not an unusual practice to lay down sticks, rocks or other objects to indicate or intensify such features of the picture. These do not affect its admissibility when the presence of the markers is verified and explained by the witnesses. Obviously, when a photographic representation includes foreign objects marking such details it is not sufficient that the general accuracy of the photograph be verified. Someone must also explain why the objects appear therein and what they purport to represent or mark. If the object is nothing more than a marker, the exhibit is not subject to the objection that it is a “posed” picture for it does not purport to recreate a bygone scene. An example of this would be the placing of a yardstick to indicate the distance

between the ground and rear fender of the cat involved in a fatal hit and run accident. Enlargements – Although magnification that constitutes distortion may be objectionable, it is no valid objection to the introduction of the photograph that it is an enlargement made from an original. Enlargements are, of course, subject to the usual tests of accuracy and relevancy that any photograph would be. Color pictures – color photographs or slides are admissible on the same basis as ordinary black and white pictures. The same test is applies by courts, the test of probative value. The color tends to be regarded as a more faithful type of representation that black and white photographs. Aerial photographs – Aerial photographs, depicting ground areas pertinent to the particular issue, are held admissible upon the same foundation basis as other photographs. X-ray – In one way or another, X-rays are perhaps the modality of medical treatment or diagnosis most commonly appearing in litigation. Diagnostic X-ray films often provide counsel with his best source of objective proof of his client’s injuries, establishing in a manner that all can see that plaintiff’s leg bones indeed were fractured a year before trial, and the like. Even when X-ray films do not reveal their secrets clearly enough for a court to understand them without expert interpretation, they nevertheless comprise a means of dramatic persuasion often of inestimable value. The same rules and principles which apply to ordinary pictures are applicable to an X-ray photograph, although subject to explanation or interpretation by experts in order to make them intelligible to the court. Motion pictures – Principles underlying admissibility of talking motion pictures are not different from those governing the admissibility of still pictures and phonograph records. It is a matter of common knowledge that motion pictures are no longer a novelty. They are constantly used for commercial and scientific purposes. The talking motion picture, or movie tone, as it is technically known, results merely from adaption of the scientific processes used in producing photographic records in order that words spoken, or sounds produced at the time of the taking of the picture, may be reproduced with the picture. The movie tone, in

basic characteristics, is no different from ordinary photography, in regard to the visual pictures reproduced, and on the other hand, from phonographic records, in regard to the auditory recording of sound. A movie tone, duly authenticated as a true portrayal of the actions and words of a defendant at the time it was taken is admissible evidence. The question of permitting a motion picture to be displayed before the court is wholly within the discretion of the court, and where the picture does not amplify matters, no reversible error is committed in refusing to allow its admission or display as evidence. Authentication of motion pictures ordinarily includes (1) evidence as to the circumstances surrounding the taking of the film; (2) the manner and circumstances surrounding the development of the film; (3) evidence in regard to the projection of the film; (4) testimony by the person present at the time the motion pictures were taken that the pictures accurately depict the events as he saw them when that occurred. Video tape – The use of the video tape in the courtroom have become more commonplace in recent times. A Michigan court has said: “A video tape is nothing more than a motion picture synchronized with a sound recording. Therefore, a complete video tape may be received into evidence if the offering party lays the foundation necessary to admit a motion picture and the foundation necessary to admit sound recording. Thus, where it is testified that the video tape is a true and accurate representation of what it is purported to represent, it is sufficient authentication. Video tapes have been admitted for confessions, admissions, lineups, crime scenes, witness’s testimony, drinking driver’s condition and even to show the actual commission of the crime. Diagrams, sketches and maps – Pencil, pen and ink drawings and maps have been received to identify or explain localities or positions of objects. Though they are received as primary evidence appealing to the eyes of the court under the rule admitting photographs, they differ from the latter in that their accuracy as portraits or likeliness must be affirmatively shown by the testimony of the artist or other competent witness. There is no presumption of correctness founded on general use and employment, or on their being mechanical reproductions by a process which the court will judicially notice, as exists in the case of photographs. The witness called to prove their

correctness must testify of his own knowledge that they faithfully represent the object depicted, and their accuracy, if disputed, is a question for the court, turning upon the credibility of the witnesses The draftsman of the map must testify as to its accuracy, but any other witnesses may refer to it while testifying, to illustrate his testimony. It is not material by whom the map or diagram was prepared providing that he can testify that the map or diagram is accurate and based on knowledge derive from his own investigation. The use of diagrams, models and casts as testimony of the objects represented rests fundamentally upon the theory that they represent a method of pictorial communication of a qualified witness which he may use of instead of, or in addition to, some other method. Evidence of this character is helpful in aiding the court to visualize the objects and scenes in the action. Thus a model of a machine, a mechanical device or a bridge, may be submitted to the court to aid them in understanding how an event occurred or might have been prevented. This type of evidence is properly described as illustrative evidence. It is a type of demonstrative evidence especially useful to police officers and other witnesses in describing traffic accident scenes. Fingerprints, palm prints, footprints, tracks, etc. – A method of proof now commonly resorted to in providing identity is in the use of evidence as to the correspondence or similarity of the fingerprints, palm prints and footprints. Authenticated fingerprints, palm prints, or footprints or photographs thereof of a person may be introduced in evidence and compared with other fingerprints, palm prints, or footprints found at or near the scene of the crime. This comparison is usually made by experts. Testimony concerning tracks and footprints discovered near the scene of crime is admissible if a connection with defendant by means of comparison or otherwise is shown. A comparison of footprints, proved to have been made by the prisoner, with other tracks or footprints found near the scene of the homicide is relevant, but the opinion of the witness that footprints near the scene of the crime were those of the accused not based on a comparison, is not admissible. The witness generally must have made some actual comparison of the footprint – not just looked at it. The correspondence of footprints to shoes, feet or other footprints is a matter not restricted to

expert opinion. A witness may give his opinion as to the correspondence of footprints to shoes, feet or other footprints after testifying as to the measurements or peculiarities thereof upon which such opinion is based. Phonograph and tape recordings – Sound recordings are generally admitted in evidence where a proper foundation has been laid to assure the authenticity of the recording. The phonograph, the Dictaphone, the talking motion picture machine, and similar recording devices, with reproducing apparatus, are now in such common use that the verity of their recordingand reproducing sounds, including those made by the human voice in conversation, is well-established; and as advances in such matters of scientific research and discovery are mad and generally adopted, the courts will be permitted to make use of them by way of presentevidentiary facts. Voiceprints (spectrograms) – It is established law that an accused person in lawful custody may be required to demonstrate his voice for identification purpose on the same grounds that he may be subjected to fingerprinting, photographing, measurements, and the like. This can be done through line-ups, tape recordings, video tape, or other similar methods, in addition to speaking in court. Another method of voice identification has been developed in recent years called “voice print” or “spectrograms”. This device consists of a magnetic recording device, a variable electronic filter, a paper-carrying drum which is coupled to the recording device, and an electronic stylus that marks the paper as the drum rotates. Spectrograms can be compared point for point to determine if any significant similarities exist. It is based on the theory that no two persons have exactly the same physical voice properties.

Personal appearance of a person – It has been held that to determine whether a person is an alien or not, his personal appearance, ethnological and racial characteristic, language, customs, dress and manners may be taken into consideration. The age of a person may also be determined by his personal appearance. The resemblance between a minor and his alleged father is competent and material evidence to establish parentage. Of course, the absence of such resemblance would not be sufficient to show that parentage does not exist.

The accused cannot object if he be identified in open court without being required to stand. A direction to a witness to look about the court and point out a person in court who he thinks committed the crime is always proper. The court or the prosecuting attorney may even point out the accused and ask a witness if that is the person who committed the crime. If the accused shall voluntarily stand up and so thus be identified by a witness pointing him out, he should not be granted a new trial upon the ground that he has been compelled to testify as against himself. And it has been held merely directing the accused to stand up for identification is not compelling him to be a witness against himself, nor is the bringing of the defendant into court for inspection or identification or dressed in clothes connected with the crime. It has been held in some cases, however, that to go father and require accused to do some affirmative act, such as putting on clothing found at the scene of the crime, violates his constitutional rights. Experiment – In instances where it is necessary to show the condition or quality of a certain article or substance, the thing itself is the most powerful evidence that can be produced; it may be introduced in evidence as supplementing the testimony of witnesses, or as direct evidence when properly identified. Evidence of the result of an actual experiment or test is admissible to aid in determining the issues in a case where it is shown that the conditions under which the experiment or test was made were the same or similar to the circumstances prevailing at the time of the occurrence involved in the controversy. Such evidence should, however, be admitted only where it is obvious to the court from the nature of the experiments that the court will be enlightened, rather than confused. When evidence of an experiment is not admissible – Evidence of experiments performed is admissible in both civil and criminal cases when the judge, in his discretion, is of the opinion that the evidence is beneficial, and that it does not tend to distract or confuse. On the other hand, tests and experiments are not without danger. Obviously, if the experiment is too complicated to afford any fair inference, or if it cannot be performed in such a manner as fairly to illustrate the fact to be found, it should be excluded. If the trial judge, exercising reasonable judgment, concludes that evidence of such experiment is more likely to confuse than to shed light upon the matter in dispute, he may

exclude such evidence. It is plain that evidence of an experiment whereby to test the truth of testimony that a certain thing occurred is not admissible where the conditions attending the alleged occurrences and the experiments are not shown to be similar. Mode and place of presentation and inspection – No distinction shall be taken as regards the mode of presentation by the party. An object may be merely set forth for inspection, or some experimental process may be conducted in the tribunal’s presence; whether the mode involves a showing or doing, neither is in itself objectionable. Nor is any distinction to be taken as to the mode of inspection by the tribunal. It may merely employ its senses directly; or it may use some suitable mechanical aid, such as a microscope; and it may merely look on, or it may take an active share in the process of experimentation. Nor is there any distinction as to the place of inspection; the thing may be brought into the court, or the tribunal may go to the place where the thing is. Object must be inspected in open court and in the presence of the defendant – When the trial court is of the opinion that the ends of justice will be advanced by permitting the introduction of an object in evidence, the court may permit its examination or inspection, but such examination or inspection must be in open court, and in the presence of the defendant, and at all times subject to the control of the court. The rule permitting an inspection by the judge of places or premises, when in his judgment the ends of justice will be promoted thereby, is simply an extension of the power of inspection to places and premises which cannot be brought into court. Ocular inspection or view of an object out of court – where the object in question cannot be produced be produced in court because it is immovable or inconvenient to remove, the natural proceeding is for the tribunal to go to the object in its place and there observe it. This process, traditionally known as a “view” has been recognized as an appropriate one. It should be remembered, however, that whether or not an ocular inspection or view of an object out of the court should be made, rest entirely on the sound discretion of the trial court. The inconvenience of adjourning court until a view can be had, or of postponing the trial for the purpose, may suffice to overcome the advantages of a view, particularly when the nature of the issue or of

the object to be viewed renders the view off small consequence. Ocular inspection or view must be made in the presence of, or with notice to the parties – The inspection or view outside the court room should be made in the presence of the parties or at least previous notice to them in order that they may show the object to be viewed. Such inspection or view is a part of the trial, inasmuch as evidence is thereby being received, which is expressly authorized by law. Thus, it is error for the judge to go alone to the land in question, or to the place where the crime was committed and take a view, without previous knowledge or consent of the parties.

Constitutional Right not violated by inspection of scene of crime – Provided that the same is with consent of and accompanied by counsel for the accused, it further appearing that no evidence was taken during the inspection. Information obtained on a view is independent evidence –To be taken into consideration by the curt in determining the issues in the case. Order denying or granting view not reviewable –When it appears that the condition of the premises or property has changed since the time of occurrence in issue and before the demand for a view, or that the facts involved are such that they can be accurately described to the court by oral testimony, or by the use of maps or diagrams with proper explanations, or view would be unreasonable expensive or cause unreasonable delay, or serve no useful purpose, unless here appears a clear abuse of discretion.

DOCUMENTARY EVIDENCE Section 2 Documentary evidence DOCUMENT – any substance having any matter expressed or described upon it by marks capable of being read. If it is produced without regard to the message which it contains, it is treated as real evidence. DOCUMENTARY EVIDENCE- evidence supplied by written instruments, or derived from the conventional symbols, such as letters, by which

ideas are represented on material substances; documents; documents produced for the inspection of the court or judge. ADMISSIBILITY OF DOCUEMNTARY EVIDENCE- subject to the same basic rules on relevancy, materiality, exclusionary rules and court discretion as determined by the issues in the particular case. Identity and authenticity of the document must be reasonably established as a prerequisite to its admission. IMPORTANT RULES ON DOCUMENTARY EVIDENCE1. 2. 3. 4.

Best Evidence Rule Rule on Secondary Evidence Parol Evidence Rule Rule on Authentication and Proof of Documents 5. Inadmissibility of written document in an unofficial language unless translated in English and Filipino

2. Best Evidence Rule BEST EVIDENCE or PRIMARY EVIDENCEparticular means of proof which is indicated by the nature of the fact under investigation as the most natural and satisfactory that affords the greatest certainty of the fact in question and on its face indicates that no better evidence remains behind. BEST EVIDENCE RULE - is that rule which requires the highest grade of evidence obtainable to prove a disputed fact. Purpose of the rule requiring the production of the best evidence: prevention of fraud, because if the best evidence is not presented then the presumption of suppression of evidence will be present. Best evidence rule applies only when the purpose of the proof is to establish the terms of writing, therefore NOT applicable to external or collateral facts about the document such as its existence, execution or delivery. People v. Tandoy (1990) The Best Evidence Rule applies only when the contents of the document are the subject of inquiry. It does not apply when the issue is only as to whether or not such document was actually executed or in the circumstances relevant to its execution. An objection by the party against whom secondary evidence is sought to be introduced is

essential to bring the best evidence rule into application. Where secondary evidence has been admitted, the rule of evidence might have been successfully invoked if proper and timely objection had been taken WHAT CONSTITUTES THE ORIGINAL: (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; and (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. Note: > Original may depend on the substantive law applicable > Original may depend on the act of the parties >where there may be duplicate original, either is an original ad may be used without accounting for another >Whenever a document is executed in several parts, each part is primary evidence > Whenever a document is executed in counterpart, each part executed by one or more of the parties only, each counterpart is primary evidence as against the parties who executed it

People vsSto. Tomas 138 SCRA 206 The trial court correctly rejected the xerox copy of the marriage certificate, since the admission would violate the best evidence rule. For the application of the best evidence, it is essential that: the original writing or if it is a private document, be first duly identified, and a sufficient and a sufficient foundation be laid, so as to entitle the writing to be admitted in evidence, and it must be available to the opposite party for cross-examination. Best Evidence Rule in Criminal Cases – In criminal cases, where the issue is not only with respect to the contents of the document but also as to whether such document actually existed, the original itself must be presented.

US vs Gregorio 17 Phil 522 For only only presenting the Xerox copy of the falsified documents, prosecution failed to prove the corpus delicti of the crime charged. In the absence of the original document, it Is improper to conclude, with only copy of the said original in view, that there has been a falsification of the document which was neither found nor exhibited, because in such a case, even the existence ofsuch document may be doubted. Non-production of the original document unless justified in Section 3, gives rise to the presumption of suppression of evidence. Amended Documents- where a duplicate or copy is amended or altered by the party or parties, it becomes the original. Document executed in two or more identical contents each one of the parts is primary evidence and the other need not be proved. Mechanically reproduced copies: h) Carbon copy- admissible as duplicate original when executed at the same time or about the same time. Imperfect carbon copies, although made at the same time as the original but if there is something else to be done for it to be binding or there is incomplete signature, it’s not the best evidence. i) Reproduction from the same matrix i.e. mimeograph, hectograph- admissible as duplicate original when produced from the same matrix as original j) Blueprints and vellum tracings- have been held to be originals rather than copies k) Telegraph and cable messagesif the issue is the contents of the telegram • as received by the addressee- then the original dispatch is the copy of the message sent to the addressee; • as sent by the sender- the original is the message delivered

if the issue is the inaccuracy of transmission, • both telegrams as sent and received are originals l) Letter press copies- merely secondary evidence as its prone to improper reproduction and are not produced simultaneously as the original

m) Thermofax- merely secondary evidence as it lacks satisfactory reproduction as some portions are not clearly printed n) Photographs and Xerox-merely secondary evidence since they are reproduced at a latter time but if authenticated photostatic copy of income tax returns, public and business records are allowed as evidence People vsMangulabnan 52 OG 6532 At the trial, presented as evidence a post-mortem report of the injuries received by the deceased. This was admitted over the objection of the accused, who contend that a mere carbon copy is inadmissible. The court ruled that the fact the post-mortem report is a mere carbon copy is also of no moment for it has been signed by the physician who executed the same and his signature was identified b him at the witness stand. Provincial Fiscal of Pampanga vs Reyes August 5, 1931 The provincial fiscal of Pampanga filed two informations for libel against Guevarra. The informations alleged that the defendant, with malicious intent, published on page 9 of the weekly paper IngMagumasid. The defendant demurred on the ground of duplicity of informations, he having published only one libelous article in the IngMagumasid for July 13, 1930. The fiscal attempted to present as evidence for the prosecution Exhibits A, B, C, and D, which are copies of the IngMagumasid containing the libelous article with the innuendo. Counsel for the defendant objected to this evidence, which objection was sustained. Petitioner contends that the exhibits in question are the best evidence of the libel, the subject matter of the information, and should therefore be admitted. Issue: Whether the exhibits are admissible. Ruling: The rule of procedure which requires the production of the best evidence, is applicable to the present case. And certainly the copies of the weekly where the libelous article was published, and its translation, constitute the best evidence of the libel charged. The newspaper itself is the best evidence of an article published in it. Thus if the issue is the contents of the articles sent for publication, the best evidence is the manuscript. But is if issue is on what was actually published, then the best evidence is the copy of the news paper.

Respondent judge of the CFI was required to admit Exhibits A, B, C, and D, in question.

Manchester & Lawrence vs Fisk (1856) A copy of the standard tariff rate posted at the railway depots, the court held them to be the best evidence in an action over a railway freight charge as each of the printed copies as original and the whole of the natre of duplicates, so that the proof of anyone would be competent evidence of the contents of the whole; there being necessary in the whole nature of the process of printing strong presumptive evidence that the impression from the same types must be similar. Section 3. Original document must be produced; exceptions GENERAL RULE: when the subject of the inquiry is the contents of the document, the original document must be produced. EXCEPTIONS: When secondary evidence be admitted 1. When the original has been lost or destroyed, or cannot be produced in court, without bad faith on the part of the offeror; 2. When the original is in the custody or under the control of the party against whom the evidence is offered, and the latter fails to produce it after reasonable notice; 3. When the original consists of numerous accounts or other documents which cannot be examined in court without great loss of time and the fact sought to be established from them is only the general result of the whole; and 4. When the original is a public record in the custody of a public officer or is recorded in a public office CompaniaMaritimavsAllied Free Workers Union 77 SCRA 24 (1977) Facts: In 1952, CompaniaMaritima (CM) and Allied Free Workers Union (AFWU) entered into a written contract whereby the Union agreed to perform arrastre and stevedoring work in Iligan, effective for one month. It was stipulated that the Company would revoke the contract before the expiration of the agreed term, if the Union failed to render proper service. After a month, the contract was verbally renewed. In 1954, the Union sent a letter to CM requesting to recognize it as the exclusive bargaining unit, to load and unload he cargo of its vessels in Iligan. CM ignored the request. The Union subsequently filed in CIR a

petition for certification election. Despite the certification case, CM sent notice to the Union for termination of their contract and entered into a new contract with another stevedoring association. CM assailed that the termination of the contract was due to Union worker’s inefficiency and that the Company suffered financial losses due to such service. To ascertain its annual losses, CM’s manager hired auditors. CM relied only upon such auditors’ report and presented in court only a summary of damages. The sales invoices were not produced. Issue: WON the non-submission as evidence of the records of the alleged losses of the Company is excused because of the rule exempting voluminous records from being produced in court.

witnesses in the order stated. 1. Source.—This provision is a reproduction of Section 4, Rule 130 the Rules of Court with the following differences:

Title of the section Change s

Ruling: The best evidence of the Company’s losses would have been the sales invoices instead of the Manager’ oral testimony. The rule that 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 in only the general result of the whole, the original writings need not be produce, CANNOT BE APPLIED because the voluminous character f the records was NOT DULY ESTABLISHED. It is also a requisite for the application of the rule that the records of accounts should be made accessible to the adverse party so that the correctness of the summary may be tested on cross-examination. When an entry is repeated in the regular course of business, one being copied from another at or near the time of the transaction, all the entries are regarded as originals. For as long as they are made within reasonable time, it is sufficient. A much longer but reasonable delay and when entries appear to have been made while the memory as to the transaction as clear or the source of such knowledge was unimpaired, still makes it admissible. However, a book of account containing only a single entry or charge of money lent, which show no mutual recourse of dealing between the parties, is not admissible. 2. SECONDARY EVIDENCE SECTION 5, RULE 130 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

Section 4 “secondary evidence when original is lost or destroyed” “and loss or destruction, or unavailability”; “may be proved”; “recollection”

Section 5 “when original document is unavailable” deleted

Added: “or existence and the cause of its unavailability without bad faith on his part, may prove” and the words “document”; “the offeror”; “testimony”; “in the order stated” 2. Secondary evidence explained. Definition: a. That which shows that better, or primary evidence exists as to the proof of the fact in question. b. It is that class of evidence which is relevant to the fact in issue, it being first shown that the primary evidence of the fact is not obtainable. c.

Performs the same function as that of primary evidence but is LESS RELIABLE and WORTHY OF BELIEF

Ex. A warrant itself is better evidence of what it contains than a copy of it A check is better evidence of what it contains than the stub On why secondary evidence is admitted:

It is admitted upon the theory that the original cannot be produced by the party by whom the evidence is offered within a reasonable time by the exercise of reasonable diligence. *This is applicable in both civil and criminal cases. Rationale for requiring production of original, two-fold: 1. Copies and oral testimony are more prone to inaccuracy and subject to fraud. 2. The appearance of the document may furnish information as to its authenticity. 3. Requisites for the secondary evidence:

admissibility

of

5. Due execution of lost ancient documents need not be established. Lost document is more than 30 years oldsecondary evidence of their contents is admissible without proof of their execution 6. Proof of lost or destruction of original.

Destruction The thing no longer exists

Loss Signifies merely that it cannot be discovered

But the two come together for consideration in this rule. Test for the sufficiency of proof of loss:

a. Execution and existence of the original b. Loss and destruction of the original or its non-production in court c.

Unavailability of the original is not due to bad faith on the part of the offeror

Includes practically not only the cases of loss in the narrower sense but also the cases in which destruction is more or less explicitly put forward as the reason for non-production.

Destruction of the instrument may be proved by: 4. Proof of due execution and existence of original Meaning of execution: The accomplishment of a thing, the completion of an actor instrument, the fulfilment of an undertaking • Even though the production of an original may be excused because of loss or destruction, it is still necessary to authenticate the absent document. •

•

Before proof of contents can be admitted, the court should be satisfied of the existence and due execution of the original in the same manner as if the original were produced. Before a party can be permitted to introduce secondary evidence of the contents of a written instrument, satisfactory proof must be made of he former existence of the instrument, and this necessarily involves proof of its proper execution or genuineness.

1. Any person knowing the loss 2. Anyone who has made, in the judgment of the court, a sufficient examination in the place or places where the document or papers of similar characters are usually kept by the person in whose custody the document was lost was, and has been unable to find it 3. Who has made any other investigation which is sufficient to satisfy the court that the instrument is indeed lost *A REASONABLE PROBABILITY of its loss is sufficient, and this may be shown by a BONAFIDE and DILIGENT SEARCH, fruitlessly made, for it in places where it is likely to be found. 7. Proof of execution, loss or destruction of the original writing recorded in a public registry Before the record or a certified copy of the recital made in a public registry of the contents of the document, it is indispensable to establish the following: 1. The document/deed really existed

2. It was duly executed

*When primary evidence has been wilfully destroyed, receipt of secondary evidence may depend upon the reasons for the destruction, and such evidence will not be received from the party who destroyed the primary evidence. *The burden of proving absence of bad faith falls on the proponent.

3. It was lost

8. Proof of admission

loss

dispensed

with

by

1. Where both parties admit that an instrument has been lost, this is sufficient to warrant the reception of secondary evidence. 2. The contents of an instrument may be proved against a party by his admissions in writing, without accounting for non-production of the original document.

9. Proof of non-production in court 1. It is sufficient to show that it is deposited in a place from which it cannot be removed for the purpose of being produced in court; 2. Or that it is not in the possession or under the control of the party seeking to show the facts; 3. He is unable to produce it within a reasonable time after the exercise of reasonable diligence. *When the original of the document e.g. receipt, cannot be produced in court, the Photostat copy thereof is admissible as evidence. 10. Absence of bad faith on the part of the offeror 1. Secondary evidence is inadmissible when the party offering it had himself destroyed the original, with the object of preventing its production in court, for in such a case, secondary evidence of its contents could probably be regarded as in all likelihood false or misleading. 2. If destruction was done in the ordinary course of business or by mistake, or where the proponent first removes, to the satisfaction of the court any reasonable suspicion of fraud, secondary evidence is admissible.

11.

Diligent search for the document claimed to have been lost must be shown. There must be proof that a diligent search has been made in the place where it is most likely to be found and that the search has not been successful. a. Where the paper is such that from its nature it may be fairly assumed that it has some particular place of deposit, that search should be search in the utmost good faith, or the person in whose custody it is shown to have been should be produced. b. The testimony of the last custodian of the paper or record should be produced; and, if this person is shown to be dead, his representative or successor should be called. c.

The general statement that diligence has been used, or a mere perfunctory showing of some diligence will not ordinarily suffice.

d. In every case, the testimony should show that the party has in good faith exhausted all the sources of information and means of discovery which the circumstances naturally suggest and which have been accessible to him. GR: The loss or destruction of the document need not be proved beyond the possibility of mistake; it is enough if the testimony satisfies the court of the fact with reasonable certainty. And the lost or destruction may be proved by circumstantial evidence. What constitute a diligent search: The matter of the whole foundation or predicate for admission of such secondary evidence is subject to the wide discretion of

the court although courts should be cautious in the reception of such evidence. General rule concerning proof of a lost instrument: 1. Reasonable search shall be made for it in the place where it was last known to have been; 2. If such search does not discover it, then inquiry should be made of persons most likely to have its custody; or 3. Who have some reason to know of its whereabouts.

*When originals of a public document in the possession of the parties have been proven lost, a CERTIFIED COPY of the document made before it was lost is admissible as SECONDARY EVIDENCE of its contents, and the BURDEN OF PROOF is upon the PARTY QUESTIONING ITS AUTHENTICITY to show that it is not a true copy of the original.

