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REVISED RULES OF EVIDENCE Rule 128 GENERAL PROVISIONS SECTION 1. Evidence, defined. Evidence is the means, sanctioned by these rules, of ascertaining in a judicial proceeding the truth respecting a matter of fact. Q: What is meant by the phrase “sanctioned by the rules”? A: Sanctioned by the 1989 Rules on Evidence. These are the rules of ascertaining, finding out, determining, IN A JUDICIAL PROCEEDING  in a proceeding in a regular court. Q: Can we use the ‘89 Rules on Evidence in a labor case before the Labor Arbiter and the NLRC, or in a case before the SEC? A: The Rules on Evidence apply STRICTLY ONLY TO PROCEEDINGS IN COURT  the MTC, RTC, CA and Supreme Court. The NLRC and the SEC are NOT judicial bodies. The proceedings there are ADMINISTRATIVE because they are QUASI-JUDICIAL. That is why the manner of proving things sometimes is not in accordance with the strict rules on evidence. In the study of Labor Relations, you will encounter a provision in the Labor Code which states: “The Rules on Evidence which shall apply to courts of justice will not apply to a labor case, EXCEPT IN A SUPPLETORY MANNER”. In other words, the Labor Arbiter applies the Rules on Evidence, but only in a supplemental way. Q: What is the function of Evidence? A: To ascertain the truth respecting a matter of fact, a factual issue, because in a case, the problem always of the court is: Who is telling the truth? For example: The plaintiff in a civil case says the defendant borrowed money from him and did not pay. The defendant says this is not true and that the account has already been paid. One cannot determine the truth just by reading the complaint and the answer. One must be lying, and the other must be telling the truth. That is the function of evidence. You prove in court that the allegation is false. This is the power of persuasion. The same also goes when you prove self-defense... That is why it is said that evidence is the manner of proving the truth on a question of fact. Issues could either be of fact or of law. If the issue concerns only a question of law, there is no more need for evidence. There is no need for trial. YOU DO NOT HAVE TO PROVE ANYTHING WHEN THE ISSUE IS PURELY LEGAL. Do you remember the order of trial in a civil case? Plaintiff first presents evidence to prove his side. Defendant presents evidence to prove his defense. And then, rebuttal. And then, argument. -1-

But how about a judgment based on an agreed statement of facts? When the parties agree on the facts but they cannot agree on who should win, the case then presents a pure question of law. There is no more trial. Evidence has no function because anyway, the parties have agreed upon all the facts. THE FUNCTION OF EVIDENCE IS TO DETERMINE THE TRUTH BASED ON DISPUTED FACTS. CLASSIFICATIONS OF EVIDENCE I. (A) Material Evidence Evidence which tends to prove the fact in issue in a case. The issue is determined by the rules of substantive law and pleadings. The opposite of Material Evidence is IMMATERIAL EVIDENCE. For example: In a collection case, plaintiff alleges that the defendant borrowed money from him and failed to pay. Defendant alleges the defense of payment. What is now the issued based on the law of pleadings and substantive law? The issue is: whether or not the obligation has already been extinguished by payment. Does the receipt tend to prove the defense of the defendant? Yes, that is the best evidence. Therefore, the receipt is a very material piece of evidence to prove the defense of the defendant. It proves his defense; it is a direct proof. However, in the course of the trial where the issue is whether or not the obligation has been paid, the defendant produced in court his birth certificate to prove that he was born on this date at this place. Is there a relation between the birth certificate and the issue in this case? There is no relation  practically immaterial. Therefore, if you present your birth certificate, the other party will object and the court will not allow the evidence to be admitted. The birth certificate is thus an immaterial piece of evidence. (B) Relevant Evidence  Evidence which has a tendency in reason to establish the probability or improbability of the fact in issue. Sometimes, relevant and material evidence are interchanged. There is a difference between the two. Evidence might be immaterial, but it can still be admitted on the ground of relevancy. It does not tend to prove the probability of the fact in issue, but it proves it indirectly. I am not proving it directly, but I am trying to prove that it is PROBABLE. An example of evidence which is NOT MATERIAL BUT IS RELEVANT: Mr. A was shot to death and based on the investigation of the police, the victim was shot with a rifle from a distance of 200 yards, and the victim was hit in between the eyes. Mr. B is the suspect. The prosecution was trying to prove that B is the guilty party. The prosecution presented evidence that during the last Olympics, Mr. A was the gold medalist in the sharpshooting event. Is the evidence material? Does it tend to prove the issue  did the accused, Mr. B, killed the victim? The issue is not whether or not A is a gold medalist, but is considering the fact that the killer is a

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sharpshooter, does the evidence tend to prove that there is a strong probability that B could be the killer? Yes. Therefore, the court will rule the admissibility of the evidence on the ground of relevancy, although not on the ground of materiality. But suppose, the prosecution will present evidence that for the past three Olympic games, A has been the gold medalist in archery. Is the evidence admissible? On the aspect of materiality, there is none. The evidence is useless. It does not prove the fact in issue directly or indirectly. II. Competent Evidence  Evidence which is not excluded by any law or the Rules on Evidence. When the law says that the evidence is not allowed, then it is totally inadmissible  total inadmissibility. Q: What does the Constitution say about a confession made by a suspect who is under investigation by the police and who confessed that he was really the one who committed the crime; but the problem is that before he made the confession, he was not given any warning? He was never warned of his right to remain silent, that he was entitled to a lawyer, etc. -The Miranda Warnings. Based on the Bill of Rights, if a confession is made by a suspect voluntarily but he was not warned of his right to remain silent, and now his confession is offered in court to prove his guilt; but it was established that it was an uncounseled confession, what are his constitutional rights? A: The Constitution declares that the confession cannot be admitted to prove his guilt. Is the confession material? Yes, the confession is material. It is also relevant, but incompetent. The law means, any law -- either the Constitution or even the Rules of Evidence -- which is why we have Rule 130 (Rules on Admissibility). If there is no law which says that it is excluded, it is competent evidence. III. (A) Direct Evidence  Evidence which proves the fact in dispute without the aid of any inference or presumption. (B) Circumstantial Evidence  It is the proof of fact or facts which, taken either singly or collectively, the existence of the particular fact in dispute may be inferred as a necessary or probable consequence. It is an indirect manner of proving. You have to resort to an inference or presumption. In direct evidence, there is no need for an inference because the statement is DIRECT. For example: COURT: Do you know who killed the victim? WITNESS: Yes. COURT: Who killed him?

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WITNESS: The accused. COURT: Why do you know that the accused killed the victim? WITNESS: I was there. That is direct. In circumstantial evidence, there is no one saying that “he” killed the victim, but there is a circumstance which points to the probability that “he” is the killer. A good example is also the example given in Relevant Evidence  the sharpshooter. The evidence does not point to “him” as the killer, but it causes the inference that “he” might be the one. The evidence is relevant and, at the same time, circumstantial. That is why it is said: “Where there is smoke, there is fire.” The smoke is the circumstantial evidence that there is a fire below. When you see a person walking staggeringly and holding a bottle of Tanduay, what is the inference? He is drunk. But did you see him drinking? No, but you can infer it through his behavior and actions. IV. (A) Primary Evidence or Best Evidence  It is evidence which the law regards as effecting the greatest certainty of the fact in question. (B) Secondary Evidence  It is inferior or substitutionary evidence. That which itself indicates the existence of a more original source of information. The distinction is quite obvious. Best evidence or primary evidence is the best evidence you can present to prove what you are trying to prove. Secondary evidence -- inferior evidence. Under the law on the rules on admissibility, secondary evidence is allowed only when the best is not presented. Rule 130, Sec. 3: Original document must be produced; exceptions  when the subject of inquiry is the contents of a document, no evidence shall be admissible other than the original document itself, except xxx V. (A) Positive Evidence  Evidence is positive when the witness affirms that a fact did or did not occur. (B) Negative Evidence  Evidence is negative when the witness states that he did not see or know the occurrence of a fact. Consider this conversation: COURT: Was Mr. L. present in class last night? WITNESS: Yes, he was present.

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Is that a negative or a positive testimony? Positive. Suppose the witness says, “No, Mr. L was not present.” Still positive. WHEN HE AFFIRMS THAT A FACT HAPPENED OR DID NOT HAPPEN, THAT IS POSITIVE. But suppose, the conversation goes like this: COURT: Was Mr. L present in class last night? WITNESS: I did not notice Mr. L’s presence last night. Is that a positive or a negative testimony? That is negative testimony. Actually, you analyze: is the witness saying that Mr. L was present or absent? Neither. What the witness was saying is not a statement meaning that Mr. was not around. As you shall see in the rule on weight, in a collision between negative or positive testimony, the positive testimony prevails. VI. Expert Evidence  Evidence given by one possessing in regard to a particular subject or department of human activity, knowledge not usually acquired by other persons. Meaning, the expert witness knows something of a particular field and yet you cannot say that everybody knows it. For example: the ballistic expert will testify about the trajectory of the bullet, from what angle the victim was shot. A handwriting expert will testify that the questioned document is a forgery. A fingerprint expert will testify that the specimen lifted is the fingerprint of somebody. A brain surgeon, physicist, etc... The provision there is Sec. 49 of Rule 130: 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. VII. (A) Cumulative Evidence  Evidence is cumulative when it is OF THE SAME KIND AND CHARACTER as that already given and TENDS TO PROVE THE SAME PROPOSITION. (B) Corroborrative Evidence  It is ADDITIONAL EVIDENCE OF A DIFFERENT KIND AND CHARACTER TENDING TO PROVE THE SAME POINT. Q: What is the similarity between cumulative and corroborrative? A: The similarity is: Both are supporting evidence. The difference is, in Cumulative, the supporting evidence is of the same nature and character as that already given earlier. If the supporting evidence belongs to a different specie as that already given, it is supporting corroborrative. For example: A, B and C witnessed an incident. A testifies that he was there in this place; that he was with B and C, and that this is what he saw... Next witness is B. B testifies that he was on the same place, on the same date, and that he was with A and C, and that this was what

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happened... It is practically a DUPLICATION of what A said. B is trying to support what A, the first witness, said. And then C does the same. The testimonies of B and C are CUMULATIVE TESTIMONY. They are of the same type as that given earlier. Example of Corroborrative: A witness testifies that these are the improvements on his property. There are these many coconut trees, 20 years old; these many mango trees. A claims that he planted them. Then, he presents a tax declaration where, based on the assessor’s findings, these are the improvements, etc. -- practically the same testimony. The document of the government represented by the assessor’s findings supports the testimony of the owner of the land. The tax declaration or assessor’s findings is corroborrative. VIII. (A) Prima Facie Evidence  Evidence which suffices for the proof of a fact in issue until rebutted or overcome by other evidence. Standing alone, it is sufficient to prove your claim. Example: Evidence of the plaintiff in a default hearing. The defendant is declared in default. Plaintiff then presents evidence ex parte. This is the end. The plaintiff’s statements are not refuted by anybody. So, they are prima facie. You can prove your cause of action because nobody is disputing what you are saying. In a criminal case, generally, when the Fiscal says that the Prosecution rests, he has already proven the guilt of the accused, prima facie. Meaning that if the trial is finished, the defendant losses. But normally, after the prosecution, it’s the defense turn to rebut the evidence of the prosecution. (B) Rebutting Evidence  Evidence given to repel, counteract or disprove facts proved by the other side. Normally, when the defendant presents evidence, he is, in effect, rebutting the prima facie evidence of the plaintiff. After that, the plaintiff is also given the chance to present rebuttal evidence to disprove the defense. (C) Conclusive Evidence  Evidence which is UNCONTROVERTED. It admits of no proof to the contrary. IX. Object Evidence  It is defined as evidence addressed to the senses of the court  something that you can see, touch or hear. Under the 1964 Rules of Court, this is known as Real Evidence. The 1989 Rules on Evidence changed the name to Object Evidence. The latter is the new name. Other names given to Object or Real Evidence are Demonstrative Evidence and Autopic Proference. These are actually just the same.

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For example, during trial in a case of murder, the prosecution offered as evidence the murder weapon, a knife, bolo or gun. This was supposed to be the weapon used to kill the victim -- the first exhibit. This is what is called as Object Evidence. Something is being offered in court that can be seen, touched or heard in order to serve as evidence to support a version of the story of a party. X. Testimonial Evidence  Evidence furnished by the testimony of man which may be ORAL or WRITTEN. If the testimony is oral, the technical term used under the Rules on Evidence is PAROL EVIDENCE. If it is written, it is DOCUMENTARY EVIDENCE. Loosely speaking, though, when the term “testimonial” is used, the automatic reference is parol  that somebody is giving an oral testimony. But actually, a person may voice out his ideas either orally or in written form. Both are still considered testimonies. Q: Distinguish evidence from proof. (bar question) A: Evidence is the means of proving; proof is the effect of evidence. Proof is the establishment of a fact by evidence. You present evidence in court to prove something. Once your evidence is satisfactory, the court says: “You have proven your case.” You have thus achieved your objective. The manner of achieving your objective is through evidence. Does it mean that everytime there is evidence, you are able to prove your case? Of course, your evidence must be admitted in court. But if you present your evidence but lacking, the court will say: “You have not proven anything.” But you argue that you presented evidence. Yes, you did. But the trouble is that your evidence was not admitted. Even if there is evidence, you cannot achieve your final objective which is to prove the fact if your evidence is not admitted. So, do not confuse evidence with proof. Q: Distinguish “factum probandum” from “factum probans.” (bar question) The above terms are already encountered in Civil Procedure. Under the principle of pleadings, a pleading must recite only the ULTIMATE FACTS. EVIDENTIARY FACTS should not be recited in the pleading. You prove the latter during trial. For example: You want to prove that you are the owner of a parcel of land. You state in your allegation, “Plaintiff is the owner of this land.” That is the ultimate fact to prove. In the course of the trial, you go into the details. You prove your occupation and your objections to the other party’s contentions. In your pleadings, you do not need to recite what your improvements you have introduced in the property. Those are what you call evidentiary facts, which are brought out during the trial but should not be stated in the pleadings.

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A: Under the law, translated now into the law on evidence, the ultimate fact is the factum probandum. The evidentiary facts which should not be found in the pleadings but brought out during the trial is the factum probans. “Factum probandum” is the fact to be established; “factum probans” is the evidentiary fact or the fact by which the “factum probandum” is to be established. One (factum probandum) is the ultimate fact, the fact to be proved or established; the other (factum probans) is the evidentiary fact or the fact by which the ultimate fact is to be established. So, if you apply these terms in the law on pleadings, the pleading must recite the “factum probandum” only and not the “factum probans”, because the “factum probans” should be brought out only in the trial to prove the “factum probandum”. So now, we are clarifying the terms and correlating them with the principles we learned in other Remedial Law subjects. 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. The 1989 Rules on Evidence is the common denominator for criminal and civil cases. Usually, before you take up evidence, you have to first take up Criminal and Civil Procedure. But whether it is Criminal or Civil Procedure, the rules on evidence are the same, in all courts in all types of hearings, except when the law provides otherwise. When the law provides otherwise, we shall not follow the rules on evidence. An example where the court does not follow the rules on evidence but instead follows another rule other than the rules on evidence is Section 24 of BP 129 (the Judiciary Law): Whenever a Regional Trial Court takes cognizance of juvenile and domestic relations cases and/or agrarian cases, the special rules of procedure applicable under present laws to such cases shall continue to be applied, unless subsequently amended by law or by the rules of court promulgated by the Supreme Court. With respect to juvenile and domestic relations cases, there is no problem because they are totally governed by the rules on evidence. But before BP 129, we still had the Court of Agrarian Relations (CAR). The rules or procedure in agrarian cases was not the Rules of Court but Act 83, as amended by PD 946. Under BP 129, since the RTC took the place of the CAR, agrarian cases were now to be heard by the RTC. The RTC then had to follow the procedure in PD 946 rather than the regular Rules of Court. Now with the passage of the CARP Law, jurisdiction over agrarian cases was transferred from the RTC to the Department of Agrarian Reform. SECTION 3. Admissibility of Evidence.  Evidence is admissible when it is relevant to the issue and is not excluded by the law or these rules.

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This Section practically summarizes almost 50% of the entire subject of Evidence. How do we outline the study of Evidence in general? The study consists of two parts: (1) The admissibility of the evidence; and, (2) The weight of the evidence. Rule 130 talks only of admissibility of evidence, while Rule 133 talks of the weight of evidence. Q: Distinguish admissibility of evidence from weight of evidence. A: According to Sec. 3, admissibility of evidence is determined by two factors: (1) It is relevant to the issue; and, (2) It is not excluded by the law or these Rules. If the evidence is not excluded by the law or these Rules, the evidence is COMPETENT. Weight means the CREDIBILITY of the evidence -- whether or not the evidence is believable. This matter is addressed to the appreciation of the court. In a court trial, first you present evidence: documents, objects, witnesses,... Then you offer them in court. When the court says the evidence is admitted or allowed, then the court is saying that the evidence is admissible. When you offer evidence and the other party says “We object to that document.”, then the court says that the evidence is admitted, you already passed the first part. This means that your evidence is relevant and is not excluded by any provision of law. But when the court says that your evidence is not admitted, it may not be relevant to the issue, or is excluded by a provision of law, or both. It is also possible that the court will admit your evidence, will take the evidence into consideration when deciding the case, study it before arriving at a decision, but after studying it finds out that it is not believable, then your evidence is still void. You still will lose. Giving the evidence VALUE is what is known as weight  whether the court would believe only 25 %, or 50%, 70% or 100% of it  that is weight. But if the court says that the evidence is not believable, the evidence was so admitted but given zero weight. That is what will happen. So, do not confuse one concept with the other. Even if your evidence is admissible, it is not a guarantee that the court will give it weight. It is a guarantee, though, that the court will consider, study and try to look into it before arriving at its decision. There must be a second test. When the parties offer evidence, one must lose; the other must win because the court gave more weight to the evidence presented by one side than the evidence presented by the other. But all of these were actually admitted.

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For example, one party offers its witness: “Your Honor, I will offer the testimony of Mr. Juan de la Cruz, our witness.” The court says: “Go ahead.” But after listening, the court says, “I do not believe this guy. He has nothing substantial to say. The court is not interested.” Everything here is recorded but in the ultimate the court never said that it is not within the Rules of Evidence. On the other hand, if the court says: “Your evidence is not admitted.” That is tantamount to saying that the evidence does not exist. The court will not even look at it; it will never consider it. So, what is important is that you can never win a case until and unless your evidence will be admitted. This admissibility. It is something for the court to consider. You can never reach the stage of weight unless you have passed the stage of admissibility. Q: How do I know whether the evidence is admissible or not? A: Relevancy includes MATERIALITY. (1) Does the proof tend to prove the issue to be resolved? If yes, you passed the first test of relevancy. There is a connection between this evidence and you intend to prove. (2) Is there a provision of law or in the Rules of Evidence which excludes the evidence? None. As a matter of fact, the other party might not have even objected. So, they did not find any ground against its admissibility. Therefore, the evidence is competent or admissible. This Section 3 is actually taken from the works of Wigmore. He says that there are two AXIOMS or PRINCIPLES which underlie the structure of the law on evidence. They are the following: (1) NONE BUT FACTS HAVING A RATIONAL PROBATIVE VALUE ARE ADMISSIBLE This is tantamount to saying that the evidence must be relevant, because if it is not relevant, how can you say that it has a probative value? That is the axiom of relevancy. (2)

ALL FACTS HAVING RATIONAL PROBATIVE VALUE ARE ADMISSIBLE, UNLESS SOME SPECIFIC RULE FORBIDS. The second is the axiom of competency.

Normally, the rule is: when the evidence is inadmissible or objectionable, but the other party fails to object, then the latter party waives the defect. That is the general rule. But there are instances when evidence can be objected to even if there is actually no objection coming from the other party. However, that portion will be explained later on. But as a general rule, the provisions of Evidence are intended for all the parties’ benefit. That is why there is a provision on Objections. The rule is, failure to object signifies waiver. Rights may be waived  you know that. So sometimes, even if evidence is incompetent because it is forbidden by law, 10

it becomes admissible because you failed to timely raise your objections to it. For example, a confession is obtained by the police without informing the accused that he has the right to remain silent, etc. -- the accused was not apprised of his Miranda Rights. This confession is not in accordance with the Constitution and is, therefore, deemed incompetent. But suppose the defense fails to object and the confession is admitted as evidence -- in other words, in deciding the case, the court will consider it. You reach Phase 2, and the question now is: whether the court will believe it or not. Another example: you are a party or a lawyer. You are holding a piece of evidence and you want to determine if it is admissible in court. So you try to study it. What really is the issue in the case? Does this evidence have any probative value? Does it tend to prove what I intend to establish directly on the review? In determining whether something is connected to something, the faculty of the human mind which we must use is merely common sense. Is this related to this? Is this related to the issue in fact? How do we know whether something has relevance or an irrelevant connection to the topic? By analyzing. LOGIC. We are able to draw a conclusion on something through logic. Logic leads us in determining whether or not something is related to what we are talking about. As to competency, evidence may be logical; it may be relevant. But the problem is that it is excluded by law or the Rules. For example, a confession is given by the accused in which he admits to committing the crime. But he was not given any warning as to his rights. Therefore, when the accused said he committed the crime that is related to the criminal charge but that is not enough, because the second stage of admissibility is competency. The Constitution provides that such evidence must not be allowed, no matter how relevant it is to the fact in issue. Therefore, in determining whether or not the evidence is competent our guide is our KNOWLEDGE OF THE LAWS. In other words, in determining relevancy, one must have the logic; in determining competency, one must have knowledge of the statutes, the Rules on Evidence, the Constitution and the special laws. You are a judge. You are called upon to rule on the admissibility of the evidence. You must determine whether or not the evidence is relevant and competent. The judge, to be considered a good judge, must have a logical mind. But that is not enough. Otherwise, if logic is the only guide, then every philosopher  every man with a good mind automatically knows the law. No, that is not the case. You must also know the law. That is why we are studying it here.

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The same rule goes with lawyers. If you want to prove a case, you should know whether or not your evidence is admissible. You analyze; you use logic. Check if there is any provision in the Constitution, special laws, or Rules on Evidence which could be used as a ground for objection. If there is none, then you go ahead. Your only guides are LOGIC and LAW. Common sense or logic is beyond our realm. What we can discuss now is law because this is technical. The rules on competency are not found only in the Rules on Evidence. Rule 130 of the Rules on Evidence states that any evidence, confession, etc. obtained in violation of the Constitution; any object taken by virtue of an illegal search, shall be inadmissible in court. In Criminal Procedure, there are provisions for admissibility. Also in Civil Procedure. For example, in deposition-taking, a deposition is not admissible to take the place of a testimony, unless the witness dies, etc. A deposition is inadmissible for proving the fact in dispute except for impeachment purposes or request for admission. Any admission made by a party under Rule 26 of the Rules of Court cannot be used in any other proceeding. Under the Rules on Criminal Procedure, when a witness is going to be discharged, he must give a statement about his participation in the crime in order to find out whether or not his testimony is needed. But if his discharge is denied -- meaning the motion to convert him into a state witness is denied, any admission made will not be admissible as evidence. In pre-trial in criminal cases, admissions of any party or the accused during the pre-trial are inadmissible if the pre-trial order is not signed by the accused himself and his lawyer. Q: What happens if some objects are taken from your house without a search warrant, and these objects will now be used against you in a criminal case, can they be admitted? A: No, they are inadmissible. But you have to remember that there are warrantless searches and seizures which are valid despite the absence of a search warrant. You arrest somebody without a warrant and the warrantless arrest is valid. Q: When may a search or seizure be made without a search warrant? A: Answering this question would be tantamount to studying the rules on admissibility of seized objects -- whether it will fall under the general rule or under the exception. But we do not have the time to go over them one by one because they belong to the realm of Criminal Procedure (Rule 126) or the Bill of Rights in the Constitution. SALCEDO-ORTAÑEZ vs. CA August 4, 1994 Facts: Private respondent Rafael Ortañez filed before the RTC of Quezon City a complaint for annulment of marriage with 12

damages against petitioner herein, on the grounds of lack of marriage license and/or psychological incapacity of petitioner. Private respondent presented evidence, among others, were 3 cassette tapes of alleged telephone conversation between petitioner and unidentified persons. Petitioner objected to such presentation. The trial court, however, admitted the evidence. Petitioner’s motion for reconsideration was denied. Then a petition for certiorari to the CA was filed, assailing the admission of the said evidence. The CA affirmed the trial court’s decision. Issue: whether or not the cassette tapes are admissible as evidence in court. Holding: RA 4200 entitled An Act to Prohibit and Penalize Wire Tapping and Other Related Violations of Privacy of Communication, and for Other Purposes expressly makes tape recording INADMISSIBLE IN EVIDENCE. Sec. 1 thereof provides that “it shall be unlawful for any person not being authorized by all parties to the communication to tap such conversation;” Sec. 4 thereof expressly provides that: “any communication obtained in violation of Sec. 1 SHALL NOT BE ADMISSIBLE IN EVIDENCE IN ANY JUDICIAL, QUASIJUDICIAL, LEGISLATIVE OR ADMINISTRATIVE HEARING OR INVESTIGATION.” Clearly, respondent’s trial court and CA failed to consider such law, which renders tapped recordings inadmissible in evidence without the consent of the parties involved. The evidence (cassette tapes) was thus inadmissible. There are some types of admissibility cited by Wigmore which are being followed by our Supreme Court. The discussions of Wigmore borrowed by our Supreme Court can also be found in the book of Moran. Wigmore talks of certain types of admissibility which are not ordinary but are of use in the court or in litigation. TYPES OF ADMISSIBILITY (1) Multiple Admissibility of Evidence  According to Wigmore and quoted by the Supreme Court, this simply means “evidence which is plainly relevant and competent for two or more purposes.” When this happens, such evidence will be received if it satisfies all the requirements prescribed by law in order that it may be admissible for the purpose for which it is being presented, even if it does not satisfy the other requisites for its admissibility for other purposes. 13

ILLUSTRATION: When you present evidence, there is always a purpose. You will not present evidence if you do not intend to prove anything or something. What is that “something”? We shall see in Rule 132 (Offer of Evidence) that you are required to state the purpose of the evidence. Do not leave the court to guess. You must state your purpose. “I am offering this to prove this matter.” Is it possible that you present evidence to prove two or more purposes? Yes. So, “I am offering this evidence -- document or whatever-- to prove Number 1 and also to prove Number 2.” That is what is called as multiple admissibility. You are offering evidence to prove more than one (two or more) purpose or purposes. A question is thus poses: Suppose you offer evidence for Purpose Number 1 and Purpose Number 2; however, it is inadmissible for Purpose Number 1 because it is not logical or is incompetent. So for Purpose Number 1, it is improper. But for Purpose Number 2, it is proper  it is logical or relevant. Can the court now act on your evidence? Under the doctrine of multiple admissibility, the evidence will still be admitted to prove Purpose Number 2. The court will not reject it for Purpose Number 2; it will still be allowed but only for this. So do not offer your evidence for only one purpose because if such is not admitted by the court, your chances of winning a case will be lessened. On the other hand, if you offer your evidence for Purposes Numbers 1, 2, and 3, the court can say that it is inadmissible for Purpose Number 1 but admissible for Purposes Numbers 2 and 3. You will encounter many cases like this as we go along the Rules on Evidence. EXAMPLE. In a legal action involving a piece of land, I will offer in evidence a tax declaration. A tax declaration contains information such as the name of the declared owner, his address, the address of the property, the land area, improvements, assessed value, etc. The value is either the one declared by you or as found by the provincial or city assessor. I say: Your Honor, I formally offer as evidence this tax declaration over this lot where I am the declared owner for the purpose of proving that: (1) I am the owner of the property; and (2) the value of the lot is such amount together with the existing improvements.” So, you have two purposes. I am using this to prove that I am the owner, and I am also using this to prove the assessment of the property and the existing improvements on the land. If you analyze each purpose, is the tax declaration competent to prove the ownership of a person over a parcel of land? A tax declaration is not a title. Both are not the same. Even a squatter can have a tax declaration. Any person can declare with the Assessor that he is the owner of the land. So, the tax declaration is not competent to prove the title of ownership. but it is competent to prove the value of the property. The latter is based on assessment and declaration. So, if you object, you say, “Your Honor, we object to the admission of this document insofar as he offered it to prove his ownership, because it is incompetent. However, it is competent to prove the value of the improvements. To the latter, we have no objection; go ahead.” So, the court will say: “Alright, the tax declaration is offered 14

only for the purpose of proving the value of the property.” That is multiple admissibility of evidence. On the other hand, if you offer the tax declaration only for the purpose of proving ownership, the other party would immediately object to it as incompetent, and, therefore, inadmissible. The tax declaration will be completely denied admissibility. (2) Conditional Admissibility of Evidence  Evidence which appears to be immaterial is admitted by the court subject to the condition that its connection with another or other facts subsequently to be proved will be established. Proving a case is like putting together a jigsaw puzzle; you preserve the pieces bit by bit. Individually, these pieces make no sense. But if you put them together, you get to know the entire picture. At the early stages of a trial, a piece of evidence seems to be immaterial. But as the trial progresses and the other facts are being presented, you see now the importance -- the materiality of the evidence. In conditional admissibility of evidence, for example, evidence is being presented by a party today for the first time. The other party objects and contends that the evidence is immaterial. You are the judge, and you see that, really, there is no connection between the issue and the evidence. So at that stage, the objection should be sustained. The first party then requests, “Please admit our evidence subject to the condition that the materiality of the evidence will be proved later, and that if its materiality will not be established later it should be scrapped. But for the moment, it has to be admitted.” The evidence shall then be admitted subject to the condition that as the trial proceeds, the party has to show the materiality of the evidence. And if that cannot be shown, the evidence has to be erased. For example, there is a land conflict between A and B. The issue is: who is the rightful owner of the piece of land? A has the document to prove that he is the owner of the land, but so has B. Both of them are claiming ownership. So who has the better title over the land? Whose title or evidence is stronger to sustain the claim for ownership? A’s lawyer will prove that the property was originally owned by X in 1900. Ten years later, it was sold to Y; another 10 years later, it was sold to Z. The other party then objects: “Immaterial; irrelevant!” So the court will say: “Yes. There is no connection or relation.” A’s lawyer will agree with the court that as of now, there seems to be no connection. But he asks that the court conditionally admit the evidence because they will prove its relevancy or materiality later. The court agrees to the condition and allows A’s lawyer to proceed. So, it comes out that Z sold the land to W, then to N 10 years later, and then finally to A. So A was trying to prove that his title to the land could be traced from way back 1900 through the series of transfers. The challenge is: who can present the better title to the land? So if the condition is not met, the evidence will have to be withdrawn. It is only near the end that the materiality of evidence can be seen. At the start, it seems that it has no relevancy. 15

(3) Curative Admissibility of Evidence  Evidence, otherwise improper, is admitted to contradict improper evidence presented or introduced by the other party. This is evidence introduced to cure, contradict or neutralize improper evidence presented by the other party. For example: A filed a collection case against B. The cause of action is the collection of an unpaid debt. B answered that the account has already been fully paid. The issue is whether or not the debt has already been paid. A presents his evidence to the effect that 10 years ago, B borrowed money from Y but did not pay said account. Eight years ago, B borrowed money from X but did not also pay it. three years ago, B also borrowed money from Z but also did not pay. B objects, saying that this is all character assassination, that A is proving something from other obligations. The court allowed A to proceed. B becomes afraid that A might succeed in poisoning the mind of the court into thinking that he is really an irresponsible debtor. So, during the trial, when it was B’s turn to present his evidence, B’s lawyer presented X, Y and Z, who all testified that B had already paid his debts to them. A objects and says that the testimonies are irrelevant and immaterial. Under the principle of curative admissibility of evidence, the testimonies of X, Y, and Z should be admitted because, in the first place, the court allowed this type of evidence to be presented by A. Thus, for the sake of fairness and equity, B should be allowed to present his evidence. SECTION 4. Relevancy; collateral matters.  Evidence must have such a relation to the fact in issue as to induce belief in its existence or non-existence. Evidence on collateral matters shall not be allowed, except when it tends in any reasonable degree to establish the probability or improbability of the fact in issue. What Section 4 is saying is that, evidence, in order to be admissible, must prove the fact in issue. If it does not prove the fact in issue, it must not be allowed. Therefore, if one presents evidence to prove MATTERS OTHER THAN THE FACT IN ISSUE, then technically, the evidence will NOT be allowed because matters other than the fact in issue are COLLATERAL MATTERS, and evidence on collateral matters shall not be allowed. That is according to the Rules. Q: How do we define collateral matters? A: Collateral matters or circumstantial evidence are proof of facts from which, taken singly or collectively, the existence of the particular fact in dispute may be heard as a necessary or probable consequence. Collateral matters shall not be allowed on the ground of immateriality. However, under Section 4, such evidence shall not be allowed EXCEPT if it tends in any reasonable degree to prove the probability or improbability of the fact in issue.