Case: 1. Country Bankers Insurance Corp. vs. Antonio Lagman G.R. No. 165487 July 13, 2011

Important points: 1. The party must show that he has in good faith, and to a reasonable degree, made an effort to discover the instrument, and to that end has exhausted all sources of information and means of discovery which were open to him, and which in the nature of the case were possible. 2. No fixed rule as to the necessary proof to establish loss, or what constitutes reasonable search, can be formulated. 3. The sole object of such proof is, to raise a reasonable presumption, merely that the instrument is lost, and this is a preliminary inquiry addressed to the discretion of the judge.

A photocopy, being a mere secondary evidence, is not admissible unless it is shown that the original is unavailable. Section 5, Rule 130 of the Rules of Court states: 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. Before a party is allowed to adduce

12. Proof of true copy of original.

secondary evidence to prove the contents of the original, the offeror must prove the following: (1)

This may be shown by the testimony of a person who has had the opportunity to compare the copy with the original and found it to be correct.

the existence or due execution of the original; (2)

In order that the testimony of such person may be admissible, it is sufficient: 1. That the original was read to him by another person while he read the copy and found that it corresponded with what was read to him.

which the unavailability of the original can be

2. Where the person who made the original a short time thereafter made a copy by writing down the dictation of another reading from the original.

the loss and destruction of the original or the reason for its non-production in court; and (3) on the part of the offeror, the absence of bad faith to attributed. The correct order of proof is as follows:

existence,

execution,

loss,

and

contents. In the case at bar, Lagman mentioned during the direct examination that there are actually four (4) duplicate originals of the 1990 Bond: the first is kept by the NFA, the second is with the Loan Officer of the NFA in Tarlac, the third is with Country

Bankers and the fourth was in his possession. A party must first present to the court proof of loss or other satisfactory explanation for the nonproduction of the original instrument. When more than one original copy exists, it must appear

that

all

of

them

have

been

lost,

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.

destroyed, or cannot be produced in court

The term "agreement" includes wills.

before secondary evidence can be given of any

General Rule

one. A photocopy may not be used without Parol Evidence Rule

accounting for the other originals. Despite knowledge of the existence and whereabouts

of

these

duplicate

-

originals,

Lagman merely presented a photocopy. He admitted that he kept a copy of the 1990 Bond but he could no longer produce it because he had already

severed

Bankers. However,

his he

ties did

not

with

Country

explain

why

severance of ties is by itself reason enough for the non-availability of his copy of the bond considering

-

that, as it appears from the 1989 Bonds, Lagman himself is a bondsman. Neither did Lagman explain why he failed to secure the original from any of the three

other

custodians

he

mentioned

in

his

testimony. While he apparently was able to find the original with the NFA Loan Officer, he was merely

-

contented with producing its photocopy. Clearly, Lagman failed to exert diligent efforts to produce the original. PAROL EVIDENCE RULE Section 9, 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 imperfection in the written agreement;

or

-

The so-called “parol evidence” forbids any addition to or contradiction of the terms of a written instrument by testimony purporting to show that, at or before the signing of the document, other or different terms were orally agreed upon by the parties The existence of a valid contract is a condition precedent to the application of the rule. Where the terms of an agreement are reduced to writing, the document itself, being constituted by the parties as the expositor of their intentions, is the only instrument of evidence in respect to that agreement which the law will recognize, so long as it exists for the purpose of evidence. When an agreement has been reduced to writing, the parties cannot be permitted to adduce evidence to prove alleged practices which to all purposes would alter the written agreement. Whatever is not found in the writing must be understood to have been waived and abandoned. Soriano vs. Compania General de Tabacos de Filipinas, 125 Phil.80 If oral testimony or parol evidence is presented on facts or circumstances which do not refer to the terms or contents of a writing, the prohibition in the parol evidence rule does not apply. Talosig vs. Vda. De nieba, 43 SCRA 472.

Reason for the Rule -

The purpose of the rule is give stability to written agreements and to remove the temptation and possibility of perjury, which would be afforded if parol evidence were

admissible. Castro vs. CA GR L34613, January 26, 1989 Parol evidence rule not strangers to the instrument -

Parol evidence rule distinguished from best evidence rule

applicable to

-

The parol evidence rule does not apply, and may not properly be invoked by either party to the litigation against the other, where at least one of the parties to the suit is not a party or a privy of a party to the written instrument in question and does not base a claim on the instrument or assert a right originating in the instrument or the relation established thereby. Lechugas vs. CA, 143 SCRA 335

-

Parol evidence not admissible to validate a void contract -

Where an instrument is on its face illegal or void, because it shows a violation of some statutory provision, or omits something which the law makes essential to its validity, or for any reason, parol evidence cannot be admitted to contradict to show a violation of the statute, to supply the omission, or otherwise to make effectual that which the law declares shall be of no effect, unless it can be shown that the provision which renders the instrument void was inserted by mistake.

Waiver of benefit of rule -

by failure to object to introduction of parol evidence

the

If the ambiguity is patent (one which appears upon the face of the instrument) o extrinsic evidence not admissible o testator’s intention is to be ascertained from the words of the will, taking into consideration the circumstances under which it was made, excluding oral declarations If the ambiguity is latent (one which is not discoverable from a perusal of the will) o extrinsic evidence admissible  when it names a person as the object of a gift or a thing as the subject of it and there are two persons or things that answer such name or description  where there is a misdescription of the object or subject

Exceptions When parol evidence is admissible -

When any of the following is put in issue in the 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 agreement; or

Exceptions to parol evidence must be put in issue in the pleading Parol evidence rule applicable to wills -

That means that there is no evidence on the terms of the will and of its attestation clause other than the contents of the same

of

the

written

d. the existence of other terms agreed to by the parties or their successors in interest after the execution of the written agreement Kinds of ambiguities in documents a. patent - instrument on its face is intelligible b. latent - the words of the instrument are clear, but their application to the circumstances is doubtful

Test of the difference between latent and patent ambiguities -

A good test of the difference between the two forms of ambiguities is to put the instrument into the hands of an ordinarily intelligent educated person. If on perusal he sees no ambiguity, but there is nevertheless an uncertainty from merely reading the instrument, it is patent.

which he has not chosen to do for himself. Where both intrinsic ambiguities appear in the writing -

-

Latent or intrinsic ambiguity defined -

An uncertainty which does not appear on the face of the instrument, but which is shown to exist for the first time by the matter outside the writing – may be explained or clarified by parol evidence

Kinds of latent ambiguities a. where the description of the devises or the property devised is clear upon the face of the will, but it turns out that there is more than one estate or person to which the description applies b. where the devisee or property devised is imperfectly or, in some respects, erroneously described, so as to leave it doubtful what person or property is meant Extrinsic or patent ambiguity justification for reforming the writing -

-

-

not

a

The contest and every legitimate rule of exposition may be listed and used in obedience to the maxim ut res magisvaleat quam pereat (That the thing may rather have effect than be destroyed) but parol testimony or extraneous proof of any kind, is deemed to be inadmissible The rule expressly mentions intrinsic or latent ambiguity and not extrinsic or patent ambiguity as one of the exceptions to the parol evidence rule. Reason for the rule: if the language be too doubtful for any settled construction, by the admission of parol evidence, you create and do not merely construe the contract; you attempt to do that for the party

and

extrinsic

Where the words are all sensible, and have a settled meaning but the same time consistently admit of two interpretations. In such a case, parol evidence may be admitted to show the circumstances under which the contract was made, and the subjectmatter to which the parties referred

Rules governing the admissibility of parol evidence to explain ambiguity (latent ambiguity) a. Where the instrument itself seems to be clear and certain the ambiguity arises from some extrinsic or collateral matter, the ambiguity may be helped by parol evidence. (latent ambiguity) b. Where the ambiguity consists in the use of equivocal words designating the person or subject-matter, parol evidence of collateral or extrinsic matter may be introduced for the purpose of aiding the court in arriving at the meaning of the language used. (intermediate ambiguity) c. Where the ambiguity is such that a perusal of the instrument shows plainly that something more must be added before the reader can determine what of several things are meant, the rule is inflexible that parol evidence cannot be admitted to supply the deficiency. Mistake in the written instrument -

To justify the reformation of a written instrument upon the ground of mistake, the concurrence of three things is necessary: (a) that the mistake should be of fact; (b) that the mistake should be mutual or common to both parties to the instrument; (c) that the mistake should be alleged an proved by clear and convincing evidence. a. Mistake of fact – The rule admitting parol evidence in case a written instrument, through mistake, does not correctly express the intention of the

parties applies only in cases of mistake of fact and not where a party has contracted under a mistake of law. b. Mistake must be mutual – The parties must show that there was a valid contract between them, which contract is not correctly set forth in the writing to be reformed. c. Mistake should be alleged and proved – the existence of mistake must be alleged in the pleadings and the allegations must be sustained by proof

Inducement Contract -

Imperfection in the written agreement -

-

Parol evidence is admissible where there is imperfection of the writing

If a written contract is so ambiguous or obscure in terms that all contractual intention of the parties cannot be understood from a mere inspection of the instrument, extrinsic evidence of the subject matter of the contract, of the relations of the parties to each other, and the facts and circumstances surrounding them when they entered into the contract may be received to enable the court to make a proper interpretation of the instrument. Parol evidence is admissible where it is offered, not for the purpose of varying the terms of a written contract, but for the purpose of explaining and showing that true nature and character of the transaction evidenced thereby.

-

The rule excluding parole evidence to vary or contradict a writing but does not extend so far as to preclude the admission of extrinsic evidence to show prior or contemporaneous collateral parole agreements between the parties. Such evidence may be received regardless of whether or not the written agreement contains reference to such collateral agreement.

Agreement

or

Where a parole contemporaneous agreement was the inducing and moving cause of the written contract, or where the execution of a written agreement has been induced on the faith of which the party executed the writing and without which he would not have executed it, evidence of the oral agreement or stipulation may be given although it may have effect of varying the contract.

-

The rule which prefers written to unwritten evidence does not so apply as to exclude the latter when its object to prove that the writing was fraudulently obtained and thereby avoid the contract evidenced by it.

-

Furthermore, the rule does not extend to evidence offered to show that the contract was made in furtherance of objects forbidden by statute, by the common law or by public policy.

Validity of Written Agreement -

-

Prior Contemporaneous Distinct greement -

Written

Proof of Fraud

Written agreement does not express the true intent and agreement of the parties -

in

The prohibition does not apply where the purpose of the parole evidence is to show that no written contract ever existed and that there never existed any consideration upon which such an agreement could be founded. Parole Evidence Rule finds no application where the validity of the document is the very fact in dispute.

Subsequent Agreements -

The parole evidence rule does not apply so as to prohibit the establishment by parole an agreement between the parties to a writing entered into subsequent to the time when the written instrument was executed regardless such agreement varies or contradicts.

claim on the instrument or assert a right originating in the instrument or the relation established thereby. -

Reason: parties cannot be presumed to have intended the written instrument to cover all their possible subsequent agreements which for that reason may be considered as separate transactions. Held:

RECENTLY DECIDED CASES Heirs of PolicronioUreta, LiberatoUreta

Sr.

vs.

Heirs

of

G.R. No. 165748. September 14, 2011 The applicability of the parol evidence rule requires that the case be between parties to the written instrument in question and their successors-ininterest. Facts: In his lifetime, Alfonso Ureta (Alfonso) begot 14 children, namely, Policronio, Liberato, Narciso, Prudencia, Vicente, Francisco, Inocensio, Roque, Adela, Wenefreda, Merlinda, Benedicto, Jorge, and Andres. The children of Policronio (Heirs of Policronio), are opposed to the rest of Alfonso's children and their descendants (Heirs of Alfonso). Alfonso and four of his children, namely, Policronio, Liberato, Prudencia, and Francisco, met at the house of Liberato. He executed four (4) Deeds of Sale covering several parcels of land in favor of his four children in order to reduce the inheritance taxes. No monetary consideration was given, Alfonso continued to own, possess and enjoy the lands and their produce. Years after Alfonso’s and Policronio’s death, the former’s heirs executed a Deed of ExtraJudicial Partition, which included all the lands that were covered by the four (4) deeds of sale that were previously executed by Alfonso for taxation purposes.

Section 9 of Rule 130 of the Rules of Court provides: Section 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.

Believing that the six parcels of land belonged to their late father, and as such, excluded from the Deed of Extra-Judicial Partition, the Heirs of Policronio filed a Complaint for Declaration of Ownership, Recovery of Possession, Annulment of Documents, Partition, and Damages against the Heirs of Alfonso. The RTC ruled in favor of the Heirs of Alfonso. Likewise, the CA affirmed the finding of the RTC that the Deed of Sale was void. It found the Deed of Sale to be absolutely simulated as the parties did not intend to be legally bound by it.

Paragraphs (b) and (c) are applicable in the case at bench.

Issue: Whether or not parol evidence rule may be properly invoked by either party in the litigation against the other, where at least one of the parties to the suit is not a party or a privy of a party to the written instrument in question and does not base a

The failure of the Deed of Sale to express the true intent and agreement of the parties was clearly put in issue in the Answer of the Heirs of Alfonso to the Complaint. It was alleged that the Deed of Sale was only made to lessen the payment

The term "agreement" includes wills.

of estate and inheritance taxes and not meant to transfer ownership. The exception in paragraph (b) is allowed to enable the court to ascertain the true intent of the parties, and once the intent is clear, it shall prevail over what the document appears to be on its face. As the true intent of the parties was duly proven in the present case, it now prevails over what appears on the Deed of Sale. The validity of the Deed of Sale was also put in issue in the Answer, and was precisely one of the issues submitted to the RTC for resolution. The operation of the parol evidence rule requires the existence of a valid written agreement. It is, thus, not applicable in a proceeding where the validity of such agreement is the fact in dispute, such as when a contract may be void for lack of consideration. Considering that the Deed of Sale has been shown to be void for being absolutely simulated and for lack of consideration, the Heirs of Alfonso are not precluded from presenting evidence to modify, explain or add to the terms of the written agreement.

In determining arbitral awards then, aside from the MOA, courts considered other factors and documents including, as in this case, the financial documents submitted by respondent as well as its previous bargaining history and financial outlook and improvements as stated in its own website. The appellate court's ruling that giving credence to the "Pahayag" and the minutes of the meeting which were not verified and notarized would violate the rule on parol evidence is erroneous. Theparol evidence rule, like other rules on evidence, should not be strictly applied in labor cases. Interphil Laboratories Employees Union-FFW v. Interphil Laboratories, Inc. teaches: [R]eliance on the parol evidence rule is misplaced. In labor cases pending before the Commission or the Labor Arbiter, the rules of evidence prevailing in courts of law or equity are not controlling. Rules of procedure and evidence are not applied in a very rigid and technical sense in labor cases. Hence, the Labor Arbiter is not precluded from accepting and evaluatingevidence other than, and even contrary to, what is stated in the CBA.

Indeed, the applicability of the parol evidence rule requires that the case be between parties and their successors-in-interest. In this case, both the Heirs of Alfonso and the Heirs of Policronio are successors-in-interest of the parties to the Deed of Sale as they claim rights under Alfonso and Policronio, respectively. The parol evidence rule excluding evidence aliunde, however, still cannot apply because the present case falls under two exceptions to the rule, as discussed above. CIRTEK EMPLOYEES LABOR UNIONFEDERATION OF FREE WORKERS vs. CIRTEK ELECTRONICS, INC.

MEINRADO ENRIQUE A. BELLO vs. PEOPLE OF THE PHILIPPINES

G.R. No. 190515. June 6, 2011

G.R. No. 199430 March 21, 2012

Theparol evidence rule, like other rules on evidence, should not be strictly applied in labor cases.

Based on theparol evidence rule, there can generally be noevidence of the terms other than the contents of the written agreement

Facts: Facts: The then Acting Secretary of Labor Manuel G. Imson ruled that the wage increases to be given are P10 per day effective January 1, 2004 and P15 per day effective January 1, 2005. Respondent averred that the Secretary of Labor cannot insist on a ruling beyond the compromise agreement entered into by the parties. Issue: Whether or not the parol evidence rule should be strictly applied in labor cases.

Held:

Sandiganbayan convicted petitioner of violation of R.A. 3019, Sec. 3 (e) for acting in evident bad faith in the purchase of the property sold by Glicerio Plaza as part of the Armed Forces of the Philippines — Retirement Separation and Benefit System (AFP-RSBS) Calamba Land Banking Project, The Sandiganbayan found that the true consideration of the sale made by Plaza to AFPRSBS was only P227,460 as stated in a unilateral Deed of Absolute Sale, and not the disbursed amount of P1,531,564 as reflected in the bilateral Deed of Sale.

Issue: Whether or not the unilateral Deed of Sale should be the basis to determine the true consideration. Held: In any event, the finding that the true consideration was only P227,460 and not P1,531,564 is supported by the evidence on record. Here, the Sandiganbayan found that the unilateral Deed of Sale was the official document used by the buyer AFP-RSBS and seller Plaza in the registration of the sale; as well as in the payment of the registration fee, transfer tax, capital gains tax, and documentary stamp tax necessary to effect transfer. This finding was not disputed by the petitioner. At most, petitioner relied on the testimony of Plaza, which referred to a consideration of P1,137,300 to P1,213,120 as purchase price of the property. However, based on the parol evidence rule, there can generally be no evidence of the terms other than the contents of the written agreement; and even if this were the case, it still appears that the consideration cannot be the P1,531,564 disbursed according to the Status Transaction Report signed by petitioner. Neither did the seller or the buyer dispute the validity of the unilateral Deed of Absolute Sale. The subsequent bilateral Deed of Absolute Sale did not repeal or modify the earlier sale either. As the deed was a valid agreement of conveyance, notwithstanding that only the seller signed the deed, theSandiganbayan did not err when it used the unilateral Deed of Sale as basis to determine the true consideration.

Alejandra and Josefa each owned one-half (1/2) of Benigna's share. On June 14, 1969, Alejandra's heirs sold their predecessor's one-half (1/2) share (roughly equivalent to 10,564 square meters) to the respondent, as evidenced by a Deed of Absolute Sale. Also on June 14, 1969, Josefa sold her own one-half (1/2) share (subject property) to the respondent and the petitioner, as evidenced by another Deed of Absolute Sale. Years later, the respondent filed a complaint against the petitioner, seeking the reconveyance of the 1,004-square meter portion (disputed property), on the ground that the petitioner is entitled only to the 3,020 square meters identified in the parties' Agreement. On the other hand, the petitioner claimed that the respondent voluntarily participated in executing the Affidavit, which corrected the mistake in the previously executed Agreement and confirmed the petitioner's ownership over the disputed property. He claimed that since the Agreement does not reflect the true intention of the parties, the Affidavit was subsequently executed in order to reflect the parties' true intention. Issue: Whether or not the written agreement failed to express the true intent and agreement of the parties therefore beyond the ambit of parol evidence rule. Held: The petitioner's argument calls to fore the application of the parol evidence rule, i.e., when the terms of an agreement are reduced to writing, the written agreement is deemed to contain all the terms agreed upon and no evidence of these terms can be admitted other than what is contained in the written agreement. Whatever is not found in the writing is understood to have been waived and abandoned.

MODESTO LEOVERASvs. CASIMERO VALDEZ G.R. No. 169985. June 15, 2011 To avoid the operation of the parol evidence rule, the Rules of Court allows a party to present evidence modifying, explaining or adding to the terms of the written agreement if he puts in issue in his pleading, as in this case, the failure of the written agreement to express the true intent and agreement of the parties. The failure of the written agreement to express the true intention of the parties is either by reason of mistake, fraud, inequitable conduct or accident, which nevertheless did not prevent a meeting of the minds of the parties. Facts: When BenignaLimas died, she willed her share of a parcel of land equally to her sisters Alejandra Llamas and Josefa Llamas. Thus,

To avoid the operation of the parol evidence rule, the Rules of Court allows a party to present evidence modifying, explaining or adding to the terms of the written agreement if he puts in issue in his pleading, as in this case, the failure of the written agreement to express the true intent and agreement of the parties. The failure of the written agreement to express the true intention of the parties is either by reason of mistake, fraud, inequitable conduct or accident, which nevertheless did not prevent a meeting of the minds of the parties. At the trial, the petitioner attempted to prove, by parol evidence, the alleged true intention of the parties by presenting the Affidavit, which allegedly corrected the mistake in the previously executed Agreement and confirmed his ownership of the parcels of land covered by his titles. It was the petitioner's staunch assertion that the respondent co-executed this Affidavit supposedly to reflect the parties' true intention. TCcIaA

In the present petition, however, the petitioner made a damaging admission that the Benigna Deed is fabricated, thereby completely bolstering the respondent's cause of action for reconveyance of the disputed property on the ground of fraudulent registration of title. Since the Affidavit merely reflects what is embodied in the Benigna Deed, the petitioner's admission, coupled with the respondent's denial of his purported signature in the Affidavit, placed in serious doubt the reliability of this document, supposedly the bedrock of the petitioner's defense. INTERPRETATION OF DOCUMENTS

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Art. 1373, Civil Code- If some stipulation of any contract should admit of several meanings, it shall be understood as bearing that import which is most adequate to render it effectual. -

Interpretation of Contracts under the CIVIL CODE: Article 1370 Civil Code - If the terms of a contract are clear and leave no doubt upon the intention of the contracting parties, the literal meaning of its stipulations shall control. If the words appear to be contrary to the evident intention of the parties, the latter shall prevail over the former. -

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It is an elementary rule of contract that the laws in force at the time the contract was made must govern its interpretation. Matters bearing upon the execution, interpretation, and validity of a contract are determined by the law of the place where the contract is made. The terms of the contract where unambiguous are conclusive, in the absence of averment and proof of mistake, the question being not what the intention existed in the minds of the parties but what intention is expressed by the language used.

Article 1371, Civil Code - In order to judge the intention of the contracting parties, their contemporaneous and subsequent acts shall be principally considered. -

The contemporaneous and subsequent acts that may serve as indicia of the intention of the parties are those in which both of them participate.

Art. 1372, Civil Code- However general the terms of a contract may be, they shall not be understood to comprehend things that are distinct and cases that are different from those upon which the parties intended to agree.

Where a specific provision in a contract is followed by a general provision covering the same subject matter, the former will be held to prevail over the latter when the two cannot stand together. Where both the general and special provisions may be given reasonable effect, both are to be retained.

When an agreement is susceptible of several meanings one of which would make it effectual, it should be given such interpretation. The terms of a contract must if possible be construed to mean something rather than nothing.

Art. 1374, Civil Code - The various stipulations of a contract shall be interpreted together, attributing to the doubtful ones that sense which may result from all of them taken jointly. Art. 1375, Civil Code - Words which may have different significations shall be understood in that which is most in keeping with the nature and object of the contract. -

When a term is susceptible of different meanings, it should be understood in that sense which is most in accord with the nature and object of the contract in which it is used, in line with the rule that the intention of the parties must prevail.

Art. 1376, Civil Code- The usage or custom of the place shall be borne in mind in the interpretation of the ambiguities of a contract, and shall fill the omission of stipulations which are ordinarily established. -

The usage or custom of the place where the contract was entered into may be resorted to as aids in making definite what is uncertain or in clearing up what is doubtful or ambiguous in a contract.

Art. 1377, Civil Code- The interpretation of obscure words or stipulations in a contract shall not favor the party who caused the obscurity. Art. 1378, Civil Code- When it is absolutely impossible to settle doubts by the rules established in the preceding articles, and the doubts refer to incidental circumstances of a gratuitous contract, the

least transmission of rights and interests shall prevail. If the contract is onerous, the doubt shall be settled in favor of the greatest reciprocity of interests.

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If the doubts are cast upon the principal object of the contract in such a way that it cannot be known what may have been the intention or will of the parties, the contract shall be null and void.

b. INTERPRETATION OF SEVERAL INSTRUMENTS WHICH ARE PART OF ONE TRANSACTION- Where several instruments are made as part of one transaction, they will be read together, and each will be construed with reference to the other.

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Thus if the Contract is gratuitous such interpretation should be made which would result in the least transmission of rights and interest. If the doubt refers to the principal object of the contract in question and such cannot be resolved notwithstanding the application of said rule, the contract shall be null and void.

Art. 1379, Civil Code- The principles of interpretation stated in Rule 123 of the Rules of Court shall likewise be observed in the construction of contracts. INTERPRETATION OF DOCUMENTS UNDER THE REVISED RULES OF COURT Section 10: Interpretation of a writing to its legal meaning – The language of to be interpreted according to the legal bears in the place of its execution, parties intended otherwise.

according a writing is meaning it unless the

REQUISITES: 1. The court must give to the legal words or phrases the meaning they bear in the place where the writing was executed; 2. That such meaning shall be disregarded if the contract shows that the parties have intended to give such words or phrases a meaning different from that they have at the place of the execution of the writing. Section 11: Instruments construed so as to give effect to all provisions – In the construction of an instrument where there are several provisions or particulars, such a construction is, if possible, to be adopted as will give effect to all. a. CONSTRUCTION AS A WHOLE- A contract must be construed as a whole, and the intention of the parties is to be collected from the entire instrument and not from detached portions, it being necessary to consider all of its parts in order to determine the meaning of any particular part as well as of the whole.

An agreement should be interpreted as a whole and the meaning gathered from the entire context, and not form the particular words, phrases, or clauses.

Section 12: Interpretation according to intention; general and particular provisions - In the construction of an instrument, the intention of the parties is to be pursued; and when a general and a particular provision are inconsistent, the latter is paramount to the former. So a particular intent will control a general one that is inconsistent with it. a. INTENTION OF THE PARTIES – The court must ascertain the intention of the parties only when the terms of the contract are not clear and leave doubt upon the intention of the contracting parties, otherwise, the literal meaning of its stipulation shall control. Section 13: Interpretation according to circumstances – for the proper construction of an instrument, the circumstances under which it was made, including the situation of the subject thereof and of the parties to it, may be shown, so that the judge may be places in the position of those whose language he is to interpret. a. CONSTRUCTION OF INSTRUMENT ACCORDING TO SURROUNDING CIRCUSTANCES – the surrounding circumstances at the time it was made should be considered for the purpose of ascertaining its meaning, but not for the purpose a new distinct undertaking. b. PRELIMINARY AGREEMENTS AND NEGOTIATIONS – In the interpretation of a writing which is intended to state the entire agreement, preliminary negotiations between the parties may, however, be considered in order to determine their meaning and intention, but not to vary or contradict the plain terms of the instrument.

Section 14: Peculiar signification of terms - The terms of a writing are presumed to have been used in their primary and general acceptation, but evidence is admissible to show that they have local,

technical, or otherwise peculiar signification, and were so used and understood in the particular instance, in which case the agreement must be construed accordingly. a. MEANING OF WORDS: ORDINARY SENSE - in construing a written contract the words employed will be given their ordinary and popularly accepted meaning, in the absence of anything to show that they were used in a different sense. b. TECHNICAL WORDS CONSTRUED – Where technical words are employed by parties who are obviously unfamiliar with their meaning, they may be construed in such manner as to effectuate the true intention of the parties. c. IDIOMATIC USAGE PREVAILS OVER LITERAL TRANSLATION – A translation made in accordance with the idiomatic usage of the language from which it is made will prevail over a literal translation which, while word for word correct, is not idiomatic.