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A collateral matter other than the fact in issue is inadmissible, except when it tends at least indirectly to prove the fact in issue. It may not prove directly the issue, but it tends to prove it indirectly. The type of evidence which tends to prove the probability or improbability of the fact in issue is RELEVANT EVIDENCE. The evidence may not be material but it may have passed the test of relevancy. One may intend to prove the probability of what he is saying, not necessarily directly but also indirectly. In the example earlier given, suppose the prosecution wants to prove that A is guilty of murder, where the victim, from a distance of 200 yards, was shot by a rifle right between his eyes. Based on the established facts, the killer must have been a very good sharpshooter. Here comes the accused, X. We are trying to prove the probability that X is the killer. So X’s record in the past Olympics for the event of sharpshooting is presented in court. This is actually a collateral matter. Proving X’s Olympic record is not the issue. The proper issue is the death of the victim, and not the prowess of X in sharpshooting. But somehow, this particular Olympic record tends to prove the probability that X might be the killer. This is circumstantial evidence which is, under the law, admissible evidence. Q: What are these collateral matters? A: Collateral matters are classified as follows: (1) prospectant or antecedent collateral matters; (2) concomitant collateral matters; and, (3) retrospectant or subsequent collateral matters. Prospectant or Antecedent Collateral Matters are matters which preceded the fact in issue -- matters which have already been in existence prior to the fact in issue, but pointing forward to it. For example, you are accused of committing estafa by means of deceit, fraud or false pretense. You succeeded in defrauding somebody. You deny that you ever practiced fraud or deceit on the victim. To prove that your position is correct, you will present witnesses who will testify that as a young boy, you were honest in your dealings with other people. This was in the 1950’s, 1960’s and 1970’s. What you are trying to prove is your moral character. You are trying to prove that by nature your moral character is such that you are an honest person, that you are ‘straight’. What is the purpose of that? To prove that it is improbable that you would defraud the victim. You are trying to say that if a person has been honest all his life, it is the least probable that he will commit deceit upon somebody. In this case, proving one’s character is something that precedes the issue. This is circumstantial evidence. Another example, in the previous case, we consider the Olympic sharpshooter, accused of murder. We said that the victim was killed by a very good sharpshooter. Point #1: the procedure to be used is the one found in the Summary Rules. Point #2 points out the probable killer. So 17

these are all PROSPECTANT  pointing to the probability of a fact in the proceeding. That is what a collateral matter is. It need not be material, but it is relevant to the fact in issue. Concomitant Collateral Matters are those accompanying the fact in issue, and pointing to it. Direct example: A married woman is accused of adultery. How is adultery committed? By a married woman having sexual intercourse with a man who is not her husband. How would you prove such crime when nobody has really seen the sexual act? So you will present circumstantial evidence or collateral matters. Your first witness is the hotel room boy. In his testimony, he says that his work assignment is to clean the hotel rooms and attend to hotel guests. He adds that he was on duty on this particular date and at this particular time. He testifies that he saw a woman, the accused, checked in at a room. “Who was the woman?” He points to the accused. Then he continues that later a man checked in too. The prosecution asks, “Could you point the man you were referring to?” He points to the co-accused. “At what time did they check in?” “About 3:00 PM, Sir. After that, they both checked out.” “In other words, the woman and the man stayed in the hotel for about 2 hours,” concludes the prosecution. Now, did the room boy testify that he actually see the woman and the man have sexual intercourse? No. But why is the husband using the room boy’s testimony? To prove that during those 2 hours the accused were at the hotel, there was an OPPORTUNITY to have sexual intercourse. In all probability, what could they have been doing there? Play chess? So this is an example of where INDIRECT CIRCUMSTANTIAL EVIDENCE comes into play to prove the PROBABILITY of the fact in issue. In another case, the issue is whether a particular piece of property was really donated by the father to his son. Because, after the death of the father, the other brothers and sisters of this particular son were asking him to give back the property to the father’s estate so that they could divide it among themselves. The son refuses and claims that the property was donated to him by their father during the father’s lifetime as a Christmas gift. The others claim that the son’s contention is not true and that the son merely did not want to return the property to the estate. Was the property really donated or not? Of course, there is no way for the father to answer this. The lawyer will thus think  how do you prove that there was no donation? Then the lawyer proves that at the alleged time the donation was alleged to have been made by the father to the son, the son was having a heated argument with the father. As a matter of fact, they were not in speaking terms. So how could the father have given his son a gift during that period? What is the lawyer trying to prove here? The PROBABILITY that during those months simultaneous with the claimed donation, there was an IMPROBABILITY of the donation being made to the son because of the collateral matter or circumstantial evidence of

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improbability -- that the attitude of the father towards the son is incompatible with the son’s claim of generosity on the part of the father. That is why in collateral matters, your imagination and capacity to make inferences are useful in convincing the court of your version of the story. Retrospectant or Subsequent Collateral Matters are those succeeding the fact in issue, but pointing backward to it. According to the Supreme Court, an indication of the guilt of an accused is his disappearance and going into hiding after the commission of the crime. This is otherwise known as flight and concealment. This is an example of a retrospectant collateral matter. The hiding takes place after the commission of the crime, but is circumstantial evidence which points to the guilt of the accused. Another example: A person was killed inside his room. Nobody saw what happened, but your fingerprints were particularly taken from a table inside the victim’s room. What is the conclusion? That you were there in that room. Are you the killer? Not necessarily. You might have been there earlier, or some other person might have been there also, but what is important is that you were there at the scene of the crime. So, there is a possibility that you are the killer because your fingerprints that were found could be indicative of your guilt. Or another collateral matter could be footprints that were found at the scene of the crime and which happened to match the track marks left behind by your shoes or when you are found to have in your possession stolen property. In these cases, you are INFERRED to be the guilty party, due to circumstantial evidence. The above principle has even been applied by the Supreme Court in a paternity suit. In an action for support, the mother claims that her son’s father is the defendant. Issue: Is the boy the son of the defendant or not? The boy appears to bear physical resemblance with the defendant. But there are people who look alike but are not related to each other, or people who are related but do not look alike. That is why these principles are not conclusive. These are just probabilities. Resemblance, though, was considered by the Supreme Court as a factor in determining the relationship between them. It is a subsequent collateral matter pointing towards the paternity of a child.

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Rule 129 WHAT NEED NOT BE PROVED Among the first case are: (1) (2) (3)

questions that a lawyer asks himself when handling any How shall I prove this? What shall I prove? What need not be proved?

Some matters do not have to be proven in court anymore. What are these things? (1) matters which are already within the domain or realm of judicial notice; (2) facts which are already judicially admitted by the other party (judicial admissions) (3) facts which are presumed by law (presumptions) The first two: Judicial Notice and Judicial Admissions are discussed under Rule 129. The third one, Presumptions, are found in Rule 131. But the common similarity among them is that under the law, they do not need to be proved in court. Q: What is JUDICIAL NOTICE? A: It is defined as the cognizance which courts may take, without proof, of facts which they are bound or are supposed to know by virtue of their office. To borrow the language of judges in the United States courts: “Judges will not shut their minds to basic truths that all others can easily see.” The doctrine of judicial notice is manifested in many Latin maxims:  Manifesta non indigent provatione - What is known need not be proved.  Lex non requiret verificare quod apparet curiae - The law does not require to be verified that which is apparent to the court.  Quod constant clare non debet verificare - What is clearly apparent need not be proved.  Quod constant curiae offere testion non indigent That which appears to the court does not need aid of witness, it is already very clear to you; accept it as a fact without requiring the aid of the party to prove it. Q: What is the function of Judicial Notice? A: According to American courts, judicial notice displaces evidence. Since it (judicial notice) stands for the truth, it fulfills the objective which evidence is designed to fulfill and makes evidence unnecessary.

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Evidence is intended to prove something. But if that something is deemed proven, it is useless to prove it. According to American jurisprudence, the doctrine of judicial notice is based upon reasons of CONVENIENCE and EXPEDIENCY. Why? Because it operates to save trouble, expense and time -- which will be lost in establishing in the ordinary way facts which do not admit of contradictions. For example, the measure of time, or the law of gravity -- you do not have to go to a physicist in order to prove it. There is no need to present evidence that there is a country known as the USA that exists. SECTION 1. Judicial Notice, when mandatory.  A court shall take judicial notice, without the introduction of evidence, of the existence and territorial extent of states, their political history, forms of government and symbols of nationality, the law of nations, the admiralty and maritime courts of the worlds and their seals, the political constitution and history of the Philippines, the official acts of the legislative, executive and judicial departments of the Philippines, the laws of nature, the measure of time, and the geographical divisions. Q: What are the types of judicial notice? A: (1) mandatory judicial notice; (2) discretionary or permissive judicial notice; and, (3) judicial notice when a hearing is necessary. The first two, mandatory and discretionary or permissive, are not new. They were found in the 1964 Rules. The third type, when hearing is necessary, Section 3 appears for the first time in the 1989 Rules. Q: Is it correct for a judge to require a party to prove the existence of countries, such as France, USA, etc. when the same are being mentioned in the party’s testimony? A: No. In fact, it is absurd for a judge to do so. The principles of International Law are automatically supposed to be known by all judges. With regard to the constitution and history of the Philippines, if you want to prove an event which happened years ago, there is no need for you to get a history book and offer it in evidence. You may ask the court to take judicial notice of this fact which happened years ago. Q: Should the court take judicial notice of treaties affecting the Philippines  e.g., the Treaty of Paris? A: Yes, it is a matter of history. Q: Or events occurring during World War II? A: According to the Supreme Court, facts occurring in the Philippines during WWII -- the court may take judicial notice of these facts because

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they are considered as matters of Philippine history. there is no need to present a historian or evidence of history. Q: Are the courts bound to take judicial notice of events occurring in a foreign country, or is there a necessity of presenting evidence to prove that these events happened? A: Says the Supreme Court, if these events are of international interest, our courts are bound to take judicial notice without need of evidence. But if the events are purely of local interest IN THAT COUNTRY, then the courts are not supposed to take judicial notice. For example, events of CONTEMPORARY HISTORY, such as the Kosovo crisis, the “Chernobyl” computer virus, or the Pakistan-Indian border war  the courts are bound to take judicial notice of these as they are matters of international interest. On the other hand, if the event is the election of a mayor which took place in a town in Latvia, there is need to present evidence (i.e., certification that such person was duly elected) because this is not a matter of international law. Q: What about official acts of the legislature, or the provisions of the Civil Code? A: No need to present evidence. No need to present the Civil Code. The courts are bound to know them. You can just cite them and there is no need for you to present a copy in court. According to the Supreme Court, even congressional debates are within the realm of judicial notice. Acts which led to the passage of laws are within the realm of judicial notice. Courts have to hire researchers precisely to help the courts. Courts are bound to take judicial notice of Philippine laws. Q: Do you have to offer as evidence Republic Acts when you cite them? A: No, you only need to cite them in court. Q: If the law applicable to the case is a foreign law, are our courts bound also to take judicial notice of a foreign law? (There are certain instances when our Civil Code provides that a foreign law is applicable in our country, e.g., validity of wills, formalities of wills, etc.) For example, a Filipino while he was in Germany prepared his Last Will and Testament through a German lawyer, in accordance with German laws. The will is subsequently presented in the Philippine court for probate. The Philippine court is called upon to decide whether the will is valid or not. How will the court determine whether a will is validly executed? According to the Supreme Court, the validity of a will shall be governed by the law of the place where the will was executed. Are our courts supposed to take judicial notice of the provisions of German Law to the extent that its researcher must look for that particular German Law? No, our courts are not bound to take judicial notice of foreign laws. 22

Under German Law, the heir is favored. Under the will of the decedent, the heir gets more than 50%. But if Philippine Law is applied, he gets only 30%. So the heir is interested in having the will validated. The other parties, on the other hand, who are also heirs, are interested in having the will declared null and void. But our courts are not bound to take judicial notice of the German Law, as we have earlier learned. That is why the heir’s lawyer should get an official copy of the German Law, and he has to offer this in court as evidence... Unlike in Philippine Law, where Philippine Laws are concerned, the lawyer is not bound to offer the Philippine Law in evidence because our courts are bound to take judicial notice of such laws. Thus, the foreign law has to be pleaded properly. Q: What happens if our courts are supposed to decide on the validity of a will based on German Law, but the proponent never offered it in evidence? The court is now on a dilemma. Under the Civil Code, German Law is supposed to be applied. But the problem is that counsel for petitioner never offered as evidence in court this German Law. A: Apply the Principle of Processual Presumption in Conflict of Laws, which holds that whenever a court is bound to apply a foreign law as ordered by the Civil Code but such foreign law is not properly pleaded, then our courts will presume that German Law and Philippine Law are the same. Therefore, the Philippine courts will apply Philippine Laws upon the presumption that they are the same. Official acts of the legislature, such as laws and statutes are within the realm of judicial notice, but not foreign laws which must be properly pleaded and proved. Official acts of the executive -- executive orders, proclamations, etc. -- For example, a convict is pardoned and asks the court to take judicial notice of such pardon by the President. (One of the modes of extinguishing criminal liability is pardon by the President under Article 89 of the Revised Penal Code.) Q: Can a person plead extinction of his criminal liability because of pardon by the President? Should the courts take judicial notice of such fact? A: Pardon by the President is a private act that is extended only to the individual and is not of national concern. Being a private act, courts are NOT bound to take judicial notice, and therefore, the person claiming it must offer in evidence the document or whatever evidence he has with respect to the grant of pardon. Q: What about amnesty? A: Amnesty is a “blanket pardon” for all rebels, for example. Amnesty is an OFFICIAL PUBLIC ACT of the President, and our courts ARE BOUND to take judicial notice of this.

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Official acts of the judicial branch of the government. For example, a court decision. In the RTC, you have a case and you wish to invoke a decision of the Supreme Court. Your case seems to be similar to that from which the Supreme Court decision arose. You believe that the ruling is applicable to your case  it is thus a PRECEDENT. For example, that decision appears in volume 293 of the SCRA, page 459. How do you call the court’s attention to that? Supreme Court decisions are presumed to be known by the courts. There is no need to offer as evidence in court the SCRA. Leave it to the court’s researcher to look for it, because Supreme Court decisions are supposed to be within the judicial notice of all courts in the Philippines, and the Supreme Court ought to take judicial notice of its own decisions. You just need to cite the case in court. There are two cases between A and B before the RTC of Davao City. The first is Civil Case No. 150; the other is Civil Case No. 385. Two different cases but the parties are the same. Suppose Branch X is trying the first case, and Branch XIV is trying the other case. In the trial of Case No. 150 before Branch X, one of the parties requested the court to take judicial notice of the facts proven in Case No. 385. Is that allowed? Q: Is the court bound to take judicial notice of another case pending before another branch of the court? A: No. In the first place, courts are bound to take judicial notice only of their own records. Meaning, if I am trying Case No. 150, everything that the record contains I am supposed to know. Q: Is the court bound to take judicial notice of the records of other cases? Suppose Case No. 385 is also assigned to Branch X, but with a different schedule? Is the court bound to take judicial notice of the facts of the records of Case No. 385 when it is trying Case No. 150, or vice versa? A: No. The principle is  A court will take judicial notice of its records and of the facts which such records establishes, but it will not take judicial notice of the records of other cases even if such cases are pending in the same court before the same judge. A court is supposed to take judicial notice only of the records before it in a case it is trying. When it arrives at a decision, it does not have to cite what happened in other cases. EXCEPTIONS: (1) when, in the absence of any objection or with the consent of the parties, the records of a previous case are admitted as part of the records of the case then pending; and, (2) when the other proceedings have a close connection with the matter in controversy in the pending case. For example, there are 2 or 3 cases pending in the same court. The lawyers of one of the parties asks the court, “Your Honor, we would like to

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manifest that there is another case involving the same parties, although with different issues, but somehow connected, pending in Branch IX. We are requesting or moving that this Court take judicial notice of the records of Case No. 8645 in arriving at its decision.” The court will then ask the other party if it has any objections to the first party’s request. If none, then the Court is deemed to have taken judicial notice. Or, the lawyer of the requesting party must get a copy of the pleadings in the other case and present the same in court as evidence. Another example: There is a case between A and B with respect to a particular lot. The lot was titled 40 years ago in a land registration case involving the original owner (a cadastral case) where it was decreed to be owned by X. Therefore, the history of the ownership of the lot is material in determining the present controversy between A and B. The court, on its own motion, may make reference to the prior case involving X because of interrelation. Official acts of the judiciary. The Supreme Court says, “When attorneys-at-law are duly admitted as members of the Philippine Bar, this fact is judicially known to the Philippine courts. When one passes the Bar Examinations, the Supreme Court passes a Resolution admitting you into the Philippine Bar. During the oath-taking ceremonies, the Supreme Court sits en banc, making it an official act of the Supreme Court.” Therefore, you are judicially known to have been admitted into the Philippine Bar, not only to the Supreme Court, but to the whole Philippines. The legal picture is: all lawyers and/or courts in the Philippines are bound by judicial notice that you are already a lawyer. You do not have to prove to the courts how you become a lawyer. Q: Distinguish “judicial notice” from “judicial knowledge.” (bar question) A: Judicial knowledge is the personal knowledge of the judge. There is a vast difference between what one knows and what one should know. A matter may be judicial notice but not within judicial knowledge. On the other hand, a matter may be within judicial knowledge but not within judicial notice. Example of a fact which within the judicial knowledge of the judge but is not or should not be within his judicial notice: In a criminal case, D is accused of a crime. According to him, when he committed the crime, he was below 18 years old. This factor could be mitigating, or even exempting. but that is a matter of defense. So D has to prove his age. Suppose the judge personally knows D, and the judge knows the exact date of D’s birth. Maybe the judge was even present during the baptismal party or birth of the said accused. Can the judge say, “Accused, there is no need for you to prove the date of your birth. Anyway, I know it already.” That is IMPROPER. A judge cannot use his own personal knowledge as a basis for his decision. When there is no evidence supporting a fact, he must close his eyes on his personal knowledge.

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LOPEZ vs. SANDIGANBAYAN 249 SCRA 281 Facts: On December 10, 1987, the PCSO donated a Mitsubishi L-300 van for use as an ambulance in favor of the Municipality of Mati, Davao Oriental. The municipality was represented by the now deceased Gov. Leopoldo Lopez, who signed the Deed of Donation, insured and registered said vehicle in the name of the Province of Davao Oriental. At this time, Salvador Gutierrez was the acting mayor of Mati. On February 2, 1988, Eduardo Lopez was elected Mayor of Mati. He took his oath of office before RTC Judge Roque Aston. Subsequently, the vehicle was burned down by still unidentified armed men. Whereupon, the political adversaries of Gov. Lopez, making an issue of it, filed a complaint with the Ombudsman, charging Gov. Lopez and the newly-elected Mayor, Eduardo Lopez, with the offense of violation of RA 3019. Eduardo Lopez moved to quash the complaint on the ground that at the time of the donation, he was not yet the Mayor and, consequently, he had no participation in the acquisition, registration and use of the vehicle in question. Issue: whether or not judicial notice can be taken of the fact that petitioner Lopez took his oath as Mayor and assumed his post only on February 2, 1988, on the face of the allegation that the accused was already a Mayor at the time of the donation. Holding: Down the oft-trodden path in our judicial system, by common sense, tradition and the law, the judge in trying a case sees only with judicial eyes as he ought to know nothing about the facts of the case, except those which have been adduced judicially in evidence. Thus, when the case is up for trial, the judicial head is empty as to facts involved and it is incumbent upon the litigants to the action to establish by evidence the facts upon which they rely. Sec. 1 of Rule 129, however, provides that certain facts need not be proved because they are judicially noticed by the courts. Judicial notice takes the place of proof and is equally persuasive as actual evidence presented, whether testimonial or documentary. The factual defenses of petitioner are matters within the concept of mandatory judicial notice. While it is true that 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 27

directly or impliedly, in pleadings of the prosecution and in the reports of graft investigator Gay Balajadia. Judicial notice may be taken of petitioner’s oath-taking before the RTC judge of Mati, 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 officer of the executive department of the government. DUMEZ CO. vs. NLRC 258 SCRA 584 Facts: Dumez Co., a French corporation, engaged the services of Veronico Ebilane as carpenter for one of its projects in the Middle East. On August 31, 1982, while at the job site, private respondent was suddenly seized by abdominal pain and was rushed to the Riyadh Central Hospital. During his confinement, he was found to have fibrillation and CLA embolism. Petitioner terminated Ebilane’s employment. Ebilane filed a complaint with the POEA which finds the termination legal but, nevertheless, fined petitioner with US$ 1, 110, for failing to perform its obligation to give Ebilane daily allowance for each day of work disability, including holidays, as mandated by the Social Insurance Law of Saudi Arabia. Holding: The POEA, in finding petitioner liable to Ebilane for medical benefits accruing to the latter, took judicial notice of the Social Insurance Law of Saudi Arabia. To this extent, POEA’s actuations are legally defensible. Although in a long line of cases, a foreign law, being a matter of evidence, must be alleged and proved in order to be recognized and applied in a particular controversy involving conflicts of laws, jurisprudence on this matter was not meant to apply to cases before administrative or quasi-judicial bodies in the light of the wellsettled rule that administrative and quasi-judicial bodies are not bound strictly by technical rules. STATE PROSECUTORS vs. MURO 236 SCRA 505 Facts: Judge Manuel Muro was charged by the state prosecutors with ignorance of the law, grave misconduct and violation of the Code of Judicial Conduct, by issuing an Order dismissing eleven cases against the accused Imelda Romualdez-Marcos. Muro issued his Order solely on the basis of newspaper accounts concerning the announcement by the President of the 28

Philippines of the lifting by the government of all foreign exchange restrictions and the arrival at such decision by the Monetary Board. Issue: whether or not respondent judge, in taking judicial notice of a mere newspaper account, acted in excess of jurisdiction and grave abuse of discretion. Holding: For the respondent judge to take judicial notice thereof even before it is officially released by the Central Bank and its full text published as required by law to be effective shows his precipitate action in utter disregard of the fundamental precept of due process. The news paper report is not the publication required by law in order that the enactment can become effective and binding. Generally speaking, matters of judicial notice have three material requisites:  the matter must be one of common and general knowledge;  it must be well and authoritatively settled and not doubtful or uncertain;  it must be known to be within the limits of jurisdiction of the court. Respondent judge, in the guise of exercising discretion and on the basis of a mere newspaper account which is sometimes even referred to as hearsay evidence twice removed, took judicial notice of the supposed lifting of foreign exchange controls, a matter which was not and cannot be considered of common knowledge or of general notoriety. Worse, he took cognizance of an administrative regulation which was not yet in force when the order of dismissal was issued. Jurisprudence dictates that judicial notice cannot be taken of a statute before it becomes effective. The reason is simple. A law which is not yet in force and hence, still inexistent, cannot be of common knowledge capable of ready and unquestionable demonstration, which is one of the requirements before a court can take judicial notice of the fact. An example of a fact which is not within judicial knowledge but should nevertheless be taken into judicial notice: There is a case, and the decision hinges on what this particular insignificant law says. It is a considerably insignificant law, but the answer to the case is there. The problem is that the judge never knew about the law. His researcher never told him about such law or its existence. So the judge’s decision could be wrong. The judge says that he should have read about the law, but nobody brought it to his attention. In other words, this judge did not have judicial

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knowledge about this law. But he is bound to know about the law because all laws should be within his judicial notice. SECTION 2. Judicial Notice, when discretionary.  A court may take judicial notice of matters which are of public knowledge, or are capable of unquestionable demonstration, or ought to be known to judges because of their judicial functions. This is the second type of judicial notice: DISCRETIONARY. This Section is broader than Section 1. “Matters of public knowledge”  public knowledge other than those under Section 1. There are so many things in this world that we should know -- politics, history, arts, science, mathematics, etc. “Matters which are capable of unquestionable demonstration”  e.g., measure of time or the laws of nature. Meaning, those which can be shown to be true and there is no way of knowing their untruth. We should keep reading and not confine ourselves to law books alone. There is no excuse to not know about Homer, Shakespeare, Virgil, Kirkegaard, Tillich, Wittgenstein, etc. We should all aim to be well-rounded. Judges, just like anybody else, should know many things. There are things that are ought to be known by judges and lay people alike. Our knowledge must not be limited within our own field. An advice: The best way to learn law is to read philosophy, letters, arts, etc. There are many cases decided by the Supreme Court pertaining to the arts, medicine, etc. The Supreme Court sometimes talks about medicine when it determines whether or not an illness is compensable. Why “discretionary”? Because a court MAY or MAY NOT take judicial notice of a particular fact whether this is a matter of public knowledge, or a matter ought to be known to him. We have to admit that not all people are equal. Some people are more well-read than others. The same thing goes for judges -- some judges are better than others. Some judges read more than other judges. You cannot expect a judge who does not read to be better than a judge who is diligent and reads up a lot on other matters and books. I do not think that the knowledge of a judge who has trial experience is equal to the knowledge of a judge who has no trial experience and is newly-appointed. We just have to accept that as a matter of life. What Section 2 of Rule 129 simply means is that if it is a matter of public knowledge which a judge knows because of his knowledge and readings, he can take judicial notice. But if the knowledge of the judge is limited and he does not know much about the matter, then you should present evidence.

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For example, in a criminal case, the victim sustained a gunshot wound  through and through. Meaning, the bullet entered the body and exited on the other side. The question now is which the entrance wound is and which is the exit wound? Because if the bullet entered through the back of the victim and exited in front, there is treachery here. If he was shot frontly, the bullet should have exited the back. The judge calls for the Prosecution’s next witness who is a ballistic expert. The judge asks the Prosecution what its witness will testify on. “We will prove, your Honor, that the entrance wound is on the back of the victim. Therefore, there was treachery, etc.” In Forensic Medicine, the location of the entrance wound is determined by its size (circumference). Suppose the judge knows this and has in the past tried more than 30 cases like this with the same issue. He has already heard testimonies with so many ballistics experts and so he tells the Fiscal to not anymore present his witness. The court will simply take judicial notice of the principles of ballistics in Forensic Medicine. If on the other hand, the judge is newly-appointed, has no experience in criminal law practice, for example, and is not a wide reader. He has zero knowledge on ballistics principles. The Fiscal asks the court to take judicial notice that the entrance wound is on the back. The judge says that he does not know that and thus asks the Fiscal to present evidence. Is the action of the judge correct? Yes, because judicial notice is discretionary. Therefore, this depends on who is the judge. It depends on whether the judge knows or does not know. The advice is: “Try not to embarrass the court. The judge might be insulted. You can say, “Your Honor, we are asking the court to take judicial notice of this fact, unless the court feels that the presentation of the evidence is necessary.” Look at the judge’s response. If he says “Yes, the court will take judicial notice.” Then, everything is expedited. But if he asks you to present evidence, the conclusion of the judge is a little bit ignorant. SECTION 3. Judicial Notice, when hearing necessary  During the trial, the court, on its own initiative, or on request of a party, may announce its intention to take judicial notice of any matter and allow the parties to be heard thereon. After the trial, and before judgment or on appeal, the proper court, on its own initiative or on request of a party, may take judicial notice of any matter and allow the parties to be heard thereon, if such matter is decisive of a material issue in the case. Section 3 covers all matters beyond Sections 1 and 2. Take note that the court may take judicial notice on its own or upon the request of a party. Q: Why is hearing necessary? A: To hear the parties on whether or not they will agree on the action to be taken by the court. Both parties will be asked on the wisdom of the court’s taking judicial notice or not, with respect to a particular matter. If there is no problem, judicial notice will cover anything. 31

Q: What are the differences between paragraphs 1 and 2 of Section 3? A: (1) In the first paragraph, the case is still being tried. Taking of judicial notice is being done DURING TRIAL; whereas, in the second paragraph, judicial notice is being TAKEN AFTER TRIAL, BEFORE JUDGMENT or ON APPEAL. There could be judicial notice on appeal in the appellate court. It is not limited only to the trial stage. The appellate court may take judicial notice, but it must hear the sentiments of both parties and allow the parties to be heard. Thus, hearing is necessary here. (2) In the second paragraph where judicial notice is taken after the trial, before judgment or while the case is on appeal, the matter to be taken under judicial notice is a matter decisive of a material issue in the case. The matter being decisive of a material issue in the case means that it is REALLY IMPORTANT. An example of this type of judicial notice: the case earlier mentioned on the court records. Once again: May a court take judicial notice of the records of another case pending before another court or with the same judge? The general rule is: courts are not bound to take judicial notice of cases pending in other courts or before the same judge, except: (1) when the consent of the parties were obtained; (2) if the case is closely interrelated to another case pending between the same parties. ILLUSTRATION: In a case, during trial or even before judgment, the court deems the case submitted for decision. The court is personally aware that there are two other pending cases involving the same parties or pending in other courts. The court asks the parties if there are objections if it takes judicial notice of the records of those other cases. The court, on its own initiative, may announce its intention of taking judicial notice, but it should hear the parties first. SECTION 4. Judicial Admissions.  An admission, verbal or written, made by a party in the course of the proceedings in the same case does not require proof. The admission may be contradicted only by showing that it was made through palpable mistake or that no such admission was made. Example of a judicial admission in the pleadings: There is a complaint against the defendant. The latter admits the allegations in the complaint. therefore, there is no need for the plaintiff to present evidence. A judicial admission is not limited to what a party says in his pleadings. It covers “any admission made by a party in the course of the proceedings.” Included as sources of judicial admissions are: motions or modes of discovery with request for admission, stipulation of facts, and

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statements of facts made by a party in the course of the trial, verbal or written. Take note that the law says: “In the course of the proceedings IN THE SAME CASE.” That is an adjunct of the rule that a court is not supposed to take judicial notice of records of proceedings in another court, or another case. Suppose A makes an admission in one case, but does not make the same admission in another case. The admission made in Case No. 1 is judicial admission. The one made in Case No. 2 is an EXTRAJUDICIAL ADMISSION. In Case No. 2, it is not the proceeding under consideration. An extrajudicial admission is deemed made out of court, as far as the case is concerned, and is deemed not made within the proceeding. PEOPLE vs. HERNANDEZ 260 SCRA 25 Facts: Accused-appellant Cristine Hernandez was charged with the crime of illegal recruitment committed in large scale. After trial, she was convicted. In her appeal, accused-appellant assigned as error the judicial notice taken by the lower court of the fact that she has been charged with another illegal recruitment case and in considering the pendency thereof as evidence of the same and strategy adopted by the accused. It is claimed that the lower court never announced its intention to take judicial notice of the pendency of the other illegal recruitment cases nor did it allow her to be heard thereon. Holding: It is true that as a general rule, courts are not authorized to take judicial notice of the contents of the records of other cases, even when such have been tried or are pending in the same court, and notwithstanding the fact that both cases may have been tried, are actually pending before the same judge. However, this rule is subject to the exception that in the absence of objection and as a matter of convenience to all parties, a court may properly treat all or any part of the original record of the case filed in its archives, where with the knowledge of the opposing party, reference is made to it by name and number or is some other manner by which it is sufficiently designated. The judicial notice taken by the lower court of the pendency of another illegal recruitment case against her falls squarely under the above exception in view of the fact that it was appellant herself who introduced evidence on the matter when she testified in open court. 33

Suppose a party wants to prove to the court that you made an admission in a case, and the former party wants to use that admission against you in another case. What the party is supposed to do is get a copy of the judicial admission and offer the same as his evidence in the other case. The judicial admission has to be offered in evidence because the court is not bound to take judicial notice of that admission. PROBLEM: The defendant, in his answer to a complaint filed against him by the plaintiff, made a judicial admission. Subsequently, plaintiff filed an amended complaint. In his amended complaint, the admission was no longer present  meaning, he deleted it. QUESTION: Is the defendant bound by his admission in the original pleading? Can the court still consider the judicial admission which the defendant made in the original pleading? ANSWER: No. When a pleading is amended, the amended pleading supersedes the original pleading; the court should confine itself only to the amended pleading. The admission made in the problem now becomes an extrajudicial admission. PROBLEM: Suppose a party wishes to bring to the attention of the court the judicial admission in the superseded original pleading, but as far as the court is concerned the admission, which is now extrajudicial, does not exist. What should the party do? ANSWER: Since the party cannot ask the court to take judicial notice, the extrajudicial admission must be marked by the party as its evidence and must be formally offered in court. The admission must be proved all over again. Q: What does the law say about the legal effect or importance of a judicial admission? A: As a general rule, a judicial admission may not be contradicted by the party making it. As the party making such judicial admission is bound by it, he is deemed in estoppel. The judicial admission does not require proof. The admission may be contradicted only by showing that it was made through palpable mistake, or that no such admission was made. Therefore, a party making an admission cannot, during the trial, deny what has been earlier admitted nor present evidence which will run counter against the admission. except: (1) if it can be shown that the admission was made through palpable mistake  manifest, obvious mistake. This can be done by presenting evidence of the mistake during the trial. The party intending to prove such mistake must move to amend the pleading before the trial. By amending the pleading, you are convincing the court that there was an

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obvious mistake, and that whoever made the admission should be relieved of the effects of such admission. (2) As to the second exception  that no such admission was made, the party who made the admission may go against such admission but only if such admission was never really made. The best reference for this issue is the records of the case. PROBLEM: In defendant Y’s answer to X’s complaint, Y admitted that he borrowed money from X. During the trial, Y now denies having borrowed money from X. Which shall prevail  the judicial admission in which Y admitted to having borrowed the money, or the evidence presented by Y during the trial proving that he did not borrow money from X? Q: Can a party go against his own admission by presenting evidence to the contrary (when the other party failed to object to the evidence)? A: According to American jurisprudence (our jurisprudence is adversarial in nature), under an adversarial model of litigation, the burden of evidence is on the proponent. the onus or burden of presenting evidence to prove a point is upon its proponent. The other party then has the burden of excluding the evidence being presented by the other party. Unless the error is so plain that the court will motu propio exclude the evidence. If a party fails to object to the evidence, that is his fault, unless the court itself excludes the evidence even without any objection from a party. According to Justice Moran in his Commentaries on the Rules on Evidence, there are two types of Rules of Evidence: (a) those established for reasons of PUBLIC POLICY; and, (b) those established for the PROTECTION OF THE PARTIES. Q: What is the difference? A: Under the first type, the evidence may be excluded at any time WITH OR WITHOUT OBJECTION from any party, because these rules are established not for the parties’ benefit but for reasons of public policy. If a rule of evidence belongs to the second type, and a party fails to make a timely objection or motion to strike out the improper evidence, then there is WAIVER of a right. The court shall, therefore, not exclude the evidence. The following case describes the nature of judicial admissions: SANTIAGO vs. DE LOS SANTOS 61 SCRA 146 Facts: Plaintiff, Luis Santiago, now appellant, applied for registration of a parcel of land located in San Mateo, Rizal. The application was opposed by the Director of Lands, Director of

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Forestry, and Mrs. Pacita de los Santos. It is alleged that the land sought to be registered is part of the PUBLIC DOMAIN which was being leased to de los Santos under a Pasture Lease Agreement. The trial court dismissed the case on account of evidence submitted by plaintiff, indicative of the land being public in character, lending support to the position of the oppositors. The present petition is an appeal for reversal. Issue: Whether or not contradictory evidence can be reversed during appeal. No objection was made. Ruling: The doctrine penned by JBL Reyes in the case of Joe’s Radio & Electrical Supply vs. Alto Electronics, Corp. (104 Phil. 333 [1958] is applicable, providing that: an admission made in the pleadings cannot be controverted by the party making such admission and are conclusive as to him. All proofs submitted by him contrary thereto or inconsistent therewith should be ignored, whether objection is interposed by the adverse party or not. The trial court’s ruling was affirmed. Therefore, a party making the admission is 100% in estoppel. Even if the other party does not make any objection, the former is still bound by his admissions. For public policy, no one should go against his own admissions, no matter the amount of evidence presented. However, this rule is without exception: ATILLO III vs. CA 266 SCRA 596 Facts: Private respondent, Amancor Inc., entered into a loan contract with Metrobank, such loan secured by real estate mortgage of property owner by Florentino Atillo III, as major stockholder of the corporation. Inasmuch as Amancor is in need of more capital, it entered into a memorandum of agreement with Michel Lhuillier, whereby the latter became part-owner of Amancor. As the company was not able to pay its loan, the security for such was foreclosed by the bank. Atillo now asks the company to pay him the value of the foreclosed property. As the company failed to pay him the debt, he sued both Amancor and Lhuillier in the trial court for collection. The trial court found for him, and Amancor promptly filed an appeal in the CA. The appellate court reversed the lower court’s decision

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on the ground that Lhuillier was not liable for the debt because it was Amancor alone which contracted the loan. In this petition for certiorari, Atillo contends that Lhuillier made a judicial admission of his personal liability in his Answer wherein he stated that in all the questioned transactions, it was made between Atillo and Lhuillier alone, without the official participation of Amancor. Issue: when a party, by his judicial admission, has affirmed that he has personal liability in a certain transaction, may a court rule against such an admission despite the clear indications that it was not affected by mistakes, palpable or otherwise? Holding: As provided for in Section 4 of Rule 129, the general rule that a judicial admission is conclusive upon the party making it and does not require proof admits of two exceptions: when it is shown that the admission was made through palpable mistake; and when it is shown that no such admission was in fact made. The latter exception allows one to contradict an admission by denying that he made such an admission. For instance, if a party invokes an ‘admission’ by an adverse party, but cites the admission out of context, then the one making the admission may show that he made no such admission, or that his admission was taken out of context. This may be interpreted as to mean not in the sense in which the admission is made to appear. That is the reason for the modifier ‘such’. Granting arguendo that Lhuillier had in fact made the alleged admission of his personal liability in his Answer, we hold that such admission is not conclusive upon him. The fact that the allegations made in the pleadings and in open court differed will not militate against the findings herein made nor purport the reversal by respondent court. As a general rule, facts alleged in a party’s pleading are deemed admissions of that party and are binding upon it, but this is not an absolute and inflexible rule. An answer is a mere statement of fact which the party filing it expects to prove, but it is not evidence.