Section 17: Of two constructions, which preferred – When the terms of an agreement have been intended in a different sense by the different parties to it, that sense is to prevail against either party in which he supposed the other understood it, and when different constructions of a provision are otherwise equally proper, that is to be taken which is the most favorable to the party in whose favor the provision was made. a. CONSTRUCTION AGAINST PARTY USING WORDS- Where a contract is ambiguous it will be construed most strongly against the party preparing it. The reason for the rule being that a man is responsible for ambiguities in his own expressions and has no right to induce another to contract with him on the supposition that his words mean one thing, while he hopes the court will adopt a construction by which they would mean another thing more to his advantage.

Section 15:Written words control printed- When an instrument consists partly of written words and partly of printed forms, and the two are inconsistent, the former controls the latter.

Section 18:Construction in favor of natural right – When an instrument is equally susceptible of two interpretations, one in favor of natural right and the other against it, the former is to be adopted.

a. INCONSISTENCY BETWEEN WRITTEN AND PRINTED PROVISIONS – where a part of a contract is written and part is printed, and the written and printed parts are apparently inconsistent or there is reasonable doubt as to the sense and meaning of the whole, the words in writing will control. b. DISCREPANCY BETWEEN WORDS AND FIURES – In case of an inconsistency between words and figures in a contract the words govern.

a. NATURAL RIGHT – is meant those rights which are necessarily inherent, rights which are innate and which come from the very elementary laws of nature such as life, liberty, the pursuit of happiness, and selfpreservation.

Section 16:Experts and interpreters to be used in explaining certain writings – When the characters in which an instrument is written are difficult to be deciphered, or the language is not understood by the court, the evidence of the persons skilled in deciphering the characters, or who understand the language, is admissible to declare the characters or the meaning of the language. a. ADMISSIBILITY OF EXPERT TESTIMONY TO EXPLAIN THE CHARACTERS OF AN INSTRUMENT WHICH ARE DIFFICULT TO DECIPHER – A person who is skilled in the handling and inspection of documents may state meaning of abbreviations, and of obscure or elliptical entries or figures; and whether a set of figures, letters, marks, or writings contain an arrangement in cipher, and, if so, what they mean.

Section 19:Interpretation according to usage – An instrument may be construed according to usage, in order to determine its true character. a. USAGE ADMISSIBLE TO EXPLAIN WHAT IS DOUBTFUL – Usage may be admissible to explain what is doubtful, it is never admissible to contradict what is plain. TESTIMONIAL EVIDENCE Sec 20 Rule 130 Qualification of Witnesses -Can perceive, and perceiving can make known their perception to others. General Rule- A disinterested person could be compelled to give his testimony through subpoena. Exceptions- Persons who are immune from the process of subpoena by tradition, convention or law:

Ambassadors of foreign countries by virtue of treaty obligations President of the Philippines or other country Case: People Vs. De Jesus The fact that complainant displayed difficulty in comprehending the questions propounded on her is undisputed. However there is no showing that she could not convey her ideas y words or signs. It appears in the records that complainant gave sufficiently intelligent answers to the questions propounded by the court and the counsels. The trial court is satisfied that the complainants can perceive and transmit in her own way her own perceptions to others. She is therefore found to be a competent witness. Testimonial Duty of Citizens= to support the administration of justice by attending its courts and giving his testimony whenever he is properly summoned. Process to enforce duty= the performance of the citizen’s testimonial duty can only be invoked by the State after adequate notice is given. Witness= a person who testifies in a case or gives evidence before a judicial tribunal. = a person called to be present at some transaction soa s to be able to attest to its having taken place. Interested persons as witnesses= while rightfully subjected to careful scrutiny, should not be rejected on the ground of bias alone. = if testimony is reasonable and consistent ad is not contradicted by evidence from any reliable source, there is no reason, as a general rule, for not accepting it. Case: US vs. Mante 27 Phil 134 The testimony s interested witnesses should be subjected to careful scrutiny but they should not be rejected on the ground of bias alone. Case: People vs. Natividad (CA) 50 OG 5824 Such testimony must be judged on their own merits. If they are clear ad convinving and are not destroyed by other evidence of record, they may be believed. And the testimony of these witnesses fulfil the requirement.

Attorney as witness= counsel should not testify as a witness unless it is necessary and that they should withdraw from the active management of the case. = except when it is essential to the ends of justice Judge as witness= judicial conduct should not be subject to cross-examination or comment, the peculiar duties of the judge in administering oaths to the witnesses in case the court has no clerk, and in deciding upon their competency, with his power to commit for contempt when his testimony concerns merely formal or preliminary matters about which there is no dispute, as where he testifies in a perjury prosecution that the defendant gave testimony before him in another proceeding in another court. Persons convicted of crime as witness= persons ho have been convicted of perjury are not excluded law. =since perjury is a crime involving moral turpitude, the convict whenever mad a co-accused in any criminal case, cannot be discharged to become a witness for the government in that case, because under the ROC, the court may direct the discharge of one of the several co-accusers for that purpose when, in its judgement, such accused has ot at any time been convicted of any offense involving moral turpitude. Presumption of competency of witness= means legal fitness or ability of a witness to be heard on the trial of a case.

Objection to competency of witness= must be made before he has given any testimony; =If the incompetency appears on the trial, it mst be interposed as soon as it becomes apparent. Waiver of objection= may be done expressly or by silence. The ff may be considered a waiver of the objection: a. Where the witness testifies without objection, though at that time the party knows of his incompetency.

b. Here the party who might have made the objection owns the witness in support of his own case. Sec 21 Rule 130 Disqualification by reason of mental incapacity or immaturity 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 truthfuly.

Case: People vs. Salomon A mental retardate is not for this reason alone disqualified from being a witness. Case: People vs. Mendoza Requisites of competency of a child as witness,:capacity of observation, capacity of recollection, and capacity of communication. Insane person as a witness= general rules is that a lunatic or a person affected with insanity is admissible as a witness if he has sufficient understanding to apprehend the obligation of an oath and is capable of giving correct account of the matters which he has seen or hears with respect to the questions at issue. Monomanica as witness= he understand the nature and obligation of an oath and can give correct account of what he ha seen or heard. Deaf and Dumb = may be a competent witness although he us uneducated in the use of signs and his capacity to convey his ideas to others is very circumscribed and limited.

Rule 130, Section 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. General Rule During their marriage, neither the husband nor the wife may testify for or against the other without the consent of the affected spouse. Reason This is based on principles which are deemed important to preserve the marriage relation as one of full confidence and affection, and that this is regarded as more important to the public welfare than that the exigencies of the lawsuits should authorize domestic peace to be disregarded, for the sake of ferreting out facts within the knowledge of strangers. This applies only to a lawful wife – not a bigamous one, nor to a paramour, nor to an affiance. Alvarez vs. Ramirez, 473 SCRA 72 (Riano) The specific reasons for the rule are the following: a. there is identity of interests between husband and wife b. if one were to testify for or against the other, there is a consequent danger of perjury c. the policy of the law is to guard the security and confidence of private life, even at the risk of an occasional failure of justice, and to prevent domestic disunion and unhappiness d. where there is want of domestic tranquility, there is danger of punishing one spouse through the hostile testimony of the other Scope The rule forbidding one spouse to testify for or against the other applies to any form of testimony; therefore it protects against using the spousewitness’ admission, or against compelling him/her to produce documents. However, res gestae declarations of husband and wife are admissible for or against each other, even though each is incompetent to testify.

A husband may not testify for or against his wife without her consent; nor a wife for or against her husband without his consent, except in a civil case by one against the other, or in a criminal case for a crime committed against the other. This provision deals with two different matters which rest on different grounds of policy: the disqualification of the husband and wife to testify in each other’s behalf, as well as their privilege not to testify against each other. People vs. Pansensoy, 388 SCRA 669 (Riano) Under this rule, 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. However, objections to the competency of a husband and wife to testify in a criminal prosecution against the other may be waived as in the case of other witnesses generally. The objection to the competency of the spouse must be made when he or she is first offered as a witness. In this case, the incompetency was waived by appellant’s failure to make a timely objection to the admission of his wife’s testimony. Either Spouse Must Be a Party to the Case As to the adverseness of the testimony, courts generally hold this to mean that the other spouse must be a party to the cause, not a third person who happens to be involved somehow in the case; otherwise the testimony does not hurt the other spouse’s legal interests. When Privilege Ceases After the death or the divorce of one spouse, the privilege ceases for the reason ceases. When the marriage is dissolved by death, there is no more marriage and therefore, the privilege can no longer be claimed. It has been held that no unfavorable inference may be drawn from a fact that a party spouse invokes the privilege to prevent the witness-spouse from testifying against him or her.

a. that the case in which the husband or the wife is called to testify is not a civil case instituted by one against the other b. that it is not a criminal case for a crime committed by one against the other Reason for the Exceptions The identity of interests disappears and the consequent danger of perjury based on that identity is non-existing. The security and confidence of private life which the law aims at protecting will be nothing but ideals which, through their absence, merely leave a void in the unhappy home. Ordono vs. Daquigan, 62 SCRA 270 (Riano) The Supreme Court ruled that the wife is allowed to testify against her husband who was accused of raping their daughter. It ruled that the correct rule is the one laid down in Cargill vs. State which held that, “The rule that the injury must amount to a physical wrong upon the person is too narrow. The better rule is that, when an offense directly attacks or directly and vitally impairs the conjugal relations, it comes within the exception to the statute…” People vs. Quidato Jr., 297 SCRA 1 (Riano) May a spouse testify in a trial where the spouse is a co-accused? The Court ruled in the affirmative but likewise held that the testimony of the wife in reference to her husband must be disregarded since the husband timely objected thereto under the marital disqualification rule. The Court explained that the disqualification is between husband and wife, but the rule does not preclude the wife from testifying when it involves other parties or accused. Hence, the wife could testify in the murder case against the brothers who were jointly tried with the husband of the witness. The Court stressed, however, 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 disqualification rule. “What cannot be done directly cannot be done indirectly.”

Exceptions Waiver of Privilege

Wigmore asserts that the privilege of objecting to testimony concerning anti-marital facts belongs to the spouse who is a party to the action and not to the spouse who is being used as a witness. This seems to be the rule in this jurisdiction. Hence, the right to object to the competency of one spouse pertains solely to the spouse-party and not to the other spouse who is offered as a witness. Bar 2006 (Riano) Leticia was estranged from her husband Paul for more than a year due to his suspicion that she was having an affair with Manuel, their neighbor. She was temporarily living with her sister in Pasig City. For unknown reasons, the house of Leticia’s sister was burned, killing the latter. Leticia survived. She saw her husband in the vicinity during the incident. Later, he was charged with arson in an Information filed with the RTC, Pasig City. During the trial, the prosecutor called Leticia to the witness stand and offered her testimony to prove that her husband committed the arson. Can Leticia testify over the objection of her husband on the ground of marital privilege? Suggested Answer Leticia cannot testify. Section 22 of Rule 130 bars her testimony without the consent of the husband during the marriage. The separation of the spouses has not operated to terminate their marriage. (Note: This is an answer based on the tenor of the Rules of Court.) The following answer should also be considered: Leticia may testify over the objection of her husband. Where the marital and domestic relations between her and the accused-husband have become so strained that there is no more harmony, peace, or tranquility to be preserved, there is no longer any reason to apply the Marital Disqualification Rule. (People vs. Castaneda, 271 SCRA 504; Alvarez vs. Ramirez, 473 SCRA 72) Section 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. Object and Purpose of the Rule This is to guard against the temptation to give false testimony in regard of the transaction in question on the part of the surviving party and further, to put the two parties to a suit upon terms of equality in regard to the opportunity to giving testimony. If one party to the alleged transaction is precluded from testifying by death, insanity, or other mental disabilities, the other party is not entitled to the undue advantage of giving his own uncontradicted and unexplained account of the transaction. The underlying principle of the prohibition and the reason for the same is to protect the estate from fictitious claims and to discourage perjury. Dead Man’s Statute (Riano) To level the playing field between the lucky survivor and the poor deceased, our remedial law ancestors devised a rule that would seal the lips of the survivor by declaring him incompetent to testify on the transaction between him and the deceased. The rule is definitely one that 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. Hence, the name Dead Man’s Statute. Requisites of the Disqualification a. that the witness is a party or assignor of a party to a case or of a person in whose behalf a case is prosecuted  It is only parties who assert claims against an estate who are rendered incompetent to testify. The word “parties” does not refer to the executor or administrator who is the party defendant. The term “assignor” of a party means assignor of a cause of action which has risen, and not the assignor of a right assigned before any cause of action has arisen. However, this rule does not operate to exclude the testimony which is favorable to the representative of the deceased or incompetent person.

b. that the action is against an executor or administrator or other representative of a deceased person, or against a person of unsound mind  The term “representative of a deceased person” has been interpreted to include not only the executor or administrator of a deceased person but also the person or party who has succeeded to the right of the deceased whether by purchase or descent or operation of law. Razon vs. IAC, 207 SCRA 234 (Riano) As held by the Court, the rule contemplates a suit against the estate, its administrator or executor and not a suit filed by the administrator or executor of the estate. A defendant who opposes the suit filed by the administrator to recover alleged shares of stock belonging to the deceased is not barred from testifying as to his transaction with the deceased with respect to the shares. Sunga-Chan vs. Chua, 363 SCRA 249 (Riano) Also when a counterclaim is set up by the administrator of the estate, the case is removed from the operation of the “dead man’s statute,” the plaintiff may testify to occurrences before the death of the deceased to defeat the counterclaim which is not brought against the representative of the estate but by the representative. c.

that the subject-matter of the action is a claim or demand against the estate of such deceased person or against such person of unsound mind  The words “claim or demand” mean any action or proceeding which may affect the real or personal properties of a deceased or insane person. They are restricted to debts or demand enforceable by personal actions upon which money judgments can be rendered. As to other actions against estates, no incompetency of witnesses exists. An action for damages for breach of an agreement to devise property for services rendered is a claim against an estate. Bar 2001 (Riano) Maximo filed an action against Pedro, the administrator of the estate of the

deceased Juan, for the recovery of a car which is part of the latter’s estate. During the trial, Maximo presented witness Mariano who testified that he was present when Maximo and Juan agreed that the latter would pay a rental of P20,000 for the use of Maximo’s car for one month, after which Juan should immediately return the car to Maximo. Pedro objected to the admission of Mariano’s testimony. If you were the judge, would you sustain Pedro’s objection? Why? Suggested Answer The objection of Pedro should not be sustained. The testimony is admissible because the witness is not disqualified to testify. Those disqualified under the dead man’s statute or the survivorship disqualification rule are parties to a case or persons in whose behalf a case is prosecuted. The witness is not one of those enumerated under the rule (Sec. 23, Rule 130, Rules of Court). d. that his testimony refers to any matter of fact which occurred before the death of such deceased person or before such person became of unsound mind  This refers to testimonies which relates to any matter of fact occurring before the death of the decedent or before the person became of unsound mind. The phrase “matter of fact” is literally interpreted to include not only facts tending to establish the claim or demand but also incidental facts. Negative facts are not included in the matters prohibited by law. The testimony of a plaintiff denying the occurrence of a transaction with the deceased may be admitted on the ground that such plaintiff does not testify to a fact “occurring before the death of the decedent” but on the contrary, that such fact has not occurred. Waiver A waiver occurs when plaintiff’s deposition is taken by the representative of the estate, when counsel for the representative cross-examines the plaintiff as to matters occurring during deceased lifetime. (Riano) The survivorship disqualification rule is intended to benefit the estate of the deceased or insane person, hence, this protection may be waived by:

a. failing to object to the testimony b. cross-examining the witness on the prohibited testimony (Santos vs. Santos, 366 SCRA 395) c. by offering evidence to rebut the testimony

Bar 2007 (Riano) True or False The surviving parties rule bars Maria from testifying for the claimant as to what the deceased Jose had said to her, in a claim filed by Pedro against the estate of Jose. Suggested Answer 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.

Sec. 24- Disqualification by reason of privilege 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;

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) 1. Source A. COMMUNICATION HUSBAND AND WIFE

BETWEEN

2. The rule -

The husband or the wife during of after the marriage, cannot b examined without the consent of the other as to any communication received in confidence by one from the other during the marriage.

3. Reason of the rule•

That the admission of such testimony would have a powerful tendency to disturb the peace of families

•

To weaken, if not destroy the mutual confidence upon which the happiness of the married state depends.

4. Requisite of the rule a. Spouses must be legally married

(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

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If they live together in illicit cohabitation, they are not entitled to the privilege

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It is immaterial whether they believed in good faith that they were married if in fact they were not.

considered confidential

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Only those communication, whether by word or deed, as pass from one to the other by virtue of the confidence resulting from their intimate relation. Only the knowledge which the husband and the wife obtains from the other which for the marital relation and the confidence growing out of it, would have been communicated, or which is of such nature or character as that to repeat the same would tend to unduly embarrass or disturb the parties in their marital relations.

c. Form of communication -

Applies to any form of confidence disclosure.

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Maybe words or conduct. e.i > letters from husband to the wife > wife saw husband counting stolen money and put it in his pocket.

5. Communication presumed confidential -

Marital communication presumed to be confidential, but the presumption may be overcome by proof that they were not intended to be private. 

Notwithstanding that one spouse subsequently without consent of the other disclosed such communication to a third person.

6. When communication between husband and wife cease to be confidential a. When made in the presence of a third person.  XPN: if the confidential communication is overheard by a third person still

be

as



the prohibition to testify is directed only to the wife and not to the third person so the latter cannot be prevented from testifying



XPN to XPN: if the third person comes into the possession of the communication by COLLUSION and VOLUNTSRY DISCLOSURE on either spouse, he becomes an agent of such spouse and cannot testify without the consent of the other.

b. The communication must be confidential and made during the marriage -

to

b. Communication intended for transmission to third person.  A letter written to the defendant by his wife and seized by the police in search of his effects on the day of his arrest is admissible because a privilege communication from one spouse to another comes into the hands of a third party, whether legally or not without collusion and voluntary disclosure on the part of either spouse , the privilege is thereby extinguished and if competent becomes admissible. 

Statements from the notes of a stenographer to whom the husband dictated the letter and who had transcribed it is admissible, because normally the husband and the wife communicate without a stenographer . here the communications have been voluntarily revealed.





Statements in the wife’s diary not shown to the husband is admissible. Those business and other communication not related to or dependent on mutual trust are not privilege. But sometimes business transaction between husband and wife are held privileged



Res gestae made in the presence of the spouse may be received.

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Testimony of the former wife as to the sanity of the husband who is charged with homicide is admissible.

7. Rule not applicable to dying declarationon the trial of the one who killed him. -

The widow is competent to testify on behalf of the defense regarding the dying declaration made to her by the deceased, considering the cause of death.

10. Anti-marital facts -

The spouse may not testify as to as to facts related to the crime she learned before they got married.

11. Incompetency as to anti0marital facts distinguished from incompetency as to privilege communication

Incompetency as to anti-marital facts Prohibits adverse testimony regardless of the source Exists only when a party to the action is the husband or wife Ceases upon death or either spouse

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This privilege may be waived if not objected to.

8. Duration of the privilege Continues in effect even after the marital relation has been terminated.

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This privilege is not affected by death of the other spouse or absolute divorce. 

But when the communication is needed in behalf of his estate, the surviving should be entitled to waive it.

9. Exceptions a. That the case in which the husband or the wife is called to examined is a civil case instituted by one against the other; or b.

a criminal case for a crime omitted by one against the other

Exists whether the husband or wife is a party to the action or not Continues even after the termination of the marriage.

12. Waiver of privilege



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incompetency as to privilege communication Prohibits only as to knowledge obtained through confidence or the marital realtio

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Objection to the admission is timely if made before the answer to the question for its revelation.

Privilege belongs to the communicating spouse. The prohibition arises only when the person in whose favor the privilege exist demands by timely objection to the testimony.

B. COMMUNICATION ATTORNEY AND CLIENT

BETWEEN

13. The rule -

The attorney could not be compelled, nor would be allowed to disclose the following:

a. the privilege communication made by the client to his attorney or his advice given thereon in the course of or with a view o professional employment





confidentiality is inferred and presumed until the contrary is shown there must be an existing attorney and client relation.

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There must showing that the parties agreed there is an employment ;or

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At least that he had consulted the witness to that end and the latter had not refused the employment





If a lawyer friend without express employment or hope of compensation, was asked by the accused while visiting that latter would plead guilty, the communication is not privilege. Communication in the ordinary intercourse is not privilege.

b. any fact the knowledge of which has been acquired by the attorney’s secretary, stenographer or clerk, in their respective capacity.

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It is not essential to create the privilege that any proceeding or civil, should be pending or even in contemplation. The attorney may testify or communication not privilege: a. that his client did not communicate certain things to him b. as to the residence of client c.

as to the circumstance surrounding the drawing of the will and the conversations had with the testator at the time

d. attorney employed merely to act as scrivener e. copying a will f.

preparing leases

assignments

or

g. attorney witness

acting

h. notary public procure a loan

as

as

attesting

agent

to

i.

manager of client’s property

j.

acting as intermediary between members of a family

k.

as to corporation affairs when the attorney is elected as a director

l.

identification of the copy of the by-laws

AS A GENERAL RULE A LAWYER MAY NOT REFUSE TO DIVULGE THE IDENTITY OF HIS CLIENT; RATIONALE. — As a matter of public policy, a client's identity should not be shrouded in mystery. Under this premise, the general rule in our jurisdiction as well as in the United States is that a lawyer may not invoke the privilege and refuse to divulge the name or identity of his client. The reasons advanced for the general rule are well established. First, the court has a right to know that the client whose privileged information is sought to be protected is flesh and blood. Second, the privilege begins to exist only after the attorney-client relationship has been established. The attorney-client privilege does not attach until there is a client. Third, the privilege generally pertains to the subject matter of the relationship. Finally, due process considerations require that the opposing party should, as a general rule, know his adversary. "A party suing or sued is entitled to know who his opponent is. He cannot be obliged to grope in the dark against unknown forces. (Regala vs. SandiganBayan, G.R. No. 105938) EXCEPTION; WHEN THE CLIENT'S IDENTITY IS PRIVILEGED. — The general rule is, however, qualified by some important exception. 1) Client identity is privileged where a strong probability exists that revealing the client's name would implicate that client in the very activity for which he sought the lawyer's advice. 2) Where

disclosure would open the client to civil liability, his identity is privileged. 3) Where the government's lawyers have no case against an attorney's client unless, by revealing the client's name, the said name would furnish the only link that would form the chain of testimony necessary to convict an individual of a crime, the client's name is privileged. Apart from these principal exceptions, there exist other situations which could qualify as exceptions to the general rule. For example, the content of any client communication to a lawyer lies within the privilege if it is relevant to the subject matter of the legal problem on which the client seeks legal assistance. Moreover, where the nature of the attorney-client relationship has been previously disclosed and it is the identity which is intended to be confidential, the identity of the client has been held to be privileged, since such revelation would otherwise result in disclosure and the entire transaction. Summarizing these exceptions, information relating to the identity of a client may fall within the ambit of the privilege when the client's name itself has an independent significance, such that disclosure would then reveal client confidences. (Regala vs. SandiganBayan, G.R. No. 105938)

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 When is communication not privilege: 1. No professional relation exist the time the communication was made but subsequently employs the atty in relation to such statement 2. those voluntarily made after the attorney refused to accept employment -

Based on upon the ground of public policy

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To encourage clients to make full disclosure of facts in the interest of the administration of justice

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Intended to enable a client to place unrestricted and unbounded confidence in his attoryney in matters affecting his rights and obligations without danger of having disclosures forced from the attorney on the witness stand.

15. Requisite of the rule a. Professional employment -

The atty-client relationship must exist at the time the communication is made.

for the claim of this privilege it is not necessary that the attorney sought to be prevented from testifying be in active practice.

b. Communication by client to attorney -

The privilege is not confined to verbal or written communications but extends to other means of communications.

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It is necessary that the communication is confidential and be intended as confidential otherwise if confidence was not contemplated then the testimony of the attorney or client may be compelled.

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It is held that there is no privilege in cases where abstract legal opinions are sought and obtained on general questions of law, either civil or criminal because no facts are disclosed so nothing confidential of character to conceal.

c.

Communication must have been made to the attorney in the course of professional employment or with a view or professional employment or in hi professional capacity

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A communication to an attorney us said to be in “his professional capacity” when the client makes the same with the purpose of obtaining from hi a legal advice and opinion concerning his legal rights, obligation or duties relative to the subject matter of communication.

14. Reason for the rule -

Test whether the communications are made to an attorney with a view to obtaining professional assistance or advice- if so, then privilege.

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It must be related to which the attorney is consulted or to put him in possession of information to ebale him to properly and intelligently serve the client. Privilege also applies to agents and a consultaion with an agent in the attorney’s office.

testifying and not to leave his client without proper representation

17. Privilege not applicable to attorney who is subscribing witness to his client’s will -

Attorney may testify to the attending circumstances of the execution of his client’s will.

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1. An inquiry made of a friend who is not an attorney

The testator waives privilege as to his attorney’s testimony concerning testamentary communication.

2. Consultation with e.i clerk of court, deputy sheriff an unadmitted law student

18. Communication made to judges are privilege

 When privilege does not apply

3. The attorney cannot testify to the fact the he had received silver coin as part of his retainer from a client who is accused for stealing a quantity of current silver coin. 4. Those information obtained by a detective posing as an attorney of celebrity is excluded by court (PP v. Barker) 5. Sidewalk advice from attorney upon legal questions do which no compensation is asked or expected and none given except a luncheon should not be regarded as privilege. 6. Those communication between an attorney and witness for the client to show that the attorney attempted to corrupt or influence a witness to color his testimony in favor of the accused.

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The principle is not affected by the fact that the attorney in this case was also a judge. The fact that he occupied that position gave an increased weight to his advice.

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It is in the nature of the confidence which exist between the client and the attorney.

19. Communications to an attorney as a public officer to enable the latter to act in that capacity not privilege -

Because a complaint made to a prosecutor will usually be made for the purpose of inciting public prosecution and not for the protection of the complainant’s rights.

20. Communication for unlawful purpose not privilege -

Those for the purpose is to commit a crime partakes of the nature of conspiracy or attempted conspiracy

16. Privilege applicable to counsel de oficio -

A counsel de oficio cannot testify in open court without the consent of his client as to any fact imparted by h, to his client in professional consultation.

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It is not unlawful to divulge such communication and under some circumstances it is the duty of the attorney to do so.

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Even if the consent is obtained, it is his duty to ask first to be relieved and have another attorney take his place before

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Communication is not privilege where the client seeks advice that will enable him to pertpetrate a fraud.

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The attorney’s ignorance of his client’s intentions deprives the information of a professional character as full confidence has been withheld. But where a contemplated act is criminal only if committed under certain circumstances or with a certain intent and such circumstances or intent are not shown to be present, the lawfulness of the act will be presumed and the privilege will hold.

22. When an attorney may be compelled to produce or disclose the contents of a document entrusted to him by his client -

If the documents are not privilege while in the hands of the client he cannot make them privilege by placing them in possession of his counsel

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An attorney cannot be compelled cannot order the opening of the art metal filing cabinet it having proven that it belongs to the attorney and that he keeps records and documents of his client there.

21. Communication by a client to his attorney in the presence of, or overheard by third persons not within the privilege -

This contemplates a situation where the third party is not an agent of either client or attorney.  who are considered as agent, presence of which does not negate the confidential nature of the communication

23. Privilege not applicable to actions brought by client against attorney -

Because if the attorney is not allowed in such case to disclose confidential communications of his client he will suffer manifest injustice.

24. To whom privilege belongs

1. Interpreter 2. Agent of the client

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The privilege belongs to the client and he alone can invoke it.

3. Parent of the client who is a child.

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He may claim not only when his attorney is called to disclose professional communicatios but also when he himself is asked to make disclosure.

4. Representative attorney

of

an

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The privilege exists if the client if not notice the presence of the third person overhearing the communication

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When the privilege belongs to two or more client, the consent of each is essential to constitute waiver.

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Third person foreign to the relation are competent to testify to the communications they overheard.

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Where the communication was made for the purpose of having the attorney tell others, it was not a privileged communication

In a criminal trial, the court may interpose of its own motion for the protection of an accused who is entirely ignorant of his rights to remain silent when he is called to state what he said to is attorney.

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An employee of a corporation who was also stenographer where such counsel may give evidence as to corporate correspondence where such evidence did not come from her relationship with corporation attorney

Duration of privilege: Continues even after the relation of client and attorney is terminated, the seal of the law once fixed upon them remains forever, unless removed by the party himself in whose favor it is there placed. Waiver of privilege: either be express or implied Result: the attorney may give in evidence matters confidentially communicated either for the purpose

of giving evidence in chief or purposes of impeachment Implied waiver consists of: a) Clients failure to object to attorneys testimony b) In giving evidence on the privilege communication c) When privilege communication falls on the hands of the adverse party d) In calling or cross examining his attorney regarding privileged communication The clients representative may, waive the privilege, but only when the application of the rule would be disadvantageous to his estate. The waiver of the right precludes the assertion of the right upon appeal or upon subsequent trial of the case but does not constitute a waiver of the privilege in another independent transaction. COMMUNICATION BETWEEN PHYSICIAN AND PATIENT (curative, preventive or palliative treatment) Privilege is intended to facilitate and make safe, full and confidential disclosure by patient of all facts, circumstances and symptoms, untrammeled by apprehension of their subsequent and enforced disclosure and publication on the witness stand -to the end that the physician may form a correct opinion and be enabled safely and efficaciously to treat his patient -lend a sense of security and confidence to the relation of patient and physician so that the patient will not be reticent about making disclosures which may be material to his physical welfare Requisites for the rule to apply: a) Action in which the Advice or treatment given or any information be in a civil case b) Physician and patient relations existed c) Information was acquire while professionally attending the patient d) Information was necessary for the performance of his professional duty e) Disclosure of the information would tend to blacken the reputation of the patient Limited to civil cases only: in criminal cases the privilege does not apply for the maintenance of public order and the life and liberty of the citizens are deemed more important than the purpose for which the privilege was created - Not conferred to shield/ weapon to be used by a person charged with crime Not indispensable that the patient should have actually employed the physician, surgeon or obstetrician. May be applied in extremis in view to a curative treatment any information obtained by him for that reason is privilege

Privilege cannot be extended by construction to persons employing curative processes not coming within the ordinary meaning of the term practice of medicine, surgery or obstetrics. Communications made by a patient to dentist, pharmacists, and nurses who are not acting as agents of physicians, surgeons, or obstetrics are not privileged. Covers all facts learned by the observation and by all methods necessary to enable the physician to prescribe, including communication by the physician by third person on behalf of the patient to enable him to perform his professional duty. Communications of the body, observation of symptoms, results of the doctors examination, the patient’s condition as fund by the doctor, the name of the ailment, the nature of any operation performed, the statement of facts or opinion given to the patient. Including opinions and prescriptions. The attending physician may not testify even though employed as an expert witness by the other side. Privilege includes examination of patients employed by a third party in order for the physician to report to his principal and to the efficacy of certain treatment, being given by other physicians. X-ray plates and radiographs are considered privilege including the oral communications or observations made or had for the purpose of enabling the physician to treat or prescribe for his patient. Where information is clearly immaterial to the patient’s treatment, it cannot be considered privilege, but if it was obtained from observation and inspection of the patient’s body, privilege applies regardless of whether or not such information was necessary for the treatment. Tend to blacken his reputation- which might bring reproach or disgrace upon the patient. Privilege rests upon the person objecting and must show that relation of physician and patient existed. The court not the physician determines whether the physician must testify, court may hold preliminary hearing to determine circumstances. Not the duty of the court to require physician to testify. After the patient has gone to his grave, the living are not permitted to impair his name and disgrace his memory. An express waiver maybe made by the patient himself, or the deceased person’s

representative or the beneficiary of the insurance policy. Also by giving express consent, to the testimony of the physician, or by calling the physician to testify as to the privilege matter. The guardian of the minor may also give his consent provided that it is not to the minor’s prejudice. Implied waiver is found when the patient himself takes the stand to testify about his physical condition, including the sending of a physician’s certificate of a cause of death, as part of the proofs of death required by a life insurance policy. Once the waiver is made, such waiver is final and cannot be recalled. Privilege is not waived by the patient in making voluntary disclosure outside the court. Where the waiver is procured by fraud or coercion, the waiver is not effect and the privilege may not be claimed. Privilege not applicable where patient brings action against physician, for is a patient makes public in a court of justice the occurrences of the sickroom, for obtaining a judgment for damages against his physician , he cannot shut out the physician himself not any other who was present at the time covered by the testimony. By his voluntary act he breaks down the barrier and the professional duty of secrecy ceases. COMMUNICATION BETWEEN MINISTER OR PRIEST OR PENITENT REASON: To compel a minister or priest to testify to a confession to him by a peninet is equivalent to an annulment of the confessional institution, for many would no longer make confessions, not done by government where religious tolerance is sanctioned by law. The privilege covers only confessions of a penitential in their character, confessions of sins with a view to obtaining pardon and spiritual advice or assistance, to clergymen in obedience to some supposed religious duty or obligation and do not embrace communications clergymen, however, confidential, when not made in connection with or in discharge of some such supposed religious duty or obligation; or when made to them while in discharge of duties other than those which pertain to the office of a clergyman. Communications made not in the course of religious discipline but in the contemplation of a crime, are not privileged. Accuse met the priest on a railroad train and with no intent to secure his professional advice, assistance or consolation, told his story

incriminating himself, it was held that the communication was not privileged. Prosecution for the crime of bigamy that the statements made by the accused to a priest who was to communicate them to the first wife, to induce are not privileged. A communication to a priest made otherwise than in his ecclesiastical capacity is not privileged. Confession must be made in the profession character of the priest and in the course of discipline enjoined by the rules of practice of the denomination to which the priest or minister belongs. Not including statements made by a church member in the presence of his minister and fellow members. There can be no privilege, where a minister is consulted, but as a notary or a friend and interpreter, Determination through the question from the circumstances and facts leading up to the making of the confession, disclosure should not be required unless it appears that the claim of privilege is erroneously made. Waiver of privilege when a penitent to the extent of giving evidence of what took place at the confessional he cannot complaint of evidence which goes no further to established the facts revealed by him. Exceptions to the rule: 1) Policy of the state requires the disclosure 2) Innocent party is charged with a crime, conviction for which he can escape only by a disclosure of facts given in the confessional 3) Clergyman receiving the confession is authorized to testify by the person confessing 4) Disclosure is necessary in order to prevent an impending crime Canon 1757: The following are excluded as incapable of witnessing. Priests, in whatever concerns any knowledge they may received through sacramental confession, eventhough they may have been released from the obligation of the seal, even more, anything whatsoever heard by anyone, or in any way in the confession may not be accepted as even an indication of the truth. PUBLIC OFFICERS AND PUBLIC INTEREST Reason for the rule: It is the duty of every citizen to communicate to his government any information which he has of the commission of an offense against the law;

and a court of justice will not compel or allow such information to be disclosed, either by the subordinate officer to whom it is given, by the informer himself or by any other person without the permission of the government. The evidence being excluded not for the protection of the witness or of the party in the particular case, but upon general grounds of public policy, because of the confidential nature of such communication. Public interest means more than mere curiosity, something in which the public, the community at large, has some pecuniary interest by which their legal rights or liabilities are affected. COMMUNICATIONS to public officials: privilege applies to communication to such offers only as have a responsibility or duty to investigate or to prevent public wrongs, and not to officials in general. The law recognizes the duty of every citizen to communicate to the government and to its officers such information as he may have concerning the commission of offenses against the laws. Purpose: for encouraging the performance of their duties without fear of consequences, a witness cannot be compelled to disclose the names of persons by whom and to whom information had been given which led to the discovery of the offense. Communications between officials: covers matters not ordinarily made public in the course of their duties, and whom their disclosure would tend to injure seriously the welfare of the State. Privilege can be recognized in matters involving data upon the National Defense or upon international negations pending. Courts will not compel the disclosure of state secrets by the other departments of the government in ordinary judicial proceedings, or require the publication of a state document that may involve the danger to the nation or of communications between government of a confidential nature. Privilege does not apply: Disclosure will be compelled When what is asked is useful evidence to vindicate the innocence of an accused person, Or lessen the risk of false testimony, Or is essential to the proper disposition of the case Or the benefit to be gained by a correct disposition of the litigation was greater than any injury which would inure to the relation by disclosure of the information

Disclosure of the name of the informer maybe necessary in a case where the accused claims he is the victim of false accusations by an enemy Or where he claims he is the victim of a groundless arrest or persecution by the police OTHER PRIVILEGED MATTERS Editors may not be compelled to disclose the source of published newsThe publisher, editor or duly accredited reporter of any newspaper, magazine or periodical or general circulation cannot be compelled to reveal the source of any news report or information appearing in said publication unless the court or a house of committee of congress finds that such revelation is demanded by the security of the state. Voters may not be compelled to disclose for whom they voted to protect legal voters in the secrecy of ballot The practice compelling qualified electors to disclose for whom they voted has long been condemned as a kind of inquisitorial power unknown to the principles of a free government. An illegal voter may decline to answer for whom he voted, on the ground that his answer might incriminate himself, but in such case the contents of the ballot maybe shown by other testimony. + TRADE SECRETS There is a privilege not to disclose ones’ trade secrets. It covers usually formulas of manufacture, but may also include price lists and customer’s lists. It is not absolute; the trial court may compel disclosure where it is indispensable for doing justice. +Tax census returns +Bank Deposits- all bank deposits are absolutely confidential and may not be examined, inquired or looked into except in those cases enumerated therein -Anti Graft -unexplained wealth is similar to cases of bribery or dereliction of duty

2. Testimonial Privilege Section 25.Parental and filial privilege. — No person may be compelled to testify against his parents, other direct ascendants, children or other direct descendants.

Scope: The former filial privilege taken from Art. 315 of the Civil Code was expanded to include other direct ascendants and to exempt parents from being compelled to testify against their children or other direct descendants.

Reason of the rule: To preserve “family cohesion”.

guilt of the accused or of criminal intent to commit the offense with which he is charged. Confession: a declaration made at any time by a person, voluntary and without compulsion or inducement, stating or acknowledging that he had committed or participated in the commission of a crime. THE UNITED STATES, vs. JOSE CORRALES G.R. No. L-9230, Nov. 10, 1914

When privilege may be invoked: the privilege may now be invoked in both civil and criminal cases. 3. Admissions and Confessions Section 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. 1. Admission defined. An admission is a voluntary acknowledgement in express terms or by implication, by a party interest or by another by whose statement he is legally bound, against his interest, of the existence or truth of a fact in dispute material to the issue.

2. Admission Classified. Admission may be classified into judicial, extra-judicial, express and implied. Express admissions- made in express terms and of the very fact in issue or in dispute. Implied admissions- those which result from an act done or undone.

3. Certainty. An admission should possess the same degree of certainty as would be required in the evidence which it represents, and hence mere conjectures or suggestions as to what might have happened are not competent. 4. Admission confession.

distinguished

from

Admission: usually applied in criminal cases to statements of fact by the accused which do not directly involved an acknowledgement of the

But a distinction must be made between confessions and admissions. A confession, as distinguished from an admission, is a declaration made at any time by a person, voluntarily and without compulsion or inducement, stating or acknowledging that he had committed or participated in the commission of a crime. The term admission, on the other had, is usually applied in criminal cases to statements of fact by the accused which do not directly involve an acknowledgment of the guilt of the accused or of criminal intent to commit the offense with which he is charged. The statutory provision excluding evidence as to confessions until and unless the prescribed foundation is laid not applicable to admissions, which do not amount to confessions although they may be sufficient, when taken together with other evidence of surrounding circumstances to sustain an inference of the guilt of the accused. The reason for the rule excluding evidence as to confessions unless it is first made to appear that they are made voluntarily does not apply in cases of admissions, although, of course, evidence of the fact that a particular statement was made under duress would tend very strongly to destroy its evidentiary value.

5. Admission distinguished declaration against interest. Admission:

from

Primary evidence; Receivable when declarant is available as witness; Competent declarant is a party to the action.

only

Declaration against interest: Secondary evidence;

when

Receivable only declarant is unavailable as witness;

when

Competent even if declarant is not a party to the action.

6. Admission distinguished from contradiction. Admission is for a party-opponent.

self-

Self-contradiction is to witness- a statement made somewhere else, and inconsistent with his allegations of claim or defense in the case on trial. 7. Relevancy and materiality. In order that a statement offered as an admission may be received it must, at the time when it is offered be relevant to, and have a material bearing on the issues in the case.

ADMISSION BY ACT Admission implied from conduct or utterance of a party. GENERAL SHIPPING CO., INC., vs. WORKMEN'S COMPENSATION COMMISSION G.R. No. L-14936 July 30, 1960 The record also shows that the company has voluntarily paid a part of the compensation, which circumstances likewise indicates admission of the compensability of the claim, (Bachrach Motor Co. Inc. vs. Domingo Panaligan, 99 Phil., 238; 52 Off. Gaz., [7] 3583). The above facts are admissions against interest and admissible in evidence against the respondent company (Sec. 7, Rule 123, Rules of Court). There may be no other evidence presented by the claimant but the admissions of the company as above-indicated together with the causes stated in the claim, are sufficient evidence to sustain the decision sought herein to be set aside. The finding that the claim is compensable involves an exercise of discretion by the Workmen's Compensation Commission and the same should not be disturbed on appeal because there is no abuse thereof. ADMISSION BY DECLARATION

It may be introduced in evidence in two ways: a) as independent evidence, and b) as impeaching evidence. a) As independent evidence- admission are original evidence and no foundation is necessary for their introduction of evidence. i. Oral Admissions. Admission was made orally, it may proved by any competent witnesses who heard them. PEOPLE OF THE PHILIPPINES, vs. JOSEFINA N. SAMSON, G.R. No. L-14110 March 29, 1963 The appellant claims that there is no competent evidence that the victim and the appellant were husband and wife. The claim is without merit. The testimony of the appellant on direct examination disclosed several times that she was married to the deceased in both “Church and civil marriages.” On cross examination, she testified on the exact date of her marriage to the deceased (4 July 1934) and the place (Pili, Camarines Sur) where they were married. She did not only admit that the deceased was her husband but also brought out the fact that out of the marriage they had five children and that only three are living, namely: Glenda, Manuel and Felix. Indeed, there could be no better proof of marriage in a parricide case than the admission by the accused of the existence of such marriage. More, Ramon M. Velasco, mayor of Libon, Albay, and uncle of the deceased testified that when he saw the appellant in the afternoon of 13 October 1954 at the municipal jail, she immediately begged for his forgiveness and told him that she had shot her husband Pepe (referring to the deceased) because the latter had a mistress and she could not bear or suffer it any longer. Admission made over telephone. An admission made in a telephone conversion may be proved, where the witness identified the speaker by his voice or otherwise, and there is no doubt as to the identity of the person who made the admission. Admissions made through interpreter. A competent oral admission may be made through an interpreter, where such method of conversation is, in some manner, voluntarily adopted by the parties.

i.

Written Admissions. When the admission is in a private document, there must be some proof of the authenticity or identity of the document in accordance with Section 20, Rule 132 of the Revised Rules of Court, that is, the party offering it must prove its due execution and authenticity.

Admission made in letters. Where the statement offered against a party is in the form of a written declaration, such admissions requires greater weight than mere verbal admissions. Admissions made in documents or memoranda.

MUNICIPALITY OF OAS, vs. ROA,G.R. No. L-2017 November 24, 1906 The two statements signed by Roa, one in 1892 and the other in 1893, are competent evidence against him. They are admissions by him to the effect that at that time the pueblo was the owner of the property in question. They are, of course, not conclusive against him. He was entitled to, and did present evidence to overcome the effect of these admissions. The evidence does not make out a case of estoppel against him. (sec. 333, par. 1, Code of Civil Procedure.) The admissibility of these statements made by Roa do not rest upon section 278 of the Code of Civil Procedure, which relates to declarations or admissions made by persons not a party to the suit, but it rests upon the principle that when the defendant in a suit has himself made an admission of any fact pertinent to issue involved, it can be received against him. EVANGELISTA, vs. BASCOS, ET AL., G.R. No. 2332, November 10, 1905. The evidence does not show that he has any documentary title to any of the land. He introduced in evidence a paper, executed by the principales of the town in 1860, which purported to give him and Leonardo Evangelista the ownership of a certain tract of land in said barrio for the purpose of cultivating the same. The title to this land could not have been granted by this instrument, because the persons executing it had no power to convey it.

There is nothing in the description contained in this document which indicates that it is the same land described in the complaint in this action. The Plaintiff, however, testified that it was, and that he had been in possession thereof from 1860 to 1902, when he was dispossessed by the Defendants. There is no other evidence in the case which relates to any of the Defendants except to the Defendant Tranquilino Bascos. As to him the Plaintiff introduced in evidence a document signed by Bascos in May, 1893. This document stated that the tract of land for which Bascos had obtained the deed from the State had been returned by him to its former owner, the Plaintiff. It showed that the Defendant Bascos had not delivered the possession of this land to the Plaintiff, and his claim is that he was induced to sign the document by reason of threats made at the time by the parish priest of the locality. It is claimed by the Plaintiff that this document operated as a transfer of the title of the land from the Defendant Bascos to the Plaintiff. We do not think that it can be given any such effect. It amounted, in our opinion, only to an extrajudicial admission that the Plaintiff was the owner of the land. It was competent for the Defendant to overcome the effect of this admission by evidence showing that the Plaintiff was not in fact the owner of the land, and the evidence produced by the Defendant did, in our opinion, prove that the Plaintiff was not the owner. ASUNCION GEFES, vs. SALVIO, ET AL., G.R. No. L-11387, February 7, 1917 The fact is indisputable that these lands did not belong to the defendant, and if he bought them at public auction in December, 1908, for P661, he did so with his wife Asuncion’s own money. This is evidenced by Exhibit A, a document signed by the said Salvio before the notary Nicolas Tomas on March 27, 1909, in which he clearly sets forth that the said sum of P661, Philippine currency, which he paid for the properties above-mentioned, belonged to the private funds of his wife Asuncion Gefes. He furthermore declared in the said document that she was the true and absolute owner of the said lands by him purchased out of his wife’s funds and in her behalf. This document was ratified before a notary and attests the truth of all its contents, even against third persons. The defendant’s denial of its authenticity is not supported by any reliable evidence, nor by the affidavit (record, p. 75) presented for the purpose of obtaining a reopening

of the case. Furthermore, it is to be noted that the defendant Salvio cannot be heard to repudiate what he solemnly declared in a notarial document. Admissions made in previous case. THE UNITED STATES, vs. CHING PO G.R. No. L7707, December 6, 1912. The procedure in criminal cases in the Philippine islands provides that a defendant in a criminal proceeding may be a witness in his own behalf. When he avails himself of this right, he is subject to a rigid cross-examination and is bound by his admissions, voluntarily given, in such examination. His admissions are presumed to be given voluntarily and when thus given on a previous trial, they may be used against him in a subsequent cause. In the Matter of the Estate of JOAQUINA MIJARES DE FARInAS. - ENRIQUE DE LA VEGA, vs. VICENTE LAVIN G.R. No. L-4878February 27, 1909 Later in the proceedings an answer was presented in her behalf. In this she stated that what she declared when asked to recognize the authenticity of the documents was that her deceased husband owed Lavin 1,171 pesos and not 1,233 pesos. It does not appear that she signed this answer. It may have been signed by her solicitor. Under these circumstances the contents of the answer can not be considered as admissions made by her which could be used as evidence against her in another proceeding entirely disconnected with the subjectmatter of the proceeding in which the answer was made. There is, therefore, nothing in the proceeding of 1894 which proves either the existence of a debt from the husband Paulino Lavin or any recognition of such supposed indebtedness by the deceased. b) As impeaching evidence- if proof of the admissions is sought for impeachment purposes, a proper foundation must be laid for the impeaching questions, by calling the attention of such party to his former statement so as to give him an opportunity to explain before such admissions are offered in evidence. JUAN YSMAEL & CO., INC., vs.NAGEEB T. HASHIM and AFIFE ABDO CHEYBAN GORAYEB G.R. No. L-26247, March 18, 1927 The third assignment of error cannot be sustained. In offering in evidence the testimony given by Mr.

Hemady and the Hashims in the earlier case, the defendant-appellant did not claim that said testimony contained admissions against interest by the parties to the action or their agents; if such had been the case, the testimony would have been admissible without the laying of a foundation and without the witnesses having testified in the case at bar. But the purpose of the offer of the testimony was evidently to impeach the testimony of the same witnesses in the present case and if so, a foundation should have been laid by calling the attention of the witnesses to the former statements so as to give them opportunity to explain before the statements were offered in evidence. UNITED STATES, vs. JOSE I. BALUYOT G.R. No. L-14476, November 6, 1919 It is almost universally accepted that unless a ground is thus laid upon cross-examination, evidence of contradictory statements are not admissible to impeach a witness; though undoubtedly the matter is to a large extent in the discretion of the court. ADMISSION BY OMISSION An admission may be implied from an omission. GUTIERREZ RIVAJanuary

HERMANOS, vs. 12, 1909, G.R.

DE LA No. 4604

The plaintiffs having been made it at a certain rate and having notified the defendant thereof it was clearly his duty to object to the rate if he was not satisfied with it. As is seen, he made no objection whatever at the time, and as far as appears never made any objection until he filed his answer herein. The evidence is sufficient to show that he assented to the rate at which the change was made. The judgment of the court below with reference to this objection must be sustained. People v. Belendrez, et al. 47 O.G. 5134 Delay in instituting a criminal prosecution unless satisfactorily explained, creates suspicion about the motive of the supposed offended party and gives rise to reasonable doubt of the guilt of the defendant. CONSTRUCTION, CONCLUSIVENESS WEIGHT OF ADMISSIONS

AND

Construction of admissions- Every admission is to be taken as an entirety of the fact which makes for

the one side with the qualifications which limit, modify or destroy its effect on the other side. Admission not conclusive evidence- The general rule is that admissions are not conclusive when proved, but maybe disproved by ordinary evidence. This rule is not affected by the fact that the admission was made under oath as a witness or otherwise. Weight to be given to evidence of admissions may depend upon various matters affecting its accuracy. SELF-SERVING DECLARATIONS Self-serving declarations are unsworn statements made by the declarant out of the court and which are favorable to his interests. Self-serving declarations are not admissible in evidence as proof of the facts asserted, whether they arose by implications from acts and conduct or were made orally or reduced in writing. Objections: hearsay character; untrustworthy declarations, open door to fraud and perjuries. Death does not render self-serving declarations admissible.

LIM-CHINGCO,vs. TERARIRAY, ET AL., G.R. No. 2123, October 3, 1905 Plaintiff also offered in evidence another written document, which was a protest made by the defendants against this inventory, on the ground that it did not include the land in question. The court refused to admit this document, to which the plaintiff excepted. The claim of the plaintiff is that the inventory made by the executor contained the same lands as those described in the will of Marcelo, and consequently that the protest made by the defendants was an admission that the will did not describe these lands. It does not appear from the evidence in the case that the lands described in this inventory are the same as those described in the will. There was no error in this ruling. PEOPLE OF THE PHILIPPINES, vs. BEDIA,G.R. No. L-2252, May 31, 1949 Appellant's defense hinges on the jamming of the deceased's pistol. His theory is that the deceased failed to fire his pistol because it jammed when he attempted to fire the first shot against appellant. It appears, however, upon expert testimony on record, that the jamming of the firearm was due not to any mechanical defect but to intentional insertion of a bullet from the outside into the pistol's barrel. The fact that the appellant had experience in handling firearms and the fact that it took him more than the necessary length of time from the moment he took

the pistol of the deceased to the moment when he presented it to the authorities together with his own, lay strong grounds for the belief that appellant concocted the jamming of the pistol so as to enable him to present in court a self-serving evidence. THE GOVERNMENT SERVICE INSURANCE SYSTEM, vs. CUSTODIO,G.R. No. L-26170, January 27, 1969 As to the appellants' having repudiated their signatures, the same was a self-serving act, more indicative of a belated intention to squirm out of a disadvantageous transaction, after they entered it with open eyes, which is no ground for setting the same aside (Noble vs. City of Manila, 67 Phil. 1). Certainly, it should take much weightier proof to invalidate a written instrument (cf. Mendezona vs. Phil. Sugar Estates, 41 Phil. 493; Bank of the Phil. Is. vs. Fidelity Surety Co., 51 Phil. 57). Persons whose unsworn declarations in behalf of a party are not admissible in favor of the latter are: 1) agents, as regards their principal; 2) a guardian, as regards his ward; 3) a co-defendant or co-partner, as regards the other; 4) a principal, as regards his surety; 5) a husband or wife, as regards his or her spouse; 6) an employee, as regards his employer; 7) officers of the corporation, as regards the corporation; 8) a public officer, as regards a public corporation; and 9) predecessors in title, as regards an owner of the property. PEOPLE OF THE PHILIPPINES, vs.AURELIO ALVERO (alias RELI) G.R. No. L-820, April 11, 1950. As a rule, diaries are inadmissible because they are self-serving in nature, unless they have the nature of books of account (51 L. R. A. [N.S], 813-815); but it has also been held that an entry in a diary being in the nature of a declaration, if it was against interest when made, is admissible. Self-serving declarations made by a party are admissible in his own behalf in the following cases: 1) when they form part of res gestae, including spontaneous statements, and verbal acts; 2) when they are in the form of complaint and exclamation of pain and suffering; 3) when they are part of a confession offered by the prosecution; 4) where the credibility of a party has been assailed on the ground that his testimony is a recent fabrication, provided they were made at a time when a motive to misrepresent did not exist; 5) When they are offered by the opponent.