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Rule 130 RULES OF ADMISSIBILITY A. OBJECT (REAL) EVIDENCE More or less, this Rule is the main law in Evidence because this contains almost half of the entire subject of Evidence. Majority of the Rules on Admissibility are found in other laws such as the Constitution  the admissibility of a confession, the admissibility of a property taken by virtue of an illegal search warrant, the admissibility of certain types of documents excluded by special laws -- e.g., admissibility of a taped conversation (Salcedo-Ortales v. CA, supra) where the evidence was declared inadmissible pursuant to RA 4200. Q: How come the word “real” is enclosed in parentheses beside the word “object” evidence? A: Under the old law, the more popular term used was “real evidence”. Under the ‘89 Rules, the framers decided to change the official name to “object evidence”, because “real evidence” always left the impression that it was being used with respect to real property. Real property refers to land, buildings, etc... real evidence refers to things that exist, objects. SECTION 1. Object as evidence.  Objects as evidence are those addressed to the senses of the court. When an object is relevant to the fact in issue, it may be exhibited to, examined or viewed by the court. This is known as the OBJECT or REAL EVIDENCE RULE. Theoretically, the court has no senses because the court is an entity which exists only in law, and which has no physical existence. It can only act through human beings, just like a corporation. Therefore, the senses of the court are the senses of the judge. That is why during trial, one presents material objects -- e.g., marijuana, the weapon, etc. to prove the acts of defense, before the judge. Normally, these are addressed to the sense of sight -- things which the court can see: objects, photographs, or the object itself. Hence, the purpose of object evidence is to prove the existence of the condition of the situation, or condition of a thing or object. This is the obvious reason behind real or object evidence. Q: How does one present object evidence in court? A: Object evidence may be exhibited, examined or viewed by the court. If a picture is worth a thousand words, then definitely the scene itself must be worth millions of words. Sometimes, people are more impressed with what they see rather than with what they only hear. Q: How is Object or Real Evidence classified?

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A: Justice Moran, in his Commentaries on the Rules of Court, classifies Real or Object Evidence into 3 types: 1. that which consists in the exhibition or production of the object inside or outside the courtroom; 2. that which consists in the inspection of the object outside the courtroom; 3. that which consists in the making of an experiment. Example of the first type: There are things which one can bring into the courtroom. He can mark the exhibits. For example, the gun, knife, or piece of clothing material  because these are tangible and one may bring them inside the courtroom and submit them in court to form part of the records. But there are personal properties which one cannot appreciate in the courtroom, like a jeepney, for example. The party presenting it will bring it or cause it to be brought to a parking area outside the courtroom, and the judge presiding will go out and inspect the jeepney there. This is what is being called as “for exhibition and production of the object inside or outside the court.” This can be done inside the courtroom, or within the vicinity of the courtroom to where the judge will go and see the object for himself. Example of the second type: But first, how is this second type differentiated from the first type? In the first type, the evidence or exhibit is PRODUCED. In the second type, it is INSPECTED. One may exhibit or produce inside or outside the courtroom MOVABLES. But one cannot bring inside the courtroom an immovable, such as a building, trees or land. So, what is the manner by which the court may see the piece of land? By going to the area and inspecting it. This is what is called, in popular parlance, as OCULAR INSPECTION of the subject matter in litigation, or another technical term used is: the court will TAKE A VIEW of the object. One thing that must be remembered about “taking a view” or inspection of the object is that it is STILL PART OF THE TRIAL. Actually, when the court says that it wishes to see the property which is the subject matter of investigation -- so, for example, they set it on a particular date, time ... everybody will go there  the judge, court personnel, the stenographer, bailiff, branch clerk of court, the lawyers of both sides... They are not there for an excursion. That is still part of the trial. Only, the trial is being done outside the courtroom because the object or thing cannot be brought inside the courtroom. Everything there is recorded as if they were inside the courtroom. It is scheduled officially. There was a case which happened in Negros Occidental years ago. This was a collision case where the defendant maintained that the reason behind the collision was that the visibility of the vehicle would change upon approaching a certain portion of the road, because of the glare of the sun at

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3:00 or 4:00 in the afternoon. That is the time when the sun is about to set in the west. That portion of the road is descending, hence if you are going up, you will be blinded by the glare of the sun, and you could hardly see an incoming object. But the plaintiff said that this was not true, and that the defendant was plainly reckless. In other words, the dispute here was about the glare of the sun at that specific time of the day, at that specific place. Then one Sunday, the judge happened to attend a private family gathering. He realized that the area where the accident in the case happened was just 1 kilometer away. So traveling alone, he went there at exactly the same time the accident happened. He wanted to evaluate the visibility of the place to incoming vehicles. When the judge finally came out with his decision, it was in favor of the defendant. Judge to defendant: “You are telling the truth. I went there one day and found out that your version of the story is true.” The Supreme Court held the judge’s decision as without basis and illegal. In effect, the judge conducted a view of the object not on a scheduled date. His visit there could not be considered as part of the trial because he was alone. It should have been scheduled. There should have been a COURT ORDER. All the parties concerned should have been there also, if not at least represented. Otherwise, this is practically taking into account evidence which was not formally offered in court. This is tantamount to judicial knowledge. The judge applied what he knows, when he was not actually supposed to. There must be a record to the effect that the thing mentioned in the judgment was offered formally in court as evidence. The third type, EXPERIMENTATION. For example, somebody was caught carrying a pile of newly-washed clothes. Then he was charged with theft. His defense was that these clothes were his. ISSUE: whether or not the clothes really belonged to the accused. The judge examined the clothes and the accused. Then he asked the accused to wear the clothes. But the clothes were too big for the accused. The court concluded that the accused was lying. The clothes should have fitted him properly if they were really his. What is the basis for this? So that the court can see. This is actually the process of experimentation. That is why some writers also call Object Evidence as DEMONSTRATIVE EVIDENCE. The above principle was also applied in an American case cited by Moran: Each of the opposing parties owned a horse. Both horses gave birth, but one of the ponies died. Both parties claimed the surviving pony to be his. Under the Law of Property, the owner of the offspring of an animal is the owner of its mother. So, what the judge did was to go to the farm and make the parties bring both horses and the pony. The owners were asked to hold their respective horses a few meters away from each other. Then the judge ordered that the pony be placed in the middle. The pony was then released. The pony’s natural reaction would be to go to his mother. Meaning, it recognized its mother. Therefore, through this method, the 40

judge was able to determine who the owner of the pony should be. This evidence is addressed to the senses of the court, so that it may see. Another example is found in the Old Testament of the Bible. This is the story of King Solomon, said to be the wisest among the kings of Israel. The Bible says he decided with utmost fairness and wisdom. But one day, he was dumbfounded with a very peculiar case, similar to the horses and the pony. But this time, the quarrel was over a child. Two women were claiming to be the mother of the child. On how to solve the problem, King Solomon prayed for enlightenment. Then he said to the mothers: “So, you are both claiming to be the mother of the child. To be fair, let us split the child into two. So each of you gets half of him.” Then one mother said that she would rather not assert her claim, and that the child be given to the other mother because she could not bear to see the child harmed. That story happened thousands of years ago, but whether King Solomon realized it or not, he was already applying Sec. 1 of Rule 130. Take note that the Object Evidence Rule is not confined to the sense of sight, but may also be addressed to the other senses. Although in most cases, it applies to the sense of sight. An example where the Rule applies to the sense of hearing: In an action for damages for violation of the copyright of a musical composition, according to plaintiff, defendant composed a song or the melody of a song which was taken from his (plaintiff) composition. Defendant claims that the composition is original. Therefore, there must be some notes or lyrics in the song which are similar to the plaintiff’s. Some similarity between the song is tolerable. Some compositions may be similar to some extent, maybe 50% or 60% -- but still this does not infringe the law. ISSUE: to what extent are the 2 songs similar? Whether or not the defendant really “copied” the plaintiff’s song? The parties presented notes of the musical compositions to the judge. Defendant claims that the songs are not the same. But the judge does not know how to read those notes. So, he asks them to play the compositions while he listens... until he arrives at a judgment -- whether the similarity between the songs are such that he can conclude that one was copied from the other or not. What did the judge use here? The sense of hearing. That is still covered by Sec. 1. Take note that before an object can be admitted as evidence, one of the requirements of the law is that it must be IDENTIFIED. Meaning, it must be shown by independent evidence that the object offered is the thing in dispute.

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For example, a knife was used in the killing of a victim. The evidence shows that after the killing, while the accused was holding the knife, a policeman arrived, disarmed the accused and got the knife. So, the knife will now be offered in evidence. But before the knife can be admitted, it must first pass the test of admissibility. There must be a showing that this particular knife he is exhibiting is the very same knife the accused used in killing the victim. Otherwise, the court will not admit the evidence. Normally, the above is done by presenting the policeman. He will testify that he went to the scene of the crime, saw the dead body and the accused with the knife in his hand. Then, the policeman disarmed him, kept the knife and turned over the latter to their custodian. When the knife is presented in court, the policeman will have to show the connection or relation of such knife to the knife he took from the accused -- that this is the very same knife used by the accused in killing the victim. Then, the knife is now properly identified. But if there is no such statement or procedure, then the object has not been properly identified. An object not properly identified, when offered as evidence in court, will be objected to by the other party. THE VERY SAME THING BEING OFFERED IN COURT MUST BE THE VERY SAME THING WHICH IS IN DISPUTE. Another author made another classification of Object Evidence: (a) that evidence which is imparted to the senses of the court with the aid of testimony (demonstrative or illustrative evidence) (b) that imparted directly to the senses of the court without the intervention of the testimony (real object evidence) DISTINCTION (a) Demonstrative evidence has NO PROBATIVE VALUE in itself, but serves merely as a visual aid to the court in comprehending verbal testimony of a witness or other evidence; whereas Real Object evidence has some HISTORICAL CONNECTION with the transaction giving rise to the case. (b) Demonstrative evidence is an item presented to the court but which has NO CONNECTION WITH THE CASE; whereas a Real Object evidence HAS CONNECTION (with the case). For example: In a murder case, suppose A presents in court the gun which was used to kill the victim. This is the REAL OBJECT EVIDENCE, because the gun is related to the case. It has a historical connection to the case. Suppose the gun which was used to kill the victim has not yet been recovered. The gun was seen by the police but somehow cannot be found. The witness is asked by the Prosecution: PROSECUTOR: 42

What was the accused carrying? WITNESS: A gun. PROSECUTOR: Describe the gun ... (the prosecutor shows the witness samples of guns) Which of these guns is similar in appearance to the one used by the accused? So, the samples shown have no historical connection with the case but serve as a visual aid to help the judge and the parties arrive at a picture of the crime. This type of object evidence is only illustrative and helps the court in visualizing how the original weapon looked like. But it has no connection to the case. When the real object evidence is formally offered in court, there is no need to offer illustrative evidence. Q: What is the weight of object evidence? A: According to Justice Moran. object evidence is the best and highest proof. It leaves you impressed. As in a movie, when one asks somebody to describe what he watched, it is still a different thing if one saw the movie personally (To see is to believe). No matter how good a narration of the story is by someone who saw it, the listener will not appreciate it as much as when he saw the movie himself. A Supreme Court justice describes the probative value of object evidence. He compared object evidence with an oral testimony on how a witness describes things. An immediate witness may forget, or exaggerate, or understate what he knows, saw or heard, or what he did. He may be biased in imparting the truth, or state half-truths when he speaks before the court, in order to favor one party and prejudice the other. Not so with silent witnesses, such as surrounding circumstances and facts, or real evidence on the paper of object submitted. Such mute witnesses play, if correctly understood and interpreted, show and reveal the whole truth in all its nakedness, they hide nothing or add nothing without prejudice. If one will rely on witnesses, there is a possibility that they will forget, exaggerate or understate. Their biases will come out. That is how unreliable witnesses can be. But a mute and silent witness  the object itself is the highest form of evidence. However there are times when the judge may disallow the object as evidence, because of certain constraints or limitations. The following are the LIMITATION:

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(1) WHEN THE OBJECT IS IRRELEVANT TO THE FACT IN ISSUE. It must have a connection to the fact in dispute. For example, a gun presented in a case where somebody was murdered with the use of a gun. Or, in a case involving the improvements on a piece of land, a photograph will be useful. It must have some relevance. Objects, no matter how beautiful, if not relevant, cannot be admitted. (2) INDECENT OR IMPROPER OBJECTS SHOULD BE EXCLUDED UNLESS THE SAME IS NECESSARY FOR ASCERTAINING THE TRUTH. EXAMPLE: In a rape case, the offended party has to describe what actually happened. “In the scene of the crime, may the accused be asked to undress the victim so that we may know...” That is too much. The court will not allow that! UNLESS the same is necessary. To a certain degree, there might be exceptional cases where the court may decide to have it done. For example, the victim made a statement about some birth marks on the body of the accused. How come the girl knows that the birth marks exist? So, as part of the demonstration, the court may require the accused to undress, under exceptional conditions. (3) REPULSIVE OBJECTS SHOULD ALSO BE EXCLUDED, IF NOT ABSOLUTELY NECESSARY FOR THE ADMINISTRATION OF JUSTICE. EXAMPLE: In a criminal case for consummated homicide or murder, the body of the dead person (corpus delicti) or cadaver is not necessary or literally brought to court to prove that a crime was committed. Death can be proved by other means such as the testimony of witnesses, or the death certificate. A death certificate is the most convenient proof of somebody. The court will not allow the cadaver to be brought to court to form part of the exhibit. The court would not would not allow that even if a party insists. To do otherwise would be absurd. Suppose the case is brought on appeal, would the party also send to the appellate court the cadaver? That is very repulsive!

B. DOCUMENTARY EVIDENCE SECTION 2. Documentary evidence.  Documents as evidence consist of writings or any material containing letters, words, numbers, figures, symbols or other modes of written expression offered as proof of their contents. This is a new provision in the Rules. When one says “documents consist of writings...” this normally means that this is in paper. But the law 45

says ANY MATERIAL containing letters, etc. Therefore, we can use any material other than paper. For example, in preparing a contract, instead of using the computer or typewriter, you decide to have the terms and conditions of the contract carved on wood or engraved in bronze. That is possible. That is still considered as documentary evidence. 1. Best Evidence Rule SECTION 3. Original document must be produced; exceptions.  When the subject of inquiry is the contents of a document, no evidence shall be admissible other than the original document itself, except in the following cases: (a) when the original has been lost or destroyed, or cannot be produced in court, without bad faith on the part of the offeror; (b) when the original is in the custody or under the control of the party against whom the evidence is offered, and the latter fails to produce it after reasonable notice; (c) when the original consists of numerous accounts or other documents which cannot be examined in court without great loss of time and the fact sought to be established from them is only the general result of the whole; and, (d) when the original is a public record in the custody of a public officer or is recorded in a public office. The Best Evidence Rule  This applies only to documentary evidence. This is also known as the Rule of Exclusion. The Best Evidence Rule (BER) operates as rule of exclusion because in order to prove the contents of a document, one must produce the ORIGINAL. Any other evidence is not allowed other than the original document. For example: A sues B for breach of contract. There were stipulations in the contract which B violated. A wishes to prove what those stipulations are. The court asks B if he knows A. B says yes, because he and A entered into a contract of sale last year involving B’s house and lot. Was the agreement in writing? A answers yes. Counsel asks A: “Would you tell the court what are the terms and conditions agreed upon in the deed of sale? Counsel for B: “Objection. It violates the Best Evidence Rule.” When one tries to prove the terms and conditions in a contract, the contract itself must be produced. Oral testimony, even if the contents are memorized verbatim, is objectionable. Even a photocopy is NOT ALLOWED. Even a true copy is also NOT ALLOWED. What should be presented in court should be the ORIGINAL DOCUMENT itself. Suppose the question is: “Mr. A, why do you know Mr. B?” Mr. A: “We entered into a contract.” “Where is the copy of that contract?” Objection here is improper; because what is being proved is that there is a

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contract. An objection would be false because what is being proved is not the CONTENTS of the contract, but merely its EXISTENCE or EXECUTION. So, the principle is: When what is being sought to be established is the execution, delivery or location of the contract, it is not covered by the Best Evidence Rule. The Supreme Court ruled that the BER cannot be invoked when the evidence sought to be introduced concerns some external facts about the documents, such as its existence or delivery, without reference to its contents. In a case, the accused is charged with bigamy. Prosecution presented some witness who testified that they were present in the wedding ceremony (the second marriage) of the accused. Defense says, “Objection, your Honor. the best evidence to prove the second marriage is the marriage contract. In the absence of a marriage contract, we are objecting to the testimony of witnesses.” The invocation here of the BER is IMPROPER, because the witnesses were presented not to prove the contents of the marriage contract but to testify that the marriage ceremony did take place. So, the BER here does not apply. According to the Supreme Court: the BER does not apply to witnesses who testify on the marriage ceremony because said ceremony is not the contents of a writing, but the fact that she married. The contents of a document must be relevant to the fact in issue. For example, A is accused for the murder of B. ISSUE: whether or not A murdered B. The star witness is X. As X’s story goes: On the night of the murder, X was on his way to deliver a letter to the house of W. That was when he accidentally saw the murder. So, X was asked in court where he was on this particular date. X answered he was walking along the street that night. Where was he headed? To the house of W to deliver a letter. Counsel for A asks X what the letter was about. Counsel for B objects and interjects that the best evidence would be the letter itself. But that is not the issue. The letter is not relevant to the issue; it might have been a mere invitation to a party. So, this can be done for it does not violate the BER. The following are the EXCEPTIONS to the Best Evidence Rule: (a) when the original has been lost or destroyed, or cannot be produced in court, without bad faith on the part of the offeror We will presume that the document has only one copy, because we will know later on that an original may have two or more copies. In this case, when all the copies are lost, only then can you present secondary evidence. But if the original cannot be produced because you destroyed it, then there is bad faith. You cannot offer secondary evidence if you are in bad faith.

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(b) when the original is in the custody or under the control of the party against whom the evidence is offered, and the latter fails to produce it after reasonable notice The problem here comes in when the original document is in the custody of the adverse party. For example, I sue him for breach of contract. What I have are only the TRUE COPIES or PHOTOCOPIES. I don’t have the original contract. Under the law, I can present secondary evidence, but the law required that before I am allowed to present such secondary evidence, the party offering must first try to produce the original copy in court. Only if he fails to produce such document and after reasonable notice to the other party possessing the original copy has been given may the party offering produce secondary evidence. (c) when the original document 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 For example, if you are the owner of a store such as the NCCC. How do you prove your gross sales in one year? Through receipts, invoices, etc. So, when a party wishes to prove its gross sales for the year, must it present all the invoices and receipts? That would be too tedious and impractical. Is there a way of proving gross sales other than bringing all the invoices to court? Yes. Since what one intend to establish is the total (only the general result of the whole) and the court allows the presentation of Income Tax Returns, Financial Statements, or Balance Sheets. Therefore, when there is an objection to the presentation of the ITR, Balance Sheet or Financial Statement to prove annual gross sales, for example, such should not be well-taken by the court as this case falls under one of the given exceptions. CIA. MARITIMA vs. ALLIED FREE WORKERS UNION 77 SCRA 24 (1977) Facts: On August 11, 1952, Cia. Maritima (CM) and Allied Free Workers Union (AFWU) entered into a written contract whereby the Union agreed to perform arrastre and stevedoring work for the Company’s vessels at Iligan City, 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. CM allowed the Union to continue performing arrastre and stevedoring work. On July 23, 1954, the Union sent a letter to CM requesting it to recognize it as the exclusive bargaining unit, to load and unload the cargo of its vessels in Iligan. The Company ignored the request. The Union subsequently filed in 48

the CIR a petition for certification election. Despite the certification case, CM sent notice to the Union for termination of their August contract. On August 31, 1954, CM entered into a new contract with Iligan Stevedoring Association. CM, in the original complaint, assailed that the termination of the contract was due to the Union workers’ inefficiency and that the Company suffered financial losses due to such inefficient service. To ascertain its annual losses, Jose Teves, CM Iligan Branch 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: whether or not 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. Holding: The best evidence of the Company’s losses would have been the sales invoices instead of the Manager’s 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 from them is only the general result of the whole, the original writing need not be produced” CANNOT BE APPLIED because the voluminous character of the records on which the accountants’ reports were based 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. An audit made by a private auditor or the testimony by him is INADMISSIBLE in evidence as proof of the original records, books of accounts, reports, or the like. The pertinent records should have been produced; otherwise, conclusions, inferences or opinions of the auditor are inadmissible. The chief clerk, who was not presented as a witness, cannot be replaced by statements of the accountant, for it is HEARSAY; for the accountant was not the one who made the alleged records but the chief clerk. Note that the records can still be brought to court or outside the courtroom to establish their voluminous character.

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(d) when the original is a public record in the custody of a public officer or is recorded in a public office EXAMPLE: Birth Certificate. That is recorded in the Office of the Civil Registrar. You do not keep the original copy. If you wish to prove that you were born on this date for the purpose of taking the Bar Exams, for example, the Civil Registrar will give you a CERTIFIED TRUE COPY. Under the law, a certified true copy is in violation of the BER because one is supposed to present the original. But the original is a public document, recorded in a public office where one cannot get it. That document is owned by the government. Because of the exception, a certified true copy issued by a public officer is admissible. It has the same force and effect as the original itself. The BER states that the “original must be produced”. But what do we mean by “original”? SECTION 4. Original of Document.  (a) the original of a document is one the contents of which are the subject of inquiry; (b) when a document is in two or more copies executed at or about the same time, with identical contents, all such copies are equally regarded as originals; (c) when an entry is repeated in the regular course of business, one being copied from another at or near the time of the transaction, all entries are likewise equally regarded as originals. This is so because the word “original” would refer to two documents executed at the same time. Example of (a): A case involving a newspaper reporter who typed a story and submitted the same to his editor. The editor published the story in the newspaper. QUESTION: Which one is considered the original? Is it the story which was typewritten by the reporter, or is it the story that was actually printed or published in the newspaper? ANSWER: It depends. If the issue is the subject of inquiry, the original would be the story as prepared or typed by the author. But if the issue to be established is whether the published story is libelous or not, the original is the story which appeared in print. The original, therefore, depends on the case. ANOTHER ILLUSTRATION: I send you a telegram. Naturally, I will prepare a transmission form. Then, the telegram company transmit it to the receiver. QUESTION: Which is now the original? Is it the message which I wrote down, or is it the copy of the telegram as received? ANSWER: It depends on the subject of inquiry. If we are talking about the message as received, then the original is the copy of the message sent to the addressee.

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(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; The word “original” has a legal meaning which is stated in this second paragraph. A good example would be a typewritten contract. When you type up a contract, you prepare also a carbon copy or copies. Afterwards, the parties sign each and every copy. QUESTION: which one is the original? From the viewpoint of the typist, the original is the first copy. The carbon copy or copies are not original. But from the viewpoint of the law on evidence, the original includes carbon copies which were signed by the parties. So, when a party produces in evidence a carbon copy to prove all contents of a document, you cannot object on the ground of violation of the BER because actually, he is producing the original. The copy is the one which has no signatures. This paragraph was not found in the 1964 Rules on Evidence. Carbon copies were then regarded as originals, but the Rules did not expressly state it. Now, the 1989 Revised Rules on Evidence states this provision. In the old case of People vs. Quiñones and People vs. Tan (107 Phil. 1242), the Supreme Court said: for a carbon copy to be original, the signature of the parties on all the copies must be made by the same stroke of the pen. But that is not how it is being done now in actual practice. That is not how parties sign a contract consisting of 5 or 7 copies. Usually, the parties sign one copy after another. So every copy is signed by a different stroke of the pen. Therefore, based on the ruling in the given cases, the carbon copies are not considered originals, because the signatures were not made by the same stroke of the pen. However, the Supreme Court changed its mind in later cases. In the case of PNB vs. Ulila, the same stroke-of-the-pen rule was not applied. Meaning, if the parties signed the copies one after another, although there were different strokes of the pen, all of them are equally regarded as originals. Presently, the same stroke-of-the-pen rule is not anymore recognized. According to the law, “executed at or about the same time” -meaning. one after the other. (c) when an entry is repeated in the regular course of business, one being copied from another at or near the time of the transaction, all entries are likewise equally regarded as originals.

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Take note that this is different from (b). For example, there are many books, e.g., accounting books, where you make entries, not contracts. Then when you make each entry, you sign each and every one of them. QUESTION: which of these books is the original? ANSWER: All of them are considered as originals, because they were copied from another in the regular course of business. This may be similar to (b). But this refers to entry books other than carbon copies. This provision appears in the 1940 and 1964 Rules. This is actually the basis of the ruling on carbon copies considered as originals prior to the 1989 Rules. That is why the situation being contemplated in the cases in (b) and (c) seem to be quite identical. 2. Secondary Evidence SECTION 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. The requisites for this Section to apply are, as appearing in the leading case of Tan vs. CA (infra): (a) it must be shown that an original was indeed duly executed; (b) that such original has been lost, destroyed or unaccounted for, without bad faith on the part of the offeror; and, (c) if there are several copies, all must be accounted for Q: What are the kinds of secondary documents? (a) by copy of the original (photocopy) (b) by a recital of its contents in some other authentic documents; (c) by testimony of witnesses. When proving a lost document by secondary evidence, the abovementioned ways must be followed in that order. Meaning -- a lost document must be proved first by a copy of such document, or if no copy exists, then by a recital of it in some other document, or by testimony of witnesses. Q: What is meant by a recital of its contents in some other authentic documents? A: This means that the lost document has been referred to in another document, or is copied verbatim in another instrument. EXAMPLE: A and B entered in to a contract of sale, and executed the corresponding document. A was in the habit of writing the occurrences of the day in his diary. So, he wrote the contents of the contract he entered into with B in his diary. Unfortunately, the original Contract of Sale is lost, A can proved the contents of such contract through his diary. 52

TAN vs. CA 137 SCRA 278 Facts: Eden Tan arrived from Hongkong, at the Manila International Airport, appearing to be restless and as if she was looking for somebody. When she was assigned to a particular customs examiner, she refused to be examined, and she moved around the examination room of the arrival area of the airport. The chief of the customs agents, after observing her behavior, assigned her to Customs Examiner Macud. While her baggage was being examined, she appeared uneasy and restless. The airport Customs Collector approached her and advised the examiner to make a thorough examination of her baggage. Thereupon, fancy jewelries and stones, and a large amount of cash were found. The baggage declaration shown to Macud merely mentions “personal effects”. Seizure proceedings were instituted in the Bureau of Customs against Tan for violation of Sec. 3602 of the Tariff and Customs Code. A criminal proceeding was also instituted in the Circuit Criminal Court. In the Circuit Court, appellant contended that it is an error for the prosecution to present secondary evidence to prove the existence of the smuggled goods without presenting the baggage declaration, which was allegedly lost. Secondary evidence presented were the testimonies of witnesses Manansala, Diaz and Malud, Customs Policeman and Examiners. The Circuit Court found Tan guilty. Tan appealed to the CA, which affirmed the lower court’s decision. This is a petition for certiorari from such decision of the CA. Issue: whether or not secondary evidence is admissible absent the proof of the loss of the baggage which is the best evidence? Holding: It is conceded that petitioner’s baggage declaration is the best evidence of the contents thereof. However, the general rule provides that reasonable search shall be made for it in the place where it was last found, being the best evidence of the prosecution. It is safe to assume that the Fiscal undertook the necessary search, but that the declaration could not be found. This justifies then the application of the exception to the best evidence rule which admits secondary evidence in cases 53

when the original document is lost, destroyed or cannot be produced in court (Sec. 2 of Rule 130) in relation to Sec. 4 which allows proof by a copy, recital of its contents, or testimony of witnesses -- in this case, the officers who searched the baggage. Reasonable search shall be made for the lost document in the place where it was last known to have been, and if such search does not discover it, then inquiries must be made of persons most likely to have its custody or who have reasons to know of its whereabouts x x x There is no inflexible definition under which you can give a definite pattern. 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. One must satisfy the court that he really looked for the instrument by giving details of his search. He must prove that he had exhausted all means in locating the missing document. The search must NOT HAVE BEEN MERELY PERFUNCTORY. SECTION 6. When original document is in adverse party’s custody or control.  If the document is in the custody or under the control of the adverse party, he must have reasonable notice to produce it. If after such notice and after satisfactory proof of its existence, he fails to produce the document, secondary evidence may be presented as in the case of its loss. This refers to the second exception to the BER. The document is not lost or destroyed, but is in the possession of the adverse party. Obviously, here, there is only one copy of the document. For one to be able to present secondary evidence similar to the case of loss or destruction, the important requirement is for him to give the ADVERSE PARTY REASONABLE NOTICE to produce the document in court. Then, if, during the trial, he is able to prove in court that he gave the adverse party notice, but the latter did not bring it, he can now ask the court to allow him to present the secondary evidence. Q: How can one make the adverse party bring the document to court? A: By subpoena duces tecum. He can subpoena the adverse party, although that is not necessary. What the rule only says is that one has to give the adverse party reasonable notice and time to produce the document. EXAMPLE: Counsel for Plaintiff: “Mr. Defendant, pursuant to Sec. 6 of Rule 130 of the Rules on Evidence, I am requesting you to produce in court on this day, during the trial, the original of this document. Failure on your part to produce the original will entitle me to produce secondary evidence.”

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During the trial, counsel for plaintiff presents a copy of the notice to the court. If the defendant did not bring the document asked for, then he (counsel for plaintiff) may proceed to present secondary evidence to the court after asking for the court’s permission to do so. Therefore, to summarize the requisites for this Section: (1) proof of the existence or execution of the document; (2) the giving of reasonable notice to the defendant to produce the original document; and, (3) if there are other copies of the original, all must be accounted for. Q: Is there an instance or instances where a party presented secondary evidence on the contents of an original document which was in the possession of the adverse party, and yet this was allowed despite the fact that reasonable notice was not given to the adverse party? Meaning, is there an exception to the rule that one is required to give reasonable notice in such cases? A: The exception was laid down by the Supreme Court in the 1956 case of Ready Mix Concrete Co. vs. Villacorta, which was asked in the 1974 Bar Examinations. An illustration of the situation: This is very common especially in the business community. Some people in the hardware business have frequent customers who, due to the volume and frequency of their purchases, buy the goods on credit. When the storeowner wants to collect, he sends the Statement of Accounts to the customer. He also attaches to this Statement all the invoices that have been previously signed -- so that the customer can verify that his signatures are really on the invoices. (Usually, the storeowner sends to the customer the original copy of the invoices because signatures would usually not be clear enough if the carbon copies are sent instead.) Practically, thus, the storeowner has surrendered all of the original invoices to the customer. The customer acknowledges receipt of all these invoices. Now comes the customer who refuses to pay for all his alleged purchases. Naturally, the storeowner sues the customer. So, the storeowner has to present evidence in court. But the original invoices are in the possession of the adverse party. If the carbon copies of the invoices are offered as evidence, the adverse party will object on the ground that the BER is violated. According to the Supreme Court: when the adverse party has acknowledged receipt of the original  in this example, by affixing his signature to the statement of accounts from plaintiff, there is no need for the court to require the plaintiff to produce the original document in court. SECTION 7. Evidence admissible when original document is a public record.  When the original of a document is in the custody of a

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public officer or is recorded in a public office, its contents may be proved by a certified copy issued by the public officer in custody thereof. This is the fourth exception to the BER. The original is a public record, and you wish to prove the contents of such original. But the problem is that you cannot get it. The government will not surrender to you the original which is part of its public records. The most that the custodian can do for you is to give you a CERTIFIED TRUE COPY, an accurate copy of the original which is signed by, for example, the Civil Registrar or the Registrar of Deeds. Q: Can you present in court this certified true copy? And is it admissible and not in violation of the BER because the original is not presented? A: A certified true copy is admissible. It is not violative of the BER because it is considered as an exception. A certified true copy issued by the public officer who is the custodian, has the force and legal effect as the original itself. SECTION 8. Party who calls for document not bound to offer it.  A party who calls for the production of a document and inspects the same is not obliged to offer it as evidence. For example, X will have a document brought to court either by way of Notice to Produce to the adverse party or by subpoena duces tecum. When X looks over the document, he finds that nothing favorable to or supportive of his case. X decides not to offer it as evidence. even if it was X who asked that the document be produced in court, when he inspects it and finds nothing relevant in it with respect to his case, he is under no obligation to offer the same as evidence in court. This is not tantamount to depriving the court of its opportunity to see the truth. No party to a case is expected to supply its opponent with the very rope to hang the former’s neck. Anyway, the other party is also prevented by law from using the said evidence in its favor. The principle here is similar to that in depositions. A person who takes the deposition of somebody does not necessarily make him his witness. Unless the party offers the deponent’s deposition in court as a testimony in its favor. Section 8 is limited to production and inspection. 3. Parol Evidence Rule 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

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parties and their successors in interest, no evidence of such terms other than the contents of the written agreement. However, a party may present evidence to modify, explain or add to the terms of the 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; (d) The existence of other terms agreed to by the parties or their successors in interest after the execution of the written agreement; The term “agreement” includes wills. Parol evidence literally translated means ORAL or VERBAL TESTIMONY of a witness. So, when a witness testifies in court, he says something there; the adverse party through counsel asks him a question, the witness gives his answer. That is verbal testimony. Other names by which Parol Evidence is known are: EXTRINSIC EVIDENCE (“extrinsic”, meaning, it is something not found in the written agreement itself) and EVIDENCE ALIUNDE. EXAMPLE: A and B entered into a contract. The stipulations are the matters they have agreed upon. Subsequently, A sues B for breach of contract because B allegedly violated stipulations 2, 3 and 4. B says that he did not violate the said stipulations. Why? B claims that he cannot be considered to have violated the said stipulations because of the existence of another condition. He contends that only under the said additional condition can he be held liable. But what is that condition? It is not in the contract itself. B says that the additional condition was merely verbally agreed upon by them. So, in effect, B is trying to prove orally that an additional condition or stipulation exists, which cannot be found in the contract. Under the Parol Evidence Rule, A’s counsel can object. What is the rule? When the agreement is in writing, the presumption is that all the terms and conditions agreed upon are written down in the contract. So, no one has the authority to qualify, alter, vary or change the terms of a completely written agreement. No one can inject other qualifications which are not in writing. Otherwise, evidence being presented with respect to anything that is not in the contract is inadmissible. Another way of saying it is: Once a document has been executed as confirmation of the negotiations between the parties, no one may offer parol or oral evidence -- the effect of which would be to vary or to alter the terms of the contract. The Supreme Court says that the reason for this rule is that when parties have reduced their agreement to writing, it is presumed that they have made the document the only repository and proof of the truth; and 57

whatever is not found in the document is understood to have been waived or abandoned. It is not logical for the parties to reduce into writing only some of the terms they have agreed upon, and to not put into writing the rest. When businessmen enter into negotiations and reduce the same into writing, the presumption is that everything has been agreed upon. PASTOR vs. GASPAR Facts: X borrowed from A a certain amount of money to purchase vehicles for a transportation business. As a security for the payment of the loan, he pledged certain chattels. So, they executed the corresponding document. It was either a contract of pledge or a contract of chattel mortgage. When X failed to pay on the due date, A sued X. During the trial, X tried to prove through his testimony that the real agreement between him and A was a PARTNERSHIP. Because if the contract was indeed one of partnership, whatever financial losses in the business should be shouldered by both the partners. A claims that the vehicles were pledged to him as security for the loan. X claims that as a partner, the money borrowed by him was A’s contribution to the partnership. Issue: Is the testimony of X admissible? Holding: No, X’s testimony is inadmissible. The written agreement being a loan secured by a pledge, under the Parol Evidence Rule, its nature cannot be varied by oral testimony. EVELAND vs. EASTERN MINING CO. Facts: Eastern Mining hired the plaintiff as its mining engineer. there was an agreement as to the amount of his salary, his entitlement to housing allowance, gasoline allowance, entertainment allowance, etc. And then it happened that plaintiff was not paid his allowances. So plaintiff sued the company. According to the company, their agreement was that the allowances would be paid to plaintiff in full only if their business would improve. However, the business did not improve. That is why plaintiff could not get the promised allowances. Plaintiff presents the contract in court and does not find any phase which would support the company’s contention. Issue: Is the management allowed to prove the alleged condition that the allowances due the mining engineer would be paid him only if the business would turn out to be successful?