6) When they are offered without objection, the evidence cannot afterward be objected to as incompetent.

In criminal cases, an offer of compromise by the accused may be received in evidence as an implied admission of guilt.

PEOPLE OF THE PHILIPPINES, vs. DEMIARG.R. No. L-15130, May 31, 1960

When offer of compromise in criminal cases not an implied admission of guilt

It is also contended for appellant that the trial court erred in admitting appellant's letter to his brother-inlaw Lope Mayol (Exh. A) and that there is nothing in the letter which would show that appellant admitted his guilt. Appellant argues that, instead of considering said letter as evidence indicative of his guilt, the trial court should have considered it in his favor, because he disclaimed therein asked forgiveness from his sisters and begged them to testify that their mother died of natural illness and not of strangulation, we fail to see why said statements could not be taken as an admission of appellant's guilt. As to the argument that said letter should have been considered in appellant's favor, it may stated that self-serving statements made extrajudicially cannot be admitted as evidence in favor of the person making them, although the incriminating statement is evidence against him.

Jurisprudence: U.S vs. Torres (34 Phil. 994)

Section 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.

No compromise questions shall be valid:

In criminal cases, except those involving quasioffenses (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.

In criminal cases where compromise is allowed by law, as in opium or usury cases, no implied admission of guilt arises against the accused who makes an offer to compromise. The Collector of Internal Revenue may compromise any civil or other case arising under the Tax Code or other law or part of law administered by the Bureau of Internal Revenue. Similarly, in criminal cases involving quasioffenses (criminal negligence) an offer of compromise does not constitute an implied admission of guilt. Civil Code provisions on compromise upon

the

following

 

The civil status of persons The validity of a marriage or a legal separation



Any ground for legal separation



Future support



The jurisdiction of courts



Future legitime

Payment of medical and similar expenses The traditional ground for this rule is that the payment or offer is usually made from the humane impulses and not from an admission of liability.

Compromise defined Compromise is an agreement made between two or more parties as a settlement of matters in dispute.

Section 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.

Offer of compromise in civil cases

General rule:

An offer to compromise in civil cases does not amount to an admission of liability. It is not admissible in evidence against the offeror.

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

Offer of compromise in criminal cases

irrelevant and that in justice a person should not be bound by the acts of mere unauthorized strangers. Exceptions:



Reason for the rule

 

Admission by a co-partner Admission by an agent



Admission by joint owner or debtor or one jointly interested



Admission by conspirator



Admission by privies

Section 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. Requisites for the rule

As a general rule parties are not chargeable with the declarations of the agents, unless such declarations or statement are made during the transaction of business by the agent for the principal and in relation to such business, and while within the scope of agency. In other words, what is so done, by an agent, is done by the principal through him, as a mere instrument. Admission by joint owner, joint debtor, or other person jointly interested with the party 





Admission by partner  



That the partnership be previously proven by evidence other than the admission itself That the admission refers to a matter within the scope of his authority That the admission was made during the existence of the partnership

Reason for the rule The admissions of one partner are received against another, not on the ground that they are parties to the record, but on the ground that they are identified in interest, and that each is agent for the other, and that the acts or declarations of one during the existence of the partnership, while transacting, while transacting its business and within the scope of the business are evidence against the other or others. Admission by agent 



that the admission was made during the existence of the agency

that the agency be previously proved by evidence other than the admission itself that the admission refers to a matter within the scope of his authority

that there exists a joint interest between the joint owner, joint debtor, or other person jointly interested with the part and such party, which joint inter must first be made to appear by evidence other than the act of declaration itself that the act or declaration was made while the interest was subsisting that the act relate to the subject matter of the joint interest for otherwise it would be immaterial and irrelevant

Person jointly interested with the party The mere fact that several persons have a common interest, as contradistinguished from a joint interest, in the subject matter involved in the suit, does not render their admissions competent against each other. This is properly true with regard to rights under will. There may be many legatees and devisees, but, although they derive their benefit from a common source (testator) they clearly have no rights based on the benefit of each other. They have interest in common in that each derives his interest form the same source; but plainly they have no joint interest through any relation inter se. Section 30.Admission by conspirator. — The act or declaration of a conspirator relating to the conspiracy and during its existence, may be given in evidence against the co-conspirator after the conspiracy is shown by evidence other than such act of declaration. Requisites of the rule 

that the conspiracy be first proved by evidence other than the admission itself



that the admission relates to the common object



it has been made while the declarant was engaged in carrying out the conspiracy

each is liable for the result of his act in the degree and manner of participation. Section 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. Privity and privies defined

Two requisites are necessary for the existence of a conspiracy  

determination or decision to act, that is, a definite purpose to commit a crime agreement or meeting of the minds of two or more persons

Jurisprudence: People vs. Carbonel (43 Phil. 65, 78) If it is proved that two or more persons aimed by their acts towards the accomplishment of the same unlawful object, each doing a part so that their acts, though apparently independent, were in fact connected and cooperative, indicating a closeness of personal association and a concurrence of sentiment, a conspiracy may be inferred though no actual meeting among them to concert means is proved.

Privity means mutual succession relationship to the same right of property.

of

Privies are those who have mutual or successive relationship to the same right of property or subject matter, such as personal representative, heirs, devisees, legatees, assignes, voluntary grantees or judgement creditors or purchases from them with notice of the facts. Reason for the rule It is an established rule of evidence that the declarations of a person under whom title is claimed are receivable against the successor so claiming, on the theory that there is sufficient identity of interest to render the statements of the former equally receivable with the admissions of the present owner, and that the rights of the latter are those, and only those, of the former.

Radin vs. U.S., 189 Fed. 568, 570 111 CCA 6 Conspirators do not go out upon the public highways and proclaim their intentions. They accomplish their purpose by dark and sinister methods and must be judged by their acts. People vs. Catao, G.R. No. L-9532 June 30, 1960 It is enough that from the individual acts of each accused, it may be reasonably deduced that they had a common plan to commit the felony. People vs. Silvestre (56 Phil. 353) It is well-known rule that, without the proof of conspiracy, mere passive presence at the scene of another’s crime does not constitute complicity. Failure to prove conspiracy People vs. Caayao, (G.R. No. L-4035, December 16, 1949) Where there is lack of proof of conspiracy, the responsibility of the accused is individual and

The principle on which such evidence is received is that the declarant was so situated that he probably knew the truth, and his interest were such that he would not have made the admissions to the prejudice of his title or possession, unless they were true. The regard which one so situated would have to his interest is considered sufficient security against falsehood. Limitations of rule The most important limitations upon the admission in evidence of admissions of a predecessor in interest, or other privy, is that such evidence is not admissible to contradict the terms of written instrument, as for example, to vary the tenor of a deed or destroy the record title. It would be an anomaly in our law if by the rules of evidence, titles to real estate can be made to depend on the mere declaration of a prior owner, when every contact for the sale of land is required to be in writing and title can only be conveyed by deed. Such declarations are not admissible to affect the title to lands, although they may be admitted to explain the character of a possession.

Hence, in as much as the basis of admissibility of the statement is privity, it cannot be used against on who claims no under, but against the interest derived from the grantor. Such a claim cannot be affected be the mere declarations of the holder of an adverse title which, in that case, are akin to self- serving statement.

instinct of nature, which leads us to resist an unfounded demand. The rule rests on that universal principle of human conduct which leads us to repel an unfounded imputation or claim.

Three exceptions are recognized to the rule that declarations of the transferor, made subsequent to the transfer, are admissible:

The rule allowing silence of a person to be taken as an implied admission of the truth of the allegation uttered in his presence is applicable in criminal as well as in civil cases.







where the declarations are made in the presence of the transferee and he acquiesces in the statements, or asserts no rights where he ought to speak Where there has been a prima facie case of fraud established as where the thing granted has a corpus and the possession of the thing after the sale or transfer, remains with the seller or transferor. Where the evidence establishes a continuing conspiracy to defraud, which conspiracy exists between the vendor and the vendee

Section 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. Requisites of the rule   

 

That he heard and understood the statement That he was at liberty to interpose a denial That the statement was in respect to some matter affecting his rights or in which he as ten interested, and calling, naturally, for an answer That the facts were within his knowledge That the facts admitted or the inference to be drawn from his silence would be material to the issue.

Reason for the rule The rule that the silence of a party against who a claim or a right is asserted may be construed as an admission of the truth of the assertion rests on that

Rule applicable in criminal as well as in civil cases

RULE 130 SECTION 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. 1. Source. – Reproduction of Section 29, Rule 130 of the Rules of Court 2. Confession defined. – Confession is an acknowledgement by the accused that he is guilty of the crime charged. 3. Confession distinguished from admission. –A “confession” is a declaration made at any time by a person voluntarily, stating or acknowledging that he has committed or participated in the commission of a crime. The term “admission,” on the other hand, is usually applied in criminal cases to statements of fact by the accused which do not directly involve an acknowledgement of guilt of the accused or of criminal intent to commit the offense with which he is charged. 4. Confession confession:

classified.

–

2

kinds

of

a. Judicial confession – those made in conformity to law before a committing magistrate or in court in the course of legal proceedings b. Extrajudicial confession – those which are made by a party elsewhere than before a magistrate or in court. 5. Form of confession. –A confession is not required to be in any particular form. It may be oral or written, formal or informal in character.

6. Rights of a person under investigation. – Under the Constitution, “any person under investigation for the commission of an offense shall have the right to be informed of his rights to remain silent and to have competent and independent counsel preferably of his own choice. If the person cannot afford the services of counsel, he must be provided with one. These rights cannot be waived except in writing and in the presence of counsel.” 7. Miranda requirements. – In order to combat the pressures and to permit a full opportunity to exercise the privilege against self-incrimination, the accused must be adequately and effectively apprised of his rights and the exercise of those rights must be fully honored. (Please read Miranda v. Arizona, 384 U.S. 436, 1996) 8. Warning of silence. – If a person in custody is to be subjected to interrogation, he must first be informed in clear and unequivocal terms that he has the right to remain silent. For those unaware of the privilege, the warning is needed simply to make them aware of it. The warning of the right to remain silent must be accompanied by the explanation that anything said can and will be used against the individual court. 9. Warning of right to counsel. –An individual held for interrogation must be clearly informed that he has the right to consult with a lawyer and to have the lawyer with him during interrogation under the system for protecting the privilege. 10. Waiver of rights. – If the interrogation continues without the presence of an attorney and a statement is taken, a heavy burden on the government to demonstrate that the defendant knowingly and intelligently waived his privilege against selfincrimination and his right to retain or appointed counsel. A valid waiver will not be presumed simply from the silence of the accused after warnings are given or simply from the fact that a confession was in fact eventually obtained.

11. United States court decision since Miranda. – Please read Miranda v. Arizona (384 U.S. 436, 86 S. Ct. 1602) (a) CUSTODY REQUIREMENT - The Miranda Court limited its holding to situations in which “a person has been taken into custody or otherwise deprived of his freedom of action in any significant way.” (b) INTERROGATION – An accused may not yet be entitled to the Miranda wanings, due to the fact that no interrogation as “questioning initiated by law enforcement officers.” A statement freely and voluntarily made without compelling influence is admissible into evidence. (c) WARNINGS – It is the point when the accused is in custody and the police wish to interrogate him that Miranda requires the warnings to be given. The warnings need not be given word for word to the accused, though substantial compliance is required. (d) WAIVER – After warnings are given, Miranda presents the accused with three options. He can waive his right to remain silent and to an attorney and talk to the police, prevent police questioning by asserting his right to remain silent, or prevent questioning by asking for an attorney. (e) TERMINATION OF AND BREAKS IN THE INTERROGATION – After Miranda, the accused may terminate the interrogation by request. (f) PRESENCE OF COUNSEL – The presence of counsel is “the adequate protective device necessary to make the process of police interrogation conforms to the dictates of the privilege.” (g) FURTHER DEFINING THE SCOPE OF MIRANDA – The Miranda decision did not limit its holding only to certain kinds of offenses, though some lower courts have held that warnings are inapplicable to misdemeanors or traffic violations.

(h) IMPACT OF MIRANDA ON OTHER STANDARDS – The Miranda holding impinged upon several court and legislatively created rules. (i) CONCLUSIONS – The law of confessions has moved from the caseby-case, totality of the circumstances analysis that existed under the due process voluntariness approach to the application of the definite standards announced in the Miranda opinion.

relying on a presumption and requiring the accused to offset it. 15. Threats, violence, torture or fear. – Confessions obtained by putting the accused in fear by means of threats of violence to the person of the accused made to obtain his confession are generally inadmissible in evidence since they are involuntary in character. Threats, violence, torture or fear -

Any confession or admission by the accused obtained through torture, force, violence, threat, intimidations, any other means which vitiates the free will shall be inadmissible as evidence against him.

As the law of confessions stands now, after Miranda: (1) Uncensored admissions are admissible if made before an individual is in custody or if they are spontaneous in the sense that an interrogation by the police has not yet begun.

(a) Confession secured by “third-degree” methods

(2) However, admissions that occur during a custodial interrogation are not admissible to establish guilt unless the accused is given the Miranda warnings.

Examples: 1. Confession secured from an accused after he had been subjected to almost continuous examination by police officers.

(3) Waiver of the Miranda right must be voluntary and intelligent.

2. One secured by a protracted searching examination by public officials accompanied by threats, invective and false statements and profanity.

(4) The accused has the right to stop an interrogation at any time, which can be accomplished merely by refusing to answer questions or by asking to see an attorney.

3. One secured by questioning a suspect throughout a night and hitting him with clubs.

(5) As a general rule, confessions that were voluntarily made under a “totality of the circumstances” test. 12. Constitutional provision (Miranda doctrine) has no retroactive effect. – A confession obtained before the effectivity of the 1973 Constitution, even if accused had not been informed of his right to counsel, is admissible in evidence. 13. Basic test for validity of confession. – The basic test for the validity of a confession is – was it voluntarily and freely made. 14. No presumption of voluntariness. – The prosecution must prove that an extrajudicial confession was voluntarily given, instead of

-Confessions extracted through these means is inadmissible in evidence. (b) Promise of benefit or reward -

A confession induced or influenced by promises made to the accused which hold out a hope of benefit or a reward or a promise of immunity is not a voluntary confession and is not admissible in evidence

(c) What constitutes benefit -

The term “benefit”, when used in connection with the procurement of a confession, means a temporal or worldly benefit. To make the confession

involuntary, the benefit which influences a confession must not only be temporal, but have reference to the person’s escape from punishment for the crime with which he is charged or his partial escape.

-

(d) Offer of reward or pardon -

A confession influenced by the promise of a pardon is involuntary and inadmissible in evidence against the person making it.

(j) Force or violence need not be inflicted upon the confessor -

(e) Promise of immunity or not to prosecute or to compromise -

A promise not to prosecute the accused or to compromise the matter, made by the person personally injured by the commission of the offense, might well be deemed to create such a hope of benefit as would render the statement of the accused of doubtful credibility.

The employment of any artifice, deception, or fraud to obtain a confession does not render it inadmissible, if the means employed are not calculated to procure an untrue statement.

-

A confession is not rendered involuntary by telling the accused that it would be better for him to speak or tell the truth nor a sufficient inducement to render objectionable a confession thereby obtained, unless threats or promises are applied.

-

If a confession is obtained on the assurance that the accused will be used as a state’s witness and he afterwards repudiates the agreement, such confession may be used against him as a voluntary confession.

(i) Threats to prosecute

While the mere fact that the accused is not in the full possession of his faculties at the time of a confession does not necessarily render it inadmissible or involuntary, evidence of insanity or mental weakness which would be sufficient to render the defendant incompetent to testify is sufficient to render his confession incompetent

(m) Mental incapacity -

(h) Effect of refusal to keep the agreement to turn state’s witness -

Upon the question whether a confession is voluntary, the age, the character and situation of the accused at the time the confession was made is an important consideration.

(l) Insanity

(g) Advice and exhortation to confess or tell the truth -

If within his hearing and almost in his immediate presence, physical violence is inflicted upon his co-defendant, his confession made thereafter should be rejected for lack of that free and voluntary character which would otherwise give it value as evidence.

(k) Age, mental condition, or intelligence of confessor

(f) Deception or promise of secrecy -

A common form of threat which renders a confession involuntary is that the accused will be prosecuted if he does not confess. But it is clear that an unconditional threat to prosecute does not render a resulting confession of involuntary.

A confession may be involuntary because of ignorance or mental incapacity of the accused at the time of making the confession sought to be introduce in evidence.

(n) Intoxication -

The intoxicated condition of the accused at the time of making a confession does not, unless such intoxication goes to the extent of mania, affect the admissibility in evidence of such confession if it was otherwise a voluntary one, although the

fact of intoxication may affect its weight and credibility with the court.

violation of this or section 17 hereof shall be inadmissible in evidence against him.

(o) Confession made while asleep -

Words uttered by the accused while sleeping are involuntary and cannot be admitted in evidence against him as a confession.

20. Confession of third persons -

16. Admonition to judges, fiscals and other officers -

Judges, fiscals and other officers to whom persons accused of a crime are brought for swearing the truth of their statements “ to adopt the practice of having the confessants physically and thoroughly examined by independent and qualified doctors before administering the oath, even if it is not requested by the accused.

Purpose: Shorten and speed up criminal trials ( where the accused persons almost invariably repudiate their confessions) by precluding future controversies on whether the statements were obtained through torture or not. 17. Proving confession -

An oral admission on the part of an accused indicating guilty complicity in the commission of the crime with which he is charged is admissible in evidence, though not reduced to writing, or if reduced into writing, though not signed by him.

21. Several confessions -

The heavy burden is on the prosecution because the State is responsible for establishing the isolated circumstance under which the interrogation takes place and has the only means of making available corroborated evidence of warnings given during communicado interrogation.

19. The exclusionary rule -

The constitution provides that “any confession or admission obtained in

The rule is that if one confession is obtained by such methods as to make it involuntary, all subsequent confessions made while the accused is under operation of the same influence are also involuntary. However, a confession otherwise voluntary is not affected by the fact that a previous one was obtained by improper influences if it is shown that these influences are not operating when the later confession is made.

22. Partial or unfinished confession -

18. Burden of proof -

A confession on the part of a third person that he committed the crime which the defendant is charged with having committed, even though it is made in expectation of imminent death or by a person jointly indicted with the accused, is not admissible as substantive evidence tending to exculpate the accused where the confession does not constitute a part of res gestae.

A partial or unfinished confession which was interrupted while the defendants was rendering it is not admissible in evidence.

23. Confession interpreter -

learned

through

an

A confession cannot be received in evidence by the testimony of a witness who, although present when it was made, learned its purport through an interpreter. Such testimony is hearsay evidence and therefore inadmissible.

24. Confession subsequent to an involuntary confession -

Where a confession has been obtained from the accused by improper inducement, any statement made by him while under that influence is inadmissible.

29. When confession of an accused is admissible against his co-accused -

The general rule that the confession of an accused may be given in evidence against him but that it is not competent evidence against his co-accused, recognizes various exceptions:

25. Confession of other crimes -

A confession of an offense different from that with which the accused is charged is not admissible on his trial for the offense charged unless such other offense is a part of the same scheme or so connected with the one charged as not to be severed from it.

26. Identification and introduction confession as evidence -

Before a confession will be admitted into evidence, the prosecution must prove the making thereof if accused objects that the confession was not in fact made by him. In laying a predicate for the admission of a confession, it is proper for the prosecution, as a preliminary question, to inquire whether a confession was made at the time and place of the making of the confession and the persons present.

27. Confession must be evidence in its entirety -

introduced

in

The whole confession must be put in evidence by the prosecuting officer. To allow the introduction of fragments of a confession admitting those indicative of the prisoner’s criminality and suppressing others which, by limiting or modifying the former, may establish his innocence, is utterly inconsistent with all principles of justice and humanity.

28. Confessions admissible confessor alone -

of

against

While the confession of one of several co-accused may be introduced in evidence against him, it is not competent evidence against his coaccused.

(1) When several accused together, the confession one of them during implicating the others is against the latter.

are tried made by the trial evidence

(2) When one of the defendant is charged from the information and testifies as a witness for the prosecution, the confession made in the course of his testimony is admissible against his codefendants, if corroborated by indisputable proof. (3) If a defendant, after having been apprised of the confessions of his co-defendant, ratifies or confirms said confession, the same is admissible against him. (4) Where several extrajudicial confessions have been made by several persons charged with an offense and there could have been no collusion with reference to said several confessions, the facts that the statements therein are in all material respects, identical, is confirmatory of the confession of the co-defendant and is admissible against co-defendants. This is commonly known as “Interlocking confession.” (5) A statement made by one defendant after his arrest, in the presence of his co-defendant, confessing his guilt and implicating his codefendant who failed to contradict or deny it, is admissible against his codefendant. (6) When the confession is of a conspirator and made after conspiracy and in furtherance of its

object, the same is admissible against his co-conspirator. (7) The confession of one conspirator made after the termination of a conspiracy, is admissible against his co-conspirator if made in his presence and assented to by him, or admitted its truth or failed to contradict or deny it.

not do the same or a 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. 1. Source This provision is a reproduction of Section 48, Rule 130 of the Rules of Court with the following differences: a. The title of the section “Evidence of similar acts” has been changed to “Similar acts as evidence” in the present.

30. Waiver of objection as to admissibility -

A confession offered in evidence and not objected to by the defendant is regarded as prima facie voluntary and therefore, admissible in evidence.

31. Determination confession -

of

admissibility

of

The test of a confession’s admissibility is not the weight of the testimony or the credibility of the witness, but the testimonial unworthiness of the confession.

32. Weight and confession

sufficiency

of

judicial

-

The essence of the plea of guilty in a criminal trial is that the accused, on arraignment, admits his guilt freely, voluntarily, and with full knowledge of the consequences and meaning of his act, and with a clear understanding of the precise nature of the crime or crimes charged in the complaint or information.

-

Such a plea of guilty, when formally entered on arraignment, is sufficient to sustain a conviction of any offense charged in the information.

33. Weight and sufficiency of extrajudicial confessions -

An extrajudicial confession made by an accused, shall not be sufficient ground for conviction, unless corroborated by evidence of corpus delicti.

Section 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

b. The words “omitted to” in the Rules of Court have been deleted in the present provision; c. The words “did not” have been added in the present provision. 2. In general The general rule is that 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. However, there is no rule of law which prevents the trial of collateral issues, since the objection thereto is purely a practical one, and the general rule is that the admission of evidence of similar acts or occurrences as proof that a particular act was done or that a certain occurrence happened, rests largely in the discretion of the trial court, provided the conditions are substantially the same.

3. Reasons for the rule •

It is improper for the court to assume that the motive of the previous crimes is continuing and is the basis of the present crime.

•

If evidence of previous crimes is to be used, the accused shall face charges which he has no information and confuses him in his defense.

•

Evidence of collateral matters must not be received as substantive evidence of the offenses in the present trial.

4. Rule must be strictly enforced

•

•

•

aiming at a person, or just cleaning the gun, etc.;

The general rule is that evidence is not admissible which shows that the accused in a criminal case has committed a crime wholly independent of the offense of the present trial. A man may have committed many crimes, and still be innocent of the crime presently charged. One who commits one crime may be more likely to commit another; yet, logically, one crime does not prove another, nor tend to prove another, unless there is such a relation between them that proof of one tends to prove the other.

b. In the delivery of money, the intent at that time determines whether it is a payment, or a loan or a deposit. •

7. Prior acts showing guilty knowledge •

5. Exceptions to the general rule •

Evidence of other crimes is admissible when such evidence:

always

b. it is usually competent to prove the

•

motive and intent;



the absence accident;



a common scheme or plan embracing two or more crime so related to each other; or,



the identity of the person charged with the commission of the crime on trial.

of

mistake

Evidence which tends to show scienter or such knowledge on the part of the accused as is necessary to constitute his act a crime is admissible.

Examples: a. On a charge against X, a clerk, of stealing from his employer’s sage, the safe having been opened by manipulating the combination lock, X denied having knowledge of such combination. Here the fact that X had been seen on a previous instance of surreptitiously opening the safe would be admissible to show his knowledge.

a. tends directly to establish the particular crime;



The person’s conduct is naturally the chief circumstantial evidence of this intent – as it is also of a plan.

or

b. On a charge against Z of uttering counterfeit money, to wit, a 100-peso bill, the fact that Z had tried on other previous occasions, but unsuccessfully, to pay out similar bills to A, B, and C is admissible to evidence his knowledge of the bill in issue being counterfeit.

When the fact of a former crime is an element in the offense charged.

6. Prior acts showing intent •

•

Intent is of course entirely distinct from intention (design, plan). The latter is almost always an evidential fact only, but the former is a fact-in-issue, being usually an element of the offense or of the evil act done. Intent is a specific state of mind at the very time of the act charged. Examples: a. In a shooting, the nature of the offense depends on the state of mind as to

8. Identification of accused by proof of other crimes General Rule:

Evidence of separate and independent crimes is inadmissible to prove the guilt of a person upon trial for a criminal offense.

Exceptions: •

When evidence tends to aid in identifying the accused as the person who committed the particular crime under investigation.

•

There is a logical connection between the crimes that proof on one will naturally tend to show that the accused is the person who committed the other.

9. Prior acts showing plan, design, or scheme Evidence of other crimes is competent in a criminal trial to prove the specific crime charged when it tends to establish a common scheme, plan, or system embracing the commission of two or more crimes so related to each other than proof of one tends to establish the others, notwithstanding the general rule excluding evidence which shows, or tends to show that the accused has committed another crime wholly independent of that for which he is on trial.

13. Rule the same in civil cases as well as in criminal prosecution In civil cases the rule as to proof of commission of an act by showing the commission of similar acts by the same person at other times and under other circumstances is the same as in a criminal prosecution. Section 35. Unaccepted offer. – 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. 1. Source This provision is a reproduction of Section 49, Rule 130 of the Rules of Court with the only difference that the phrase “without valid cause” has been added in the present provision.

10. Prior acts showing habit or customs 2. Civil Code provision Evidence of a course of conduct or dealing may be admitted where pertinent to an issue in the case when it fits as deemed by the court. Customs may, like any other facts or circumstances be shown when their existence will increase or diminish the probability of an act having been done or not done, which act is the subject of contest. 11. Prior acts showing negligence

If the creditor to whom tender of payment has been made refuses without just cause to accept it, the debtor shall be released from responsibility by the consignation of the thing or sum due. According to the above provision, tender of payment must precede consignation, and only when such tender is refused without just cause will the consignation of the thing or sum due release the debtor from his obligation.

Upon a criminal prosecution for injuries caused by negligence, evidence of other acts, disconnected though similar, is irrelevant. However, when a party is charged with the negligent use of a dangerous agency, and the case against him is that he did not use care proportionate to the danger, then the question becomes material whether he knew, or ought to have known, the extent of danger.