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Holding: The oral testimony to prove the said condition is not admissible., because said oral testimony tends to vary a condition not appearing in the written contract. The rule is that conditions qualifying the operation of a clear and complete written agreement or contract cannot be proved by parol or oral evidence. (a) An intrinsic ambiguity, mistake or imperfection in the written agreement; Q: What happens if there was failure to raise the objection? A: The result is waiver. Meaning, the evidence becomes admissible because this rule is for the benefit of parties in the contract. If one intends to present oral evidence in court under this exception, the law requires for him to raise it earlier in his pleading. Otherwise, it will be deemed waived. EXAMPLE: There is an ambiguity or mistake in the writing or document. How can that be corrected? By oral evidence. But in order to do that in the pleading, the complainant or defendant, as the case may be, must raise that as an issue. for example, that the agreement was a mistake. That the agreement being like this, it has an intrinsic ambiguity in it. Q: What does “ambiguity” mean? A: That the agreement is susceptible of two or more interpretations. And when the law is vague, one needs to resort to the rules of statutory construction. The same goes with contracts. Based on the law, there are two types of ambiguity. INTRINSIC and EXTRINSIC. What is curable by oral, verbal or parol evidence is the INTRINSIC type. The extrinsic type is not mentioned in the law. Intrinsic ambiguity means an ambiguity which does not appear on the face of the writing or agreement, but lies hidden in the person, or thing, or subject whereof the writing or agreement bespeaks. The ambiguity is hidden; it cannot be detected by simply reading the document. Another term for intrinsic ambiguity is LATENT AMBIGUITY. An example of an ambiguity which is hidden: A executes his Last Will and Testament. In it, he said: “I hereby leave a legacy of one million pesos in favor of my friend, Juan de la Cruz.” In the study of Succession, that is valid and allowed. one may leave a legacy in favor of a third person. So, eventually, A died. His will was probated. But the problem now is that he has 3 friends who are all named Juan de la Cruz, and each one is claiming the legacy. Obviously, there is an ambiguity in the will. Although there is a problem as to who among the 3 Juan de la Cruzes is referred to by A in his will, obviously, A was referring to only one 59

of them. But still, when you read the document, there is no ambiguity at all. The ambiguity surfaced only later. One of the Juan de la Cruz wants to prove that he is the person being referred to in the will. So he presents oral testimony to clarify the doubt. Is that allowed? Yes. This is an example of an intrinsic ambiguity which is curable by parol evidence. As stated in the last paragraph of Section 9, parol evidence does not apply only to contracts but also to Last Will and Testaments. ANOTHER EXAMPLE: A sold, donated or willed to B, placing in the document the following: “I hereby sell, donate or give to B my commercial lot (Lot No. 101) consisting of 350 square meters situated at the corner of San Pedro and Legaspi Streets...” It was later discovered that A does not actually own a commercial lot consisting of 350 square meters situated at the corner of San Pedro and Legaspi Streets. But A does own a commercial lot, also 350 square meters in area but located at the corner of San Pedro and Anda Streets. SCENARIO: By looking at the instrument or contract, there seems to be nothing wrong. But when you look at the property, the ambiguity arises. Q: Can oral testimony be presented precisely to prove that actually there was merely an erroneous description of the property which is the subject matter of the sale or donation? That what was actually intended by A was the lot located at the corner of San Pedro and Anda Streets? A: Yes. There is a maxim in evidence known as falsa demonstration non nocet, which was asked before in the Bar Exams, and which simply means that a false description does not vitiate a writing; provided, sufficient description remains as would identify the thing, or person intended. Q: Is the sale or donation in the above case deemed avoided? A: No, because there is still something in the description which would identify the subject matter -- the same lot, number, the same size of area, and it is also a commercial lot. The wrong address was just an oversight. The other type of ambiguity is EXTRINSIC. It is defined as an ambiguity which appears on the face of the writing or agreement itself. It is sometimes called PATENT AMBIGUITY. By reading the document, the ambiguity becomes obvious. EXAMPLE: “I hereby donate to you something.” What “something” is that? The donee claims that the “something” is a 100 hectares of land. He will present oral evidence to prove that it was what it means. But the heirs of the donor disagree and claim that the “something” reefers to a dog only. Q: Can that type of ambiguity be cured by parol evidence? A: No. Since the instrument does not specify the subject matter, it is VOID. Since it is void, no amount of evidence will validate it. Conclusion:

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Patent ambiguity cannot be cured by parol evidence because the instrument or contract is null and void for lack of a subject matter. Q: Differentiate the above from falsa demonstratio non nocet. A: In Falsa demonstratio non nocet, there is an identifiable subject matter. Only, the description is unclear. There is something left to be identified. But when “something” will be given to somebody -- this a vague provision which cannot really be implemented. The principle here is: If the description is totally zero, this PATENT AMBIGUITY. To know the language of the Supreme Court in matters respecting patent ambiguity, in the case of Borillo vs. CA. It commented on the parol evidence rule: parol evidence is not admissible to identify the property where the description thereof is so vague as to amount to no description at all. Parol evidence is not permitted to supply a description, but only to apply it. Because this is intrinsic ambiguity. BORILLO vs. COURT OF APPEALS 209 SCRA 130 Facts: On February 10, 1977, petitioner, for herself and on behalf of her children, filed before the court a complaint against private respondent and Marcos Borillo for the recovery of several parcels of land located at Abra. In this complaint, petitioner alleges that the parcel of land were originally owned by her late husband, Elpidio Borillo. Although said lands were unregistered, they were declared in 1948, in the name of Elpidio under a Tax Declaration. Elpidio had been in peaceful, public, continuos and uninterrupted possession thereof in the concept of owner even before his marriage to petitioner until his death. Despite repeated demands, Marcos and private respondent Catalina Borillo refused to return the property to petitioner. In their answer, private respondent claims that the parcels of land were sold to her by her late brother, Elpidio, in 1835, while Marcos claims sale of one of the parcels of land by Elpidio in 1937, long before the marriage of Elpidio to petitioner. At the trial, private respondent relied heavily on a private document purportedly showing that Elpidio sold to her all his property for P40.00. Marcos claimed that the deed of sale evidencing the sale to him was lost during the war. The lower court awarded the properties to petitioner herein. Catalina Borillo appealed and was sustained by the CA. Issue: whether or not parol evidence is admissible to prove the description of the subject matter of a deed or other writing. 61

Holding: The petition is meritorious. In reversing the findings of the trial court, the CA justifies the deficiencies and discrepancies saying that the absence of specifications as to what property was sold is understandable because they were brothers and sisters. It added that this defect was cured by testimonial evidence. However, before parol evidence to aid the description of the subject matter of a deed of other writing, there must be a description that will serve as a foundation for such evidence. Parol evidence is not permitted to supply a description but only to apply it. Parol evidence is not admissible to identify the property where the description thereof is so vague as to amount to no description at all. According to Wigmore, aside from extrinsic and intrinsic ambiguity, there is a third type, a middle-ground. He calls it intermediate ambiguity. This is an ambiguity arising from the use of words susceptible of different interpretations. This is curable by parol evidence. Sections 10 to 19 on the interpretation of documents will be useful here. So, when the document is vague, one does not declare the contract or document as void, but subjects the same to the rules on interpretation. These rules allow the presentation of parol evidence. EXAMPLE: In the case of Palanca vs. Wilson, an apparatus or machine used to convert alcohol to wine or rhum is the subject of a deed of sale. In the contract, the machine is described as “of 6000 liters capacity.” It turned out that the word “capacity” can have two meanings -- working or producing. Which could have been intended by the parties? Because if you would look at the contract, it is unclear. Thus, the Supreme Court said: Parol evidence may be admitted to explain the ambiguity and to determine the intention of the parties. Q: Cite at least five (5) rules on the interpretation of contracts. (bar question) A: Aside from Sections 10 to 19 of Rule 130 of the Rules on Evidence, see also Articles 1370 to 1379 of the New Civil Code. Under paragraph (a) of Section 9, aside from intrinsic ambiguity, there can also be a MISTAKE in the document or agreement. A mistake can be cured. But what kind of mistake? A mistake of fact; not a mistake of law. The latter is not curable since everybody is presumed to know the law anyway. For parol evidence to apply, the following are the requisites: (1) there is a factual mistake; (2) the mistake is common to both parties to the instrument; and, (3) the mistake is proved by clear and convincing evidence.

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Another exception to the Parol Evidence Rule under paragraph (a) is when there is an IMPERFECTION in the written agreement. this imperfection may be explained or cured by parol evidence. Q: What does “imperfection” mean? A: It simply means that the writing is incomplete, and does not show the whole agreement of the parties but defines only some of its terms. Q: How does one convince the court that the agreement is imperfect or incomplete? A: According to the Supreme Court, the best evidence is the document, contract or writing itself. By reading it, one would find out if there are terms agreed upon that were omitted. So, in order to supply the deficiency, parol evidence may be allowed; provided that it is raised in the pleading. (b) The failure of the written agreement to express the true intent and agreement of the parties thereto; The perfect example here is an action for the reformation of a contract. You raise in your complaint that the agreement actually does not express the true intent of the parties. You put that in issue. In effect, you are asking that the written contract be changed to reflect what was actually agreed upon. A more specific example: An agreement which appears to be a deed of sale but is in reality an equitable mortgage. This is an agreement which does not reflect the true intention of the parties. Oral evidence is allowed to prove the real nature of the agreement. Acording to the Supreme Court, courts of equity go through and beyond that which appears in a contract, in order to determine the real agreement of the parties. And toward that end, oral and written evidence are admissible to determine the real agreement. ORTAÑEZ vs. CA 266 SCRA 561 Facts: Private respondents sold to petitioner two parcels of registered land for a consideration of P35,000.00. However, private respondents failed to deliver the titles to petitioner. They refused on the ground that petitioner’s acquisition of the titles is subject to certain conditions. Offshoot, petitioner sued private respondents for specific performance. During trial, private respondents orally testified that the sale was subject to conditions, although such conditions were not incorporated in the Deeds of Sale. Despite petitioner’s timely objections on the ground that the introduction of said oral conditions was barred by the Parol Evidence Rule, the lower court nonetheless admitted them and eventually dismissed the complaint. 63

Issue: admissibility of parol evidence to establish alleged oral condition precedent to a contract to sale, when the deeds of sale are silent on such conditions. Holding: The parol evidence herein introduced is inadmissible. Private respondents’ oral testimony on the alleged conditions, coming from a party who has an interest in the outcome of the case, depending exclusively on human memory, is not as reliable as written or documentary evidence. Spoken words could be notoriously unreliable, unlike a written contract which speaks of a uniform language. Considering that the written deeds of sale were the only repository of the truth, whatever is not found in said instruments must have been waived and abandoned by the parties. Examining the deeds of sale, we cannot even make an inference that the sale was subject to any condition. As a contract, it is the law between the parties. Although parol evidence is admissible to explain the meaning of a contract, it cannot serve the purpose of incorporating into the contract additional contemporaneous conditions which are not mentioned at all in the writing unless there has been fraud or mistake. No such fraud or mistake exists in this case. (c) The validity of the written agreement; Here, one will present oral evidence to prove that the contract is not valid, for example. But first, it must be raised in the pleading. EXAMPLE: A sells to B his land for P1 million. They draw up and sign a deed of sale. So: “In consideration of One Million Pesos, receipt of which is hereby acknowledged in full,... I hereby sell this property to B xxx”. But B says that he has to go the bank to secure manager’s cheques as P1 million is too large an amount to be paid in cash. A agrees to wait for B, while B brings him the deed of sale and the title to the land. But B never came back, because he went straight to the Registry of Deeds to have the title of the property transferred over to him. PROBLEM: How does A prove that B never paid him the agreed consideration when the deed of sale has been duly acknowledged and the sale duly registered? ANSWER: A will prove, through his testimony, that he never received the consideration. Based on the general rule, A cannot really prove that he did not receive the money, because the documents will show otherwise. Any attempt on the part of A to do so will be objectionable. However, since he filed the case to nullify the deed of sale  in effect, he is raising the issue on the validity of the said instrument. So, in this case, parol evidence is allowed to prove lack of consideration.

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As a matter of fact, according to the Supreme Court, when one is trying to prove such an issue as the validity of the instrument, he is not varying the terms of the agreement. But he may be proving that there is no agreement or contract at all. He may even be proving that there is actually no agreement which is binding. (d) The existence of other terms agreed to by the parties or their successors in interest after the execution of the written agreement; Briefly, these are SUBSEQUENT AGREEMENTS. Subsequent oral agreements are not covered by, nor are considered as exceptions to the Parol Evidence Rule. HISTORY: In the 1964 Revised Rules of Court, this exception does not appear. What appeared there were only ambiguity, mistake, imperfection, failure to express the true intent and validity. The rest of the terms were added in the 1989 Rules. But even without this exception in the 1964 Rules, it was still considered an exception because of judicial pronouncements. Judicial pronouncements have placed subsequent oral agreements beyond the scope of the parol evidence rule. The 1989 Rules just formalized or incorporated this. But this has always been considered as part of the exceptions. EXAMPLE: B borrowed money from A. For this, B signed a promissory note in favor of A. Maturity date was fixed at July 3, 1995. When July 3, 1995 came, B did not pay. Thus, A sues B for payment of the due account. B’s defense is that the amount is not yet due because after the execution of the promissory note, A agreed to extend the period of payment to until December 3, 1995. But B claimed that this agreement was reached by them only verbally. What is B proving here? An oral agreement which happened after the execution of the promissory note. Can this be done? Yes. B can testify orally in court on the subsequent oral agreement that he had with A. The extension resulted in the novation of their previously agreed-upon maturity date. PRINCIPLE: The parties cannot incorporate in the contract or instrument something that they will still agree on in the future. Take note that what is guaranteed by Sec. 9 is only the ADMISSIBILITY of the evidence. It does not guarantee the CREDIBILITY or WEIGHT of the evidence. The court may or may not believe your story. Admissibility is different from credibility. ALSO: It is awkward for the parties to make oral agreements, later reduce the agreement into writing, and leave out some of the agreements. All prior agreements are deemed incorporated in the written agreement. This is sometimes called the INTEGRATION OF AGREEMENT RULE. ILLUSTRATION: Prior oral agreement June 15 1995

NOT PROVABLE BY PAROL EVIDENCE

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July 3, 1995 Contemporaneous date of written oral agreement agreement July 3, 1995 Subsequent oral agreement August 14, 1995

PROVABLE BY PAROL EVIDENCE

PROVABLE BY PAROL EVIDENCE

(1) All prior oral agreements are covered by the Parol Evidence Rule. They cannot be proved by oral testimony because the presumption is that everything was agreed upon by the parties is incorporated in the written agreement. This provision’s exact opposite is paragraph (d) of Sec. 9. (2) Contemporaneous oral agreement  On July 3, 1995, the agreement was put into writing. But on the same date also, there was another agreement, but oral. This is a contemporaneous oral agreement. (3) Subsequent oral agreements are exceptions to the Parol Evidence Rule because they cannot be integrated in the July 3, 1995 written agreement. The parties cannot be expected to incorporate in the written agreement something which they will still agree in the future. Q: Is contemporaneous oral agreement covered by the Integration of Agreement Rule? A: Yes. It is covered BUT WITH EXCEPTION. Because if on July 3, 1995, the parties really agreed upon something and subsequently executed the contract governing the transaction, then everything has to be included in the written agreement. The general rule for contemporaneous oral agreements actually is that it is not provable by parol evidence because of the presumption that everything agreed upon is integrated in the written agreement. However, there is an exception: if such oral agreement can be classified as COLLATERAL. An agreement is considered a collateral agreement if it pertains to something SEPARATE and distinct from the written agreement. Such collateral agreement may be proved by parol evidence. This was laid down by jurisprudence prior to the 1989 Rules. Q: What oral agreements may be proven by parol evidence based on jurisprudence? (1) subsequent oral agreement or agreements entered into after the execution of the written agreement; and, (2) collateral oral agreements which are separate and distinct. Q: In contemporaneous oral agreements, when are collateral agreements considered as separate and distinct? (1) they are separate and distinct if the subject matter of written agreement is separate and distinct from the subject matter of the

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contemporaneous oral agreement. There is no violation because the written agreement is not being altered or varied. (2) the contemporaneous oral agreement is separate and distinct, even if the subject matter of the written agreement and oral agreement are the same, if the collateral oral agreement can be separated from the oral agreement. This can still be proved by parol evidence. EXAMPLE: A sells his house and lot to B. For a consideration of P2 million, A transfers ownership over the same to B. However, for a month after the sale, A refuses to vacate the premises. So B files a case against A for not surrendering possession of the property. In court, A says that he and B agreed that after the sale, A would continue occupying the property for 6 months no longer as the owner but as lessee. So, what A is trying to prove is an oral agreement of lease of the same subject matter as in the deed of sale. Counsel for B objects on the ground of violation of the Parol Evidence Rule. QUESTION: Is this a valid objection? ANSWER: No, there is no violation of the Parole Evidence Rule. The subject matter in the written agreement here is the same as in the oral agreement B is trying to prove. But the deed of sale is different (separate and distinct) from the oral agreement of lease. Therefore, A can validly present oral evidence to prove whether or not there actually was an oral agreement of lease between him and B after the sale of the property. By trying to prove the oral agreement of lease, A is not altering, modifying or adding to the written contract. ANOTHER EXAMPLE: C sells his land to D. After one year, C tries to buy back the land. C tells D that they had a contemporaneous agreement before that he (C) would have one year to buy back the land. During trial, is C allowed to prove that? According to the Supreme Court: A collateral agreement of reconveyance or repurchase may be proved by parol evidence, because an agreement of reconveyance is a distinct agreement separate from the sale itself -- although the new agreement is usually contained in one and the same document. A deed to repurchase is an entirely different contract. This is like a sale with pacto de retro. Although in reality they are normally incorporated in one document, sometimes they are separate and distinct. This is provable by parol evidence. Q: Distinguish the Best Evidence Rule from the Parol Evidence Rule. Best Evidence Rule

Parol Evidence Rule

the issue is the CONTENTS the issue is whether or not a party is of a documents ADDING OR MODIFYING THE TERMS 67

of the written agreement

it prohibits the offer of SECONDARY EVIDENCE to prove the contents of a writing or document, unless the case falls under any of the exceptions

it prohibits the offer of ORAL EVIDENCE if the purpose is to change, vary, modify, qualify or contradict the terms of a complete written agreement, unless the case falls under any of the exceptions

any party to the case may only the parties to the document and invoke this their successors in interest may invoke this this applies to any document

this applies only to agreements although the word “agreement” includes wills.

The following sections are applicable to intrinsic and intermediate ambiguities of documents. Also, the Civil Code contains certain rules of interpretation of contracts---notably Articles 1370-1379: Art. 1370. 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. Art. 1371. In order to judge the intention of the contracting parties, their contemporaneous and subsequent acts shall be principally considered. Art. 1372. 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. Art. 1373. 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. Art. 1374. 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. Words which may have different significations shall be understood in that which is most in keeping with the nature and object of the contract.

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Art. 1376. The usage or customs of the place shall be borne in mind in the interpretation of ambiguities of a contract, and shall fill the omission of the stipulations which are ordinarily established. Art. 1377. The interpretation of obscure words or stipulations in a contract shall not favor the party who caused the obscurity. Art. 1378. When it is 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. 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. Art. 1379. The principles of interpretation stated in Rule 123 of the Rules of Court shall likewise be observed in the construction of contracts. The above provisions should be read with Rule 130, Sections 10 to 19 of the 1989 Rules on Evidence. Some of these are similar to the principles of statutory construction. 4. Interpretation of Documents SECTION 10. Interpretation of a writing according to its legal meaning.  The language of a writing is to be interpreted according to the legal meaning it bears in the place of its execution, unless the parties intended otherwise. One must apply the legal word in the place where the document was prepared in order to understand what it means. Remember these rules. Sometimes they are asked in the Bar Exams. For example, if a contract was prepared in Japan and a legal term is being used there, the meaning of such legal term according to Japanese Law will be used, not as we would understand it in the Philippines. SECTION 11. Instrument construed so as to give effect to all provisions.  In the construction of an instrument where there are several provision or particulars, such a construction is, if possible, to be adopted as will give effect to all.

Q: How does one construe statutes? A: One has to consider the entire law. One must not interpret every article independently of the others or in isolation from the rest. He must harmonize provisions with each other. The same rule goes for contracts. 69

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. Q: How should a law be interpreted? A: One must determine the intent of the framers. In a contract, one must determine the intention of the parties. If there is a conflict between general law and special law, the special law prevails. Interpret the law according to the spirit that giveth life, rather than the letters that killeth. 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 placed in the position of those whose language he is to interpret. If you are to interpret a contract, imagine yourself to be in the judge’s or the parties’ shoes. What would your reaction have been at the time the contract was made? Simulate the situation so that you may understand better how the parties were guided in the execution of the contract. 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 a local, technical, or otherwise peculiar signification, and were so used and understood in the particular instance, in which case the agreement must be construed accordingly. When interpreting words used in a contract, one must apply the general meaning of the words as understood by the public, unless it is shown that the parties intended a technical meaning. If a word carries a general as well as a particular meaning, the presumption is that the parties intended the general meaning. SECTION 15. Written words control printed.  When an instrument consists partly of written words and partly of a printed form, and the two are inconsistent, the former controls the latter. In case of inconsistency, written words control the printed ones. Common example is a rider in an insurance policy. 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 70

understood by the court, the evidence of persons skilled in deciphering the characters, or who understand the language, is admissible to declare the characters or the meaning of the language. EXAMPLE: A is suing for breach of contract. But the contract is entirely written in Chinese. The judge does not know how to read Chinese characters. This section authorizes him to secure the aid of experts. Otherwise, he may not be able to decide the case. SECTION 17. Of two constructions, which preferred.  When the terms of the 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. EXAMPLE: A and B entered into a contract which turned out to be with two possible meanings. A asks for its real meaning. If B tells A what he thinks the meaning is, then they are bound by estoppel. The interpretation to be used should be that which the other party believed and used. 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. We do not interpret the law against a natural right. The natural right must be respected. SECTION 19. Interpretation according to usage.  An instrument may be construed according to usage, in order to determine its true character. EXAMPLE: Interpret a bill of lading according to its use and for which it is intended. Before leaving the subject of parol evidence, we will try to compare these rules with the Statute of Frauds in the Civil Code. Art. 1403. The following contracts are unenforceable, unless they are ratified: (1) x x x (1) Those that do not comply with the Statute of Frauds as set forth in this number. In the following cases an agreement hereafter made shall be unenforceable by action, unless the same, or some note or memorandum thereof, be in writing and subscribed by the party charged, or by his agent; evidence, therefore, of the agreement cannot be received without writing, or a secondary evidence of its contents:

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(a) an agreement that by its terms is not to be performed within a year from the making thereof; (b) a special promise to answer for the debt, default, or miscarriage of another; (c) an agreement made in consideration of marriage, other than a mutual promise to marry; an agreement for the sale of goods, chattels or things in action, at a price not less than five hundred pesos, unless the buyer accept and receive part of such goods and chattels, or the evidences, or some of them, of such things in action, or pay at the time some part of the purchase money; but when a sale is made by auction and entry is made by the auctioneer in his sales book, at the time of sale, of the amount and kind of property sold, terms of sale, price, names of the purchasers and person on whose account the sale is made, it is a sufficient memorandum; (d) an agreement for the leasing for longer period than one year, or for the sale of real property or of an interest therein; (e) a representation as to the credit of a third person. (3) x x x Even if the Statute of Frauds is not part of the Rules on Evidence, it is considered as ANALOGOUS to the Rules on Evidence. In Statute of Frauds, oral evidence is also excluded. The only evidence allowed is the written agreement. As a matter of fact, in the 1940 Rules, the Statute of Frauds could be found. But when the Civil Code took effect, the Statute of Frauds was transferred to it. When the lawmakers revised the old Rules in 1964, they altogether removed from it the Statute of Frauds. That is why there were some Bar Examinations in the past in Remedial Law where questions on the Statute of Frauds were asked. The history of the Statute of Frauds is explained by the Supreme Court in the 1991 case of Claudel vs. CA. It was later amplified by Gimik Gang, Inc. in the treatise The Philippine Law on Trusts. The Supreme Court explained that: The provisions of the Statute of Frauds originally appeared in the old Rules of Evidence; however, when the Civil Code was rewritten in 1949, the Statute of Frauds was taken out in order to be included under the Title on Unenforceable Contracts of the Civil Code. The transfer was not only a matter of style but to show that the Statute of Frauds is also a substantive law.

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CLAUDEL vs. CA 199 SCRA 113 Facts: As early as December 28, 1942, Cecilio Claudel acquired from the Bureau of Lands a parcel of land. Thereafter, he secured a Transfer Certificate of Title issued by the Registrar of Deeds. He dutifully paid the real estate thereon until his death in 1987. His widow, and later her son, continued paying the taxes. The heirs of Cecilio composed of his legitimate children and the brothers and sisters of Cecilio claim survivorship over the land. The heirs of Cecilio partitioned among themselves the land and obtained the corresponding TCT. But the brothers and sisters of Cecilio filed a complaint for the cancellation of titles and reconveyance alleging that 46 years earlier, their parents had purchased from the late Cecilio certain portions of the said land for the sum of P30.00. They admitted that the transaction was verbal. As proof of sale, they presented a subdivision plan of the land. The CFI of Rizal dismissed that the sale involves real property. Not only that, but the action also has prescribed since more than 30 years have elapsed since the sale. However, the CA reversed the decision of the lower court contending that the Statute of Frauds applies only to executory contracts and not to consummated sales. The CA further reasoned out that the defense of prescription cannot be set against the brothers and sisters because the action was not for the recovery of possession of real property, but for cancellation of titles and reconveyance. Issue: Is the verbal contract of sale covered by the Statute of Frauds? Has the action prescribed? Holding: The CFI decision was reinstated. As to the first issue, clearly the verbal contract of sale is precluded by the Statute of Frauds, pursuant to Art. 1403 of the Civil Code. As much, it cannot be proven orally. The sale in this case is valid, but it cannot be enforced until reduced into writing. The subdivision plan presented by the brothers and sisters in the lower court carries no weight. The Torrens title in the possession of the heirs of Cecilio is more conclusive evidence of ownership than the subdivision plan. As to the second issue, the belated claims of the brothers and sisters who filed a complaint in court only in 1976 to enforce a right acquired allegedly as early as 1930 is difficult to 73

comprehend. Art. 1145 of the Civil code prescribes that an action upon an oral contract must be commenced within 6 years. Therefore, the action has already prescribed. Q: Define the Statute of Frauds. A: According to American jurisprudence, cited by Tolentino, the term Statute of Frauds is descriptive of statutes which require certain classes of contracts to be in writing, and regulate the formalities of contracts to make them enforceable. Q: What is the purpose of the above law? A: According to the Supreme Court: To prevent fraud and perjury in the enforcement of obligations, depending for their evidence, upon unassisted memory of witnesses. Meaning, if a party is allowed to sue for alleged breach of contract -where is the contract? What did you really agree upon? Then the other party disagrees -- it is so confusing. This is an invitation for people to lie in court. So, in order to avoid this situation, the law requires for certain types of contracts to be in writing, and signed by the parties. At least, one can rely on this rather than on the memory of people. In a suit, one cannot present oral evidence in court to prove the contents of a contract. Such contract must be proved in writing. A contract need not be typewritten. It could be in any form. A note or memorandum may even be written on mere pad paper. These are considered as valid contracts; provided, all the elements of a contract are present -- no matter how informal the writing seems to appear. What should appear on these contracts? The names of the parties, the terms and conditions of the contract, the obligations of the parties, a description of the property sufficient to identify such property, the signature of the parties sought to be charged, etc. Then they sign. There is here compliance with the Statute of Frauds. (a) an agreement that by its terms is not to be performed within a year from the making thereof EXAMPLE: A enters into a contract with B to sell his (A’s) car for P10,000.00, but which is to be implemented within more than 1 year from date of execution. A year and six months later, B gives to A the money to purchase the car. However, this time A refuses to sell the car. A says he decided to back out of their agreement. So B sues A for specific performance. How will B prove the oral agreement? B cannot prove the oral agreement because the prestation was supposed to take place within a period longer than 1 year. But suppose, in the above example, B was able to give a partial payment of P2,000.00 upon the execution of the contract, and the sale was actually supposed to take place in 2 more years. After the second year, A 74

decides to back out of the agreement. A claims the contract is unenforceable. Can he raise this as a proper defense? No. The Statute of Frauds is applicable only to executory contracts. It is not applicable to contracts that have already been partially executed. According to the Supreme Court: This rule applies only on agreements not to be performed within one year on either side. Thus, when one side is to be fulfilled immediately or within the year, the rule does not apply. So, partial performance may take the case out of the operation of the Statute of Frauds. The reason: it would be fraud upon a party not to perform his part after he induced the other party to enter into the contract. (b) a special promise to answer for the debt, default or miscarriage of another When one promises to answer for the debt of another, this is a contract of guaranty. EXAMPLE: C promised A that he (C) would pay if B failed to pay to A. When B failed to pay, A sued him. B contended that A should run after C because of the assurance C gave A. However, C refused to acknowledged such fact. C, in fact, actually acted as a guarantor for the debt of B. But this should have been put into writing. A is made the mistake of just leaving it verbally. That was a contract of guaranty. Otherwise, B cannot prove C’s promise to pay for B’s debt. But suppose the agreement is that A would lend B money, and C would be the one to pay to A. C said that A should collect the debt from him. but this was oral. C defaults in payment and A now sues him. C contends that A cannot go after him because their agreement was not reduced into writing and evidence of such oral agreement is in violation of the Statute of Frauds. Is C’s contention correct? In this case, C is a SURETY for B. In a contract of guaranty, the liability of a guarantor is SECONDARY; in a contract of surety, the liability of the surety is PRIMARY. Therefore, an ORAL CONTRACT OF SURETY IS NOT COVERED BY THE STATUTE OF FRAUDS. The Supreme Court says: When the promissor becomes primarily liable for the payment of a debt, the promise is not within the Statute of Frauds. But if the promise is merely collateral to the agreement of another, and the promissor becomes only the guarantor, the agreement is covered by the Statute. TAKE NOTE: A guarantor’s liability is secondary and attaches only when the principal debtor defaults in payment of the obligation. On the other hand, if a person pays for the debt of another, that is not a guaranty. The promissor is now acting as a surety, whose liability is primary. The case of suretyship is not the one that is contemplated in this provision of the Statute of Frauds. Therefore, the latter case may be proved in court by oral evidence.

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(c) an agreement made in consideration of marriage, other than a mutual promise to marry This provision refers to ante-nuptial agreements in the Family Code. Such agreements must be in writing. Q: What do ante-nuptial agreements include? A: Any kind of agreement about marriage, such as the marriage settlement. For example, before the marriage, the parent s of the woman ask for a dowry -- land, cows, armalites, etc. Some people really have this in their custom. The family of the groom agrees but the problem is that they did not reduce into writing the agreement. The marriage takes place, and then the man’s father-in-law now asks for the dowry. The man refuses to give the dowry. Can the father-in-law sue the man to compel him to give the dowry that he promised? No, if there is no writing to prove it. This is covered by the Statute of Frauds. (d) agreement for the sale of goods, chattels or things in action, at a price not less than five hundred pesos, unless the buyer accept and receive part of such goods and chattels, or the evidences, or some of them, of such things in action, or pay at the time some part of the purchase money; but when a sale is made by auction and entry is made by the auctioneer in his sales book, at the time of sale, of the amount and kind of property sold, terms of sale, price, names of the purchasers and person on whose account the sale is made, it is a sufficient memorandum; So, this contemplates the sale of goods or chattel when the price or consideration is beyond P500.00, which cannot be proved orally when there is no written evidence of such contract. But if the price or consideration is below P500.00, this can be proved orally. In order to be covered, the subject matter (goods or chattels) must not have been yet delivered, and the purchase price must not have been yet paid. Otherwise, the Statute of Frauds cannot be applied. The partial performance of an obligation or prestation takes it out of the coverage of the Statute. The Statute applies only to EXECUTORY contracts, and not to PARTIALLY PERFORMED AGREEMENTS. (e) an agreement for the leasing for a longer period than one year, or for the sale of real property or an interest therein Contracts of lease. If the duration is one year or less, the contract may be proved orally. But if it for a period longer than one year, the contract must be in writing for this to be enforceable. So if the lease is for month to months  majority are like that. One occupies somebody’s house and he pays monthly rentals  that is provable orally. But if he stays there for a period longer than one year, the lease must be in writing.

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Suppose it appears in the contract that rental is for a period of one year or less. However, when the one year period expired, the parties entered into an oral contract to renew the rental for another year. When the oral agreement was about to expire, they entered again into another agreement to renew the rental for another year. Is this allowed? The Supreme Court said that this is an indirect violation of the Statute of Frauds. Perhaps the first year can be proved orally, but not the second or other succeeding years, unless there was a written extension or renewal. (f) a representation as to the credit of a third person Representation of credits is similar to guaranty. Q: What are the limitations to the applicability of the Statute of Frauds? A: (1) the Statute of Frauds applies only for violations of the contract or actions for specific performance; BAR PROBLEM: A filed a proceeding under the Property Registration Decree to have his piece of property titled. He claims that he bought this land 30 years ago. But somebody was opposing his application for registration. A said he actually bought said property from the father of the oppositor, and that he had as a matter of fact already paid for the purchase price. The oppositor asks for the deed of sale. A could not produce any as the sale was made orally. Can the counsel of the oppositor object on the ground of violation of the Statute of Frauds? No, the objection will be improper. This is not an action to enforce a contract. This is a proceeding for registration of property, and the Statute of Frauds is not applicable to this type of a proceeding. Invocation of the Statute of Frauds is also improper because A said he had already paid the purchase price of the land. The prestation on the part of A had already been partially performed. Partial performance by a party of its obligation removes the matter from the operation of the Statute of Frauds. (2) it is applicable only to executory contracts; (3) it is applicable only to the agreements enumerated in Article 1403 of the Civil Code; (4) it does not apply when a party to a writing offers to prove by oral evidence, that the writing does not express the true intent of the parties; (5) it does not render oral contracts void, but merely unenforceable as against the party sought to be charged, if he decides to claim the benefit of the Statute of Frauds; (6) it cannot be invoked by a stranger to the contract; 77

Q: Can one waive the benefit being given by the Statute of Frauds? A: Yes, the Statute of Frauds is for the benefit of the party being sued. Such party can always question the evidence presented by the other party. Q: How may a party waive the right to question such evidence presented by the other party? 1. by not raising it as an issue in his Answer to the Complaint, on any motion to dismiss (take note that this is one of the grounds for motion to dismiss under Rule 16 of the Rules of Court. Consequently, defenses not raised in a motion to dismiss or answer are deemed waived.); 2. when the party fails to make a timely objection to parol proof of the contract (this shows the significance of the speed with which you must be able to object to the evidences being presented in court); 3. when, after an objection was overruled, the party cross-examines the witness on the contract. COUNSEL FOR DEFENDANT: According to you (plaintiff), my client did not comply with the stipulations of the contract. But this contract was oral. (Counsel for Plaintiff objects... But suppose the court makes a wrong ruling, and overrules the objection. So, the testimony is admitted. Never mind that. What is important is that you were able to object. Because on appeal, you can question that ruling by the court.) So, in the above case, the testimony was admitted by the court. Later on, when the counsel for plaintiff gets his chance to cross-examine this witness, he must not ask about the stipulations or contents of the oral contracts. Otherwise, the plaintiff is deemed to waive the Statute of Frauds. That is why, if you are this counsel, do not cross-examine anymore. Leave it as it is. Do not ask about the very matter you previously objected to, because when you cross-examine him, you objection is deemed waived. TAKE NOTE OF THE SIMILARITIES BETWEEN BEST EVIDENCE RULE, PAROL EVIDENCE RULE AND THE STATUTE OF FRAUDS. COUNSEL FOR PLAINTIFF: Mr. B, why do you know the defendant? WITNESS: I know him because I entered into a contract with him. COUNSEL FOR PLAINTIFF: Was the contract in writing? WITNESS: Yes. COUNSEL FOR PLAINTIFF: 78

Please tell the court what are the terms and conditions of this contract. COUNSEL FOR DEFENDANT: Objection! Best Evidence Rule. When the issue is the contents of a contract, no evidence must be presented other than the written contract itself. In other words, the testimony of B is merely secondary evidence. COUNSEL FOR PLAINTIFF: Mr. B, do you know the defendant? WITNESS: Yes, I entered into a contract with him. COUNSEL FOR PLAINTIFF: Was the contract in writing? WITNESS; Yes. COUNSEL FOR PLAINTIFF: Is this the contract? WITNESS: Yes. COUNSEL FOR PLAINTIFF: Would you please tell the court if there were other terms and conditions? COUNSEL FOR DEFENDANT: Objection! Parol Evidence Rule. One cannot introduce other evidence which would alter, modify or add to the contents of the contract. The contract in itself is already considered as complete. COUNSEL FOR PLAINTIFF: Mr. B, do you know the defendant? WITNESS: Yes. COUNSEL FOR PLAINTIFF: You are suing Mr. B to compel him to sell to you real property which he agreed to do within 5 years from the time you entered into agreement, is that correct? WITNESS: Yes. COUNSEL FOR PLAINTIFF: Was the agreement in writing? WITNESS: No. COUNSEL FOR PLAINTIFF: Since the agreement was oral, what are its terms and conditions? COUNSEL FOR DEFENDANT: 79

Objection! Statute of Frauds. Counsel for plaintiff here is trying to prove the terms and conditions of the agreement orally. This is not best evidence; this is not parol evidence either. This is Statute of Frauds. So, do not confuse the three with each other. C. TESTIMONIAL EVIDENCE 1. Qualification of Witnesses SECTION 20. Witnesses; their qualifications.  Except as provided in the next succeeding section, all persons who can perceive, and perceiving, can make known their perception to others, may be witnesses. Religious or political belief, interest in the outcome of the case, or conviction of a crime unless otherwise provided by law, shall not be a ground for disqualification. The qualifications of a witness; he can see and can tell others of what he saw, or he can hear and can tell others of what he heard, or can feel and can narrate to others what he felt. Therefore, practically, almost the entire human race is qualified. Q: Is a blind person qualified to become a witness? A: Yes, for as long as what is to be asked is not on what he saw. But if he still has the senses of touch, smell -- he may testify on these matters. One need not be a high school graduate in order to be qualified to be a witness. The requirements are only those that can be found in the law. Q: Is a deaf-mute qualified to be a witness? A: Yes. He can still communicate through sign language. In the case People vs. Tomentos, the Supreme Court said that a witness is competent to testify even if she could convey ideas only through signs or body language. PEOPLE vs. TOMENTOS 211 SCRA 212 Facts: A complaint was filed through the Assistant Prosecutor charging Henry Tomentos with the rape of Salvacion Cabahug. During the trial, the prosecution presented the testimonial evidence of 10 witnesses which included the victim herself. It was established that the victim is a 21-year-old girl with a mind of an 8 to 10 years old, with an IQ of 55 to 69%; that the victim spent 3 years in Grade One. Being a mental retardate, she was able to pass Grade Five with only a 75% average; that she 80

is not inclined to verbal communication, and if sent to the store to buy something, a list of the things to buy must be written on a piece of paper clipped together with the money. There were more proofs presented as to the victim’s being mentally retarded which were confirmed by a series of psychological evaluations conducted by a medical expert. Issue: whether or not the testimony of the victim should be given credit. Is the victim a competent witness despite her being a mental retardate? Holding: The victim is a competent witness, even if she could convey her ideas only through signs or body language. The medical expert on mental health has proved that the victim does not have hallucinations, is in touch with reality, does not fantasize but only has the tendency to convey thoughts through some body languages like checking the name of the accused and looking or gazing at the accused for quite a few times when he was seated beside 3 other suspected boys in the locality. These makes the victim a competent witness as she can convey her ideas in many forms like signs, writings and body gestures, aside from words. Immaterial and insubstantial lapses as to the exact date or dates and minor details in the victim’s testimony should not be taken against the victim. These things are expected from a mental retardate. Q: How about a person who is interested in the outcome of a case? Can a biased witness testify? For example, A is the plaintiff and he is suing B. Can B testify for himself? Yes, even if the defendant can testify for himself. But what if A’s witnesses are his relatives? A: Witnesses may testify even if they are biased towards a party, or are relatives of a party for whom they are testifying. The only qualification for any witness is that he or she can perceive, and make known to others such perception. Any such witness may testify, but this does not automatically mean that the court will give weight to such testimony. Again, do not confuse admissibility from weight or credibility. Even if the person is the biggest liar in the world, and he is presented as a witness in court, the court has no choice but to hear what he has to say. Such testimony will be recorded, although later on when the court decides the judge will check on everything that he said. His being a liar may affect the credibility of his testimony, but still he is not disqualified from testifying.

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Q: Is an atheist or one who does not believe in a supreme being, or in the afterlife disqualified form being a witness? Is the testimony of such person admissible in court? A: The law says that religious or political belief shall not be a ground for disqualification. The testimony of such a person is admissible in court. Q: Is a person convicted of a crime disqualified from testifying in court? A: No, except when the law provides that the crime the person is convicted with carries with it disqualification from testifying in court. The same rule goes for ex-convicts as well. EXAMPLE: The next witness is Juan de la Cruz. In his criminal record, it appears that he has been convicted 3 times for false testimony, and 7 times for perjury. Is he still qualified to testify? Yes, for as long as he perceives and make known such perception to other people. The court may say that it does not believe the testimony of Juan de la Cruz. But that is already in the realm of weight or credibility. The Civil Code also provides for grounds for disqualification: Article 821. The following are disqualified from being witnesses to a will: (1) any person not domiciled in the Philippines; (2) those who have been convicted of falsification of a document, perjury or false testimony Under this provision, when a person wishes to have the will probated but he is disqualified from being a witness, he cannot act as such witness. Being disqualified as a witness in a will makes a person disqualified as a witness in court probate. According to an American writer in Evidence, a prospective witness must show four qualities or abilities: (1) (2) (3) (4)

to observe  the testimonial quality of perception; to remember  the testimonial quality of memory; to relate  the testimonial quality of narration; and, to recognize a duty to tell the truth  the testimonial quality of sincerity

The first three are required in admissibility. Even if a person can see but cannot remember any thing, his testimony would be useless. The fourth is more a requirement of credibility. The disqualification of witnesses is covered not only by Section 21 but also by Sections 22 to 24. the next four sections deal with disqualification:

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(1) (2) (3) (4)

by reason of mental incapacity or immaturity; by reason of marriage; by reason of death or insanity of the adverse party; and, by reason of privilege communication.

In Section 21, the people mentioned here are ABSOLUTELY DISQUALIFIED FROM TESTIFYING IN ANY CASE, IN ANY TYPE OF PROCEEDING. Such person is not even allowed to take the witness stand. He is totally disqualified. Sections 22, 23 and 24 are called PARTIAL or RELATIVE DISQUALIFICATION because the witness is qualified to be a witness, but is disqualified from testifying on certain matters. So, such witness may be asked questions on anything except on certain matters. If he is asked on matters that are not allowed to be asked of him, him answers are inadmissible. He should not have answered. CAVILI vs. FLORENDO 154 SCRA 610 Facts: Private respondents filed a civil case against Quirino, Primitivo and Perfecta Cavili for partition, accounting and damages. Defendant Perfecta, however, failed to file her answer and was subsequently declared in default. Atty. Alamillo, in behalf of the other defendants, filed a motion for new trial for lack of jurisdiction over the persons of Primitivo and Quirino Cavili, who were not validly served with summons. The court granted the motion. Defendants Primitivo and Quirino presented Perfecta as their first witness. Respondents moved for her disqualification as a witness on the ground that, having been declared in default, she had lost her standing in court and thus cannot be allowed to participate in all proceedings therein, even as a witness. the court sustained the respondents’ contention and disqualified Perfecta from testifying. Issue: whether or not a party in default is a competent witness. Holding: A party in default may be presented as a witness by his co-defendants, who have the standing and the right to present evidence, to secure the attendance of witnesses and the production of evidence in their behalf. To reject Perfecta’s presentation of testimonial evidence would be to treat Primitivo and Quirino as if they, too, were in default. The respondents’ contention that to permit a party in default to take the witness stand is to “take part in the trial” is untenable. The loss of standing in court is the consequence of 83

an order of default. Thus, a party declared in default is considered as out of court and cannot appear therein, adduce evidence, and be heard, and for that reason he is not entitled to notice. However, “loss of standing” must be understood to mean only the forfeiture of one’s rights as a party litigant, contestant or legal adversary. A party in default losses his right to present his defense, control the proceedings and examine or cross-examine the witnesses. He has no right to expect that his pleadings would be acted upon by the court, nor may be object to or refute evidence or motions filed against him. There is nothing in the Rules, however, which contemplates a disqualification to be a witness or deponent in a case. DEFAULT DOES NOT MAKE HIM AN INCOMPETENT WITNESS. As opposed to a party litigant, a witness is merely a beholder, spectator, or onlooker called upon to testify as to what he had seen, heard or observed. As such, he takes no active part in the content of rights between the parties. He remains suffering the effects of an order of default. There is no provision in the Rules disqualifying parties declared in default from taking the witness stand for nondisqualified parties. The generosity with which Rule 30, Sec. 18 allows people to testify is apparent. As a general rule, where there are EXPRESS exceptions (Rule 130, Secs. 21 - 24; Rule 132, Sec. 15), these comprise the only limitations on the operation of a statute and no other exception will be implied. The Rule should not be interpreted to include an exception not embodied therein. TAKE NOTE: Again the only qualification for a person to be a witness is that he can perceive and can make known to others such perception. Disqualified witnesses are enumerated in Secs. 21, 22, 23 and 24; the law does not include default as one of them. Under the law, where there are two defendants  one files his answer but the other does not, if the defense of the answering defendant succeeds, the defaulting defendant is also benefited. In effect, the answer of the answering defendant is also the answer of the defaulting one. Q: In the above case, by providing evidence for his co-defendant, will this not benefit the defaulting defendant? A: That is true, but this INCIDENTAL BENEFIT if of minor consequence. Of greater concern or importance is the preservation of the right of the answering defendant to secure the attendance of his witnesses and the production of evidence on his behalf. Whatever benefit the defaulting 84

defendant derives is purely incidental, but definitely one cannot also prejudice the answering defendant. SECTION 21. Disqualification by reason of mental incapacity or immaturity.  The following persons cannot be witnesses: (a) those whose mental condition, at the time of their production for examination, is such that they are incapable of intelligently making known their perception to others; (b) children whose mental maturity is such as to render them incapable of perceiving the facts respecting which they are examined and of relating them truthfully. This is the first disqualification. Take note that the disqualification here is TOTAL. These people are not qualified to be witnesses at any time at any place. Who are these people? For example, insane people. They can communicate, but it will be a useless dialogue. Insane people are disqualified from testifying because of their mental incapacity. Q: What about the feeble-minded, whose memory is impaired -- are they of the same category as the insane people? PEOPLE vs. PALMA 144 SCRA 236 Facts: A complaint was filed with the RTC against Pedro Palma, a 64-year-old carpenter, for the rape of Imelda Telada, a 14-year-old mental retardate. The trial court rendered a decision finding Palma guilty beyond reasonable doubt of rape. However, it concluded that Telada is “mentally deficient enough to be unable to give valid consent to (engage in) sexual intercourse with Palma, and that Palma is aware of this mental deficiency of Imelda and took advantage of it.” In this appeal, Palma contends, among others, that the trial court erred in giving weight and credence to the testimony of this mentally deficient complaining witness. Issue: whether or not a feeble-minded complainant is a competent witness. Holding: A feeble-minded complainant is a competent witness as long as she can convey her ideas by words or signs and give sufficient intelligent answers to the questions propounded by the court and the counsels (Section 18, Rule 130). Dr. Anenias, who performed a psychiatric and intellectual assessment of Imelda, stated that she was able to say: “da, 85

da” for the first time when she was already 3 years old. He noticed that during the examination, Imelda was “functioning not in her normal, intellectual endowment.” While the defense counsel described Imelda as intelligent, the trial court sized her up as “mentally deficient to a point where she is incapable of realizing the moral implications of her sexual relationship with the accused, in the same manner as a girl below 12 years of age can relate her sexual experience without understanding the moral implications of said act. The record shows that while at times, she would jump ahead of the questions asked her in court, her answers were coherent enough for the trial court to perceive the ideas she wanted to convey. She was, therefore, a competent and credible witness. PEOPLE vs. SALOMON 229 SCRA 403 Facts: On October 11, 1987, Sylvia Soria, a 20-year-old mental retardate, was weakling along a highway in Gandara, Samar when accused Alejandro Salomon and Feliciano Conge, who were apparently waiting for her, accosted her and forcibly took her to the nearby ricefield where she was raped by Salomon with Conge’s assistance. Subsequently, Soria reported her ordeal to her brother and father. The father then filed a complaint for rape in his daughter’s behalf. A few days after the filing of the complaint, the 2 accused could not be found. After 4 months, they were finally apprehended. Following a protracted investigation, an information for rape was filed against Salomon and Conge. The principal witness for the prosecution was the victim herself. she recounted in detail the manner of her ravishment by the accused. Defense suggested that the testimony of Soria is flawed because she is an insane person who was confined at the National Mental Hospital, a few months before the alleged rape incident. Issue: whether or not Soria is disqualified from being a witness in the rape case in view of her condition as a mental retardate. Holding: A mental retardate is not, for this reason alone, disqualified from being a witness. As in the case of other witness, acceptance of his testimony depends on its nature and credibility or, otherwise put, the quality of his perceptions and the manner he can make them known to the court. Thus, in 86

People vs. Gerones (193 SCRA 263), the Court accepted the testimony of a rape victim notwithstanding that she had the mentality of a 9 or 10-year-old because she was able to communicate her ordeal... clearly and consistently. The Court noted that although Soria’s speech was slurred and it was necessary at times to ask her leading questions, her testimony was positive, clear, plain, coherent, and credible. Furthermore, a woman will not expose herself to the humiliation of a rape trial, with its attendant publicity and the morbid curiosity it will arouse, unless she has been truly wronged and seeks atonement for her abuse. NOTE: The assessment of the evidence, especially the credibility of the witnesses, is the primary function of the judge presiding at the trial. EXAMPLE: A crime was committed and the only witness was an insane person. Later on, the accused was charged and the prosecution learned that their star witness used to be insane. He just got better. So, during the trial, he had recovered and was presented as the prosecution’s first witness. Defense sought to disqualify the witness because at the time the case happened, he was insane -- although now he is normal. Q: If you were the judge, would you disqualify the witness or not? A: No, he should not be disqualified. He is qualified because the reckoning point is AT THE TIME OF HIS PRODUCTION, at the time of the testimony, So the witness in the above case is not covered by Sec. 21. But, can one rely on the memory of the witness? He may be normal now, but he will be testifying on events which happened when he was mentally sick. Will this affect the credibility or weight of his testimony? His credibility may be affected but not the admissibility of his testimony. You cannot disqualify a witness, simply because he is not believable. The second disqualification. This involves mental immaturity, sometimes called disqualification by reason of infancy. Q: Are all children disqualified from being witnesses based on the above provision? Suppose a minor is capable of perceiving and relating truthfully what he saw, is he qualified? What is the meaning of “age”? A: It depends. It is not actually the age of the child that matters but his MENTAL MATURITY. The child must only be capable of relating to the court what he saw or heard. So, there is no minimum age requirement here. What is important is the degree of mental development of the minor. Q: If an 11-year-old child to testify on a crime which he witnessed 10 years ago, may he validly do so?

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A: Yes, for as long as he can remember what took place and can communicate these details before the court. The reckoning point is still the time of his production for examination. Q: But how can a 1-year-old child possibly remember what he saw? A: That is now a matter as to credibility of the witness, or the weight of his testimony. But we are not talking about that now. Q: How do we know that a minor meets the standards? A: According to books on Trial Technique, the minor must be subjected to PRELIMINARY QUESTIONS either by the judge or counsel. He will be asked innocent questions dealing with everyday life. Much like an IQ test. for the minor. An adult person, when taking an oath to tell the truth, need not be reminded of the consequences of not telling the truth. But a minor is not expected to understand that. So counsel or judge must elicit from him the fact that he knows what his obligations are here. Ask the minor, for example, why he is in court. If he does not know why, then everything has to be explained still to him. That he is here to tell the truth about something. Ask him what would happen if he tell a lie in court. If he says that telling a lie is bad, and for that he can go to hell -- then it can be concluded that he is aware of his obligations of telling the truth. The following case illustrates the process of putting the witness in VOIR DIRE, which literally means to speak the truth. PEOPLE vs. MISCALA 202 SCRA 26 Facts: Visitacion Pineda filed a case for rape against Fernando Miscala. The victim was a 10-year-old child. The trial court, finding the accused guilty of rape, based its judgment on the fact that the victim pointed to Miscala as her ravisher. Hence, this appeal. The accused anchored his defense on the alleged error committed by the trial court in finding that there was “a direct and categorical accusation of the victim that it was the accused, and no one else who raped her.” Holding: The appeal does not hold ground. Medical reports showed that there was presence of sperm cells in the victim’s private genitals. Undoubtedly, she had been subjected to sexual intercourse. The complainant’s detailed and straightforward narration of how she had been raped bears earmarks of credibility. Even if complainant’s testimony is uncorroborated, it is enough to convict the accused. For the uncorroborated testimony to suffice, her competence as a witness must be established in the trial court. 88

The evidentiary rule is that in crimes against chastity, the testimony of the injured woman should not be received with precipitate credulity, and when the conviction depends at any vital point upon her uncorroborated testimony, it should not be accepted unless her sincerity and candor are free from suspicion. In the case at bar, the records show that the young victim had been properly placed in voir dire, which means to speak the truth. When the court submits the witness to void dire, the court reminds him of the consequences of not telling the truth. The examination of VOIR DIRE is conducted to determine the competency and qualifications of the witness in case it is objected to. When the witness is subjected to the process of voir dire, the court reminds him about the consequences of the truth. When the court is satisfied that the influence of fear or hope has been ruled out, then the confession of the witness can be deemed voluntary. However, even if we say that the above provision guarantees only the admissibility of the child’s testimony but not its believability, we cannot also deny the fact that when a child says that he has to tell the truth because otherwise “something bad” will happen to him, or that he will go to hell, he passes the test of voir dire. Ask the child what it means when he is asked to raise his right hand before the court... Will the child’s testimony be reliable or not? That is weight now. By nature it is more difficult to convince children to lie than adults. PEOPLE vs. MESIAS 199 SCRA 20 Facts: On September 26, 1980, five armed men, four of them wearing masks, barged into and robbed the house of Olympia and Vivencio Cruz. Olympia was blindfolded while the robber without a mask stabbed Vivencio 3 times with what appeared to be an icepick. This was witnessed by their son, Marlon, then six years old, through the open bedroom door. The accused, Danilo Mesias, was recognized by Olympia and Marlon as among the malefactors. He was found guilty by the lower court. questioning the conviction by the lower court, accused Mesias insisted on his innocence. His principal defense was alibi, alleging that on that night, he was asleep in his sister’s house about half a kilometer away from the crime scene. He also alleged that Olympia and Marlon mistook him for another man who looked just like him, whom he called “double” and who happened to live in the same area.

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Holding: Accused Mesias is found guilty beyond reasonable doubt of the crime of robbery with homicide. Marlon’s testimony that, among the 5 men who entered the house, it was Mesias who fatally knifed his father should be given full weight and credit. Children of sound mind are more likely to be observant of incidents which take place within their view than older persons, and their testimony is, therefore, likely to be more correct in detail than that of older persons, and when once established that they understood the nature and character of an oath, full faith and credit should be given to their testimony. Dr. Gross, an Austrian jurist and expert in Criminology, said that an intelligent child is undoubtedly the best observer to be found. He is, as a rule, little influenced by the suggestions of others and he describes objects and occurrences as he really seen them. Generally, children have a good and retentive memory. Accused’s defense of alibi deserves little consideration. In no way did it prove that Mesias could not have been at the scene of the crime at its commission, as his sister’s house was more than half a kilometer away from the Cruzes’s residence. In the case of People vs. Reunir (157 SCRA 686), it was held that for an alibi to be effectual, it must be shown that not only was the accused at some other place at the time of the crime, but that it was physically impossible for him to be at the scene of the crime when it occurred. Moreover, Mesias’s alibi, aside from being inherently weak, has been rendered inutile by the fact that he was conclusively identified by witnesses Olympia and Marlon Cruz. In another case, the Supreme Court said that lying is distasteful to a child because he thinks it is mean. He is no stranger to the sentiment of self-respect. PEOPLE vs. LIBUNGAN 220 SCRA 315 Facts: Spouses Mario and Juanita Libungan had a quarrel. In the end, Mario stabbed his wife with a fan knife, killing her. Mario fled through the kitchen, destroying a portion of the wall to make it appear that there was somebody who entered the house. Before dying, however, Juanita was able to tell her brothers that it was Mario who stabbed her. The material witness in the case is Crisanto, the couple’s eldest son who is seven or eight years old.

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Issue: (1) whether or not a 7-year-old boy is a credible witness (2) whether or not the testimony of Juanita’s brothers can be given full credit Holding: (1) The defense would argue that Crisanto is not a reliable witness because he gave inconsistent answers (for example, at first, he told the police that it was only him who saw his father kill his mother, but he later said that his younger brother saw it too. He could not distinguish a fan knife from a kitchen knife, etc.) But these inconsistencies pertain to minor details which do not touch upon the commission of the crime. Minor contradictions are to be expected but must be disregarded if they do not affect the basic credibility of the evidence as a whole. These inconsistencies, which may be caused by the natural fickleness of memory, even tend to strengthen rather than weaken the credibility of the witness because they erase any suspicion of rehearsed testimony. Lying is distasteful (to a child) because he thinks it mean; he is no stranger to the sentiment of self-respect, and he never loses an opportunity of being right in what he affirms. Thus, he is, as a rule, but little influenced by the suggestion of others, and he describes objects and occurrences as he has really seen them. (2) Relationship alone is not a ground for discrediting a witness’ testimony. It is a well-established rule that the mere fact that the witness is a relative of the victim is not a valid or sufficient ground to disregard the former’s testimony nor does it render the same less worthy of credit. The closeness of the witnesses’ relationship to the victim should not be deemed erosive of their credibility as witnesses. The weight of their evidence must be assessed by the same norms applicable to other witnesses. In other words, one must be a virtuoso in order to destroy the credibility of a child. PEOPLE vs. GALAS 262 SCRA 381 Facts: On December 23, 1995, at around 9:00 in the evening, Fedirico Gamayon, his 15-year old son, Crisanto, and his 6year old nephew, Joemar, were on their way home from Sandoval, Palawan, where they had sold copra. When they near the house of accused Gonzalo Galas, the latter appeared from nowhere and suddenly hacked Federico with a bolo. Federico fell to the ground. Then the other accused ganged up and helped each other in mauling Federico. The victim was unable to fight back, until he died. 91

The only witnesses on the scene were the son and nephew of the victim. Issue: (1) whether or not relationship with the victim is a disqualification to be a witness; (2) whether or not a witness who was six years old when he allegedly witnessed the killing is disqualified. Holding: (1) The court has held in a number of cases that relationship between the witnesses and deceased does not automatically impair the credibility of the former. A witness’ relationship to a victim, far from rendering his testimony biased, would even it render more credible as it would be unnatural for a relative who is interested in vindicating the crime to accuse somebody other than the real culprit. They have a definite stake at seeing the guilty person brought before the courts so that justice may be served. It is not to be lightly supposed that relatives of the victim would callously violate their conscience to avenge the death of a dear one by blaming it on persons who are in fact innocent of the crime. (2) It must be stressed that Joemar’s age does not disqualify him as a witness. Section 20 of Rule 130 provides that all persons who can perceive, and perceiving, can make known their perception to others, may be witnesses. The exceptions thereto are found in the succeeding Section and, insofar as children are concerned, only those whose mental maturity is such as to render them incapable of perceiving the facts respecting which they are examined and of relating truthfully are disqualified. It is thus clear that any child, regardless of age, can be competent witness if they meet the following criteria: 1. capacity of observation; 2. capacity of recollection; and 3. capacity of communication. The accused urged us to give no weight to Joemar’s testimony because of its unreliability; they claim that he could not even remember the month and the year when the incident happened. A close scrutiny of his testimony discloses, however, that according to him, took place on a date “nearing Christmas”. Since the date of Fedirico’s death was indubitably established to be December 23, 1995, which was indeed “nearing Christmas”, Joemar’s approximation was sufficient. The next three sections refer to disqualifications which are PARTIAL or RELATIVE. In this case, the witness is not insane nor a minor, but is barred from testifying on certain matters. 92

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. For example, the husband is a party to a case, criminal or civil. Can the opposite party use the wife as a witness in that case whether in favor of or against her husband? A: No, a spouse cannot testify in any case where the other spouse is a party, whether for or against him or her, WITHOUT THE CONSENT OF THE AFFECTED SPOUSE. This is known as the marital disqualification rule. Q: A man committed murder. The only witness is his wife. The sate filed a case against the husband and subpoenaed the wife to testify. Can the wife be compelled to testify? A: No, without the consent of her husband. The reason: To preserve the marriage relation as one of full confidence, affection and comfort. However, this rule is WAIVABLE. When the husband calls the wife as his witness, there is an automatic waiver. This is with the husband’s consent. The other possibility is that when the wife was called by the opposite party as its witness, the husband failed to object. This is also deemed as a waiver. Q: Suppose the marriage is already dissolved, can the wife still be disqualified from testifying in favor of or against her husband? A: No more, because the law says “... during their marriage...” So, the requisites in order for Sec. 22 to be applied are: (1) both are legally married; (2) one of the spouse is a party to a case; and, (3) the case is not one against the other or the latter’s direct descendants or ascendants. The third requisite was not found in the 1964 Rules on Evidence. This is only added in the 1989 Rules, which is taken from jurisprudence. On the other hand, there is an exception cited by law. The husband or the wife cannot testify for or against the other, except in a civil case filed by one spouse against the other, or in a criminal case for a crime committed by one spouse against the other or the latter’s direct descendants or ascendants. In the case of People vs. Natividad (70 SCRA 315), a widow has a son. the widow then remarried. The stepfather killed the widow’s son, and the wife filed a case against her husband. When the wife testified, the 93

husband sought to disqualify her. QUESTION: Should the wife be disqualified from testifying? ANSWER: Yes, because this is not a crime committed by her husband against the wife. The crime here was committed against the wife’s son. However, in the subsequent case of Ordoño vs. Daquigan, the above ruling was abandoned and changed: ORDOÑO vs. DAQUIGAN 62 SCRA 270 Facts: Avelino Ordoño was charged in the RTC with having raped his daughter, Leonora, on October 11, 1970. In support of the complaint, Catalino, wife of the accused, executed a sworn statement wherein she disclosed that on the same date, Leonora had apprised her of the outrage. No denunciation was filed because her husband threatened to kill their daughters if she reported the crime to the police. The wife further revealed that her husband also raped their other daughter, Rosa. The fiscal presented Catalina as the second prosecution witness. Defense counsel objected to her competency invoking the Marital Disqualification Rule. He further contended that that Avelino had not consented expressly or impliedly to his wife’s testifying against him. Issue: whether or not the rape committed by the husband against his daughter is a crime committed by one spouse against his wife within the meaning of the exception in the Marital Disqualification Rule. Holding: Using the criterion judiciously enunciated in the Cargill Case, it can be concluded that in the law of evidence, the rape perpetrated by the father against his own daughter is a crime committed by him against his wife (the victim’s mother). That conclusion is in harmony with the practice and traditions of the Filipino family where, normally, the daughter is close to the mother, who, having breast-fed and reared her offspring, is always ready to render counsel and assistance in time of need. Indeed, when the daughter is in distress or suffers physical or moral pain, she usually utters the word, “Inay” before she invokes the name of the Lord. Catalina, therefore, can testify against her husband where he is being tried for having raped their daughter. When the husband raped their daughter, he had impaired beyond repair their marriage, destroyed the conjugal harmony. But the new Rule made it more clear by making it more specific, by including “... or the latter’s direct descendants or ascendants...” The crime does not have to be committed directly against the wife, 94

but may also be against her direct ascendants or descendants. In this case, it is like the crime was also committed against the wife. SECTION 23. Disqualification by reason of death or insanity of adverse party.  Parties or assignors 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. This rule is known as the SURVIVOR’S DISQUALIFICATION RULE, also known as the Dead Man’s Statute. For example, B died. After his death, A filed a claim against B’s estate. A narrates his cause of action: When B was alive, he (B) entered into an agreement. However, B never complied with it. This is objectionable because A is creating or trying to claim against the estate of B while testifying on matters which occurred before the death of B. Under the law, this would be unfair because B could not anymore rise from his grave to testify and deny the statements made by A. Thus, a survivor cannot testify in an action against a claim or demand against the estate of the deceased. The purpose is to discourage perjury on the part of the survivor, and also to protect the deceased’s estate against false and unjust claims. When death has sealed the lips of one party, the law will also close the lips of the survivor. This applies also when subsequently, the other party becomes insane. This rule contains four parts: (1) persons disqualified from testifying (1) plaintiff; (2) his assignor; or, (3) the person in whose behalf the case is prosecuted. EXAMPLE: A enters into a contract with B. B dies. A files a case against the legal representatives of B. Is it objectionable if A testifies on matters of fact which happened before B died? Yes. A entered into a contract with B, then A assigns his rights to X. B dies. X files a case against the legal representatives of B. To prove his cause of action, he used as witness, A, the assignor. So, the assignor will be the one to testify on matters of fact occurring before the death of B. Is the testimony of A admissible? No, because he is covered by the Rule.