Section 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

12. Proof of subsequent offenses

The word “own” in the Rules of Court has been deleted in the present provision and the word “personal” has been added.

According to one of the authorities, evidence of offenses committed subsequent to the act charged is never admissible in evidence. Other authorities favor the admissibility of such proof in certain instances, as in the case of offenses arising out of sexual intercourse, upon the theory that subsequent acts disclose the disposition of the parties.

1. Source

2. Generally The witness can testify only to those facts which he knows from his personal knowledge, that is, which are derived from his own perception. 3. Hearsay evidence

• Hearsay evidence has been defined as evidence which derives its value, not solely from the credit to be given to the witness upon the stand, but in part from the veracity and competency of some other persons. • Hearsay is not limited to oral testimony. writing may be hearsay.

•

A

• Evidence is hearsay when its probative value depends in whole or in part, on the competency and credibility of some persons other that the witness.

7. Statements which are circumstantial evidence of the facts in issue •

• Hearsay evidence is the evidence not of what the witnesses knows himself but of what he has heard from others.

•

b. Statements of a person which show his physical condition, as illness and the like;

One reason is the fact that hearsay testimony is not subject to the tests which can ordinarily be applied for the ascertainment of the truth of testimony, since the declarant is not present and available for cross-examination.

c.

The court is without opportunity to test the credibility of hearsay statements by observing the demeanor of the person who made them.

The hearsay rule does not apply where, regardless of the truth or the falsity of a statement, the fact that it has been made is relevant, the hearsay rule does not apply, but the statement may be shown.

Groups a. Those statements which are the very facts in issue; and,

e. Those showing the lack of credibility of a witness. 8. Statements showing the speaker’s state of mind A man’s state of mind or feeling can only be manifested to others by countenance, attitude or gesture, or by sounds or words, spoken or written. 9. Statements showing the speaker’s physical condition •

Statements of a person which may fairly show his bodily condition at the time he made the statements are admissible as circumstantial evidence of such condition.

•

When the bodily or mental feelings of an individual are material to be proved, the usual expression of such feelings are original and competent evidence.

b. Those statements which are circumstantial evidence of the facts in issue. 6. Statements which are the very facts in issue •

Where the statements, or utterances of specific words, are the facts in issue, the testimony of witnesses thereto is not hearsay.

Statements of a person from which an inference may be made as to the state of mind of another, that is, knowledge, belief, motive, good or bad faith, etc. of the latter;

d. Those which may identify the date, place, and person in question; and,

5. Independently relevant statements •

The statements from which the facts in issue may be inferred, may be testified to by witnesses without violating the hearsay rule. Of this kind are: a. Statements of a person showing his state of mind, that is his mental condition, knowledge, belief, intention and other emotions;

4. Reason for excluding hearsay evidence •

In other words, if the fact sought to be established is, that certain words were spoken, without reference to the truth or falsity of the words, the testimony of any person who heard the statement is original evidence and not hearsay.

10. Statements of a person from which the state of mind of another may be inferred Pertains to knowledge, belief, motive, good or bad faith, etc. of the latter may be testified to by a witness without violating the hearsay rule.

The failure of a party to object to the admission of hearsay evidence constitutes a waiver of his right to make such objection, and, consequently, the evidence offered may be admitted. Objection to its admission made for the first time on appeal is too late.

11. Statements identifying the time, date, place, or person in question

17. Weight of hearsay evidence admitted without objection

May be validly testified to by the witness. 12. Statements of a witness impeaching his credibility •

•

Statements made out of court are admitted for the purpose of contradicting or impeaching a witness. A witness may be impeached by the party against whom he was called . . . by evidence that he had made at other times statements, inconsistent with present testimony . . .

13. Evidence of acting upon a statement, not hearsay If the statement is introduced for the purpose of establishing the fact that a party relied and acted thereon, it is not objectionable on the ground of hearsay. 14. Statements made through interpreter, not hearsay Reason: Both the original witness and the interpreter are under oath and subject to crossexamination. Exceptions: a. The interpreter had been selected by common consent of the parties endeavoring to converse; or, b. By the party against whom the statements of the interpreter were offered in evidence. 15. Presumption that testimony is not hearsay In the absence of any showing to the contrary, a witness is presumed to be testifying of his own knowledge. 16. Objection to hearsay cannot be raised for the first time on appeal

• The Supreme Court held that although the question of admissibility of evidence cannot raised for the first time on appeal, yet if the evidence is hearsay, it has no probative value and should be disregarded whether objected or not. 18. Multiple hearsay There is no good reason why a hearsay declaration, which within itself contains a hearsay statement, should not be admissible to prove the truth of the included statement, if both the statement and the included statement meet the tests of an exception to the hearsay rule. EXCEPTIONS TO THE HEARSAY RULE Section 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. 1. Dying declaration defined A dying declaration is a statement made by the victim of homicide, referring to the material facts which concern the cause and circumstances of the killing and which is uttered under a belief of an impending death. 2. Reasons for admissibility a. Necessity – because the declarant’s death renders impossible his taking the witness stand; and it happens often that there is o other equally satisfactory proof of the crime. b. Trustworthiness – since the declaration is made in extremity, when the party is at the point of death and every hope of this world is gone; when every motive to falsehood is silenced, and the mind is induced by the most powerful considerations to speak the truth.

3. Admission unconstitutional

of

dying

declarations

not

It does not violate the constitutional right of the accused to confront and cross-examine the witness against him, because the person who testifies to the dying declarations is the witness against the accused and the witness with whom the accused is entitled to be confronted.

that he was about to die; it may be laid by showing that the surrounding circumstances were of such a character as to satisfy the court that the declarant believed that he would die. 8. Introduction of dying declarations in evidence by the accused •

It is settled by a long line of decisions that dying declarations, when they tend to exculpate or exonerate the defendant, may be introduced by him.

•

If such declarations are competent evidence to prove facts, it does not matter if such proof tends to acquit the defendant, rather than convict him.

4. Scope Only in homicide cases for the killing of the declarant and now its extended to civil cases. 5. Conditions of admission of dying declarations The conditions are as follows: a. That death be imminent and that declarant be conscious of that fact; b. That the preliminary facts which bring the declaration within its scope be made to appear; c.

That the declaration relate to the facts or circumstances pertaining to the fatal injury or death; and,

d. That declarant would have been competent to testify had he survived.

9. When declaration of a dying man may be admissible not as a dying declaration but as part of res gestae Where a man after having been seriously wounded was taken to a municipal building and there he told a person in authority that he had been wounded by the accused that statement, although not admissible as dying declaration because it was not made in the belief that the declarant was about to die, yet it is admissible as part of the res gestae. 10. Impeachment of dying declarations

6. Form of dying declarations •

No particular form is required.

•

A dying declaration may be a communication by means of signs, an oral statement or ejaculation, a mere formal statement, or answers to questions put by the person to whom the declaration is made, a writing signed by the declarant, or an affidavit.

7. Introduction of dying declaration in evidence by the prosecution •

A proper predicate must be laid for the introduction of dying declaration. The proper predicate is the proof that the declarant has made his declaration under a consciousness of impending death.

•

It is generally a sufficient predicate to show, by the repeated assertions of the declarant,

Dying declarations, when admitted, are subject to impeachment in the same manner and for the same causes that the testimony of a witness given on the witness stand may be impeached.

11. Weight of dying declarations •

Dying declarations are given great weight since it is made at the point of death.

•

Courts, however, must not be unmindful of the fact that men on the very threshold of death had sometimes been swayed by a spirit of vindictive revenge or heated passion or by a desire to shield themselves or others even in making ante-mortem statements.

Section 38. Declaration against interest. – The declaration made by a person deceased, or unable to testify, against the interest of the declarant, if the fact asserted in the declaration was at the time it was made so far contrary to declarant’s own interest, that a reasonable man in his position would not have made the declaration unless he believed it to be true, may be received in evidence against himself or his successors in interest and against third persons.

5. Scope It is safe to assume that the declaration against interest under the present provision has been expanded to include all kinds, i.e., pecuniary, proprietary, moral or penal interests. 6. Requisites for the declarations against interest

1. Source This is a reproduction of Section 33, Rule 130 of the Rules with the difference that the phrase “or outside the Philippines” and the words “pecuniary or moral” have been deleted in the present provision.

2. Reasons for the rule The necessity of the occasion renders the reception of such evidence advisable and, further that the reliability of such declarations asserts facts which are against his own pecuniary or moral interest. 3. Declaration against interest distinguished from admission a. The admission is not necessarily against the interest of the person who made the admission, while the present exception must be a declaration against interest; b. An admission may be used although the admitter is still alive, while the present exception refers to a declaration against interest of a deceased person; and,

a.

admissibility

of

Declarant must not be available to

testify. •

As in the case when he is dead, mentally incapacitated, physically incompetent, of advanced age, or other irremediable cause.

b. The declaration must concern a fact cognizable by declarant •

It is essential to relevancy in the declaration that the declarant should have adequate knowledge with respect to the subject covered by his statement.

c. The circumstances must render it improbable that a motive to falsify existed. •

To be admissible, there should be a circumstantial guaranty of the trustworthiness of the declaration.

7. Declarations against pecuniary interest

c. An admission may be used only against the admitter and those identified with him in legal interest while a declaration against interest admissible against third persons.

Pertains to those which may bar in whole or in part the declarant’s money claim, or which may give rise to a monetary claim against him, as for instance, where he acknowledges that his credit is already paid or that he is indebted to some person.

4. Declaration against interest distinguished from self-serving declaration

8. Declarations against proprietary interest

A self-serving declaration is a statement favorable to that interest of the declarant and not admissible while a declaration against the interest is admissible in evidence, notwithstanding its hearsay character, only if the declarant has died, become insane, or for some other reason is not available as a witness.

Those which are at variance with the declarant’s property rights, as for instance, where he, being in possession of a chattel or a piece of land, declares that he is not the owner thereof, or that he is holding it as a mere trustee, or that he has already sold it, and the like. 9. Declarations against moral interest

Moral interest should not be confused with moral obligation, which is a duty which one owes, and which he ought to perform, but which he is not legally bound to fulfill. For instance, where a man owes a debt barred by the statute of limitations, this cannot be recovered by law, though it subsists in morality and conscience. 10. Declarations against penal interest •

•

•

This cannot be justified on grounds of policy. The only plausible reason of policy that has ever been advanced for such a limitation is the possibility of procuring fabricated testimony to such an admission if oral. The inclusion of declarations against penal interest in the exception for declarations against interest has raised a host of intertwined constitutional and evidentiary problems in the United States. See People v. Toledo (51 Phils. 825).

11. Contrary to interest 3 Methods in Handling Declaration containing both self-serving and disserving facts: 1. Admit the entire declaration because part is disserving and hence by a kind of contagion of truthfulness, all will be trustworthy. 2. Compare the strength of the self-serving interest and the disserving interest in making the statement as a whole, and admit it all if the self-serving interest is greater. 3. Admit the disserving parts of the declaration, and exclude the self-serving facts. The third solution seems the most realistic method. 12. Form of declaration against interest •

May be oral or written.

•

Form is immaterial provided all the essential requisites for its admissibility are present.

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. Pedigree defined. - It is the history of the family descent which is transmitted from one generation to another by both oral and written declarations and by traditions. - May includes relationship, family genealogy, birth, marriage, death, the dates when and places where these facts occurred, the names of the relatives, and the facts of family history intimately connected. - Includes also paternity and legitimacy. Reason of Admissibility To avoid a failure of justice, as greater evils are apprehended from the rejection of such proof than from its admission and that individuals are generally supposed to know and to be interested in those facts of family history about which they converse, and that they are generally under little temptation to state untruths in respect to such matter. Requisites for Admissibility a) Declarant is dead or unable to testify - Declarations will not be received when better evidence is available, in case his alive and able his direct testimony is considered a better evidence. - The fact that there are living members of the family who could be examined on the same point does not exclude the declaration. - Declarations are admissible when the declarant is dead, outside of the Philippines, or when his testimony is unobtainable, like when he becomes insane, declarations made before his insanity are admissible.

b) Necessity that pedigree be in issue - Generally, declarations as to pedigree can be received only where pedigree itself is directly in issue. - However, in many cases the fact that pedigree is relevant to the issue is sufficient to admit in evidence and as to matters of genealogy or facts incidentally or inferentially connected therewith, such as the dates of genealogical importance, such as births, deaths, and marriage, took places, names, number, residence of a branch of the family, or their ownership of property, regardless of whether pedigree is separately in issue. c) Declarant must be a relative of the person whose pedigree is in question - Generally, declarations as to pedigree to be admissible, it must have been made by someone related to the family concerned, it is enough if some relationship is shown, although the declarations of very remote relatives entitled to very little weight. - Relationship of declarant to the family may be by birth or by affinity. Hence, the declaration of the husband regarding the pedigree of his wife and his wife’s relatives and vice versa, is admissible. But declarations of the husband’s relatives regarding the pedigree of the wife’s relatives, or vice versa, are not admissible. - If it appears that the evidence offered does not emanate from someone related to the family concerned, the presumption of the reliability of the source of information is rebutted and the evidence becomes inadmissible. - Courts will not receive declarations as to pedigree made by intimate friends or neighbors, or even by persons living in the family or by servants, however trustworthy or long he has been employed by the family. d) Declarant must be controversy occurred

made

before

the

- Generally, declarations to be received in proof of pedigree requires that the declarations must have been made ante litem motam (before suit brought), before the controversy, and under such circumstances that the person making them could have no motive to misrepresent the facts. It is necessary that the declarant should have been disinterested to the extent of having no motive which can fairly be assumed to be such as would induce

him to state the facts otherwise than as he understood it. - Declarations made after a controversy has originated, are excluded, on the ground that the bias under which they were uttered suffices to render them untrustworthy. - Controversy as used in this provision is not meant mere idle rumors, or doubts of curious scandalmongers whose discussions of the family matters of their neighbors are made without reverence for sanctity, morality, privacy or religion. e) The relationship between the declarant and the person whose pedigree is in question must be shown by evidence other than such act or declaration - Generally, the relationship of declarant to the family concerned must be established by evidence other than the statement of declarant himself. - Exception, where the subject of the declaration is the declarant’s own relationship to another person it seems absurd to require, as a foundation for the admission of the declaration, proof of the very facts which the declaration is offered to establish. - Evidence to prove relationship may either direct or circumstantial, such as declarant’s bearing the family name or a name identical with that of the subject of declaration, recognition of declarant by the family, or mention of him in family conveyance and other dispositions of property. Proof concerning Pedigree a) oral declaration of declarant - May be proved by the testimony of any person who is a competent witness and who has heard such declarations of the declarant. b) written acts or declarations of the declarant - May be proved by the statement in writing relating to pedigree made or recognized by the declarant, or made under his direction. - Exception, where the writing is in the form of an entry in a family Bible or testament which is produced from the proper custody, in which event the assent of the family is presumed. c) Acts or conduct of a person deceased or outside of the country or unable to testify

- May consist of proof of acts or conduct of relatives and the mode of treatment in the family of one whose parentage or decent is in question. Relationship must be legitimate

- Reason: The public interest is taken in question of the existence of a marital relation. - Where a formal marriage is proved, repute is not admissible to establish that there was no marriage. Death

- In order to render a declaration as to pedigree admissible it is necessary that the relationship of declarant to the family should be of a legitimate character.

- The fact of death is a matter of pedigree within the rule which permits the admission of hearsay evidence, such as reputation in proof of matters of pedigree.

- A bastard’s declarations as to the pedigree of his putative family, or conversely, and vice versa, are not admissible, but in some cases the courts have shown a tendency to relax the rule.

- Slight proof of relationship of the declarant is sufficient to warrant admission of the declaration.

Subject matter of declaration of pedigree - The facts regarded as those of genealogy or pedigree, take a wide range, and embrace any notable fact in the life of a member of the family or in the family history, or his own relationship to the family. Age - Naturally, the testimony of a witness concerning his own age is based upon hearsay, but according to the general rule, this circumstances does not render such testimony inadmissible. - It is based on statements of his parents, records recognized as family records, reputations in the family, and, according to some authorities, general reputation in the community. - Testimony of a priest concerning the age of a person, whom he had baptized at the time of baptism based upon statement made at the time by a parent of such person is not admissible where it appears that the parent is available. Paternity and Legitimacy - Declarations of deceased members of a family that he was the father or mother of a child are admissible on the question of paternity or parentage of the child, with or without accompanying proof of marriage. - Declaration of deceased relatives other than the parents are admissible as proof of paternity if made ante litem motam (before the controversy). - There is authority which permits declarations of persons not related by blood may, under some circumstances, be admissible to establish the parentage of an illegitimate. Marriage - Declarations and general repute are admissible as proof of a marriage, whether or not members of the family.

- A newspaper announcement of the death of an individual is not admissible to prove the fact of such person’s death. Form of Declaration - Declaration may be in any form capable of conveying thought, provided the authenticity of the vehicle conveying the statement is established to the satisfaction of the court by evidence as by recognition in the family or production from proper custody. - Must be a statement of fact, and not opinion. - May be oral or in writing; the oral statement is as competent as written evidence on the same point. 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. Reputation or Tradition in matters of pedigree - meant such declaration and statements as have come down from generation to generation from deceased relatives in such a way even though it cannot be said or determined which of the deceased relatives originally made them, or was personally cognizant of the facts therein stated. - It appears that such declarations and statement were made as family history, ante litem motam (before the controversy), by a deceased person

connected by blood or marriage with the person whose pedigree is to be established. Reason for Admissibility - Family affairs are constantly talked over in the family, and the members who know what happened tell what they know, with spontaneous sincerity, to those who did not know. - Declaration as to pedigree made by deceased although based upon hearsay within the family, and that, having been made before any controversy had arisen, there is no motive to speak other than the truth. Requisites for Admissibility a) There is controversy in respect to the pedigree of any members of a family - Reputation in the family gives rise to an inference to the existence of such facts as birth, descent, failure of issue, heirship, identity, marriage, celibacy, parentage, or relationship; or facts incidentally connected with genealogy, such as residence or the dates of events of family history; and evidence of such reputations will be received on an issue of pedigree concerning any member of any branch of the family - Tradition in the family, being a form of family history or reputation is admissible to prove facts of genealogy

Age – - Members of the family of the person in question, or others having an intimate acquaintance with the family, may testify as to age, although their testimony is based on family tradition or reputation Death – - Evidence of reputation in the family or in the community or family tradition, has been held admissible to establish the fact of death, provided there has been a considerable lapse of time. - Hearsay evidence is inadmissible to prove the manner or cause of death. b) The reputation or tradition of the pedigree of the person, concerned existed previous to the controversy - Common reputation or tradition arising after the controversy is supposed to be tainted with bias and therefore unreliable. c) The witness testifying to the reputation or tradition regarding the pedigree of the person

concerned must be a member of the family of said person, either by consanguinity or affinity. - Relationship between the witness and the family need not be proved by independent evidence; it may be shown by the witness’ own testimony.

Form of Declaration Relating to Pedigree - Any form capable of conveying thought, provided the authenticity of the vehicle conveying the statement is established to the satisfaction of the court by evidence as by recognition in the family or production from proper custody. 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. Matters of public interest vs. matters of general interest - Matters of public interest are common to all the citizens of the state or to the entire people, - matters of general interest are common only to a single community or to a considerable number of persons forming part of the community. Matters which may be established by common reputation a) Facts of public or general interest more than 30 years old; b) Marriage and related facts; and c) Individual moral character. Common Reputation Respecting Facts of Public or General Interest more than Thirty Years Old - Reputation must class of people position to have and to contribute the opinion.

have been formed among a of persons who were in a sound sources of information intelligently to the formation of

Common Reputation vs. Rumor

- Rumor is a story current without known authority for its truth, and, therefore, by its nature, does not yet represent the prevailing belief in the community - Common Reputation presupposes the existence of a general or undivided belief already formed on which the general opinion is founded. Common Reputation Respecting Marriage a) The common reputation must have been formed previous to the controversy. b) The common reputation must have been formed in the community or among the class of persons who are in a position to have sources of information and to contribute intelligently to the formation of the opinion. 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. Res Gestae Defined - Comprehends a situation which presents a startling or unusual occurrence sufficient to produce a spontaneous and instinctive reaction, during which interval, certain statements are made under such circumstance as to show lack of forethought or deliberate design in the formulation of their contents. Res Gestae vs. Dying Declaration - In dying declaration there is a sense of impending death which takes the place of an oath and the law regards the declarant as testifying . - While in res gestae it is the event itself which speaks, the actual facts expressing themselves through the mouth of a witness, which may precede, or accompany, or follow, as events occurring as a part of the principal act. Reason of Admissibility - It is a well-founded belief that statements made instinctively at the time of a specific transaction or events, without opportunity for formulation of statements favorable to one’s own cause, are likely to cast important light upon the matter in issue; as to such statements, the law creates a presumption of their truthfulness.

Test of Admissibility - Whether the act, declaration, or exclamation is so intimately interwoven or connected with the principal factor event which it characterizes as to be regarded as a part of the transaction itself, and also whether it clearly negatives any premeditation or purpose to manufacture testimony. Statements and Acts Constituting Part of Res Gestae a) Statement made by a person while a startling occurrence is taking place or immediately prior or subsequent thereto with respect to the circumstances thereof. b) Acts and circumstances which are incidents of a particular litigated act and which are illustrative of such act; c) Statement accompanying an equivocal act material to the issue, and giving it a legal significance, and are called by writers as “verbal facts” or “verbal acts” Examples: - Declaration of the parties made with regard to matters of business, if contemporaneous with the acts they tend to explain and qualify, are admissible - Declarations by a party relating to ownership of property made by a person in possession thereof, may be admitted when uttered under such circumstances as satisfy the requirements applicable to other statements sought to be admitted under this exception to hearsay rule. - Declaration made at the time of a transaction which are pertinent to the question of fraud are generally viewed as admissible. - Statements made by an injured person relating to present pain and suffering or at the time of an accident or so shortly thereafter as to form part of one event or transaction are viewed in some decisions as part of the res gestae. Spontaneous Statement Defined - A statement or exclamation made immediately after some exciting occasion by a participant or spectator and asserting the circumstances of that occasion as it is observed by him. Reason for Admissibility a) Trustworthiness – the statements are made instinctively, while the declarant’s mental powers for deliberation in concocting matters are controlled and stilled by the shocking influence of a startling occurrence, they are but pure emanation of the occurrence itself.

b) Necessity – said natural and spontaneous utterances are more convincing than the testimony of the same person on the stand. Elements of the statement or declaration to be admissible as part of res gestae – Corpus Juris Secumdum a) must relate to the main event and must explain, elucidate, or in some manner characterize that event b) must be a natural declaration or statement growing out of the event, and not a mere narrative of a past, completed affair c) must be a statement of fact, and not the mere expression of an opinion d) must be a spontaneous or instinctive utterance of thought, dominated or evoked by the transaction or occurrence itself, and not the product of premeditation, reflection, or design e) the declaration or statement need not be coincident or contemporaneous with the occurrence of the event, it must be made at such time and under such circumstances as will exclude the presumption that it is the result of deliberation f) must appear that the declaration or statement was made by one who either participated in the transaction or witnessed the act or fact concerning which the declaration or statement was made. Startling Occurrence Necessary - it is essential that the spontaneous exclamation should have been caused by something “ startling enough to produce nervous excitement” and “to keep the will dormant so far as any deliberation in concocting matters for speech or selecting words is concerned. Statement must relate to the circumstances of the startling occurrence - the range of events must be kept in view for it is largely the explanatory and illustrative character of the declaration as applied to the principal transaction that admits them as evidence. Interval of time between the startling occurrence and the spontaneous statement - Since startling occurrence may extend its exciting influence over a subsequent period of time which may be long or short, the rule is that the statements, to be admissible, should have been made before there had been time or opportunity to devise or contrive anything contrary to the real facts that occurred. - What the law altogether distrusts is not the afterspeech but the afterthought.

When expression of opinion admissible as part of the res gestae - When a spontaneous exclamation of an injured person that it involves the expression of an opinion as to the legal or physical effects of his injury, and it has also been held that the opinions or conclusions of competent physicians, stated while examining a patient, may be admissible as part of the res gestae. Place Where the Statement was made - It is not unreasonable to suppose that a statement made, or an act done, at a place some distance from the place where the principal transaction occurred will not ordinarily possess such spontaneity as would render it admissible. Condition of the Declarant at the Time he made the Declaration - A statement will ordinarily be deemed spontaneous if, at the time when it was made, the condition of declarant was such as to raise an inference that the effect of the occurrence on his mind still continued, as where he had just received a serious injury, was suffering severe pain, or was just under intense excitement. Province of the Court to Determine Whether or not Statement is Spontaneous - It is for the trial court to decide the preliminary question as to whether or not the declarations were made without deliberation and reflection or were the spontaneous utterance of the declarant - Trial court’s decision of above mention question will not be disturbed on appeal unless it appears that his conclusion was arbitrary or unreasonable Declarations of Bystanders and Third Persons - If the act of a third party is relevant and is in evidence, his statement accompanying and explanatory of it, which is the natural concomitant of the act, and is prompted by the identical motive should be admitted. - But if the declarations of a third persons are merely narrative and unconnected with the relevant act, so that by no proper extension of the rule can they be included among the res gestae. Acts and Circumstances which are Incidents of a Particular Litigated Act - Statements, acts or conduct accompanying or so nearly connected with the main transaction as to form a part of it, and which illustrate, elucidate, qualify, or characterize the act, are admissible as part of res gestae.