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(2) persons protected by the Rule (1) executor; (2) administrator; or, (3) other representative of the deceased or person of unsound mind. (3) action covered by the Rule This rule may be invoked IN ANY ACTION BASED UPON A CLAIM OR DEMAND AGAINST THE ESTATE OF THE DECEASED PERSON OR PERSON OF UNSOUND MIND. (4) kinds of evidence inadmissible or excluded by the Rule The rule excludes TESTIMONIES ON ANY MATTER OF FACT OCCURRING BEFORE THE DEATH OF THE DECEASED, OR BEFORE THE INSANE PERSON BECAME OF UNSOUND MIND. Q: Are there exceptions to the Survivor Disqualification Rule? A: Yes, jurisprudence provides the following exceptions: (1) ordinary witness. EXAMPLE: B transacts with A in the presence of X. Then A dies. If B were to testify on any matter of fact occurring before the death of A, B is covered because B is his (A’s) agent. But if B says that X will testify on what happened during the transaction, then the rule will not apply. The rule does not apply to ordinary witnesses. X, here, is an ordinary witness. (2) when the plaintiff is a corporation, the officers or stockholders thereof are not disqualified. EXAMPLE: In the case of Lichauco vs. Atlantic Gulf & Pacific Corp. (84 Phil. 330), in behalf of a corporation, B is dealing with X. X dies. The corporation now claims against X’s legal representative. B, who dealt with X on behalf of the corporation, will now testify on this fact. Is he disqualified? No, because of the second exception. B, here, is not a party but a mere witness. (3) when there is an imputation of fraud against the deceased, the plaintiff is not barred from testifying to such fraud. The reason for this: Fraud cannot be condoned. In effect, the fraudulent act will be protected simply because you want to protect one who is already dead. The law cannot condone fraud in any manner. (4) when the plaintiff is the executor, administrator or legal representative of the deceased, or a person of unsound mind, the defendant(s) are free to testify against the plaintiff. This rule covers a claim or demand against the estate of the deceased or person of unsound mind. Practically here, the estate is taking 96

the defensive stance. On the other hand, if the plaintiff is the estate, and you are the defendant, you may testify on any matter of fact occurring before the death of the deceased or before he became of unsound mind. This rule applies only when the executor or administrator is the defendant, not when the executor or administrator is the plaintiff. (5) when the survivor’s testimony refers to a negative fact. Under this rule, one cannot testify on any matter of fact occurring before the deceased died. When one testifies on any matter NOT OCCURRING before the deceased died, that is not covered by this rule. (6) when the survivor’s testimony is favorable to the deceased. What the law seeks to protect is the estate of the deceased against unjust claims. Claims create liabilities against the estate. In other words, when the survivor will testify on matters which occurred before the death of the deceased and such testimony is favorable to the latter, he may do so. (7) when the executor or administrator waives the benefit of the Rule GON YI vs. CA 144 SCRA 222 Facts: Three haciendas located in the municipality of Bais, Negros Occidental, were originally owned by the Cia. General de Tabacos de Filipinas (TABACALERA). In 1949, Praxedes Villanueva, predecessor-in-interest of petitioner herein, negotiated with the original owner for the sale of the haciendas. However, Villanueva did not have the sufficient funds. With the consent of the owner, Villanueva offered to sell one of the haciendas to one Santiago Villegas, in this case, substituted by Joaquin Villegas. The owner did not agree, except with a guarantor, provided later by Gaspar Vicente, embodied in a document. Apparently, the money earned from the sale was not enough so Villanueva promised to sell another hacienda in consideration of the guaranty taken by Vicente for the sale of the 3 haciendas. This was reduced into writing. The amount needed to close the original deed was debited to Vicente’s account with TABACALERA. Allegedly, Villanueva was able to raise funds to pay TABACALERA. However, the amount was already debited to the account of Vicente. So, it was ORALLY AGREED that lots 4 and 13 of a hacienda would be leased to Vicente for five years, with 15% rental gross income., to be deducted from the money already

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advanced to Villanueva. Lots 4 and 13 were then delivered to Vicente. Villanueva died. Intestate proceedings were instituted in the CFI of Negros Occidental. Among the properties inventoried were lots 3, 4 and 13 of a hacienda. Before the delivery of the properties to the heirs, Vicente instituted an action for the recovery of property (lots 4 and 13) and damages, against Gon Yi as Administrator of Villanueva. Basing his entitlement of the promise to sell, as documented on October 24, 1949. Gon Yi filed an answer and a counterclaim for accounting of proceeds of lots 4 and 13 for five crop-years. During the trial, Gaspar presented 2 witnesses testifying on accounts before the death of Villanueva. Gon Yi testified on the alleged verbal lease agreement. Issue: whether or not the testimony on the accounts before the death of Villanueva is admissible in evidence Holding: Neither the trial court nor the appellate court erred in ruling for the admissibility in evidence of private respondent Vicente’s testimony. Under ordinary circumstances, private respondent Vicente would be disqualified by reason of interest from testifying as to any matter of fact occurring before the death of Praxedes Villanueva, such disqualification being anchored on Sec. 20(a) of Rule 130. Such protection, however, was effectively waived when counsel for petitioners cross-examined private respondent Vicente. A waiver occurs when plaintiff’s deposition is taken by the representative of the estate or when counsel for the representative cross-examined the plaintiff as to matters occurring during deceased’s lifetime. More so, the Survivor Disqualification Rule cannot be invoked where defendant testifies as to communications made or contracts entered into with the agent or decedent while the latter was alive. The contract or promise to sell under consideration was signed by petitioner Gon Yi a attorney-in-fact of Villanueva. He was privy to the circumstances surrounding the execution of such contract and therefore could either confirm or deny any allegations made by the private respondent Vicente with respect to said contract. (8) when the transaction which gives rise to the claim was transacted to by the plaintiff and an agent of the deceased The privilege to invoke the Dead Man’s Statute is waived by the defendant when he files a counterclaim against the plaintiff. If the executor 98

or administrator is a defendant -- but in that action, he files a counterclaim against the plaintiff, there is an automatic waiver. EXAMPLE: A dealt with the deceased during his lifetime, but through an agent or attorney-in-fact. Then the principal died. A files a claim against the estate, and will testify on what happened when he dealt with the agent. Is he barred? No, for as long as the agent is alive, A can testify as to what happened. If the testimony will refer to the matter of fact occurring prior to the death of the principal -- but in that dealing, the survivor dealt through an agent or representative who is still alive, the Survivor’s Disqualification Rule does not apply. the agent can rebut the witness’ claim. According to the Supreme Court: the Survivor Disqualification Rule cannot be invoked where defendant testifies as to communications made or contracts entered into with the agent or decedent while the latter was alive. The contract or promise to sell under consideration was signed by petitioner Gon Yi a attorney-in-fact of Villanueva. He was privy to the circumstances surrounding the execution of such contract and therefore could either confirm or deny any allegations made by the private respondent Vicente with respect to said contract. The inequality or injustice sought to be avoided by the law does not actually exist in the case because the agent can testify. Q: Is this rule waivable? A: Yes, through any of the following: (1) by failure to object timely in the trial; (2) when the defendant cross-examines plaintiff on prohibited matters; or, (3) when defendant calls his witnesses to testify on prohibited matters. SECTION 24. Disqualification by reason of privileged communication.  The following persons cannot testify as to matters learned in confidence in the following cases: (a) the husband or the wife, during or after the marriage, cannot be examined without the consent of the other as to any communication received in confidence by one from the other during the marriage except in a civil case by one against the other, or in a criminal case for a crime committed by one against the other or the latter’s direct descendants or ascendants; (b) an attorney cannot, without the consent of his client, be examined as to any communication made by the client to him, or his advise given 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;

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(c) a person authorized to practice medicine, surgery or obstetrics cannot in a civil case, without the consent of the patient, be examined as to any advice or treatment given by him or any information which he may have acquired in attending such patient in a professional capacity, which information was necessary to enable him to act in that 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 communication made to him in official confidence, when the court finds that the public interest would suffer by the disclosure. The first paragraph: Briefly, this is called the MARITAL COMMUNICATION RULE. This should not be confused with Marital Disqualification Rule under Sec. 20. They are not the same. The essence of this rule is: When H, for example, makes a communication to W, W cannot take the witness stand, or vice-versa. Between the husband and the wife, it is very natural for confidential matters to be discussed during their marriage, because of the trust and confidence reposed by one in the other. This is necessary in order to maintain peace in the family and the sanctity of the institution of marriage. That is why it is objectionable for W, for example, to be asked to testify on matters which H confided to her. ONE CANNOT COMPEL THE SPOUSE TO REVEAL WHAT THE OTHER REVEALED.

ZULUETA vs. CA 253 SCRA 699 Facts: On March 26, 1982, Cecilia Zulueta entered the clinic of her doctor-husband, Alfredo Martin, and in the presence of her mother, a driver, Martin’s secretary, forcibly opened the drawers and cabinets in her husband’s clinic and took 157 documents consisting of Martin’s correspondence with his alleged paramour, greeting cards, canceled checks, diaries, passport and photographs. The documents and papers were seized for use in evidence in a case for Legal Separation and for disqualification from the practice of medicine, which petitioner had filed against her husband. Dr. Martin brought this action for recovery of the documents and papers and for damages against petitioner. 100

Holding: The documents and papers in question are inadmissible in evidence. The constitutional injunction declaring the privacy of communicating and correspondence to be inviolable is no less applicable simply because it is the wife (who thinks herself aggrieved by her husband’s infidelity) who is the party against whom the constitutional provision is to be enforced. The only exception to the prohibition in the Constitution is if there is a lawful order from a court, or when public safety or order requires otherwise, as prescribed by law. Any violation of this provision renders the evidence obtained inadmissible for any purpose in any proceeding. The intimacies between husband and wife do not justify any one of them in breaking the drawers and cabinets of the other and in ransacking them for any telltale evidence of marital infidelity. A person, by contracting marriage, does not shed his/her integrity or his right to privacy as an individual and the constitutional protection is ever available to him or to her. The law insures absolute freedom of communication between spouses by making it privileged. Neither husband or wife may testify for or against the other without the consent of the affected spouse while the marriage subsists. Neither may one be examined without the consent of the other as to any communication received in confidence by one from the other during the marriage, save for specified exceptions. But one thing is freedom of communication; quite another is a compulsion for each one to share what one knows with the other. And this has nothing to do with the duty of fidelity that each owes to the other. (a) (b) (c) (d)

The requisites for this rule to apply: that the husband and the wife are legally married; that a communication, oral or written, is made during the marriage; that the communication is confidential; and, that there is no case between the husband and wife.

Q: Does this mean that every communication made by H to W, or viceversa is privileged? A: No, this rule is applicable only to communications made confidentially. The intention of the spouse is to limit the circle to only the two of them. Communications made in the presence of others are not covered. Q: As a rule, how do we know if the communication is confidential or not? A: There are certain rules that evolved, based on American jurisprudence, all taken from the works of Wigmore and which are being followed in the Philippines.

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(1) As a rule, any communication between spouses is presumed confidential unless shown otherwise. (2) Communications made in the presence of third persons are confidential unless the third person is considered as an agent of the spouses. EXAMPLE: H wants to reveal in confidence something to W, but their eldest child was present when he told W about his confidential matter. Since the intention of H is to limit the confidentiality of the matter to the three of them, the eldest child is then covered by the presumption. The eldest child cannot be subpoenaed because he is considered as agent of the parents. (3) Communications overheard by third persons remain confidential as between the spouses; but the third person who overheard the communication may be called upon to testify. EXAMPLE: H to W: “I will reveal something to you in confidence.” What they do not know is that their nosy housemaid was there eavesdropping. The housemaid heard everything. In a case where the above communication is material, the housemaid is subpoenaed. H objects on the ground of privileged communication. Is this a valid objection? No, as between spouses, the helper is not covered by the disqualification. She is not an agent of the spouse. (4) Communications intended for transmission to third persons are NOT CONFIDENTIAL. All these rules are applicable to husband and wife. But they are also applicable by analogy to other privileged communications. Q: Is the privilege waivable? A: Yes, by any of the following acts: (1) by not objecting to the testimony of the spouse; or (2) by calling your spouse to testify on privileged matter. Q: What are the differences between Marital Disqualification Rule and Marital Communication Rule (bar question)? MARITAL MARITAL COMMUNICATION RULE DISQUALIFICATION RULE Requires that one of the does not require that one of the spouses be party to a case. spouses be a party to a case. Applies to any fact

refers only to confidential communications during the marriage.

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Claimable marriage

only

during

the claimable during the marriage or afterwards (even when the marriage is already dissolved). What is important is that the communication was made or given while they were still married.

(b) an attorney cannot, without the consent of his client, be examined as to any communication made by the client to him, or his advise given 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; This is known as the ATTORNEY - CLIENT PRIVILEGED COMMUNICATION. The following are its elements: (1) there must be an attorney and client relation; (2) there must be a communication made by the client to the attorney, or advice thereon given by the attorney to the client; (3) the communication or advice must have been given confidentially; and, (4) the communication must have been made in the course of or with a view to professional employment (there is no necessity that an employment contract exists) According to Wigmore, the reason for this is: To promote the confidence of the people in lawyers, for their work is essential to the administration of justice and to encourage the freedom of consultation of lawyers and clients. Clients will feel confident in revealing to the lawyer everything that is necessary, because they know that the information will not be leaked out. Q: Does the lawyer-client privilege extends to revealing the name of the client? A: NO. According to the Supreme Court in the case of Regala vs. Sandiganbayan (infra), a lawyer may not invoke the privilege and refuse to divulge the name or identity of his client because: 1) the court has a right to know that the client whose privileged information is sought to be protected is flesh and blood; 2) the privilege begins to exist only after the attorney-in-fact relationship has been established. The attorney-client privilege does not attach until there is a client; 3) the privilege pertains to the subject matter of the relationship; 4) due process considerations require that the opposing party should, as a general rule, know his adversary. Notwithstanding these considerations, the nevertheless, qualified by some important exceptions:

general

rule

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is,

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 advise; 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. REGALA vs. SANDIGANBAYAN 262 SCRA 122 Facts: The PCGG instituted a complaint against Eduardo Cojuangco before the Sandiganbayan for the recovery of alleged ill-gotten wealth, which includes shares of stocks in certain corporations. Included as defendants are some partners of ACCRA Law Firm who performed legal services for its clients, which included, among others, the organization and acquisition of business associations and/or organizations, with the correlative and incidental services where its members acted as incorporators, or simply, as stockholders. As members of the ACCRA Law Firm, petitioners and private respondent Raul Roco admit that they assisted in the organization and acquisition of the companies included in Civil Case No. 0033, and in keeping with the office practice, ACCRA lawyers acted as nominees-stockholders of the said corporations involved in sequestration proceedings. Issue: whether or not lawyers can be forced to reveal the identity of the client and in relation to the fiduciary relationship between them. Holding: No, they cannot be obliged to reveal the client’s identity. It is quite apparent that petitioners were impleaded by the PCGG as co-defendants to force them to disclose the identity of their clients. Petitioners are being prosecuted solely on the basis of activities and services performed in the course of their duties as lawyers. Obviously, PCGG has no valid cause of action as against petitioners and should exclude them from the complaint. The nature of lawyer-client relationship is premised on the Roman Law concept of locatio conductio operarum (contract of lease of services). But more than a mere agent, a lawyer is also as independent as the judge because in him is reposed by his client special trust and confidence. Moreover, an attorney also occupies what may be considered as a “quasijudicial office” since he is in fact an officer of the Court and

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exercises his judgment in the choice of courses of action to be taken favorably to his client. As a matter of public policy, a client’s identity should not be shrouded in mystery. However, analyzing the case at bar, such falls under one of the recognized exceptions to the rule. Informations 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. Q: Does an attorney-client relationship imply that there is a FORMAL CONTRACT with respect to the case? A: No, the law also covers communications made in the course of or WITH A VIEW to professional employment. According to decided cases in the United States, when a client approaches a lawyer with the intention of hiring his services, although the client did not turn out to hire such lawyer, communication made between them are still covered by the privilege because this is with a view to professional employment. Q: What does professional employment mean? Does this mean that there should already be a case? Can there be attorney-client relationship even if there is no case? A: It is not necessary that there be a case. Even the mere giving of LEGAL ADVICE is covered. There is still professional employment in this case. Suppose the client, in the course of talking with his lawyer, showed the latter some documents. Such documents are now in the possession of the lawyer. QUESTION: Can the lawyer be compelled by subpoena duces tecum to produce the documents in court? A: No, without the consent of the client. This is still part of the privilege. The word “communication” is not limited to only verbal but also ORAL documents. Q: May the lawyer be asked only about the execution, delivery, existence, or possession of these documents? A: Yes, for as long as the lawyer is not asked about the CONTENTS of the documents. The law says that an attorney cannot be examined as to any communication made by the client to him, or his advice to the client. QUESTION: Since the lawyer cannot be asked about what his client told him, what if it is the client who is subpoenaed to ask him what he told his lawyer, is this allowed? A: Our laws are not clear about this issue. But it would be absurd if the client would not be covered by the privilege. Otherwise, the privilege would be indirectly violated. According to American courts: either way -- whether 105

it is the lawyer or the client -- they are all covered by the privilege. Neither the lawyer nor the client can be compelled. Take note that the above privilege, by express provision of law, covers not only the lawyer but also his staff: secretary, stenographer or clerk. This is really an express agency. Lawyer-client relationship expressly adheres to the principle of agency. This is because the secretary and staff of the law office practically know everything because they prepare, i.e., typed, and read the pleadings, see the documents, take notes during interviews, etc. That is why these people cannot be subpoenaed. Q: If a client wishes to hire the services of a lawyer to give the former advice in order to steal something, is this covered? A: No. This is not professional employment within the meaning of the law. The lawyer cannot be hired for the purpose of seeking his advice on how to commit a crime or wrong in the future. That is not part of the job of the lawyer. Q: But if a person has already committed a crime, then he goes to his lawyer and tells the latter that he did it. Is this covered? A: Yes. This is precisely the reason why there is a Lawyer’s Oath. A lawyer may be compelled to testify on communications made to him by his client for a future crime or wrong. But a lawyer may not be compelled to testify on communications made to him as to a past crime or wrong, because this communication is protected. Q: What is the duration of the privilege? How long will this last? A: Forever. For the rest of the lawyer’s life, even when the person is no longer his client. However, the privilege will not apply to an action filed by the lawyer against his client. This exception is for the protection of the lawyer. In this case, the privilege is waived. Q: How can the client waive the privilege? A: The client can waive it by not objecting. He can even subpoena his own lawyer to testify if he wants his lawyer to do so. (c) a person authorized to practice medicine, surgery or obstetrics cannot in a civil case, without the consent of the patient, be examined as to any advice or treatment given by him or any information which he may have acquired in attending such patient in a professional capacity, which information was necessary to enable him to act in that capacity, and which would blacken the reputation of the patient; Briefly, this privilege is known as the PRIVILEGE OF PHYSICIAN AND PATIENT. The following are its requisites: (a) the privilege is claimed in a civil case; (b) it is claimed against a person duly authorized to practice medicine, surgery or obstetrics; (c) the information was acquired by such person while attending to the patient in his professional capacity; 106

(d) the information is necessary to enable the person to act in his professional capacity; (e) the information is confidential; and, (f) if disclosed, the information will blacken the reputation of the patient. So, the doctor cannot, in a civil case, disclose information as to the illness of a patient, the nature of the illness, as well as other information obtained by the doctor in the process of consultation with his patient. Especially when such disclosure will blacken the reputation of the patient (for example, because he has gonorrhea, AIDS, or HIV, etc.). The law says: “person duly authorized to practice medicine...” Who are these people? Obviously, those who took the Board Exams, passed it, and are licensed to practice. Fourth year medical students are required to undergo practicum in hospitals. They are assigned to patients also. Does the privilege apply to them? May an intern be asked any information regarding his patient? ANSWER: Yes, because the rule uses the word authorized, instead of “licensed”. A medical intern is not yet licensed but is authorized to practice medicine. The purpose of this privilege is to promote confidence between the doctor and his patient, so that the patient will not be afraid that what he is revealing to his doctor may be divulged to the courts of justice, similar to lawyer-client. According to American jurisprudence: This privilege is intended to facilitate and make safe, full and confidential disclosure by patient to physician of all facts, circumstances, and symptoms, untrammeled by apprehension of their subsequent and enforced disclosure and publication on the witness stand, to the end that the physician may form a correct opinion and be enabled safely and efficaciously to treat his patient. If vital information is withheld from the lawyer or doctor, his theory and preparations may be affected. Q: When is there “professional employment” in order for the privilege here to apply? A: It is not necessary that there be an ailment on the part of the patient in order for the privilege to apply. There is employment of such physician when he is called for the purpose of treatment whether curative, palliative or preventive. Sometimes, when one consults a physician, it is precisely to avoid getting sick. One does not go to a physician only when actually already sick. This is covered by the privilege. Q: Is there professional employment when the doctor is engaged to abort a fetus of a pregnant woman? A: None. That is a criminal act under Philippine Laws. Abortion is a crime punishable under the Revised Penal Code. the woman is actually criminally liable as well as the doctor. So, this is not covered by the 107

privilege. There is no privilege which can be created or embodied in a crime of, or in violation of law. There is no physician-patient relationship when the patient solicits the physician’s services for the procurement of a crime such as aborting a fetus. The above privilege extends to charts, medical records, etc. It covers not only the medical testimony of the doctor but also includes his affidavits, certificates, prescriptions and hospital records. As in lawyer-client privilege, doctor-patient privilege lasts forever, even after the termination of the doctor-patient relationship. After the patient is cured, it is possible that he will not come back to the same physician. When he goes to another physician, the first physician is not free to announce to everybody what happened to the patient before. KROHN vs. CA 233 SCRA 146 Facts: On June 14, 1964, Edgar Krohn Jr. and Ma. Paz Fernandez were married. Their marriage was a stormy one, which prompted Paz to undergo psychological testing, an effort to ease the marital strain, which later proved to be futile, because in 1973, they finally separated in fact. In 1975, Edgar was able to secure a copy of the confidential psychiatric report, which was prepared and signed by Paz’s doctors. Such report was presented by Edgar to the Tribunal Metropolitan Matrimoniale, which nullifies the church wedding on 1979. On October 1990, Edgar filed a petition for the annulment of his marriage and cited the confidential psychiatric report. During the hearing, Edgar tried to testify as to the contents of the psychiatric report which was objected to on the ground that it violated the rule on privilege communication between physician and patient under Sec. 24(c) of Rule 130 of the 1989 Revised Rules on Evidence. The trial court ruled in favor of Edgar, thus admitting his testimony, which was also upheld by the CA. Hence, this instant petition for review. Issues: (1) whether or not the testimony of the husband as to the contents of the confidential psychiatric evaluation report violates the rule on privilege communication between physician and patient. (2) whether or not such testimony is admissible in evidence.

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Holding: Petitioner’s discourse is misplaced. In Lim vs. CA 214 SCRA 273), the requisites in order that the privilege may be successfully invoked were laid down: (a) the privilege is claimed in a civil case; (b) the person against whom the privilege is claimed is one duly authorized to practice medicine, surgery or obstetrics; (c) such person acquired the information while he was attending to the patient in his professional capacity; and (d) the information was confidential and if disclosed would blacken the reputation of the patient. In the instant case, the person against whom the privilege is claimed is simply the patient’s husband, who does not plainly and clearly fall within the claimed prohibition. Neither can his testimony be considered a circumvention of the law, because his testimony cannot have the force and effect of the testimony of the physician who examined the patient and executed the report. As to the second issue, due to petitioner’s counsel’s failure to object to the testimony on the ground that it was hearsay, counsel waived his right to make such objection and consequently, the evidence offered may be admitted. Q: Are incidental check-ups given by a doctor outside his clinic or hospital covered by the privilege (similar to that given by a lawyer while he is drinking coffee and is approached by somebody who asks for legal advice)? A: As to the lawyer, there is no lawyer-client relationship here. The prospective client is merely seeking free legal advice. Such advice would not likely blacken the reputation of the prospective patient. furthermore, professional employment is not the only requirement. Therefore, this is not covered by the privilege. Q: If there is an AIDS patient in one of the hospitals here in Davao City, may his doctor be summoned by the City Council to answer questions regarding the patient? A: The City Council is not a court of justice. It seems that the Council will as much as possible refer to anonymous subjects to protect also the patient. But if the Council does not identify the patient, its purpose would not be to blacken the reputation of the patient but to isolate him in order to prevent the further spread of the disease. This is even covered by the police power of the state. Q: Does the privilege on physician-patient extend also to the doctor’s secretary, medical technologist, clerks, etc.?

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A: The law is silent, but by analogy -- yes. They are covered under the principle of agency. One cannot subpoena the medical clerk, for example, to bring the medical records, instead of the doctor. (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; This is called the PRIVILEGE BETWEEN THE PRIEST AND THE PENITENT. Its purpose is: To preserve the sanctity of the confessional institution. This practically applies most to the Catholic Church, with respect to confession -- the Sacrament of Reconciliation. The following are its elements: 1. there must be a relationship of priest and penitent; 2. there must be confession or advice given thereon by the priest to a penitent; 3. the confession must have been made in the course of the discipline enjoined by the church to which the minister or priest belongs (Confession given in the priest’s professional capacity). It does not necessarily mean that every time one approaches a priest, he is making a confession, thereby creating a priest-and-penitent relationship. One must apply for the Sacrament of Confession in order for the privilege to apply. Ask for the minister, not the person. PROBLEM: Somebody was confessing to a priest. They did not notice that the sacristan was eavesdropping. The boy heard everything, which turned out to a confession regarding murder. Then the boy was subpoenaed to testify on what the accused confessed. QUESTION: Is the boy disqualified? ANSWER: The marital privilege is applicable by analogy here. The Sacristan is not disqualified because he is an eavesdropper here. He overheard the confession, unless there is a clear agency or if it was intended that he was to be the agent of the priest -- in which case, he is to be covered by the privilege. BUT, there is no such thing as agency in confession. (On the other hand, pursuant to the Code of Canon Law, as amended, a person who heard the confession of another, and who revealed the contents of such confession is excommunicated ipso facto.) If a priest is suspecting his assistant to be stealing money from the church, and the priest catches him, the priest is not prohibited from revealing the truth, because the assistant did not ask for the priest’s services. Or, for example, somebody confessed to a priest that he was planning to kill somebody on a particular date at a particular place. The priest cannot reveal that. The priest may only attempt to save the intended victim’s life by himself, or choose to keep silent about the entire thing... Q: Is there waiver of this privilege? 110

A: None. There is no such thing as authorizing the priest to testify on the matters communicated during the confession. If the penitent decides to reveal the communication during the confession, then he should testify himself instead of the priest doing it. There is no waiver of the privilege here. (e) a public officer cannot be examined during his term of office or afterwards, as to communication made to him in official confidence, when the court finds that the public interest would suffer by the disclosure. Briefly, this is the PRIVILEGE OF STATE SECRETS. Its elements: (1) there must be confidential, official communication; (2) the communication must have been made by a public officer; and (3) the disclosure of the communication would affect public interest. When one works in the government, because of the nature of such a job, he gets hold of confidential matters -- secrets on violations of law, those affecting national security and national interest. Such person cannot be subpoenaed to reveal such matters in court. These matters, covered by the privilege, are classified information. However, in the case of Lansang vs. Garcia (42 SCRA 448), the Supreme Court made an exception to this privileged. Although it allowed the disclosure of state information, it, nevertheless, held that such should be done in closed door sessions with only the immediate parties and their counsel present to determine claims that because of subversion there was imminent danger to public safety warranting the suspension of the writ of habeas corpus. And again in the case of Marcos vs. Manglapus (177 SCRA 688), the Court met behind closed doors to receive military briefings on the threat posed to national security by the return to the country of the former President and his family. ALMONTE vs. VASQUEZ 244 SCRA 286 Facts: Ombudsman Conrado Vasquez investigated an anonymous letter alleging that funds representing savings from unfilled positions in the Economic and Intelligence Bureau (EIIB) had been illegally disbursed by the Commission of Customs. Commissioner Almonte denied the allegations in the letter, contending that the only funds released to his agency by the Department of Budget & Management were those corresponding to 947 plantilla positions which were filled. Thereupon, Vasquez issued a subpoena duces tecum to the chief accountant and records custodian of the EIIB to produce all documents relating to personal services funds for the year 111

1988 and all evidence, such as vouchers salary for the whole plantilla of EIIB for 1988. Petitioner refused on the ground that knowledge of EIIB’s documents relative to its personal services funds and its plantilla will necessarily lead to knowledge of its operations, movements, targets, strategies and tactics and the whole of its being, and it could destroy the EIIB. Issue: whether or not the EIIB can be ordered to produce the questioned documents on the plea that such documents are classified. Holding: At common law, a government privilege against disclosure is recognized with respect to state secrets bearing on military, diplomatic and similar matters. This privilege is based upon public interest of such paramount importance as in and of itself transcending the individual interests of a private citizen, even though, as a consequence thereof, the plaintiff cannot enforce his legal rights. On the other hand, where the claim of confidentiality does not rest on the need to protect military, diplomatic or other national security secrets but on a general public interest in the confidentiality of his conversations, courts have declined to find in the Constitution an absolute privilege of the President against a subpoena considered essential to the enforcement of criminal laws. In the case at bar, there is no claim that military or diplomatic secrets will be disclosed by the production of records pertaining to the personnel of the EIIB. Indeed, EIIB’s function is the gathering of evaluation of intelligence reports and information regarding illegal activities affecting the national economy, such as but not limited to, economic sabotage, smuggling, tax evasion, dollar salting. Consequently, while in cases which involved state secrets it may be sufficient to determine from the circumstances of the case that there is reasonable danger that compulsion of the evidence will expose military matters without compelling production. No similar excuse can be made for a privilege resting on other considerations. The only item of expenditure which should be treated as strictly confidential because it falls under the category of classified information is that relating to purchase of information and payment of rewards. However, reasonable records should be maintained and kept for inspection of the Commission on Audit. All other documents are to be considered as unclassified and therefore, subject to reasonable inquiry by the COA. Above all, even if the subpoenaed documents are treated as presumptively privileged, this decision would only justify 112

ordering their inspection in camera but not their nonproduction. However, as a concession to the nature of the functions of the EIIB and just to be sure no information of a confidential character is disclosed, the examination of records in this case should be made in strict confidence by the Ombudsman himself. Q: What is meant by public interest? A: According to American jurisprudence. Public interest means more than a mere curiosity; it means something in which the public, the community at large, has some peculiar interest by which their legal rights or liabilities are affected. It does not mean anything so narrow as to interest the particular localities which may be affected by the matters in question. In American case, it was said that: the privilege of a public officer not reveal information is strictly construed. The burden is upon the party seeking to suppress the evidence to show that it is within the terms of the rule or statute. The general rule is: People should have access to public information. There should be freedom of disclosure of information. But if one claims that public interest requires the disclosure of the information, the burden falls upon that public officer. This is the exception. It must be shown to affect public interest. Q: Is this privilege waivable? A: No. Because this affects public interest. Q: What is the duration of the privilege? A: There is still a bar even when the public officer is no longer in government service. The most prevalent violations of this privilege are American CIA retirees. Some of them write identities of their agents by what they are doing. 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. Suppose, a man committed a crime and his son or daughter, or grandchild witnessed the commission of the crime. So, the star witness is a descendant of the killer. Or vice-versa, a man committed a crime, witnessed by his parent(s) or grandparent(s). The prosecution now wants to utilize the descendant or ascendant against the killer. Can the witness refuse to testify against the killer? A:: Yes. This is covered by parental and filial privilege. No person may be compelled to testify against his PARENTS, OTHER DIRECT ASCENDANTS, CHILDREN OR OTHER DIRECT DESCENDANTS. The

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reason for this is: to preserve the sacred sentiments between members of the same family. If you look at the general rule, a witness, in the commission of a crime, is a witness for the People of the Philippines. So, he can be compelled to testify for the State. But this is different. So, if the accused is the witness’ own parent, other ascendant, child or other descendant, the witness cannot be compelled to testify against the accused. Q: Suppose the witness is a child of the accused, and the former voluntarily testifies against the latter. Can the father disqualify the child? A: No, the father cannot prevent his son from testifying against him, where the latter himself voluntarily offered to testify. What is prohibited is compulsion of the witness mentioned in Sec. 25. If a witness voluntarily testify, it is alright because there is no prohibition. That is why this is not a disqualification where the witness can be barred from testifying. It is a privilege, not a disqualification. So, if the witness wants to testify, the accused who is his ascendant or descendant cannot prevent him from doing so. But if the witness does not want to testify against the accused, the former cannot be compelled to do so. There are two privileges under this Section:  Parental Privilege  the witness cannot be compelled to testify against his child or other direct descendant.  Filial Privilege  the witness cannot be compelled to testify against his parent or other direct ascendant. HISTORY: Under the 1964 Rules, there was filial privilege, but there was no parental privilege so that technically, under the said rule, an ascendant could be compelled to testify against his descendant. But a descendant cannot be compelled to testify against his ascendant. Now, under the 1989 amendments, the rule works both ways -- filial and parental. Under the Civil Code, there was the old Article 315, and its counterpart in Sec. 20, Rule 130 of the 1964 Rules of Court. The language of these two provisions was: No descendant can be compelled, in a criminal case, to testify against his parents and ascendants. However, The new law is Article 215 of the Family Code, and its counterpart in Sec. 25, Rule 130 of the 1989 Revised Rules of Evidence. However, the language now of Art. 215 of the Family Code is not the same as the language of Sec. 25, Rule 130. There is no problem had these two provisions been the same, but if you go over them, they are different from each other: Art. 215. No descendant shall be compelled, in a criminal case, to testify against his parents and grandparents, except when such testimony is indispensable in a crime against the descendant or by one parent against the other.

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Compare this with Sec. 25, Rule 130. there is a patent variation between these two provisions. Q: Can an ascendant be compelled to testify versus his children and other direct descendants? A: No, based on Sec. 25, Rule 130 -- Parental privilege. However, the answer to this would be YES, under Art. 215 of the Family Code because it only says: “no descendant x x x ”. There is no mention about ascendants. So, Art. 215, Family Code borrowed the language of Art. 315, Civil Code. There is filial privilege, but not parental privilege. Q: A descendant is being compelled in a civil case to testify against his parents. Is this allowed? A: Yes, because Art. 215 of the Family Code says: “no descendant shall be compelled, in a CRIMINAL case x x x “. So, if the case is a civil action, a descendant can be compelled to testify against his parent or grand parent because again, Art. 215 borrowed the language of Art. 315 of the Civil Code. However, Sec. 25, Rule 130 does not state whether the case in which he cannot be compelled is criminal or civil. So, what is “yes” in the Family Code is “no” under the 1989 Rules on Evidence. Q: A man killed his wife in the presence of their child. If the child is willing to testify, there is no problem about that. But suppose the child does not want to testify, and the prosecution says that it has no other choice but to compel the child. Can the child be compelled to testify against his father in a parricide case committed against his mother? A: Yes, the child now may be compelled to testify against his father in a parricide case committed against his mother, because Art. 215 of the Family Code says: “x x x except when such testimony is indispensable in a crime against the descendant or BY ONE PARENT AGAINST THE OTHER.” On the other hand, under Sec. 25, Rule 130, the child cannot be compelled to testify against his father even in a crime of parricide committed against his mother, because Sec. 25 does not provide for any exception. The filial and parental privilege rule is ABSOLUTE, whoever is the victim. This is a gray area, since there is no complete harmony between the Family Code and the 1989 Rules on Evidence. Authorities on Remedial Law has yet to come up with commentaries about the conflict, and there is no decided cases yet on this point. Q: But assuming there is a conflict, which will prevail (Remember that the Family Code took effect in 1988, while the Revised Rules on Evidence took effect in 1989. When the UP Law Center was drafting the Family Code, and a Committee was amending the Rules on Evidence almost at the same time, they did not consult each other. So, they came out with two different provisions. The old provisions were an exact opposite. The Civil Code was passed in 1950, and the Supreme Court, when it drafted the 115

1964 Rules of Court, patterned it after and harmonized it with the substantive law.)? A: While the 1989 Rules on Evidence is more recent in time, the Family code prevails because substantive law prevails over procedural law. The Rules of Court cannot amend or modify the Family Code, which is a substantive law. 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. Q: Define ADMISSION. A: Admission is the act, declaration or omission of a party as to a relevant fact, and which may be given in evidence against him. When we hear the word “admission”, what comes to our minds is that it is an oral statement. But under the law, an admission is not limited to verbal or written statements. It may be an ACT. Without saying anything, what one does may be considered as an admission. It may also be an OMISSION. Failure to act or silence may be considered an admission. EXAMPLE: A owes X money, and here comes X saying to A, “You haven’t paid up yet your debt to me.” Assuming there is no promissory note -- so there is no evidence of A’s obligation to X. When X sues A for collection, A denies having borrowed money from him. So, the issue is: whether or not A borrowed money from X. Suppose X, the plaintiff, uses Y as a witness for the latter to testify that 2 years ago, Y had a conversation with A (the defendant) wherein Y mentioned that he owes X a big amount of money. So, what defendant said years ago to another person is now being used against him. However, suppose, the act, declaration or omission of a party as to a relevant fact is FAVORABLE to him. His admission is evidence against him, but is it evidence FOR him? May the defendant use his admission as evidence to favor him? ANSWER: No. That is considered as a selfserving evidence or admission. Q: Define SELF-SERVING EVIDENCE or ADMISSION. A: Self-serving evidence is an admission FAVORABLE to the party making it. Meaning, such party wants to use it as evidence for himself. But the law says it is INADMISSIBLE in evidence for or to favor the offeror. EXAMPLE: The conversation between A and Y: A: Do you know X? Y: Yes, why? A: because that man tells everybody that I owe him money. But the truth is, I do not owe him anything. I never borrowed money from him.

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One year later, X sues A to collect the loan. A’s position is the same -- that he does not owe X any money. And on order to prove this, A uses Y as his witness. So, Y is now called to the witness stand: COUNSEL: Mr. Y, do you remember the conversation that you had with A one year ago? Y: Yes. COUNSEL: What was the conversation about? Y: It was about the supposed debt which X claimed that A owed him. COUNSEL: So, does A owe X any amount? Y: No. COUNSEL: Why do you say that A does not owe X any amount? Y: That’s what A said. He told me that he doesn’t have any debt with X. Q: What kind of evidence is that? A is using his own statement to favor himself. It is a different matter if the testimony is used AGAINST A. The statement of Y against A may be used by X against A. But the statement made by Y in A’s favor cannot be used by A in his favor. Q: What is the reason why self-serving statements are inadmissible to favor the offeror? A: A person can be believed when he says something AGAINST himself, but not when he says something to FAVOR his own interest. So, a person’s own admission is evidence against him, but is not evidence for him. BAR QUESTION: A was walking with his dog. While walking, A met X. X remarked, “Oh, what a beautiful dog. Whose dog is that?” A answered, “Mine, of course.” Later on, B filed a case against A for replevin to recover the dog, because according to B, the dog is really his. But A says that the dog is his, not B’s. ISSUE: Who owns the dog, A or B? This time, it is A who called X to testify on the ownership of the dog: COUNSEL: Who owns the dog? X: A. COUNSEL: Why do you say that A is the owner? X: 117

Because A said so. A told me that he is the owner, so he is the owner. So, that is an illustration of a self-serving statement. If the plaintiff and defendant quarrel over the ownership of a dog, the defendant (A) cannot use the statement of X to prove that he (A) is the owner. But if A denies ownership of the dog, because it bit somebody, A’s statement to X is admissible against him (A). Self-serving statements and hearsay belong to the same family. In the previous example, everytime a party testifies in his favor, his statement is inadmissible. Suppose in a collection suit, the issue is: Does defendant owe the plaintiff (a particular amount)? Plaintiff claims that the defendant owes him an amount. But the defendant denies the existence of the debt. So, the plaintiff testifies for himself: COUNSEL: Does the defendant owe you a particular amount? PLAINTIFF: Yes. That testimony is self-serving, so that it is inadmissible. If it was the defendant who testified that he did not owe the plaintiff anything, that is also inadmissible. Those are all self-serving. When a party testifies, his statements would be self-serving. That is tantamount to saying that a person cannot testify for himself. An accused cannot testify for himself. He cannot deny committing the crime, because such testimony would be self-serving. Q: Is the statement of a party in the witness stand considered self-serving? A: No. the statement that is self-serving evidence and cannot be received refers to statements made out of court. If a party said something before and uses it now as his evidence, that statement is inadmissible. But if he says something now in court, that statement is not covered by the rule. So, it is admissible. The following case emphasizes the above distinction: CUISON vs. CA 227 SCRA 391 Facts: Petitioner Kue Cuison is a sole proprietorship engaged in the purchase and sale of newsprint bond paper and scrap, with places of business at Quezon City and Binondo, Manila. Private respondent, Valiant Investment Associates, is a partnership duly organized and existing under Philippine Laws, with business address at Caloocan City.

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Private respondent delivered various kinds of paper products amounting to almost P300,000.00 to a certain Lilian Tan of LT Trading. The deliveries were made pursuant to orders allegedly placed by Tiu Huy Tiac who was then employed in petitioner’s Binondo branch office. Upon delivery, Lilian Tan paid for the merchandise by issuing several checks payable to cash at the specific request of Tiu. In turn, Tiu issued post-dated checks ass payment for the paper products. The said checks were subsequently dishonored by the drawee bank. Private respondent made several demands upon petitioner to pay for the merchandise, claiming that Tiu was duly authorized by petitioner as manager of its Binondo branch office, to enter into the questioned transactions with private respondent and Lilian Tan. Petitioner denied any involvement in the transaction entered into by Tiu and refused to pay private respondent the amount corresponding the selling price of the merchandise delivered. Petitioner, in trying to discredit witness Villanueva, alleges that his )Villanueva) testimony is clearly self-serving, inasmuch as he worked for private respondent as his branch manager. Issue: (1) whether or not Tiu possessed the required authority from petitioner to hold the latter liable for the disputed transaction. (2) whether or not Villanueva’s testimony is self-serving and thus inadmissible. Holding: (1) It is evident form the records that by petitioner’s acts and admissions, he held out Tiu to the public as the manager of his store in Binondo. The following are specific instances: (a) petitioner explicitly introduced Tiu to respondent’s manager, Villanueva, as its branch manager. This was testified to by Villanueva. (this is the self-serving statement adverted to) (b) Lilian Tan, who had been doing business with petitioner for quite a while, also testified that she knew Tiu to be the manager of petitioner’s Binondo store (c) Tiu is known in the community to be the “god-brother” of petitioner (d) petitioner himself admitted in open court his close relationship with Tiu -- that they are “like brothers”. Thus, there was no reason for anybody, especially those transacting business with petitioner, to doubt the authority of Tiu as manager of petitioner’s Binondo branch. 119

(2) The argument that Villanueva’s testimony is selfserving and therefore inadmissible on the lame excuse of his employment with private respondent utterly misconstrues the nature of “self-serving” evidence and the specific grounds for its exclusion. Self-serving evidence is evidence made by a party OUT OF COURT at the time; it does not include a party’s testimony as a witness in court. It is excluded on the same ground as any hearsay evidence, that is the lack of opportunity for cross-examination by the adverse party, and on the consideration that its admission would open the door to fraud and to fabrication of testimony. On the other hand, a party’s testimony in court is sworn and affords the other party the opportunity to cross-examine the witness. Of greatest weight than any of the above testimonies is petitioner’s categorical admission on the witness stand that Tiu was the manager of his store in Binondo. Such admission, spontaneous no doubt, and standing alone, is sufficient to negate all the denials made by petitioner regarding the capacity of Tiu to enter into the transaction in question. the above act, taken together with the declaration of petitioner in open court amount to admissions under Rule 130, Section 22 of the Rules of Court, to wit: the act, declaration or omission of a party as to a relevant fact may be given in evidence against him. Well settled is the rule that a man’s acts, conduct and declaration, wherever made, if voluntary, are admissible against him, for the reason that it is fair to presume that they correspond with the truth, and it is his fault if they do not. If a man’s extrajudicial admissions are admissible against him, there seems to be no reason why his admission made in open court, under oath, should not be accepted. against him. Moreover, petitioner’s unexplained delay in disowning the transactions entered into By Tiu despite several attempts made by respondent to collect the amount from him proved all the more that petitioner was aware of the questioned transactions. Such omission is tantamount to an admission by silence under Rule 130, Sec. 23 of the Rules of Court, thus any act or declaration made in the presence of and within the 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, may be given in evidence against him. All of these point to the fact that at the time of the transaction, Tiu was admittedly the manager of petitioner’s store in Binondo. Consequently, the transaction in question as

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well as the concomitant obligation is valid and binding upon petitioner. So, when a party makes a statement in court, everything is in writing. It is under oath. there is a presumption that he is telling the truth. Anyway, he is subject to cross-examination. But when a party makes a statement out of court, that is not under oath and there is no opportunity to crossexamine. A party cannot use a statement he made out of court as evidence in his favor. But when he testifies against his favor, that is not considered as self-serving  that is admissible. whether the court believes him or not, that is another thing. That is weight, not admissibility. Q: What are the types or classification of admission? A: They are:  judicial admission  they are admissions made in the judicial proceeding under consideration. Section 4, rule 129 gives a complete definition of judicial admissions: admissions, verbal or written, made by a party in the course of the proceedings in the same case.  extrajudicial admission  they are admissions made OUT OF COURT, or in a judicial proceeding other than the one in consideration. An admission made in a party’s pleadings in a certain civil case is a judicial admission in that case. But a statement made by a party outside the court is an extrajudicial admission. An admission made in one civil case is not an admission in another civil case. So, a statement made by a party in his pleading in Civil Case #1 is a judicial admission only insofar as Civil Case #1 is concerned. But insofar as Civil Case # 2 is concerned, it is an extrajudicial admission, because it is not made in the same proceedings, in the same case. Admission may be further classified into: Judicial  (I) formal = admissions made in WRITING, such as pleadings, motions, or stipulations of fact. (II) informal = admissions made ORALLY, in the course of the testimony of a party or his witnesses, or in depositions or affidavits, or statements of counsel (when a lawyer makes an admission in court, his client is bound by that admission under the principle of agency). Extrajudicial  (I) express = those made in a definite, certain and unequivocal Language. (II) implied = those which may be INFERRED from the act, conduct, declaration, silence or omission of a party. The following principles show implied admission:

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1. LACHES: which is unreasonable delay in the prosecution of a suit, civil or criminal, it gives rise to an implied admission of lack of merit because a person really aggrieved will loss no time in seeking redress for his grievances. REYES vs. CA 267 SCRA 543 Facts: Zenadia Reyes was accused of falsifying a deed of sale of four parcels of lands. Upon being arraigned, petitioner pleaded not guilty. Trial on the merits then followed. After the prosecution has rested its case, the presentation of the defense evidence was scheduled to follow but was reset five times due to the unavailability of defense counsel. On motion of private prosecutor, the court declared petitioner to have waived the right to present her evidence. Issue: whether or not there was admission on the part of the accused when she was declared in default. Holding: To be sure, the postponement of the trial of a case to allow the presentation of evidence of a party is matter of judicial discretion, but it is a discretion which must be exercised wisely, considering the peculiar circumstances obtaining in each case and with a view to doing substantial justice. It was the defense counsel’s absences that were the cause for the defense’s failure to present its evidence. The negligence of Atty. Tenorio, the defense counsel, did not consist in error of procedure or even a lapse in strategy, but something as basic as failing to appear in court. Keeping in mind that this case involves personal liberty, the negligence of counsel was certainly so gross that it should not be allowed to prejudice petitioner’s constitutional right to be heard. Judicial conscience certainly cannot rest easy on a conviction based solely on evidence of the prosecution just because the presentation of the defense evidence has been barred by technicality. Indeed, to deny petitioner the opportunity to present her evidence on the merest chance that she might be innocent would be to disregard the wisdom that it is better to acquit ten guilty individuals than to convict one innocent person. 2. FLIGHT & CONCEALMENT: the flight and concealment of an accused is an implied admission of guilt, for as the old saying goes: the guilty man flees even if no one pursues him; but the innocent man stands bold as a lion.

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EXAMPLE: X is a suspect in a crime and he is tried. Evidence shows that after the crime was committed, he left his hometown, went into hiding, and it took the authorities several years to arrest him. Flight and concealment is considered circumstantial evidence. It is evidence on collateral matters which shows the probability or improbability of the fact in issue. It is a SUBSEQUENT collateral matter because after the commission of the crime, the offender runs away. Suppose the accused claims that he did not flee from the scene of the crime. That after its commission, he stayed all along and even attended the wake of the victim. Since he did not flee, he is not guilty. The Supreme Court said: There is no contrary rule. There is a rule that flight is indicative of guilt, but there is no rule that non-flight is evidence of innocence. 3. INFLUENCE: An attempt to influence witnesses, whether the influence tended to bring forth false testimony or to suppress evidence, is an implied admission by the party making it that he has NO CASE, for if he had, it would not be necessary for him to fabricate or suppress evidence. EXAMPLE: One tries to influence the witnesses against him not to testify through friends or through reward. Others “buy” witnesses. Sometimes, others solicit the assistance of influential people to pressure the other party not to file a case. These things can be proven in court. And the implications are as stated above. 4. Efforts of an accused to have the case dropped through the help of relatives and various influential people is a strong indication of guilt, for the innocent depends on the strength of his case. 5. The unreasonable refusal of plaintiff in personal injury cases to submit to a physical or medical examination is evidence bearing upon his good faith, just as in any other case of a party declining to produce the best evidence. Said refusal gives rise to an adverse inference. EXAMPLE: The refusal of Hubert Webb to submit to a sperm test is a point against the defense. The result of the sperm test is not really accurate, but it will help the case of the prosecution. The refusal is not a conclusive indication of Webb’s guilt, but definitely it will weaken the defense. 6. A change for the better in the financial condition of a person accused of a crime involving money, immediately or shortly after the date of the crime, may be shown upon the theory that sudden and unexplained possession of funds has a tendency to connect said person with the crime. 123

EXAMPLE: There is a robbery. X is a suspect. One piece of evidence against him is that after the crime, he suddenly became affluent. the sudden change in his financial status may show that he is connected with the robbery committed. Before the robbery, X would bet only P30 to P50 in cockfights, but after the robbery, his bet ranged by the hundreds and thousands. 7. Emotion BAR QUESTION: There was an accident involving the derailment of a train. The passengers sued the railroad company for damages due to non-repair of defective railroad tracks, which the company is denying, “No, our tracks and our trains are in good condition. However, after the accident, the company hired people to extensively examine the condition of the railroad tracks, trains and machines. With this, the passengers established evidence of negligence on the theory that if the company was really maintaining their railroad tracks, there would be no need for it to hire mechanics to check on the tracks. Is that theory correct? The Supreme Court said that this theory is not correct. The rule cannot be applied that just because they are checking their equipment, they are negligent. Because if they will apply the rule, there is no more incentive for common carriers to inspect their vehicles. On the contrary, they would be deterred from inspecting their vehicles because it would be used as evidence of negligence, when the policy of the law is precisely to encourage them to repair their vehicles, vessels, or aircrafts. The US Supreme Court said: Repairs and other precautionary measures made by the owner of the appliance after an accident or injury is not competent evidence upon the issue of negligence, because a contrary rule would discourage the making of improvements after an accident. SECTION 27. Offer of compromise not admissible.  In civil cases, an offer of compromise is not an admission by law to be compromised, am offer of compromise by the accused may be received in evidence as an implied admission of guilt. A plea of guilty later withdrawn, or an unaccepted offer of a plea of guilty to a 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 evidence as proof of civil or criminal liability for the injury. EXAMPLE: A files against B a civil case for damages, to hold him liable for an injury sustained by A in an accident. A claims for P100,000.00; B offers to A P50,000.00. Despite B’s offer of P50,000.00, he claims he is not liable 124

because he is not at fault, or if it were B’s employees who were responsible for the accident -- that B’s employees exercised diligence. Is B’s offer of P50,000.00 to A tantamount to an admission that he (B) is liable for the injuries suffered by A in the accident, and may be used as evidence of B’s guilt in court? A: No, B’s offer of compromise cannot be used against him. An offer of compromise IN A CIVIL CASE IS NOT an admission and is not admissible in evidence against the offeror of the same. The said compromise is not tantamount to an admission which may be used as evidence against its offeror because: (1) In civil cases, the parties are encouraged by the court to compromise. If an offer of compromise were to be admissible, it would discourage the parties from coming up with a compromise. (2) There are persons who offer to compromise not because they are at fault but because they simply want to avoid trouble. They would be able to avoid the expenses of litigation; therefore, it would be cheaper to compromise. One may win in a case, but it may have cost him a lot of his time in litigation. The second paragraph deals about compromise in CRIMINAL CASES. The general rule is: An offer of compromise by the accused is an implied admission of his guilt. Because under substantive law, the victim cannot compromise in criminal cases, especially when the offense is against the State. The should not be any compromise. Q: So when one is charged with murder and as the accused, he offers a compromise (e.g., to reduce the crime charged to homicide), can such compromise be offered in evidence as an implied admission of his guilt. A: Yes, the compromise is admissible. Take note that this is not really an express admission, but merely an implied admission. But for as long as there is no consideration, the offer cannot be used against the offeror. How about in quasi-offense (criminal negligence)? EXAMPLE: You bump somebody while driving your car. The victim was hospitalized. Then you are accused of physical injuries. You offer a compromise. QUESTION: Is that offer an implied admission of your guilt? ANSWER: No, that is an exception. Also, it is not an implied admission of one’s guilt where the offer is made in criminal cases which are allowed by law to be compromised. So, where the general rule is that in criminal cases, an offer of compromise by the accused is an implied admission of his guilt, the following are the exceptions: 1. in quasi-offenses, where there is no criminal intent. There is a crime but it is not as bad. For example: reckless imprudence. 2. in criminal cases allowed by law to be compromised.

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In the above-given exceptions, an offer of compromise by the accused cannot be used against him as an implied admission of his guilt. To compromise means to settle. The following are instances where the law allows compromise: (1) Under the National Internal Revenue Code, the Commissioner of Internal Revenue has the power to compromise tax cases. Even in a criminal case for tax evasion, a compromise may be allowed. However, such compromise is not allowed if pardon is given prior to a case. (2) Under the Barangay Law, there must be barangay conciliation first, even in criminal cases. A criminal case will not be entertained by the court if it does not pass through barangay conciliation. But this covers only minor offenses the penalty for which is imprisonment for one (1) year or less, but not grave offenses such as murder. Such criminal cases may not be subject to compromise in the barangay level. Q: What is the purpose of the above law in imposing the condition that a case must first pass through barangay conciliation before the same may be entertained by the court? A: to preserve unity and harmony in the barangay. In the above exception, the plaintiff may accept payment (compromise) with respect to the civil aspect, but the criminal aspect is not subject to compromise. The third paragraph: The 1964 Rules of Court did not contain this particular paragraph. This was introduced for the first time in the 1989 Rules on Evidence. Q: May a plea of guilty be later withdrawn? A: Yes, before trial. Q: During the trial, may it be presented that a person, who at the first time pleaded guilty, later changed his plea during pre-trial? A: No, changing the plea cannot be considered against the person who made the same. Recall that there can be a plea of guilty to a lesser offense; provided, the fiscal and Prosecution agree. ILLUSTRATION: A is charged with murder. As the accused, he says it should be only homicide. The offended party disagrees, and contends that by saying that murder should be reduced to homicide. A has already pleaded guilty to homicide. Q: May the offer of a plea of guilty to a lesser offense in a plea bargaining be offered as evidence against the accused? Is it admissible? A: No.

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The rule of offer of compromise, being expanded, provides the last paragraph as another addition: an offer to pay or the payment of medical, hospital or other expenses occasioned by an injury is not admissible evidence as proof of civil or criminal liability for the injury. This is a very wise amendment in the law because in the past, people injuring others had been forced into not complying with their obligations as good Christians. EXAMPLE: B, while driving his car, suddenly bumps into a pedestrian. The victim is hospitalized. B claims that he was not at fault because he was driving carefully. It was the pedestrian who was negligent when he suddenly crossed the street. Therefore, B here claims to be free from any imprudent or negligent act, and he thus will not admit of any liability because he was totally without any carelessness or fault. But sometimes, one has to have humanitarian sentiments. The victim is already in the hospital, and he (B) should be morally obligated to help him (victim). As a good Christian, B should help the victim. Later, the victim files a case against B. Then during the trial, the victim asks B that if he (B) were not guilty, why did he (B) pay for his (victim’s) medical expenses? If such a contention of the victim may be used against the defendant -- then all alleged offenders will never help victims of accidents. If B acts like a Christian and shows his kindheartedness by helping the victim, and such help would be used against him (B), then people would not be helping each other anymore. Really, situations cannot be avoided where one is not at fault or liable, but because of humanitarian reasons, he will help the person. His conscience cannot bear seeing the victim suffering in the hospital. The last paragraph of Section 27 encourages humanitarian gesture by people who injure others accidentally without fault. Payment of medical, hospital or other expenses is not admissible in evidence as liability for the injury. 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. This provision is known as the RES INTER ALIOS ACTA RULE (Longer form is: Res Inter Alios Acta Nocere Non Debet.) ILLUSTRATION: D tells some people that he owes E a sum of money. Later, E files a case against D and all his (D’s) defenses are identical: That D does not know anything about the debt; that he denies the existence of the debt. In the case against D, one of the persons he talked to before testifies that long before the case was filed, D had told him that he owes E a sum of money. QUESTION: Is the statement of the person admissible? ANSWER: Yes, the admission of a party is evidence against him (D). The 127

statement, act or declaration made by D may be used as evidence against him. Another example: In a civil case against F, G is asked to testify. G says that F owes the plaintiff money and that he (G) knows so because F told him so. PRINCIPLE: The act or declaration of a party cannot prejudice another. Common sense will tell us that we are bound by what we say. Whatever we say may be evidence against us. But it would be unfair or inconceivable that we would be bound by the statement of other people. Why should one be bound by the statement of another? If one wishes to confess something, he must confess it himself. When one wishes to object to a statement which should not bind him, he must invoke the Res Inter Alios Acta Rule: “Objection, your Honor. The statement of that person is Res Inter Alios Acta to me. I am not bound by his statement.” Whatever statement a person makes may be used as evidence against him, but not against others. The general rule under the Res Inter Alios Acta Rule is: An act or admission of a party does not bind another. But the Res Inter Alios Acta Rule is not absolute. Q: When may the statement or admission of another bind another person? A: The exceptions to the Res Inter Alios Acta Rule are found in Sections 29, 30 and 31. A statement of admission made by A is receivable in evidence against B who is a third person or another person; provided, there exists a distinct relationship between the parties such as in the following: (i) partnership; (ii) agency; (iii) conspiracy; (iv) joint interest; and, (v) privity. 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. The law says that the act of the partner of the party must be within the scope of his authority, and within the existence of the partnership.

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EXAMPLE: A and B are partners in a business. Since there is a mutual agency, there is delectus personae which binds both of the partners. Suppose A makes an admission that the partnership owes a bank or some other person some amount of money. Then later on, the partnership is sued by such bank or other person, and the defense of the partnership is that it does not owe any bank or person any amount of money. QUESTION: May the admission of A be used to proved the obligations of the partnership? B objects and contends that he should not be affected by the declaration made by A. Is such a contention tenable? ANSWER: B’s contention is untenable. B is affected by the declaration given by A because this is an exception to the Res Inter Alios Acta Rule. WHEN THE DECLARATION IS MADE BY A PARTNER, THE SAME IS BINDING UPON THE PARTNERSHIP; provided, the following requisites are present: (1) the statement refers to a matter WITHIN THE SCOPE of the partner’s authority (anything beyond the partner’s scope is not covered); (2) the admission or statement is made DURING the existence of the partnership (if the partnership is dissolved, any statement made by a partner will no longer bind his co-partner); (3) the existence of the partnership must be proven by evidence OTHER THAN SUCH ACT OR DECLARATION (one must show that there really is a partnership. The existence of the partnership must be shown by independent evidence other than such act or declaration). ILLUSTRATION of the third requisite: A introduces himself to you as the managing partner of B and C in a particular partnership. That, in behalf of the partnership, A is making this order from you. It turns out that the account was not paid. The partnership is sued by you and it denies the account. You claim that the partnership is bound by the acts of A. But how did you know that A is really the partner of B and C? You say you know because A told you so. No, this is not a proper defense because, in this manner, you are actually using the admission as the very evidence of the existence of the alleged partnership. It must have been first shown that A, B and C really are partners. There must be another evidence presented by you in court to show that there really is a partnership. The best evidence would be, for example, to present in court the Articles of Partnership. In this way, you are showing the existence of the partnership by independent evidence other than the statement of the person who made the declaration. The other exemption is AGENCY. the person making the statement is the agent, and now such statement or admission is being used as evidence against the principal. For example, A authorizes B to be his attorney-in-fact in his business. A is the principal; B is the agent. 129

The requisites for this exception are the following: (1) that the agent made the admission or declaration within the scope of this authority as agent; (2) that the admission or declaration was made while the agency was in effect (not when there has already been a revocation of the power of attorney); (3) that the existence of the agency is established by independent evidence other than the act or declaration. The best way of proving the existence of the agency is through presenting the power-of-attorney. Q: Does the act, declaration or admission made by the husband bind the wife for purposes of creating liability upon the absolute community property or conjugal partnership of the spouses? A: Yes, the husband and the wife are agents of each other. Either one may bind the conjugal partnership or absolute community; provided, (1) the act, declaration or admission was made within the scope of the husband’s or wife’s authority; (2) the property regime is still existing (it has not been dissolved and that they are really married); (3) the existence of the agency must be proved by evidence other than such act, declaration or admission. Another example of agency: When a lawyer makes a statement in court or makes an admission, the client cannot say that he cannot be bound by his lawyer’s statement or admission. In court proceedings, the lawyer is the agent of the client. So the acts, conduct or declaration of a lawyer binds his client in matters concerning the case. the client is the principal here. The rule that the existence of the agency must be proved by evidence other than the act or declaration, is also applicable to the act or declaration of a JOINT OWNER, JOINT DEBTOR or OTHER PERSON JOINTLY INTERESTED IN THE PARTY. An admission made by a co-owner binds the other co-owners. TAKE NOTE: When the law talks of joint debtors -- so there are two debtors -- the admission of Joint Debtor 1 is binding on Joint Debtor 2. RECALL: But under the Law on Obligations, there can be two types of obligations: Joint Obligations and Solidary Obligations. In Solidary (joint and several) obligations, the creditor may collect the entire obligation from only one debtor. In joint obligations, the creditor may collect only up to his share in the obligation. ILLUSTRATION: B and C are joint debtors for an amount of P200,000.00. The shares of B and C are P100,000.00 each. the creditors cannot collect from the C the share also of B. QUESTION: But is it not that the 130

admission of a joint co-debtor binds the other co-debtor? ANSWER: According to the Supreme Court, what is contemplated under this provision is a SOLIDARY obligation. There is no joint obligation in solidary agency. Even if the word used in the law is “joint”, what is actually meant by it is solidary. There is only one obligation. Each debtor is answerable for each other’s share. This is but logical because if the law intended for this to be a “joint” obligation, then the implication is that there are actually two obligations. And, therefore, one cannot bind the other debtor with his acts, declaration or admissions. Another instance where the law uses the word “joint” when actually the obligation is solidary in the case of JOINT TORTFEASORS. In Torts & Damages, the Civil Code provides that the defendants in a case for damages arising from culpa aquiliana are liable as joint-tortfeasors. For example, the amount of damages is P100,000.00. how much can the plaintiff can collect the entire amount from each other. therefore, an admission by a joint-tortfesor binds the other because the obligation is in solidum. The liability of a surety is also SOLIDARY. ILLUSTRATION on the rules on evidence and how one can appreciate his knowledge of them in the courtroom: (There are two lawyers, Attorneys A and B, and a witness, W) ATTY. A: Mr. W, did you hear the statement of X? W: Yes. ATTY. A: Will you tell this Court what X said about Y? (As soon as Atty. B hears this, he immediately objects...) ATTY. B: Your Honor, Counsel is practically trying to ask the witness to say what X said about Y so that in effect, such statement of X will be binding upon Y. Res Inter Alios Acta. The act or declaration of a third person is not binding. JUDGE: Atty. A, what will you say? ATTY. A: Your Honor, Counsel forgot that there are exceptions to the Res Inter Alios Acta Rule. In this case, you will read in the pleadings that X and Y are partners. Partnership is one of the exceptions to the said Rule. Consequently, the admission of a partner binds the other. In other words, Atty. B invoked the general rule, while Atty. A invoked the exception.

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JUDGE: Atty. B, what will you say? ATTY. B: But your Honor, Counsel has so far failed to prove the existence of the partnership... (he proceeds to enumerate the requisites because he remembers). Under the law, the admission of a partner binds the other partner within the scope of his authority; provided, the partnership is shown by INDEPENDENT evidence. So far, there has been no such independent evidence yet presented other than X’s act or declaration JUDGE: Atty. A, what can you say? ATTY. A: Well, your Honor, we admit that, really, under the law, the existence of a partnership must be established first. So, for the moment the testimony of the witness is inadmissible for lack of basis. But may we ask for the conditional admissibility of the evidence subject to the condition that we will present evidence of the existence of the partnership. If we cannot, then everything will have to be disregarded. JUDGE: Okay, granted. So, this is the reason why we must master the Rules on Evidence. We must remember the general rules, the exceptions, the requisites... We cannot go to court with vague ideas on the Rules on Evidence because we have no more time while in court to consult the books. Another name for the Res Inter Alios Acta Rule is VICARIOUS ADMISSION. In law, “vicarious” means the act of one binds another. This is the general term. In Labor Law, in the case of an illegal strike, wherein the strike is declared illegal by the officers of the Union, is there vicarious admission? Vicarious, in the sense that the officers elect to answer for the illegal strike, which will, in effect, mean loss of employment -- where they are automatically fired. What about the other members who took part in the illegal strike, are they also to be covered by the termination? No, the union members are not bound by the acts of their officers. There is no vicarious liability, except when the members individually commit illegal acts. 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 or declaration. This is the fourth exception to the Res Inter Alios Acta Rule. This is similar to the previous exception, except that the one who makes the admission in Section 30 is a conspirator. This applies to criminal cases. 132

Based on the law, the following are the requisites: (1) that the statement, act or declaration relates to the purpose or object of the conspiracy; (2) the statement, act or declaration must be made during the existence of the conspiracy, NOT before or after; (3) the conspiracy is shown by evidence other than such act or declaration (independent evidence). BAR PROBLEM: A robbery was committed. A week later, a suspect, X, was caught. Upon interrogation, he admitted that he was one of the robbers. When asked who his companions were, he named W, Y and Z. QUESTION: Is the admission or confession made by X about the robbery admissible against his companions, W, Y and Z? ANSWER: No, because the problem says X was caught one week after the robbery. The conspiracy has been accomplished. The law says that the statement must be made during the existence of the conspiracy. Meaning, while the conspiracy is going on, one of the robbers made the admission. The crime has already been consummated. However, suppose the case was filed against W, Y and Z, and the prosecution moved that X be discharged in order to be a state witness. Remember the rule in Criminal Procedure. So, in the witness stand, X admitted that he was one of the robbers. He divulged also who his companions were. QUESTION: Would X’s statement be admissible? Then W, Y and Z say that there is more reason for the Res Inter Alios Acta Rule to apply, because the statement was made long after the conspiracy. QUESTION: Is such a contention correct? The above contention is wrong, because Section 30 refers to extrajudicial statements. This is the meaning of the law. When X made the statement to the police that was done outside the court. This time, X, is in court and under oath. According to the Supreme Court, the statement can be rebutted by W, Y and Z. They can be cross-examined. So, statements made in court are not covered by the rule that it must be made during the existence of the conspiracy. As a matter of fact, the rule will also apply to Section 29 -- when the statement was made in court. 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. This is the last exception. There is privity when one is a successorin-interest of another person.

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EXAMPLE: When one inherits property from his father, or when property is donated to him by another person, his predecessor-in-interest is the donor. Or, when one acquires property by assignment, there is privity between him and the prior owner. Now, he is only a successor-in-interest. PROBLEM: Suppose when the father was still the owner of a piece of land, he made a statement to the effect that his neighbor enjoys a right-ofway over such piece of land, that he had given the neighbor the privilege, the right to enter his property. then, the father dies. The children now inherit the property. They then decide to close the land and deny the neighbor access to it. The neighbor says that when their father was still alive, the former and the latter agreed upon the right-of-way. The children deny it. QUESTION: Suppose a witness testifies that the father did agree with the neighbor over the right-of-way, are the children bound by such statement of their father? ANSWER: Yes, the children are bound because they merely derived their title to the property from their father. The act, declaration or omission by the prior owner, while holding the title, may be given in evidence against the successor-in-interest. So, this Section actually applies to one who derives his title over property from another. The admissions of the predecessor are binding upon his successors-in-interest. 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. This means that when one talks of “admission”, such is not confined merely to what is being said. It includes also the instances when one does not say anything. That is an admission by silence. Another name given to this Section is: the law on ADOPTIVE ADMISSION. When somebody says something in someone’s presence, and the latter did not correct the former, when actually he should have been corrected because the statement given was untrue, in effect, he is saying that what was said is true. He had adopted his statement. EXAMPLE: A said to C in B’s presence that B owes him (A) a big amount of money. B did not say nor do anything. Later on, A sued B for the collection of the debt. B’s defense is that he did not borrow money from A. Then A presents as his witness C. B says now that C actually does not know anything about any debt of his in A’s favor. So C narrated in court the events that he remembered on that particular day when he was with the plaintiff and the defendant wherein A told him (C) in B’s presence that B owed him a big amount of money, which B heard but did nothing about.

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The reaction of B when A made the statement to C is practically an admission. It is considered an admission by silence. The theory is: if a person says something which is false, he must be corrected. B should have denied the obligation right there and then when he heard A make the statement to C. Since B did not correct A, then there must be some truth in the statement. Q: What is the philosophy behind this rule? A: When a man ought to speak, and he did not speak, he will be barred from speaking later. There is a Latin maxim which supports this theory: Qui tacet consentere videtur. Silence means consent. This is an admission by consent. Q: Suppose when a statement is made, it is beyond hearing distance, is it covered by the rule? A: No, the law says that the statement must have been made “within the hearing” of the party concerned. Q: Suppose the statements are written in a letter and the addressee never wrote back, never denied it. Is that an admission by silence? A: American jurisprudence says: No. There may have been many reasons why he never wrote back. One is, he might be lazy in writing letters. Another, of course the law provides that the statement must have been made within the hearing of the party. The law generally applies to oral statements, not to correspondence. It applies to written correspondence -- a letter of demand, a statement of account. EXAMPLE: Juan is sent a detailed statement of accounts for his purchases. He did not respond. Then he denied the obligation. QUESTION: Is Juan bound by the statement sent to him even though he did not respond to the same? ANSWER: This time Juan is bound -- even if it is a letter because while normally the statement must be made within his hearing, when it comes to accounts, the reaction should be denial of the debt. This is an exception, according to American jurisprudence. Otherwise, the party concerned is accountable. This is common sense. You must answer if you have no obligation There are other exceptions, among them, as stated by American jurisprudence and our Supreme Court, are the following: (1) when no good reason exists for the party to comment on the act or declaration; (2) when it is not proper for the party to comment on the act or declaration. These exceptions are now incorporated in the law -Section 32: when proper and possible for him to do so. So, if it is not possible or proper to comment or act, then there is no admission by silence. 135

(3) where the act or declaration was made in the course of an official investigation. EXAMPLE: Custodial investigation of a suspect in a crime. Under the Constitution, the requirement is that he has the right to remain silent -- meaning, he cannot be compelled to talk. Is this an admission by silence then? If the suspect invokes his right to remain silent, there is no admission by silence. A right cannot be the source of an obligation at the same time. (4) when the silence is upon the advice of the lawyer. SECTION 33.  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.” When one enters a plea of guilty in a criminal case, that is a confession. That is why there is no need anymore for a trial, because that is the basis of the conviction. This is a judicial confession. We are not interested in this because there is no more trial here. What we are interested in is the situation wherein the accused, for example, while he was being investigated in a case, confessed that he committed the crime. Later on, upon arraignment, he pleaded not guilty. Q: In the above case, what will be the main evidence to be presented by the prosecution to prove the guilt of the accused? A: The confession of the accused. This evidence is called an “extrajudicial admission” subject to the constitutional guidelines. So, the confession of the accused is admissible in evidence against him. Q: Distinguish a confession from admission. A: ADMISSION

CONFESSION

It is a statement of fact without It is an acknowledgment of the guilt of the necessarily acknowledging offense charged. guilt. It may be express or implied.

It must be express.

It applies to both civil and It applies only to criminal cases. criminal cases. EXAMPLE: X was killed. Y is being investigated. Y is asked, “ Who killed X?” Y answers that he killed X.