- Writings may become part of the resgestae and admissible in evidence where they are incidents of a transaction and a part thereof. Verbal Acts Defined - Are utterances which accompany some acts has intrinsically no definite legal significance, or only an ambiguous one, its legal purport or tenor may be ascertained by considering the words accompanying it, and these utterances thus enter merely as a verbal part of the act. Reason for Admissibility - The motive, character, and object of an act are frequently indicated by what was said by the person engaged in the act, such statement are in the nature of verbal acts and are admissible in evidence with the remainder of the transaction which they illustrate. Requisites for Admissibility a) The act characterized by the verbal acts must be equivocal or ambiguous in tenor; b) That the verbal acts must characterize or explain the equivocal or ambiguous act; c) That the equivocal or ambiguous act must be material to the issue; and d) That the verbal act must be contemporaneous with and accompany the equivocal or ambiguous act Verbal Acts vs. Spontaneous Statements - In spontaneous exclamations, the res gestae is the startling occurrence; while in verbal acts, the res gestae is the equivocal act. - The verbal act must be contemporaneous with or must accompany the equivocal act to be admissible; whereas a spontaneous exclamation may be prior to, simultaneous with, or subsequent to the startling. Act or Occurrence Characterized must be Equivocal - It is only when the thing done is equivocal that it is competent to prove declarations accompanying it as falling within the class of res gestae. Verbal Acts must Characterize or Explain the Equivocal Act - The statement that are admissible are only those necessary to understand the meaning of the equivocal act, other statements not necessary for that purpose are not admissible. Equivocal Act Must be Relevant to the Issue - The general rule is that a declaration sought to be proved under the res gestae must have been contemporaneous with the event established as the principal act; it must spring at a time so near

it as to preclude the idea of deliberate design, they may be regarded as contemporaneous and are admissible in evidence. Equivocal Act may Cover a Long Period of Time - The equivocal act may extend over a long period of time, and during that period, those statements that are necessary for an understanding of the meaning of said equivocal act, are admissible as verbal acts. 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. General Rule - Books of account of a party or entries therein, are admissible in his favor to show the recorded transactions when a proper foundation is laid and the requisites to admissibility have been met. Reason for Admissibility a) Necessity – is given as a ground for admitting entries in that they are the best available evidence b) Trustworthiness Requisites for Admissibility a) Entries must have been made at or near the time of the transaction to which they refer - It is sufficient if they are made within a reasonable time thereafter, in the ordinary course of the business of the party making them b) Entrant must have been in a position to know the facts stated in the entries - If the entry is based on reports, oral or written, numerous persons cooperating, who had personal knowledge of their own items but did not themselves make the entries, the entries may be received, either by calling the entrant alone to the stand or by the testimony of one who can verify the method of compiling them. c) Entries must have been made by entrant in his professional capacity or in the performance of his duty

- To constitute a profession, the employment or vocation must be such as exacts the use or application of special learning or attainment of some kind. - Where the entry was made in the a professional capacity and in the course of professional conduct, or in the performance of duty and in the ordinary or regular course of business or duty, there are three guarantees of their trustworthiness. i.

Habit and system of making record with regularity result in accuracy;

ii.

Errors may easily be detected because the entries are made in the regular course of professional conduct, performance of duty, or the ordinary and regular duties of the person making the entries; and

iii.

If the entries are made in pursuance of his duty, legal or to a superior, the additional risk of censure and disgrace to the entrant makes them presumably correct.

law, are prima facie evidence of the facts therein stated. General Rule -

The division of documentary evidence embracing public or official records and reports includes acts of the legislature, judicial records, and records and reports of administrative officers.

-

Any such record or document or a properly authenticated copy or transcript thereof is admissible in the trial of an action, subject to the same requirements of relevancy and materiality as apply to private writings.

Reason for Admissibility a) Necessity – consists in the practical impossibility of requiring the official’s attendance as a witness to testify to the innumerable transactions occurring in the course of his duty and requiring to be evidence. b) Trustworthiness – i. in the sense of official duty which has led to the making of the statement;

d) Entries were made in the ordinary or regular course of business or duty

ii. in the penalty which usually is affixed to a breach of that duty;

- Hence, such entries made constitute only one of a variety of circumstances, sanctioned by judiciary practice, acceptable as presumptive evidence of the accuracy and truthfulness of the entry and as a practical substitute for the conventional test of cross-examination.

iii. in the routine and disinterested origin of most of such statements; and

e) Entrant must be deceased or unable to testify - In order to qualify an entry, there must be a necessity for its admission as evidence and this is satisfied by proof of the death of the entrant. - When declarant is alive, entries may be used as memorandum to refresh his memory as witness. Mode of Proving Entries - It is required that the entries be properly identified or authenticated, and generally, their completeness, and correctness, regularly, and fairly as well as the method of making them, must be established 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

iv. I the publicity of record, which makes more likely the prior exposure of such errors as might have occurred Requisites for Admissibility a) That the written statement was made by public officer or by another person specially enjoined by law to do so; b) That it was made by the public officer in the performance of a duty specially enjoined by law; and c) That the public officer or the other person had sufficient knowledge of the facts by him state, which must have been acquired by him personally or through official information Public Officer - It is not necessary that the record, should be kept by the chief public officer himself, it is sufficient if the entries are made under his direction by person authorized by him. Performance of Duty by Public Officer - It is essential that the official statement should have been made by a public officer in the performance of his duty, or by another person in the performance of his duty, specially enjoined by law. Unavailability of Entrant Need not be Shown

- His absence is being excused from appearing in court in order that public business be not deranged. Proof of Official Entries - Entries may be proved by the production of the books or records themselves or by a copy certified by the legal keeper thereof. Authentication - The extraordinary degree of confidence reposed in documents of a public nature is founded principally upon the circumstance that they have been made by authorized and accredited agents appointed for the purpose. Probative value - Entries in public records made by a public officer in the performance of the duty specially enjoined by law are only prima facie evidence of the fact therein stated, and their probative value may be either substantiated or nullified by other competent evidence. SECTION 45, RULE 130 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. Reason for Admissibility The admissibility of commercial lists and the like as evidence even though the authors, compilers or publishers thereof cannot be cross-examined as witness is based on necessity and trustworthiness; necessary to because of the inaccessibility of the authors, computers, or publisher in other jurisdiction but also because the great practical inconvenience in summoning each individual whose personal knowledge has gone to make up the final result. Market reports or quotations, trade journals, trade circulars, price lists and the like Admissible as evidence; Such reports, being based upon a general survey of the whole market and constantly received and acted upon by dealers, are far more satisfactory and reliable than individual entries or individual sales or inquiries. Authentication As a prerequisite to the introduction in evidence of a newspaper, trade journal, trade circular, or price list, giving the quotations of the market value of a commodity, that a preliminary foundation be laid for

such evidence, as by showing that such publications have been regularly prepared by a person in touch with the market, and that they are generally regarded as trustworthy and relied upon. SECTION 46, RULE 130 Learned treaties.-- 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. Learned treaties are admissible in evidence to prove the truth of a matter stated therein, (a) if the court takes judicial notice that the writer of the statement in the treatise, periodical, or pamphlet, is recognized in his profession or calling as expert in the subject, (b) o 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. Reason for admissibility Necessity and Trustworthiness. Necessity because of the unavailability of the expert witness to testify on the matter or if available, because of the tremendous expense in hiring them. Trustworthiness because the learned witness in writing his work or article has no motive to misrepresent . Another reason is that the writer of a learned treatise is more careful of what he writes because he knows that every statement he makes will be subject to criticism and open to refutation. Still another reason is that writers of learned treatise with no view to litigation and not for a free as expert witness. Historical Works Historical facts of general and public notoriety may be proved by reputation; and that reputation may be established by historical works of known character and accuracy. But evidence of this sort is confined in a measure to ancient facts, the assumption being that better evidence is not in existence. Scientific Treatise Much of the scientific knowledge of experts in medicine, surgery, mechanics, chemistry, and other fields of specialized learning is derived from scientific books and treatises; their knowledge would, in general, be small had they got availed themselves of the fruits of the research and experience of their predecessors as taught in books. This opinion of expert witnesses must be founded in some degree upon such books; in fact, they may, as a general rule, in support of their professional opinions, read in evidence from standard scientific

works which are recognized as such by the profession in which they are engaged. General exception: When they contain statements of ascertained facts rather than of opinions, or which, by long use in the practical affairs of life, have come to be accepted as standard and unvarying authority in determining the action of those who use them. Law When the law involved in a controversy is a domestic law, the court is bound to take judicial notice thereof, and no proof is necessary whatever. Foreign law, a distinction as to proof is laid down between written and unwritten law. Written law may be evidenced by an official publication thereof or by a copy attested to by the officer having legal custody of the record, or by his deputy, and must be accompanied with a certificate that such officer has the custody.In Unwritten law, the oral testimony of expert witnesses is admissible, as are printed and published books of reports of decisions of the courts of the country concerned if proved to be commonly admitted in such courts. Under our rules of private international law, foreign law is considered as any other matter of fact, which must be properly pleaded and proved. If not properly proved, the presumption arises that foreign law is the same as domestic law. Philippine Court cannot take judicial notice of foreign law. Failure to prove foreign law whether unwritten under rule 130, sec. 46 or written under rule 132, sec. 24, raises the presumption that the law is the same as ours. (Yao kee v. Sy Gonzales, 167 SCRA 736)

“Unable to testify” refers to an inability proceeding from a grave cause almost amounting to death as when the witness is old and has lost the power of speech (Tan v. CA, 1967) Reason for admissibility Necessity for the testimony and its Trustworthiness. Inasmuch as the former witness could no longer testify, his former testimony having been given in a former action under the solemnity of an oath is admissible to prevent failure of justice. Requisites a. The witness whose testimony is offered in evidence is dead or unable to testify 1. Insanity or mental incapacity, or the former witness’ loss of memory through old age or disease; 2. Physical disability by reason of sickness or advanced age; 3. The fact that the witness has been kept away by contrivance of the opposite party; and 4. The fact that after diligent search the former witness cannot be found. b. Identity of parties c. Identity of issues d. Opportunity of cross-examination of witness Proof of former testimony If testimony at a former trial is reduced to writing, such writing is the primary evidence thereof and should be used. E.g. stenographic note

SECTION 47, RULE 130

SECTION 48, RULE 140

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.

General rule.—The opinion of a witness is not admissible, except as indicated in the following sections.

Generally, the mere fact that testimony has been given in the course of a former proceeding between the parties to a case on trial is no ground for its admission in evidence. The law recognizes, however, that it is sometimes impossible to produce a witness who has testified at a former trial, as where he dies or become insane before the later trial. In such cases, where the second action is between the same parties or their privies and involves the same issues, the testimony of the witness as taken at the former hearing or trial is, according to practically all decisions, admissible in later one as one of the exceptions to the rule excluding hearsay testimony.

Opinion defined An inference or conclusion drawn by a witness from facts, some of which are known to him and others assumed, or drawn from facts, which although leading probability to the inference, do not evolve it by a process of absolutely necessary reasoning. Rule of exclusion Under ordinary circumstances a witness in testifying is to be restricted to the facts within his knowledge, and his opinion or conclusion with respect to the matters in issue or relevant to the issue may not be received in evidence. However, when the conclusion to be drawn from the facts stated depends on scientific knowledge or skill, not within the range of ordinary training or intelligence, the conclusion may be stated by qualified expert.

There is no precise requirement as to the mode in which skill or experience shall have been acquired. Scientific study and training are not always essential to the competency of witness as an expert. Knowledge acquired by doing is no less valuable than that acquired by study. (Dilag Co. v. Merced, 1949) Expert opinions are not ordinarily conclusive in the sense that they must be accepted as true on the subjrct of their testimony, but are generally regarded as purely advisory; the courts may place whatever weight they choose upon such testimony and may reject it, if they find that it is inconsistent with the facts in the case or otherwise unreasonable. Testimony of handwriting expert is not indispensible to COMELEC. Handwriting experts, while probably useful, are not indispensible in examining or comparing handwriting; this can be done by the COMELEC itself. It was ruled by the SC that evidence aliunde is not allowed to prove that a ballot is marked, an inspection of the ballot itself being sufficient. (Punzalan v. COMELEC, et al., G.R. No. 126669)

Sec. 49, Rule 130 I. IN GENERAL * Opinion evidence defined. – “Opinion evidence,” as the term is used in law, means the testimony of a witness, given in the trial of an action, that the witness is of the opinion that some facts pertinent to the case exist or does not exist, offered as proof of the existence or non-existence of that fact. * Expert evidence defined. – Expert evidence is the testimony of persons who are particularly skilled, or experienced in a particular art, science, trade, business, profession, or vocation, a thorough knowledge of which is not possessed by man in general, in regard to matters connected therewith. * “Expert” defined. – An expert may be defined as a person who is so qualified, either by actual experience or by careful study, as to enable him to form a definite opinion of his own respecting any decision of science, branch of art, or department of trade about which persons having no particular training or special study are incapable of forming accurate opinions or of deducing correct conclusions. * Expert witness distinguished from skilled witness. -- Ordinarily, a witness is said to testify as an expert when a state of facts, observed by

someone else, is hypothetically submitted to the witness, and he is asked in view of those facts, to state what his opinion is, whereas a man skilled in a particular business, who makes his own observations, and testifies to what he has observed and his conclusions therefrom, is regarded as a skilled witness. * Classes of cases in which opinion evidence is admissible. -- There are two distinct classes of cases in which expert testimony is admissible. 1) In one class are those cases in which conclusions to be drawn by the judge depend on the existence of facts which are not common knowledge and which are peculiarly within the knowledge of men whose experience or study enables them to speak with authority upon the subjects in question. 2) In the other class are those cases, in which the conclusions to be drawn from the facts stated, as well as knowledge of the facts themselves, depend on professional or scientific knowledge not within the range of ordinary training or intelligence. * Qualifications of experts. – A witness, to qualify as an expert, must have acquired such special knowledge of the subject-matter about which he is to testify, either by study of the recognized authorities on the subject, or by practical experience, that he can give the court assistance and guidance in solving a problem to which its equipment of good judgment and average knowledge is inadequate. * Determination of qualification of expert to testify. – The question of the qualification of an expert witness rests largely in the discretion of the trial court, and the test of qualification is necessarily a relative one, depending upon the subject under investigation and the fitness of the particular witness. * Requisites for the admissibility of expert testimony. -- Three things must concur to justify the admission of the testimony of an expert witness. First, the subject under examination must be one that requires that the court has the aid of knowledge or experience such as men not especially skilled do not have, and such therefore as cannot be obtained from the ordinary witnesses.

Second, the witness called as an expert must possess the knowledge, skill, or experience needed to inform the court in the particular case under consideration. Third, like other evidence, expert testimony is not admissible as to a matter not in issue. II. EXAMINATION OF EXPERT WITNESSES * Generally. – Before an expert witness may be required to give an opinion, the party presenting him must first establish that he is an expert on the subject upon which he is called to testify. * Direct examination. (a) Opinion based on facts known personally by the expert. - Where the expert witness is required to give an opinion based upon facts upon which he knows personally, he must first state those facts before giving an opinion thereon. (b) Opinion based on facts of which he has no personal knowledge. – If the expert has no personal knowledge of the facts on which his opinion is based, they should be given to him hypothetically, that is, they must assume the state of facts upon which his opinion is desired. * Hypothetical question. – Hypothetical questions must include only facts that are supported by evidence and should embody substantially all facts relating to the particular matter upon which an expert opinion is sought to be elicited, but they need not include all facts pertinent to the ultimate issue. * Form of hypothetical question. – Generally speaking a hypothetical question should state all the facts relevant to the formation of an opinion, and then, assuming the facts stated to be true, ask the witness whether he is able to form an opinion therefrom, and, if so, to state such opinion. Hypothetical question involves two distinct elements, namely, premise and inference or conclusion based on premise. * When abstract questions permissible. – Purely abstract questions, assuming facts or theories for which there is no foundation in the evidence, are not admissible as a matter of right, although such questions may be permitted on cross-examination for the purpose of testing the knowledge of the witness as to the subject on which he has testified.

* Opinion of expert based on hearsay inadmissible. – The rule is well established that hearsay in the form of information gained from the statements of others outside the courtroom may not be the basis of an expert opinion. * Opinion of expert cannot be based on other opinions. – It is not proper in asking hypothetical questions to incorporate in them the opinions of other expert witnesses. An opinion of an expert witness cannot be based upon opinions expressed by other experts. * Opinion based on conjecture inadmissible. – Expert testimony should not be allowed to extend to the field of baseless conjecture concerning matters not susceptible of reasonable accurate conclusions. * Opinion involving questions of law inadmissible. – It may be laid down as a general rule that a witness is never permitted to give his opinion on a question of domestic law or upon matters, which involve questions of law. * Opinion on the ultimate fact in issue inadmissible. –While an expert may be permitted to express his opinion, or even his belief, he cannot give his opinion upon the precise or ultimate fact in issue before the court, which must be determined by it. * Impeachment of expert witness. – The weight to be given the judgment of a skilled witness may be impaired by the various methods employed in the case of other testimony. He may be contradicted by others in his own class or by any competent witness or by use of exhibits; or the weight of his testimony may be impaired by showing that he is interested or biased; that others have at a prior time refused to accept the opinion expressed; that he made inconsistent statements at another time, provided a proper foundation is laid therefore; that he formed a different opinion at another time; that he did not express the opinion testified to at a time when such an expression might reasonably have been expected, or that he changed sides in the case. * Courts not bound by testimony of expert. – Expert opinions are not ordinarily conclusive in the sense that they must be accepted as true on the subject of their testimony, but are generally regarded as purely advisory in character; the courts may place whatever weight they choose upon such testimony and may reject it, if they find that it is consistent with the facts in the case or otherwise unreasonable.

2009 JURISPRUDENCE G.R. No. 150897. April 11, 2005

the opinions of handwriting experts, as resort to handwriting experts is not mandatory.

vs. JOSE C. DOMINGO, LEONORA DOMINGOCASTRO and her spouse JUANITO CASTRO, NUNCIA DOMINGO-BALABIS, ABELLA DOMINGO VALENCERINA and the REGISTER OF DEEDS, QUEZON CITY, Respondents.

* Weight of expert testimony. – Under the usual circumstances expert opinion evidence is to be considered or weighed by the court like other testimony, in the light of their own general knowledge and experience in the subject of inquiry; the court cannot arbitrarily disregard the testimony of experts or skilled witnesses, and make an unsupported finding contrary to the opinion.

FACTS:

III. SUBJECTS OF EXPERT TESTIMONY

F (father) sold his property to his children A, B, C, and D (excluding E, the eldest) due to failing health. Indeed, a deed of absolute sale was signed by the former conveying the said property and was witnessed by two persons and notarized by a notary public.

* Generally. – The most common subjects of expert testimony are handwriting, including typewritten documents, ballistic, mental condition, cause of death or injury and value of real property including market value.

TURADIO C. DOMINGO, Petitioners,

E learned of such sale when an ejectment suit was filed against him. Upon the advice of his counsel, he had the documents examined by the PNP. As a result, the PNP came up with the conclusion that the signatures were written by two different people. Hence, E assailed the contract for being a forgery. ISSUE: WHETHER OR NOT the court is bound to give evidentiary value of the opinion of the PNP. RULING: Under the Rules of Court, the following may prove the genuineness of handwriting: (1) A witness who actually saw the person writing the instrument; (2) A witness familiar with such handwriting and who can give his opinion thereon, such opinion being an exception to the opinion rule; (3) A comparison by the court of the questioned handwriting and admitted genuine specimen thereof; and (4) Expert evidence. (Sec. 49 Rule 130) The law makes no preference, much less distinction among and between the different means stated above in proving the handwriting of a person. It is likewise clear from the foregoing that courts are not bound to give probative value or evidentiary value to

A. HANDWRITING * Handwriting expert. – There is no test by which one can determine with precision how much experience or knowledge of handwriting a witness must have in order to qualify as an expert for comparison. It is not essential to qualify one as an expert to testify to comparisons of handwritings that he has professional knowledge or that he has made such work a specialty. It is enough that he has been engaged in some business which called for frequent comparisons of handwritings and that he has in fact been in the habit for a length of time of making such comparisons. *Function of handwriting expert. – No handwriting expert should wish for his testimony to be received as unquestionable authority, the idea being rather that it is the function of the expert to place before the court data upon which the court can form its own opinion. An expert on handwriting may give not only an opinion upon the authenticity of writing, but also, in his examination in chief, the reasons for his opinion. * Court may order examination of questioned document by National Bureau of Investigation. – When a party is too poor to pay the fees of a handwriting expert, the court, upon its own initiative, may, for the sake of justice, require the National Bureau of Investigation to make an examination of the signature in a questioned document.

* Two problems in handwriting identification. – There are two main problems in handwriting identification. 1) To determine whether a signature, a line of writing, or a page or more of writing was written by the one who is alleged to have written it. 2) Determining whether a certain writer wrote an anonymous or other writing. Both of these handwriting problems must be solved by a study of the inherent qualities in the writings themselves and by a comparison of their elements, qualities, and characteristics with other writing. * General appearance or pictorial effect. – The first test applied to a disputed writing by nearly every examiner is the test of general appearance or pictorial effect as compared with the genuine standard of writing. * Method of testing genuineness of disputed handwriting by comparison. – One of the first steps in the investigation of a suspected or disputed writing should be the seeking out of suitable genuine handwriting with which it is to be compared. The qualities and characteristics of any handwriting as determined and classified in a thorough examination are; 1) Permanent and fixed 2) Usual or common 3) Occasional and, 4) Exceptional or accidental It therefore follows that handwriting has a certain field of possible and expected variation and without a sufficient quantity of standard writing significant habits cannot be determined, and the value and force of characteristics cannot be definitely known. * Proof of genuineness of standard handwriting. – Generally, where writings are admitted to serve as a basis for comparison, the genuineness thereof must be proved to the satisfaction of the judge as a preliminary question. His decision on such preliminary question is conclusive, unless it appears to have been based on some erroneous view of law, or was clearly not justified by state of the evidence at that time.

* Use of writings other than those in issue. – There is a direct conflict of authority on the question of whether an expert handwriting witness may be tested as to the accuracy of his knowledge by the use of writings others than those in issue. The majority rule is that submitting to him may not test such a witness, and eliciting his opinion as to the genuineness of other writings not admitted or proved to be genuine. But in at least two jurisdictions it has been held that writings neither admitted nor proved to be genuine, and even though otherwise irrelevant, may be used to test an expert handwriting witness. * Characteristics principles.

of

handwriting;

general

No set of infallible rules can be formulated but some general principles can be stated that apply in most cases. 1) Identifying or differentiating characteristics. – One of the principles by which the force and significance of characteristics are measured is that those identifying or differentiating characteristics are of the most force which are most divergent from the regular system or national features of a particular handwriting under examination. 2) Inconspicuous characteristics. – Repeated characteristics which are inconspicuous should first be sought and should be given the most weight, for these are likely to be so unconscious that they would not intentionally be omitted when an attempt is made to disguise, and would not be successfully copied from the writing of another when simulation is attempted. 3) General characteristics or national features and elements are not alone sufficient on which to have a judgment of identity of two writings, although these characteristics necessarily have as evidence of identity, as stated above, if present in sufficient number and in combination with individual qualities and characteristics. * Exact coincidence between two signatures. – It is a first principle in writing that exact coincidence between two signatures is absolute proof that one or the other is a forgery. There must be some difference before authentically can be admitted; and the general rule is that authenticity reposes upon a general characteristics resemblance, coupled with specific differences, such as naturally result from the infinite variety of conditions controlling the muscles

of the writer at each separate effort in forming his signature. * Test for determining identity or non-identity. – In order to reach the conclusion that two writings are by the same hand there must not only be present general characteristics but also individual characteristics or ‘dents and scratches,’ in sufficient quantity to exclude the theory of accidental coincidence; to reach the conclusion that writings are by different hands we may find numerous likenesses in general characteristics but divergence in individual characteristics, or we may find divergences in both, but the divergence must be something more than mere superficial differences. * A favorite defense of forgery. – One of the favorite defenses of forgery is the argument that the numerous damaging divergences in a disputed signature, which in combination are highly significant as evidence that it is not genuine, can each be found separately in one signature out of a great number of signatures, and that this proves that the disputed signature is genuine. Even if they could be found, this would not be proof of genuineness. The incompetent or the insincere witness, or the advocate, who is defending forgery, will often laboriously seek out these separated and only partially exemplified qualities, and then argue that the disputed signature and the genuine writing are just alike. * Circumstances that may induce expert to give erroneous opinion. – Identity is proved when two handwritings both contain a sufficient number of significant characteristics; qualities and elements so that it is unreasonable to say that they would all accidentally coincide in two different handwritings. * Errors are due to: (1) Basing opinion on inadequate amount of disputed writings (2) Inadequate amount of standard writing (3) Basing conclusion on common qualities alone (4) Basing conclusion on system or national characteristics (5) Basing conclusion partly on outside facts or statements of interested party (6) Ignoring difference in the writings (7) Interpreting all differences as disguises (8) Allowing prejudice, sympathy or antipathy to affect a conclusion (9) Haste or superficial examination (10) Inability to weigh and interpret characteristics or qualities

(11) Basing opinion on undeveloped writing from school teachers or pupils or young writers (12) The attempt to identify the actual writer of a forged signature that is a simulated or traced writing * Osborn’s suggestion in presenting expert testimony. – There are certain preliminary details in connection with the presentation of testimony of a technical character that deserve some attention. Before an expert or opinion witness is allowed to testify the law requires that he be “qualified” in a legal way to give expert testimony. This qualifying process consists in showing that the witness has had such preparation and experience as to legally qualify him to give an opinion in court on the subject in dispute. B. TYPEWRITTEN DOCUMENTS * Identification of typewritten documents. – The principles applicable to handwriting apply equally to typewritten documents. Expert testimony identifying typewriting, printing and other mechanical impressions as prepared on a particular machine is now considered an integral part of the science of questioned documents. Two types of experts appear in this field, the examiner of documents and the typewriter mechanic or engineer. Qualifications are the same for both, that is anyone may testify, as an expert whose training and experience have developed knowledge above that of the average person in the features of a typewriter or printing press, subject to the sound discretion of the court. * Typewriting questions. – Typewriting questions are presented in a great variety of ways. In the first place, if often is desirable simply to ascertain the date of a typewritten document. It may also be a matter of great importance to learn whether a document was all written continuously or written at different times on the same machine or at different times on different machines. * Skilled typist. – Skilled typist may be permitted to state inference that two pages of minute book of corporation were written by different typists using different machines. * Identification of operator. – The question of identification of the typewriter operator is primarily predicated upon the physical arrangement, the manner of punctuation, the length of line, the depth

of indentation, and the method of spelling, although some authorities discuss the question from the point of view that operators of typewriters have different touches. * Habits of operator. – Different habits of touch, spacing, speed, arrangement, punctuation, or incorrect use of any letters, figures, or other characters may also show that a document was not all written by one operator, or may show that a collection of documents was produced by several different operators. * Typewriting characteristics. The first fact to be considered in investigating the date of a typewriting is to find when a certain kind of machine, the work of which is in question, first came into use, and then it is important to learn, and to be able to prove, when any changes in the machine were made that affected the written record. * The most important typewriting inquiry. – Perhaps the most important typewriting inquiry is the determination whether a typewritten document is the work of a particular individual machine. There usually are two steps in an inquiry of this kind; 1) The first being the determination of the fact that the document was written on a certain particular kind of machine, 2) And the second that it was written on a certain individual machine of that particular kind * Comparison of typewriting or printing. – The authorities dealing with the question whether typewritten instruments can be identified as to genuineness by the peculiarity of the writing in much the same manner as handwriting has been identified appear to agree that typewriting possesses such individuality that it can be identified in much the same manner as handwriting, by comparison with other typewriting and by expert testimony. The theory underlying this rule is that where an impression is made on paper y an instrument, which possesses a defect or peculiarity, the identity of the instrument may be proved by the similarity of the defects, which it impresses on different papers. C. FINGERPRINTS * Fingerprints, palm prints, footprints, tracks. – Authenticated fingerprints, palm prints or footprints or photographs thereof of any person may be

introduced in evidence and compared with other fingerprints, palm prints or footprints found at or near the scene of the crime. This comparison is usually made by experts who may be permitted to use projectoscopes and photographic enlargements for the purpose of displaying such photographic impression to the court. * Fingerprint experts. – He must have knowledge of fingerprint from study, training, or experience as to make him a specialist in the subject. * Admissibility of fingerprints expert testimony. – Expert testimony as to the identity of thumbmarks or fingerprints is admissible. However, the court is justified in refusing to accept opinions of alleged experts where thumb impressions are blurred and many of the characteristic marks far from clear, thus rendering it difficult to trace the features enumerated by experts as showing the identity or lack of identity of the impressions. The court may substitute the opinion of experts by its own opinion that a distinct similarity in some respects between the admittedly genuine thumbmark and the questioned thumbmarks is evident. * Weight of fingerprint. – The weight to be given evidence of correspondence of fingerprints, where offered to prove identity of the accused as the person committing the crime, is for the determination of the court in the light of all surrounding facts and circumstances. To warrant a conviction, however, the fingerprints corresponding to those of the accused must have been found in the place where the crime was committed, under such circumstances that they could only have been impressed at the time when the crime was committed. When it appears that there were fingerprints other than those identified as the defendant’s who are neither identified nor explained, the proof of the defendant’s prints is not sufficient to support a conviction. D. BALLISTICS * Ballistics expert. – He is one who is qualified to give expert opinion on firearms and ammunition. No witness should be permitted to testify regarding the identification of firearms and bullets by the use of this science unless he has clearly shown that he is qualified to give such testimony. In a trial, it is necessary that the instrument, such as a weapon involved in a crime, be tested and demonstrated. * The problem of determining whether or not a given bullet was fired from a suspected firearm. – This problem can be solved only if it is possible to

establish: (a) that the signature on the given bullet was engraved by a firearm with the same class characteristics as those if the suspected firearm; (b) that the same combination of identifying elements exists in the signature on all bullets (except those undersize) fired from the suspected firearms at the time, and all variations found in these signatures can be reconciled; (c) that the same combination of identifying elements exists in the signature on the given bullet; (d) that all variations existing in the signature on the given bullet and the signatures of the suspected firearm can be reconciled; and (e) that the identifying elements determined from a combination the coexistence of which is highly improbable in the signatures of other firearms with the same class characteristics.

E. PARAFFIN OR NITRATE TEST * Method to determine whether a person has recently fired a gun. – It is usual in criminal investigations of cased of murder or homicide to apply nitrate test commonly known as paraffin test on the hands of the suspected person to determine whether or not such person has recently fired a gun. (People vs. Timbol, G.R. Nos. 47471, 47472 and 47473). F. CAUSE OF DEATH – NATURE AND CAUSE OF WOUNDS

* The problem of determining whether or not a fired cartridge case was fired in a suspected firearm. – The first step in the solution of this problem is to compare the signature on the given cartridge case with the signature on a test cartridge case to determine whether or not the given cartridge case was fired in a firearm with the same class characteristics as those of the suspected firearm. If the requisite agreement in class characteristics is found to exist and the reference point is established on the given cartridge case, the next step is to compare the signature on two or more test cartridge cases to determine the identities and to reconcile the diversities.

* Cause of death. – Where a body had been found but the cause of death is unknown, opinions of experts are generally indispensable to assist the court in determining whether the death was caused by accident, disease or violence. The cause of death of a person is considered so within the range of scientific knowledge that medical expert testimony is admissible as to such cause; or as to the different ways in which the death might have been caused, that death did or did not result from a given wound or injury, which of several bullet wounds was the most fatal where a person died after being shot several times or how long a person had been dead. Such testimony is not proper to contradict eyewitnesses.

* Admissibility of ballistics expert testimony. – A witness skilled in ballistics may be permitted to testify to the effect that he identified the pistol from which a bullet found at the scene of the homicide was fired, as a result of comparison of marking on that bullet and on shells also found at the scene of the homicide, with those found on bullets and shells fired by the witness through the pistol, the test upon which he passed his observations and formed his opinion being minutely described to the court.

* Manner and cause of death. – In all cases where cause of death is not one common observation or knowledge, physicians and surgeons – medical experts – may give opinion testimony, derived from their own observations of the body of the deceased or from scientific deductions from given facts, as to the probable causes of death, provided there are sufficient facts in evidence upon which to base the conclusion.

* Weight of ballistics expert’s opinion. – A ballistics expert conclusion that bullets were fired from a particular gun does not invade the province of the court. Testimony that he was convinced, as a result of the test made by him, that a bullet found at the scene of the homicide was fired through the pistol in evidence, which admittedly belonging to defendant, is an expression of an opinion based on his observations, and not objectionable as stating a fact, and thus invading the province of the court.

* Character of weapon inflicting wound. – A competent expert may testify from the nature of a wound as to the character of the weapon which caused it, and even non-expert testimony is sometimes accepted in this connection. * Whether wound or other injuries were selfinflicted. – The general rule seems to be that opinions as to whether wounds and injuries were or were not self inflicted and not admissible where the facts are fully presentable to the court and are such that special knowledge or skill is not an essential to the formation of an intelligent opinion upon the

question; but where such knowledge or skill is necessary or where the facts cannot be fully represented, the opinions of witnesses having such knowledge or skill are admissible as an aid to the court. * Basis of opinion. – To be admissible, it must be based on facts observed by the physician in the course of his attendance upon, or examination of, the subject. Facts proved in the case by direct testimony overheard by the witness, or facts hypothetically stated, mere guesses or speculative opinions are inadmissible.

G. SANITY OR INSANITY * General rule. – Mental incapacity is a field in which the opinions of experts are frequently to for the purpose of aiding the court in drawing inferences from facts, which have been detailed to it. Medical experts and experts with relation to mental diseases may give an opinion upon the mental condition of the witness, based upon facts and circumstances within their own observations; upon hypothetical questions based upon facts and circumstances in evidence; and upon facts detailed by the witnesses. * Expert witness. – He should have a general knowledge as a medical man or with scientific training upon the subject. Those who have had the care of insane persons are generally received as competent including physicians in general practice and trained nurses who are accustomed to attend upon the sick. H. VALUE OF PERSONAL OR REAL PROPERTY * Opinion evidence on the value of personal and real property. – Opinion evidence is usually admitted from persons, who are not strictly experts, but who from residing and doing business in the vicinity have familiarized themselves with land values and are more able to form and opinion on the subject at issue. * Expert evidence on the value of land taken by eminent domain. – A person engaged in a business of holding a public office, which required the knowledge of real estate values is a competent witness as to the value of land with which he is familiar. The opinions of experts as to value, however, are not to be passively received and

blindly followed, but are to be weighed by the court and judged in view of all testimony in the case and the judge own personal knowledge of affairs. * Market value. – The price fixed by the buyer and the seller in the open market in the usual and ordinary course of legal trade and competition; the price and value established or shown by sale, public or private, in the ordinary course of business; the fair value of the property as between one who desires to sell and one who desires to purchase; and the general or ordinary price at which property may be bought and sold in a given locality. * Assessed value. – Assessed value may be admitted as evidence but it is of little value ina judicial investigation to determine the market value of the property. H. OTHER SUBJECTS OF EXPERT TESTIMONY * Subjects that may be proved by experts. – This includes the following: 1. 2. 3. 4. 5.

Age Bloodstains Hair X-ray, pictures Characters in certain writings which needs to be deciphered 6. Language in certain writings not understood by the court 7. Unwritten law 8. Proof of unwritten foreign laws * Qualification of witness. – The witness must be shown to the satisfaction of the court to possess sufficient knowledge to render his evidence of value. * Opinions of courts of foreign states and nations. – Judicial opinions offered as proof of the unwritten law of a foreign state or nation have been held admissible in evidence, even in the absence of a statutory provision authorizing the admission thereof in evidence. However, the fact that a purported decision does not appear in the original reports has been held sufficient ground for disregarding it, although it does appear in an unofficial publication. Section 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.

testify that in his judgment the defendant was about the size of one of the robbers.

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

6. Opinion of ordinary witness as to the handwriting of a person. – An ordinary witness may give his opinion regarding the handwriting of a person, with which he has sufficient familiarity. This subject is well covered by Rule 132, Section 22 of the Rules of Court, which provides that “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.”

1. Source. – This provision is a reproduction of Section 44, Rule 130 of the Rules of Court. 2. In general. – Well-settled is the rule that a witness can testify to those facts only which he knows of his own knowledge; he should not be allowed to state conclusions or inferences which are for the court to make. 3. Proper basis or predicate for witness’ opinion. – Before an ordinary witness may be allowed to give his opinion on the identity, handwriting, the mental sanity of a person, or to give his impressions of the emotion, behavior, condition or appearance of a person, the proper basis or predicate upon which he bases his opinion must first be laid. 4. Opinion of ordinary witness as to identity of a person. – An ordinary witness may give his opinion regarding the identity of a person when he has adequate knowledge of his identity. Because of the difficulty of describing the circumstances which established identity in terms conveying the idea of identification, witnesses who are shown to be qualified by their opportunities for observation are permitted to testify as to the identity of persons or things. The rule applies to criminal prosecutions as well as to civil actions. There are, however, instances in which opinions have been excluded – usually, it seems, because of the facts of the particular case. Under the present rule, the statements of the witness as to identity are not to be rejected because he is unable to describe the features of the person in question, or the latter’s clothing or other particulars on which the witness’ conclusion depends. Identification may be based upon voice alone; and it is obviously impossible for a witness to describe tones of voice in such a manner that from the description alone the court can arrive at any satisfactory conclusion. 5. Physical condition – A witness need not be an expert in medical matters in order to be competent to express an opinion as to the physical condition of another. And it is clear that in describing such a condition the witness is not required to state all the evidentiary facts on which his opinion is based; his statement may partake largely of the nature of a summary of, or conclusion from, such facts. A witness may

The evidence frequently offered on a question of the authenticity of a disputed writing or signature is that of persons who are familiar with the handwriting of the alleged writer; the opinion of such a person is universally recognized to be admissible, even though he is in no sense a handwriting expert. Non-expert witnesses may not express an opinion on the genuineness of a writing solely from comparison, but they may express an opinion based on the knowledge received from the handwriting of the party whom they saw write. “The testimony of the notary public, who was not only an instrumental witness himself but also an officer of the court, and whose act of notarization impressed upon the disputed Deed of Absolute Sale, the full faith and credit which attaches to a public instrument, explicitly identifying the signatures of the parties to the instrument and expressly and forthrightly stating that both had appeared before him and affixed their signatures to the said document, must be held to control and prevail over the opinion or conclusion of petitioner’s expert witness.” – Alcos, et. al vs. Intermediate Appeallate Court. 7. Opinion of ordinary witness as to the mental sanity or insanity of a person. – An ordinary witness may give his opinion regarding the mental sanity of the person with whom he is sufficiently acquainted. An ordinary witness may give his opinion as to the sanity or insanity of an individual, if such opinion is drawn from the conduct of the latter,

since there can be no doubt that persons of common sense, conversant with mankind, and having a practical knowledge of the world, if brought into the presence of a lunatic would, in a short time, be enabled to form an accurate and reliable opinion, not, perhaps, of the specific and precise character of the insanity as referable to a particular class of the insane malady, but certainly, in a general way, of his mental unsoundness. 8. Reason for the rule. – Reasons for this rule are found in the considerations that the facts showing insanity, in their entirety, frequently elude accurate, complete and detailed statement and consequently render it difficult to afford a satisfactory basis for the judgment of an expert; that many witnesses can make a correct inference more readily than they can make a detailed statement; that as commonly presented to observation, insanity is really detected, if carried beyond a certain point; that an unskilled observer may be quite as able as an expert to make a clear mental comparison between the acts and conduct of a sane person and those of one who is laboring under mental disability; and that to reject the inference of an observer with suitable opportunities and faculty for observation is to refuse to consider evidence which is frequently of the highest possible value. 9. Opinion of a subscribing witness to a writing as to the mental sanity or insanity of a signer. – In will cases, a special qualification to testify exists on the part of the attesting witnesses to the will. It is commonly held that they may testify to their opinion of the testator’s soundness of mind without proof of their having had the opportunity of observing him except at the time of executing the will. Moreover, the rule supported by the overwhelming weight of authority is that no foundation need be laid for receiving the opinion of a subscribing witness to a will as to the soundness of the testator’s mind at the time of executing the will, other than to show his status as a subscribing witness. Many courts have reached such conclusion on the theory that it may be presumed that the attesting witness performed his duty to observe the mental condition of the testator’s mind at the time of executing the will. 10. Negativing testamentary capacity. – The testimony of an attesting witness to a will tending to show that the testator was of unsound mind or lacked testamentary capacity is admissible. Such is held to be the rule, notwithstanding the view is taken that a person requested to witness a will should observe the testator and be satisfied of his mental capacity before signing as a witness. Although a person

who attaches his name as a witness to a testamentary instrument impliedly certifies that the testator is of sound mind and competent to make a will, he will be permitted to contradict the attestation clause and testify as to the actual facts. That the witness may deserve censure for having attested a will of a person whom he is ready to declare of unsound mind when the validity of the instrument is later brought into question is not a sufficient reason for refusing to hear such testimony. 11. Impressions as to emotion, behavior, condition or appearance. – A witness may testify on his impressions of the emotion, behavior, condition or appearance of a person. It is usually competent for a witness to state his impression of another’s manner or appearance, such as that the latter was “nervous” or “excited”, that he was “mad”. But a witness cannot testify to uncommunicated motive or intention of a party, such as he thought the deceased intended to kill someone or be killed, that two people were “antagonistic”, that defendant laughed because she cut deceased, whether defendant was “joking” in what he said, that the accused “looked pretty vigorous” or that one was “jealous”, as an opinion or impression is a mere guess or speculation and inadmissible. 12. Opinion limited to expressions of his own impressions. – While one may testify in opinion form as to impression made upon his own senses, he cannot go further and testify as to the impression such facts would have had upon others. In a case decided by the Supreme Court of Washington, the trial court refused to permit a witness shown to be acquainted with the locale, to give his opinion as to whether a stranger driving over a certain street at night would reasonably believe he was on a through street. 13. Hypothetical question not permissible. – A non-expert witness cannot give an opinion as to the sanity or insanity of the accused based in whole or in part upon an abstract hypothetical question, but must base his opinion solely upon his own personal knowledge, observation, acquaintance, etc., with the accused. 14. Witness must give reason for his opinion. – In giving his opinion, the non-expert must state facts upon which his opinion was based. It is indisputable that it should appear somewhere in the testimony of the witness that he had the testimonial qualification of previous observation of the person whose sanity he undertakes to give evidence. It must appear, as a preliminary to the expression of his opinion that he has had the means of observation. He must give the facts of his knowledge and acquaintanceship

with the person concerning whose sanity he is called to testify. After giving these facts, he may express his opinion. The weight of the opinion, or its value, is then developed further by evidence of the particular facts coming under his observation, and on which he bases his opinion. 15. Examination of non-expert witnesses. – The general rules as to the examination of witnesses, with such modification as the character of the testimony renders necessary, apply to the examination of witnesses giving evidence. A witness who has stated that he has no opinion should not be pressed to give an opinion. A question which is misleading or indefinite should not be permitted, and a question as to whether accused’s demeanor on the witness stand was different from that when the witness met him at a certain time has been excluded as unfair. 16. Cross-examination of non-expert witnesses. – A witness testifying as to his opinion may be cross-examined as to the facts and grounds upon which his opinion is based, and generally cross-examination legitimately tending to test the accuracy and truthfulness of the witness and the value of his testimony should be permitted. The cross-examination must be confined to the scope of the examination in chief, and a question based on an assumption not warranted by the evidence is inadmissible. It has been held that on cross-examination of a witness who has testified to sanity or insanity of testator, he may be asked as to testator’s capacity to make a will in order to test the witness, but not to establish the fact; but on the other hand, it has been considered that testimony of attesting witnesses, that testatrix at the time of the execution of the will was of disposing memory, received without objection, gave contestant no right to ask, on cross-examination of a nonexpert for proponent, for his opinion whether testatrix was of a disposing mind. 17. Latest Jurisprudence. People of the Philippines, vs. Efren Castillo, GR No. 186533, August 9, 2010 “The opinion of a witness for which proper basis is given, may be received in evidence regarding the mental sanity of a person with whom he is sufficiently acquainted.” Appellant anchors his argument for acquittal on the alleged failure of the prosecution to establish AAA’s mental retardation to make him guilty of rape under Article 266-A, par. 1(b), of the Revised Penal Code. Appellant concludes that his guilt has not been proven beyond reasonable

doubt. The Supreme Court rejected the said argument. Section 50, Rule 130 of the Revised Rules on Evidence explicitly provides that the opinion of a witness for which proper basis is given, may be received in evidence regarding the mental sanity of a person with whom he is sufficiently acquainted. Accordingly, it is competent for the ordinary witness to give his opinion as to the sanity or mental condition of a person, provided the witness has had sufficient opportunity to observe the speech, manner, habits, and conduct of the person in question. Commonly, it is required that the witness details the factors and reasons upon which he bases his opinion before he can testify as to what it is. In the case at bench, BBB testified that AAA has been suffering from epilepsy since she was nine years old, which is one of the reasons why AAA was not able to finish her Grade I level. AAA also had to stop schooling because she had difficulties understanding her lessons in school, she cannot write well, she had poor memory and she had difficulty answering even the simplest question asked of her. BBB further stated that AAA is the eldest of her four children; however, compared to her younger siblings, AAA had a hard time comprehending the instructions given to her at home and in school. It bears stressing that the deprivation of reason contemplated by law need not be complete; mental abnormality or deficiency is sufficient. Thus, it is clear from the foregoing that AAA’s impaired learning capacity, lack of personal hygiene and difficulty in answering simple questions, as testified to by her mother and the Guidance Psychologist who had an opportunity to observe her appearance, manner, habits and behavior, are indicative that she is truly suffering from some degree of mental retardation. Section 51.Character evidence not generally admissible; exceptions: — (a) In Criminal Cases: (1) The accused may prove his good moral character which is pertinent to the moral trait involved in the offense charged. (2) Unless in rebuttal, the prosecution may not prove his bad moral character which is pertinent to the moral trait involved in the offense charged. (3) The good or bad moral character of the offended party may be proved if it tends to establish in any reasonable degree the probability or improbability of the offense charged.

(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) 1. Source. – This provision is a reproduction of Sections 46 and 47, Rule 130 of the Rules of Court. A. IN GENERAL 2. Character defined. – Character is defined to be the possession by a person of certain qualities of mind or morals, distinguishing him from others. The opinion generally entertained of a person derived from the common report of the people who are acquainted with him; his reputation. 3. Character distinguished from reputation. – “Character” strictly speaking, means that which a person or thing really is, while “reputation” means what a person is estimated, said, supposed, or thought, to be by others. Character is internal, reputation is external; one is the substance, the other is the shadow. 4. Good moral character defined. – Good moral character means a character that measures up as good among the people of the community in which the person lives, or that is up to the standard of the average citizen; that status which attaches to a man of good behavior and upright conduct.

5. Ways of proving good or bad character of a party. – The rule is that testimony to prove the good or bad character of a party to a civil action or of the defendant in a criminal prosecution must relate and be confined to the general reputation which such person sustains in the community or neighborhood in which he lives or has lived. B. CHARACTER IN CRIMINAL CASES 6. Accused may prove his good moral character. – Proof of the good moral character of the accused strengthens the presumption of his innocence; and by establishing good character a presumption is created that the accused did not commit the crime. This view proceeds upon the theory that a person of good character and high reputation is not likely to have committed the act charged against him.

7. When accused may introduce evidence of his good moral character. – It is always relevant for the defendant to offer affirmative evidence of good moral character, when the same is pertinent to the moral trait involved in the offense charged. 8. Time and place of accused character. – Evidence of the defendant’s character should be confined to a time not very remote from the date of the commission of the crime. It should relate to the time of the act in question and before. Generally speaking, it is the reputation up to the time of the commission of the offense only which is admissible. 9. Accused cannot prove the good moral character of his co-accused; exception. – Though the accused may prove his own character, he will not be permitted to prove that others conspiring with him and jointly indicted, or who are suspected of complicity in the crime, are men of good character. This evidence is not in the last relevant to show his innocence, as the fact that the friends or acquaintances of the accused are men of unimpeachable character, in no way proves that he is a person of good character. 10. Negative evidence of good character or reputation. – It is well settled that the testimony of a witness to the effect that he has never heard anything against the character or reputation of a person is admissible to prove the good character of such person, provided the witness is shown to have been in such position that he would have heard anything that was said concerning the person’s character or reputation. Negative evidence is viewed as the most cogent evidence of a person’s good character and reputation, because in the absence of any discussion about character, it may reasonably be presumed that the person’s reputation is good. 11. No presumption may be inferred where defendant offers no evidence of his good character. – If the defendant offers no evidence of his good character, no legal presumption can be drawn from such omission prejudicial to the defendant, or that, his character is bad. However, if he desires to put his character in issue, he has the right to the benefit of his previous good character or reputation, so far as it is at variance with the crime charged. 12. Right of state to introduce evidence of bad moral character. – It is generally recognized that the state cannot, in a criminal prosecution, introduce evidence attacking the character of the accused, unless the accused first puts his good character in issue by introducing evidence to

sustain his good character or reputation or has become a witness in his own behalf. 13. Evidence of specific acts not admissible to prove bad character. – Evidence of specific acts or conduct of a person upon particular occasions bearing upon his character, is usually held to be admissible. The admission of such evidence would raise collateral issues and divert the mind of the judge from the matter at hand. Thus, the state in rebutting the evidence of the defendant’s good character is confined to evidence showing his general reputation as to having a bad character, and not to specific acts derogatory to his good character. One accused of a crime cannot testify in defense that he has never before been accused of, or arrested for, crime. 14. When evidence of specific acts admissible. – The reasons of practical policy affecting the rule excluding proof of specific conduct of a party do not apply with the same force where the character of third persons is involved. 15. When character is in issue in criminal cases. – Character may itself be a fact-in-issue. In numerous offenses against social morality, as defined by the criminal law, the character of a person may be an element in the offense. Whether it is actual character or reputed character depends upon the policy and the words of the local statute, as interpreted by the courts. 16. Moral character of the offended party. – 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. This rule is applied with frequency in cases of homicide and sex offenses. 17. Character of offended party in rape and seduction cases. – In any prosecution involving the unchaste act by a man against a woman, where the willingness of the woman is material, such as rape and acts of lasciviousness, the woman’s character as to chastity is admissible to show whether or not she consented to the man’s act. Thus, in the prosecution for rape, or for enticement to prostitution, or in an action or prosecution for indecent assault (acts of lasciviousness), the woman’s character as to chastity is admissible; but not in a prosecution for rape under the age of consent. 18. Character of offended party in homicide cases. – On prosecution for homicide, evidence of the bad character of the deceased is irrelevant, for as frequently said, the law protects

everyone from unlawful violence, regardless of character, and the service done the community in ridding it of a violent and dangerous man is, in the eyes of the law, no justification of the act. 19. Character of offended party in murder cases. – While the good or bad moral character of the victim may be availed of as an aid to determine the probability or improbability of the commission of an offense, such is not necessary in a crime of murder where the killing is committed with treachery or premeditation. C. CHARACTER IN CIVIL CASES 20. Character evidence in civil cases. – Of character evidence in ordinary civil actions, even those wherein fraud is imputed, it has been well observed that if such evidence is proper, then a person may screen himself from the punishment due to fraudulent conduct till his character becomes bad. Every man must be answerable for every improper act, and the character of every transaction must be ascertained by its own circumstances, and not by the character of the parties. 21. Distinction between the rule on character evidence in criminal and civil cases. – In criminal cases, evidence of the good character of the accused is most properly and with good reason admissible in evidence, because there is a fair and just presumption that a person of good character would not commit a crime; but in civil cases, such evidence is with equal good reason not admitted, because no presumption would fairly arise, in the very great proportion of such cases, from the good character of the defendant, that he did not commit the breach of contract or of civil duty alleged against him. 22. Where evidence of moral character admissible in civil cases. – As a general rule, the character of a party to a civil action is not a proper subject of inquiry, for, while it is recognized that ground for an inference of some logically probative force as to whether or not a person did a certain act may be furnished by the fact that his character is such as might reasonably be expected to predispose him toward or against such an act, this consideration is outweighed by the practical objections to opening the door to this class of evidence. 23. “Putting character in issue” or “character involved in the issue” construed. – “Putting character in issue” or “character involved in the issue” is a technical expression, which does not mean simply that the character may be affected by the result, but that it is of particular importance in the suit itself, as the character of

the plaintiff in an action of slander, or that of a woman in an action on the case for seduction. 24. Evidence of moral character of a third person. – An issue in a civil case sometimes involves a third person’s act having a moral quality. On such an issue, the third person’s moral trait would have probative value, and there is no practical policy against it. Court sometimes admit it, and sometimes exclude it.

25. Character in mitigation of damages or in excuse or defense to the action. – In some civil actions, the measure of compensation may be affected by the plaintiff’s character. D. CHARACTER OF WITNESS 26. Evidence of good character of witness. – Evidence of the good character of a witness is not admissible until such character has been impeached. The character or reputation of a witness must be attacked or impeached before testimony sustaining his character or reputation can be admitted, but it is not necessary that character witnesses for impeachment purposes should first be introduced if the veracity or character of the witness been substantially impeached in other ways, especially if he is a stranger in the county where the trial is being conducted. Evidence in rebuttal to sustain a witness’ character or reputation has been assailed in order to discredit him, or when the opposite party brings out matters, which, if true, tend to diminish the credibility of the witness by disparaging his character. 27. Latest jurisprudence. Civil Service Commission vs. Allyson Belagan, GR No. 132164, October 19, 2004 “Not every good or bad moral character of the offended party may be proved under this provision. Only those which would establish the probability or improbability of the offense charged. This means that the character evidence must be limited to the traits and characteristics involved in the type of offense charged.” Generally, the character of a party is regarded as legally irrelevant in determining a controversy. One statutory exception is that relied upon by respondent, i.e., Section 51 (a) 3, Rule 130 of the Revised Rules on Evidence, which we quote here:

"SEC. 51. Character evidence not generally admissible; exceptions. – (a) In Criminal Cases: xxx

xxx

(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." It will be readily observed that the above provision pertains only to criminal cases, not to administrative offenses. And even assuming that this technical rule of evidence can be applied here, still, we cannot sustain respondent’s posture. Not every good or bad moral character of the offended party may be proved under this provision. Only those which would establish the probability or improbability of the offense charged. This means that the character evidence must be limited to the traits and characteristics involved in the type of offense charged. In the present administrative case for sexual harassment, respondent did not offer evidence that has a bearing on Magdalena’s chastity. What he presented are charges for grave oral defamation, grave threats, unjust vexation, physical injuries, malicious mischief, etc. filed against her. Certainly, these pieces of evidence are inadmissible under the above provision because they do not establish the probability or improbability of the offense charged. Obviously, in invoking the above provision, what respondent was trying to establish is Magdalena’s lack of credibility and not the probability or the improbability of the charge. In this regard, a different provision applies.