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Q: Is that an admission or a confession? A: That is an admission. Y admitted that he killed X, but he did not necessarily confess that he committed homicide. He may have some defenses for killing X. He can say that he killed X because X tried to kill him. So, Y may have admitted that he killed X, but he is not confessing his guilt because he may be invoking the justifying circumstance of selfdefense. A confession is always an acknowledgment of guilt of the offense charged, or of any offense necessarily included therein. It is always express; there is no such a thing as an implied confession. It applies only to criminal cases; there no such a thing as confession in civil cases. At this stage, it is important to know the rules on the admissibility of extrajudicial confessions, but this will involve dabbling into the field of Constitutional Law, the Bill of Rights. We will go to that when we reach Rule 133, Section 3. 4. Previous Conduct as Evidence 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 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. There are 2 positive situations here: (1) the positive situation: evidence that one did a certain thing at one time is not admissible to prove that he did the same or similar thing at another time (2) the negative situation: situation that one did not do a certain thing at one time is not admissible to prove that he did not do a similar thing at another time. This Section is also known as Res Inter Alios Acta, Part 2. Part 1 is Section 28. So, there are two parts to the Res Inter Alios Acta Rule:  Part 1: the rights of parties cannot be prejudice by an act, declaration or omission of another (Section 28, Rule 130)  Part 2: This Section. EXAMPLE: X is accused for the death of Y, but there is no eyewitness. So, the prosecution has to build its case based on circumstantial evidence -- proof of collateral matters which will point to the probability or improbability of the fact in issue. So, Y was killed in June. Prosecution tries to prove that six months ago, and every month thereafter until May, X has been attempting against the life of Y. Then suddenly, in June, Y was found dead. If the prosecution says that its purpose in presenting such evidence is to prove that X killed Y, this is inadmissible because this is Res

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Inter Alios Acta. Evidence that one did something before is not evidence that he did the same thing now. Evidence that X tried to kill Y in the past does not necessarily mean that X is the killer today. But such evidence may be received to prove only that out of the 60 million Filipinos, X has the intent and the plan to kill the victim. With this purpose, the court will admit the evidence because the second part of Section 34 states that x x x it may be received to prove the specific intent or knowledge, identity, plan, system, scheme, habit, custom, or usage, and the like. The judge may say that this is not the issue, but at least it proves the probability that X is the killer. This is an evidence of collateral manner -- an antecedent collateral matter, circumstantial evidence. So, while the evidence does not prove the guilt of X, it points to the issue that he is the probable killer. Another example: In a case for damages arising from reckless imprudence, both the plaintiff and defendant claimed that they were careful, but there were no witnesses. What the counsel for the plaintiff did was to dug into police reports and discovered that in the past year, the defendant was booked three or four times for reckless driving. Although this is inadmissible in evidence, if it is used to prove the guilt of the defendant; the counsel convinced the judge to admit the evidence to prove only that the defendant has the HABIT of being a reckless driver. What he was trying to say to the court was that in all probability, the defendant must have been reckless, and not that he was actually reckless. The same rule holds true when trying to establish a pattern of conduct to prove that the defendant did not pay to the creditor his debt, by presenting evidence of the debtor’s other unpaid obligations to other creditors. 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. A good example of this is in the case of redemption or repurchase. Redemption of property sold under the Public Land Act. Recall that when one holds an original patent, he has the right of redemption within five years from the time of the sale. He has the right of repurchase when the property is a homestead. If the original owner does not offer to repurchase the same within 5 years, his right to redeem or repurchase is lost. ILLUSTRATION: A writes within the redemption period. He formally offers to buy back or redeem the property within the 5-year period. Then the offer was rejected. It was refused without valid cause. The original owner then files a case to compel reconveyance. The other party claims that there is no valid tended of payment within the 5-year period because he just wrote a letter. 138

Q: What constitutes a valid tender of payment? A: A valid tender of payment must be accompanied by delivery of money. Under the law, if the offer of payment is in writing and is refused without valid cause, the law presumes that at the time of the giving of the letter, there was already a tender of payment. This is because “tender” means offer of money. But if it was rejected, and if the supporting letter was given within one year, but the case is filed beyond one year, one cannot claim that there was a valid tender of payment. It is a different case when one writes a letter: “I am offering to buy back the property within 5 years.” The other party accepts and asks for the money (payment). The repurchaser asks for a month to produce the amount. In this case, tender will be computed not from the time the letter containing the offer was given, but from the time the money is finally received by the other party. Because tender must be accompanied with money. However, if a party makes the tender, and the other party refuses it without a valid cause, the offer is considered to be payment. Q: In what form must tender of payment be made? A: Generally, when one says “tender”, it must be cash. Q: Is payment made through a manager’s check considered legal tender? A: No, payment through a manager’s check is not legal tender. The same goes with post-dated checks. Payment in check is not deemed as payment until it is encashed. So, when a check is given as payment, one must compute tender not from the time it is given, but from the time it is converted to cash. So, effective payment is from the date the check is encashed and not from the date of the giving of the check. Q: How about a personal check? A: No, with more reason. A personal check is not even considered as legal tender. Q: Suppose X is tendering to Y an amount worth P1 million. He asks Y if he prefers to be paid in cash or in manager’s check. Y answers that he prefers to be paid in manager’s check. Is this still legal tender? A: Yes. Y is now in estoppel. He cannot say that there was no valid tender of payment because it was not given in cash. He was given the option to choose. But definitely, the rule is that payment made in check is not a valid tender because a check is not valid until it is encashed. One may validly refuse to receive a check because it is not a valid tender. Q: Is partial payment a valid tender? A: No, partial payment is not a valid tender. One may refuse to accept it. There is a valid cause for the refusal because payment must be complete.

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5. Testimonial Knowledge 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 other wise provided in these rules. This Section talks about the Hearsay Rule. The testimony of the witness must be based on his personal knowledge -- not what he just heard from other people. EXAMPLE: The witness is shy; he does not want to appear in court. Instead, he narrates everything to W, who will deliver the witness’ testimony in court. This is not allowed because the witness is not testifying on what he personally knows, but on what another knows. So it is the eyewitness himself who should testify. Q: What is the test in order to determine whether or not evidence is hearsay? Is the test based on the fact that one does or does not testify upon his personal knowledge? A: The real test is: whether or not the adverse party is deprived of the opportunity to confront and cross-examine the witness. The right to crossexamination is an essential part of due process -- that the person who testifies against you will be confronted by you, cross-examined by you. Thus, a denial of the right to cross-examination is a denial of due process. Hearsay evidence is actually a denial of the right to cross-examination. Q: What is an Independent Relevant Statement (bar question)? A: Independent Relevant Statement is part of the concept of hearsay. An independent relevant statement appears to be hearsay in character, but is not actually legal hearsay. therefore, an independent relevant statement is not covered by hearsay. EXAMPLE: A witness is asked these questions... COUNSEL: Where were you on this date? WITNESS: I was in the United States. COUNSEL: Did you meet anybody there? WITNESS: Of course! COUNSEL: Who did you meet? WITNESS: I met A. COUNSEL: 140

Did you have a conversation with A? WITNESS: Yes. COUNSEL: What was the conversation about? WITNESS: The conversation was about the incident which he witnesses earlier. COUNSEL: Please tell the Court what A told you... TAKE NOTE: If the purpose of the last question propounded by counsel is to prove that the witness had a conversation with A, and that A told him this thing, or that he met A and the latter told him this story, that is NOT COVERED by the hearsay rule. Because the answer is not really hearsay. The purpose here is actually only to prove the fact that A told the witness something. But if the purpose of the question is to prove that the story told by A to the witness is true, that is COVERED by the hearsay rule.  If the purpose of the testimony of the witness is to prove that he had a conversation with A and that this was what the conversation was about, that is not covered by the rule.  If the purpose of the testimony is to prove the truth of the statement of A, which he told the witness, that is covered by the rule.  If the purpose of the question is to prove the truth of the statement, that is covered by the hearsay rule. In the first case, the testimony is not really hearsay because the witness is talking about his own perception. That he met A, that they had a conversation, that this was what A said... It is not hearsay if the witness quotes exactly what A said to him. When the purpose of the question is to prove merely the fact that such a statement was made, this appears to be hearsay in character. But this does not constitute legal hearsay and is, therefore, not covered by the hearsay rule. As a matter of fact, this is not even hearsay. This is what is called an INDEPENDENT RELEVANT STATEMENT. COUNSEL FOR PLAINTIFF: What did B tell you when you met him? COUNSEL FOR DEFENDANT: Objection, your Honor! The question calls for a hearsay answer. COUNSEL FOR PLAINTIFF: Your Honor, we asking this question merely to prove the tenor of the statement. COURT:

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If that is the purpose, then the objection is overruled. question is allowed.

The

Meaning, the question is an independent relevant statement. Counsel for Plaintiff is asking the question only to prove the FACT of the conversation, but not to prove the TRUTH of the conversation. However, take note that such statement must be RELEVANT to the case. EXAMPLE: The prosecution is trying to prove that C is the killer. A witness is being questioned: PROSECUTOR: What did B tell you? WITNESS: According to B, C killed the victim. DEFENSE: Objection, your Honor! Hearsay. PROSECUTOR: Your Honor, we are only asking the question to prove the TENOR of the main statement. It is not being presented to prove that C is the killer. Q: What does “tenor” mean? A: That the question is being asked only to prove that B said something, but not to prove the truth of what B said. That is not considered violative of the hearsay rule, because in reality that is not hearsay. That is not hearsay, because, really, the witness had a talk with B. It is based on his (witness’) own perception. The basic distinction is: to prove only the statement, but not to prove the truth of his statement. That is what is called an “Independent Relevant Statement”. The statement, by itself, presented independently is relevant. But that cannot be done in all cases. That can be done only in certain cases, where the fact that the statement was made is relevant to the case. According to the Supreme Court: the theory of the hearsay rule is that when a human utterance is offered as evidence of the truth of the fact asserted to it, the credit of the asserter becomes the basis of inference, and therefore, the assertion can be received in evidence only when made on the witness stand and subject to cross-examination. However, if an extrajudicial utterance is offered not as an assertion to the evidence in the matter asserted, but without reference to the truth of the matter asserted, the hearsay rule will not apply. In other words, one must distinguish between: (1) the fact that the statement was made; and, (2) the truth of the fact asserted in the statement. One must prove that a statement was made: (1) to prove the purpose of that statement; 142

(2) if his purpose is only to prove the fact that a statement was made, that is not hearsay. But to prove the truth of that statement -- that is hearsay. Q: When may an utterance be considered an independent relevant statement? (1) when the utterance or statement constitutes the issue or parts of the issue of the case; (2) when the utterance or statement is circumstantial evidence of the issue or issues in the case. EXAMPLE of the first instance: When the statement constitutes the issue in the case. That you made a statement is the issue in the case. How is slander committed? This is a crime against honor. Slander is committed by making a public statement which is derogatory. The offender imputes a crime, vice or defect which causes dishonor, discredit or contempt upon another person. For example, the statement is: “You are a thief.” That is slanderous. When one is called a thief in the presence of other people that is embarrassing. Q: What is the main issue in a case or slander? A: Did the accused make or not make the statement? If he did, then there is a crime. If he did not, then there is no crime. So, it has to be proven that the accused made such a statement. Definitely, there must be a witness, because the statement is made publicly. Many people must have heard him say it. The star witness testifies that during a particular occasion, D was delivering a speech: PROSECUTOR: What was the speech about? WITNESS: D was talking about E, the complainant. PROSECUTOR: What did D exactly say about E in that speech? WITNESS: D said that E is a thief. Q: Can the defense object to that kind of questioning? A: No. The purpose is to prove that the accused made the statement. That is not the issue in slander. The issue is not to prove that E is a thief. The witness is being presented and questioned not to prove that the complainant is a thief, but to prove that the accused did call him a thief. This is an independent relevant statement and is not covered by the hearsay rule. The above testimony is not hearsay because the witness was present in the occasion in which the speech was delivered. He himself heard the accused calling the complainant a thief.

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EXAMPLE of the second instance: When the statement is circumstantial evidence of the issue in the case. Circumstantial evidence refers to evidence tending to prove the probability of the issue. For example, the issue in the case is whether or not the defendant was mentally insane when he signed a contract. He invokes such defense in order to prove that he is not bound by such contract. Plaintiff claims that defendant was perfectly normal when he signed the contract. A witness is presented who testifies as to the state as to the state of mind of the defendant during that particular period. The witness says that he was introduced to the defendant for the first time in that occasion only. COUNSEL FOR DEFENDANT: When you met the defendant, how did he introduced himself to you? WITNESS: He introduced himself to me as the President of the Philippines. The purpose of Counsel here is to prove that there was “something wrong” with the defendant during that period, at least. Counsel is trying to prove the state of mind of the defendant and the mere fact that he made that statement is circumstantial evidence that he was insane. The purpose of Counsel in his question is not to prove the truth that defendant is the President of the Philippines. The purpose is to prove that because of what he said to the witness, there is circumstantial evidence that “something was wrong with him”. The statement of the witness is admissible being an independent relevant statement. Section 36 tells us what hearsay is all about, what it covers, what it does not cover, the philosophy behind it, the test to determine it. However, there are exceptions to the hearsay rule. They can be found in Sections 37 to 47. 6. 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 object of inquiry, as evidence of the cause and surrounding circumstances of such death. Another STATEMENT.

name

for

Dying

Declaration

is

ANTE

MORTEM

ILLUSTRATION: Somebody was stabbed. As he lay dying, a policeman went over him and asked him, “Who stabbed you?” The victim answered, “X stabbed me.” Afterwards, the victim expired. So, X is prosecuted for killing the victim. The policeman is a witness and testifies that he was present when there was a commotion and came across a dying man whom he identified as the victim. And then he was able to talk to the victim before the latter died: 144

COUNSEL: What did you ask the dying victim? POLICEMAN: I asked him: “Do you know who stabbed you?” and he says yes. I asked him “Who stabbed you?” He said it was X, the accused, who stabbed him. Actually, the policeman’s testimony is hearsay. The policeman did not actually see X stab the victim. And yet, according to Section 37, the testimony is admissible as an exception to prove the truth that, really, X is the killer. Q: What are the reasons behind this exception? A: There are two grounds or justification cited by Wigmore -(1) necessity; and (2) trustworthiness. NECESSITY. According to the Supreme Court: In crimes against persons, such as physical injuries, or homicide, the best person to identify the accused would be the victim himself. But in such crimes, it is impossible for the victim to testify if he has died. He cannot now be used on the witness stand because he is already dead. Necessarily, the prosecution has to present somebody to whom the victim mentioned the identity to the killer. This is the reason. The declarant’s death makes it impossible to obtain his testimony in court, and usually in crimes against persons, the victim’s testimony is the best evidence of the crime. But out of necessity, since the prosecution can no longer present the victim in court, it presents somebody whom the victim was able to talk to before he died. TRUSTWORTHINESS. Meaning, it can be relied upon and trusted. The statement is made at the point of death. It is a situation so solemn and awful as creating an obligation equal to that created by a positive oath, administered by a court of justice. What is the guarantee that the statement is the truth? We cannot really be 100% sure that the witness will tell the truth. But when a witness takes the witness stand and takes an oath to tell the truth, he understands the consequences of giving a false testimony. That is why a statement not under oath is not admissible. But taking the oath does not necessarily mean that the witness will tell the truth. However, according to the Supreme Court: when a person is dying, that is a very solemn and awful situation. That the solemnity is such that the statement of a dying person is almost the same if not higher than a person who is under oath. When a person is dying and he is aware that he is dying, what is in his mind is probably the thought of heaven and hell -- that he must cleanse 145

himself immediately because he does not know what will happen to him when he finally dies. So, in this instance, he must be really be telling the truth, at least maybe for the first time in his life. According to the US Supreme Court, describing this reasoning: truth sits on the lips of a dying man. It is a situation so solemn and awful that the presumption is that the dying man will not tell a lie. There is a possibility for the dying person to commit a mistake. But at least he thought that he was telling the truth. What is important is for the statement to be admissible in court. Q: When will a statement qualify as a dying declaration? A: The elements are based on Section 37. (1) the declaration refers to the circumstances of the declarant’s death.

cause

and

surrounding

EXAMPLE: As the father lay dying, he told his son: “Son, please come here because I will tell you something. My compadre, X, borrowed money from me three years ago. There was no promissory note. Until now, he has not yet settle his debt. So I am telling you now, X owes me something.” Then, the father expired. So, the son sues X. The son testifies, and to prove the obligation he presents in court what his father told him. “That is what my father said when he was at the point of death. the truth sits on the lips of a dying man, so what he told me must be true.” X denies the obligation. Q: Is the statement of the witness’ dying father admissible in evidence as a dying declaration, an exception to the hearsay rule? A: No, the son is not talking in court about the cause and surrounding circumstances of his father’s death. The statement made by the father pertained to a debt, an obligation -- about business. The statement is considered a DYING STATEMENT, but not a dying declaration. The statement of the declarant has nothing the do with his death. (2) the declaration was made under the consciousness of impending death. Meaning, the declarant must know that he would be dying soon when he made the declaration. Another term for this: the statement is MADE IN EXTRIMIS -at the point when hope for recovery is faint or extinct. EXAMPLE: A person was shot. when he could still walk, he met Y. Y asked him: “O, how are you now?” The victim answered, “I’m all right. This is just a flesh wound.” He was not aware how serious his wound was. So, he died. But before that, he was able to tell Y that it was X who shot him. Q: Will the above statement of the victim qualify as a dying declaration?

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A: No, because when the victim made the statement, he thought he would still live. In order to qualify as dying declaration, the declarant must first think he is dying. That is a requirement. When veteran police investigators investigate a dying man who is a victim of murderous assault, he would usually ask so many questions. “How do you feel?” “What do you think is your condition now?” Then the victim would say, “I am dying; I don’t think I would last one week.” So the victim knows. In other words, there is now a basis. Q: Must the dying man really say, “I know I am going to die”? A: There was a case before wherein a man was stabbed. He sustained so many wounds. He was asked by an investigator or other person: “Do you think you will die?” He answered in this manner: “I think so.” This was objected to and attacked in court on the ground that it is not a dying declaration. PEOPLE vs. BAGUIO 196 SCRA 459 Facts: Alfredo and Lidovina Paulino were conversing with a certain Benny in front of their house at about 10:00 on the evening of March 31, 1981. Then a group of about nine to ten people passed by. Among them, Lidovina recognized Rodolfo Baguio (a.k.a. Bebot) with whom her husband, as Barangay Tanod, earlier had some unpleasant dealings. Lidovina went inside her house to get some money to buy cigarettes. While inside, she heard her husband cry out, “Aray ko po!” She rushed out and saw her husband sprawled on the ground while Bebot and his companions were stabbing him. she saw Bebot himself thrust his weapon at her husband twice. Then, the assailants fled. Lidovina went to her husband. In a weak voice, he said, “Kung ako ay bibigyan pa ng Diyos ng pangalawang buhay, hindi maaaring hindi mananagot si Bebot at si Frank.” Issue: whether or not the utterances of the victim were made under the consciousness of impending death Holding: Yes, the utterances were made under the consciousness of impending death. The statement opens with the hope that God might somehow give him a second life. That wish for a second life cannot but indicate his awareness that his first life was draining away with the blood flowing from his many and grievous wounds. This being so, AND it appearing that the other

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requisites of a dying declaration are present, the admission and appreciation thereof can hardly be faulted. On Res Gestae: Even if the declaration in question be somehow still refused admission as a dying declaration, there can be no question about its admissibility AS PART OF THE RES GESTAE, a statement made while a startling occurrence is taking place; his statement being “the reflex of immediate sensual impressions, unaided by retrospective mental action x x x pure emanations of occurrence itself. PEOPLE vs. PADRONES 189 SCRA 496 Facts: On August 3 1986, Lorenzo Sison, the victim was at the MGR Disco at Surallah, South Cotabato celebrating his birthday over beer and refreshments. whereupon, the two accused, Joseph Biare and Alex Padrones, arrived one after the other. Later, the victim approached Padrones squeezed his mouth and uttered challenging words: “Are you afraid of the Sisons?” (in apparent reference to the Sisons of South Cotabato, a family with a long history of local and national political authority and clout) It was then a picture of pandemonium as men engaged in brawl, while bottles flew. Sison suffered stab wounds. Padrones likewise suffered physical injuries. On August 12, 1986, Sison signed a handwritten statement in his hospital bed which he made to the Surallah Police accusing Padrones of having inflicted one stab wound on him, and another from Biare. Subsequently, Sison died. The lower court then convicted the two accused based on the alleged ante-mortem statement of the late Lorenzo Sison. Issue: whether or not the alleged ante-mortem statement is admissible in evidence. Holding: No, the statement is inadmissible. The victim’s alleged ante-mortem statement is not, in fact, an ante-mortem statement. It was executed on August 13, 1986, when the deceased died on August 21, 1986. A dying declaration, to be one, must have been under the consciousness of an impending death. At the time Sison rendered it, he could not say that he was on the pangs of death, based on his actual condition at that time, and that he believed that death was soon at hand. It bears stressing too that a mere statement of the three signatures appearing on the 3-page statement, in bold and clear strokes, with 2 of them occupying four inches of the page, 148

and in grand flourishes, pronounced and considered by the trial judge as a dying declaration, precludes any indication that the signer thereof was under an impending death. Further, if the deceased were truly at the point of death, he could not have had the strength to affix three signatures as above-described. According to the Supreme Court: when a person sustained so many wound and is breathing, but he could hardly talk, he does not have to say it. He knows his condition. there are many cases decided by the Supreme Court wherein there is no evidence really that before the declarant died, he said: “I will tell you now because I think I will die.” This is unnecessary, considering that he could hardly talk. As a matter of fact, when a person makes a dying declaration, chances are, he could hardly write. And considering the nature of his many wounds, he must know that he will soon die. Therefore, this matter has to be taken on a case to case basis. The dying declaration does not really have to be an express statement. But if it is possible to make it expressly, it would be more preferable. There are some people who cannot talk even though conscious: INVESTIGATOR: Do you understand me? DECLARANT: (nods his head) INVESTIGATOR: I will ask you questions answerable by yes or no. If the answer is yes, press my hand once; if the answer is no, press my hand twice. Do you understand? (Very weakly, the declarant answers the questions by pressing the investigator’s hand.) INVESTIGATOR: Do you know who stabbed you? DECLARANT: (presses once) INVESTIGATOR: Is it X? DECLARANT: (presses twice) The admissibility of the above as evidence is attacked when brought upon in the court. The defense claims that there is no showing that the statements were made by the deceased under the consciousness of impending death. The court will then analyze whether or not the second element is present. Q: What if the declarant survived? A: Then the declaration is inadmissible. (3) the declaration is offered in a case wherein the subject of inquiry is the declarant’s death. Q: What about those cases of clinically-dead persons? 149

A: The person must die. In dying declaration, the declarant must die because the said evidence is offered only in case where his death is the subject of inquiry. So, if the declarant lives, then there is no evidence. Therefore, there is no dying declaration in the following crimes: 1. attempted homicide, murder or parricide; 2. frustrated homicide, murder or parricide. Dying declaration is applicable only in cases of CONSUMMATED homicide, murder or parricide. It is applicable also in civil cases or in civil actions for damages arising from a crime where the family of the deceased has reserved the right to file a separate civil action against the accused. In the latter case, the issue is: whether or not the defendant (accused) was responsible for the death of a plaintiff’s relative. Q: What if the victim lapses into coma? The victim said: “I think I am going to die.” And then he goes into a coma. A: It is clear that the dying man must die before his statement may be offered in court as a dying declaration. TAKE NOTE: The statement of a person who did not die, although he believed at that moment that he would die, is NOT ADMISSIBLE AS A DYING DECLARATION. PEOPLE vs. DE JOYA 203 SCRA 343 Facts: In the afternoon of January 31, 1978, the 88-year old victim, Eulalia Diamse, was alone in her house watching television when Alvin, grandson of Diamse (victim) went home. He found his grandmother drenched in her own blood. He then held her hands and asked her: “Apo, apo, what happened?” Diamse answered: “Si Paqui...”, let go of Alvin’s hands and passed away. The trial court relied heavily upon such dying declaration and made it the basis in convicting the accused, de Joya, with the penalty of life imprisonment. De Joya appealed the decision of the RTC. Issue: whether or not the last statement of Diamse can be considered a complete and proper dying declaration. Holding: The dying declaration of Diamse was incomplete and, as such, cannot be considered as a dying declaration. It has been held that a dying declaration, in order to be admissible, must be complete in itself. to be complete in itself does not mean that the declarant must recite everything that 150

constituted the res gestae of the subject of his statement, but that his statement of any given fact should be full expression of all that he intended to say as conveying his meaning in respect of such fact. It is clear to the Court that the dying declaration of the deceased victim here was incomplete. In other words, the deceased was cut off by death before she could convey a complete or sensible communication to Alvin. The trial court simply answered that by uttering the words, “Si Paqui...”, the deceased had intended to name the person who had thrust some sharp instrument through-and-through her neck just below her ears. But Diamse herself did not say so and the Court cannot speculate on what the rest of her communication might have been, had death not interrupted her. Justice Feliciano’s concurring opinion Diamse’s dying statement does not qualify as a dying declaration because the two words: “Si Paqui...” do not by themselves constitute a sensible sentence. Those two words may be intended to designate either: (1) a subject of a sentence; or (2) the object of a verb. If they have intended to designate a subject of a sentence, it must be noted that no predicate was uttered by the deceased. It would be different if the deceased uttered, “Si Paqui ang sumaksak sa akin.” On the other hand, if the words were designed to be the object of a verb, it must be noted that no verb was used. The phrase “Si Paqui...” should have been completed and must be related to the question asked by Alvin: Lola, what happened to you? -- not Lola, who did this to you? Although the statement must not recite everything, it must be a full expression of all that he intended to say as conveying its meaning with respect to such fact. Wigmore calls this the DOCTRINE OF COMPLETENESS. In other words, the Supreme Court says that the statement (dying declaration) need not be long or short, but it must be sensible and complete. Again, any statement made by a dying person is a dying statement but is not necessarily a dying declaration. For the statement to be a dying declaration, the requisites must be complied with. What the law guarantees is merely the admissibility of a dying declaration as an exception to the hearsay rule. The law does not guarantee that the court will believe it because, once again, admissibility is different from credibility. In one case, the Supreme Court discussed the topic of weight in determining whether or not a dying declaration should be believed.

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QUESTION: What are the factors to be considered in determining the credibility of a dying declaration? (1) trustworthiness of the reporter or witness, or person to whom the declarant was talking (for all you know, what the reporter said in court may be different from what the declarant really said); (2) the capacity of the declarant at that time to actually remember the past; (3) his disposition to remember what he remembers; (4) such attendant circumstances as that the declaration was a result of questions propounded to him in the presence of the police or his friends (who were present when the declaration was made by the victim; what were the questions asked of him; is it possible that the victim did not even understand the questions); (5) the lack of belief of the declarant in a future life, rewards or punishment (a dying declaration is admissible on the presumption that no man will lie because he believes in the after life). Q: Suppose the defense prove the declarant was an atheist, does not believe in a second life, God, soul, future reward or punishment, etc., would this affect the weight of his declaration? A: The credibility of the declarant might be affected. The presumption that he will not lie will be weakened because the above circumstances show his background. The fact of the dying declaration is contrary to the facts satisfactorily proven by other evidence. EXAMPLE: A dying person points to a certain person as his assailant, but a hundred witnesses would testify that another person is the assailant. Then the credibility of the dying person is weakened. The dying person might have lied, and thus his credibility would be challenged. Or, the dying declaration might have been influenced by the passion of anger, vengeance, or jealousy. Therefore, the presumption that the dying person is telling the truth is rebutted. Another example which really happened in Magsaysay Park, Davao City: A man was stabbed. People gathered around the victim. The victim then points to one of the people gathered around him as his assailant. The person pinpointed by the victim was arrested by the police and was questioned as to whether or not he is the one who stabbed the victim. He said no, and many people testified that he really is not the assailant. Actually, the victim pointed to him merely because he mistook him for the assailant who was wearing the same color of shirt. Therefore, we cannot really conclude that everything a dying person says is true. Although he may not have intended to lie, he might have misapprehended the facts. A dying declaration takes the place of the declarant as if such person made the declaration himself on the witness stand, as if he were alive. If it can be proven that the testimony of the declarant is untrue, then it can be 152

inferred that the dying declaration made by the declarant (now dead) is also untrue. Q: As a general rule, a dying declaration is used against the accused. Suppose the dying declaration is favorable to the accused, as in the case where a person was stabbed, he stated that the accused is not the person who stabbed him. Can this declaration be used as evidence to prove the accused’s innocence? A: Yes, the accused can use the declaration as evidence. The accused is being prosecuted in a case where the victim’s death is the subject of inquiry. The statement had something to do with the circumstances of the victim’s impending death. Therefore, if a dying declaration can be used against the accused, it can also be used to prove the innocence of the accused. So, there is no reason why a dying declaration cannot be used by the accused in his favor. Such declaration is admissible for this purpose. Q: Can the credibility of a dying declaration be impeached? A: Yes, because what is guaranteed by the law is only the admissibility of the declaration as evidence. Q: Is there a particular form prescribed by law for a dying declaration? A: None. There are many forms of a dying declaration. One type is written, as when the policeman writes down what the dying person has just declared and thereafter asks the dying person to affix his signature over the same. This may happen when there is enough time for the declaration to be written down and signed by the dying person himself. However, this will not apply to a case where there is no sufficient time for the declaration to be written down and signed by the declarant. The above question was actually asked in the Bar Examination before. The question asked for the preparation of a dying declaration sufficient in form and substance under the law, sort of a question in Legal Forms. Most of the examinees prepared a dying declaration in the form of an affidavit. But the answer is that there is no particular form for a dying declaration. It could be oral, written, signed or unsigned. As a matter of fact, the pressing of one’s hand once or twice signifying a yes or no is admissible in evidence if such testimony is offered by the policeman who asked the declarant the questions. In an American case, the dying man gave his statements to the policeman, who then prepared a report based on the story. He was able to return to the dying man to confirm the report based on the dying man’s statements. When he was brought to the hospital, the dying man was also able to talk to the surgeon about the circumstances of his impending death. So, there are 2 declarations made by the dying man -- the declaration given to the policeman and the other given to the surgeon. During the trial, while the policeman was testifying, the other party objected citing the Best Evidence Rule. 153

The US Supreme Court rules that the Best Evidence Rule does not apply to a dying declaration. One cannot say by the contents of a writing which is the subject or the predicate because there is no particular for a dying declaration. The Best Evidence Rule covers those which the law prescribes to be in written form. The dying declaration is not even required to be in or follow any particular form. Thus, the Best Evidence Rule does not apply to a statement which, in the first place, is not covered by any particular form. The best evidence rule is applicable in the sense that the narration reduced into writing and signed by the declarant is the best evidence that could be presented in court. the written form is more reliable. But there is no rule prohibiting the presentation of testimony in lieu of the written declaration. PEOPLE vs. NABOR 185 SCRA 615 Facts: Harry Nicanor and Jean Tandoc, among others, were ambushed supposedly by the group of Nabor. Nicanor and Tandoc died of gunshot wounds. The prosecution for its evidence presented the dying declarations of Nicanor and Tandoc, coupled with the testimony of an eyewitness. On the other hand, the defense presented an alibi along with the dying declarations of the deceased wherein they stated that they failed to recognize their assailants. Nicanor’s dying declaration, as presented by the prosecution, was made before a certain Patrolman Paragos who admitted that he had translated it from Ilocano into English before two witnesses. The victim affixed his right thumbmark on the said ante-mortem statement. The one presented by the defense, however, was taken by T/Sgt. Acerit, composed of three pages and was signed by Nicanor. The trial court gave more weight upon the dying declaration presented by the prosecution, stating, among others, that: 1. it found unbelievable Nicanor’s statements in the defense’s dying declaration, Nicanor being in a very serious condition; and, 2. it found it odd that Nicanor was able to sign despite such condition. Issue: whether or not the lower court committed reversible error in giving more weight to the dying declaration of Nicanor, coupled with the testimony of an eyewitness presented by the

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prosecution, rather than the dying declaration and alibi presented by the defense. Holding: Due respect must be accorded to the trial court’s findings as between the two conflicting ante-mortem statements -- that which the prosecution had presented is more credible, in consonance with the oft-repeated rule that credibility of witnesses is an issue better addressed to the trial court for the conclusion reached by the trial court on the basis of its own assessment, are generally not disturbed on appeal in the absence of grave abuse of discretion on the part of the trial judge who has the advantage of actually examining both documentary and testimonial evidence, including the demeanor of the witnesses as they presented the same. Under Rule 130, Section 37, a dying declaration to be admissible must have the following requisites: (1) the declarant’s statement must be made under the consciousness of an impending death; (2) the declaration must refer to the cause and surrounding circumstances of the declarant’s death; (3) the declarant’s death is the subject of inquiry in the case wherein the declarant’s statement is sought to be admitted; (4) the declarant was a competent witness. For an ante-mortem statement to be admissible as an exception to the hearsay rule, it is enough that the deceased uttered the said statement while suffering from serious wounds which would justify the conclusion that the declarant was conscious of his impending death. 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. A declaration against interest is admissible against the delarant; provided, that the person who made the declaration is already DECEASED, or unable to testify. Unable to testify means that the declarant cannot be found; he may be just around, but nobody knows where he is  perhaps, he has already left for abroad, or is sick (in coma) and can no longer talk. He cannot be brought to testify. PRINCIPLE: A person may be believed if he says something against his own interest; not if he says something that is in his favor.

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EXAMPLE: When the declarant is already dead, another person testifies. What he says would be hearsay. Even if what the person relates in court is exactly what the declarant said, his testimony would still be hearsay. But the declarant said something which is against his own interest. This is similar to the rule on admission(recall Section 26 -- the act, declaration or omission of a party as to a relevant fact nay be evidence against him.) ILLUSTRATION: The following is an example of the application of declaration against interest -- any interest such as, moral, financial, personal, etc. A  owner of the building X  burned B  accused of arson W 

declarant witness in court

A accused B of burning. According to A, B burned his bodega. X had a conversation with W. X: I pity B. W: Why would you pity B? X: Because he is being accused by A of burning his (A’s) house. Actually B does not have anything to do with it. I was the one who did it. Then afterwards, X died. Practically, X here stated something against his own interest. Subsequently, W had a conversation with B. W: No, you did not burn the building of A. X did it. B: Why do you know that? W: That is what X told me. He said he was responsible for burning the building of A. B: Then, could you be my witness during the trial? So, during the trial, the defense of B is denial. B claims that it was not he who burned the building of A, but somebody else. Then W testified. DEFENSE COUNSEL: Do you know anything about the burning of the building owned by A? W: Yes. DEFENSE COUNSEL: What did X say? W: 156

According to X, he (X) was the one who burned the building of A. DEFENSE COUNSEL: Where is X now? W: He is already dead. Q: Is the testimony presented by W to prove that X is the one who burned the building of A, as stated by X himself, admissible in the case filed by A against B? A: Yes. It is a declaration made by X against his own interest. The declaration made by a person deceased (declarant) against his own interest, if the fact asserted in the declaration was, at the time it was made, so far contrary to declarant’s own interest x x x is an exception to the hearsay rule. Q: What are the requisites in order for a statement to be considered a declaration against interest? A: The following are the requisites: (1) the declaration is against the declarant’s own interest; (2) the interest declared against is actual -- real and obvious, and the declarant has competent knowledge of the matters asserted in his declaration; and, (3) the declarant is already dead or unable to testify. Q: What is the philosophy behind the testimony’s admissibility? A: The same philosophy given in Dying Declaration: on the ground of Necessity and Trustworthiness. Necessity because the declarant is already dead. He cannot anymore be called to the witness stand. Trustworthiness, because it is against the declarant’s own interest. Therefore, he guarantees it. A man is believable when he says something against himself. But his self-serving statements are not believable. Q: Distinguish Declaration Against the Declarant’s Interest (sec. 38) and the Law on Admission (sec. 26)? A: ADMISSION not necessarily against the interest of the admitter receivable even if the admitter is alive

DECLARATION AGAINST INTEREST must be against the interest of the declarant declarant must be dead, or least unable to testify, for his declaration to be receivable

receivable only against the receivable only against third person admitter and those identified with him in legal interest

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ILLUSTRATION: The admission is receivable only against the admitter and those identified with him in legal interest: It is admissible only against the admitter because of the Res Inter Alios Acta Rule -- the rights of a party cannot be prejudiced by an act, declaration or omission by another. “x x x all those identified with him in legal interest x x x” Like what? Agency, Partnership, conspiracy, joint interest, and privity. So if you are not part of any of those, you apply the general rule. An admission of A is not evidence against B. By virtue of the last portion of Section 38, evidence may be used not only against the declarant himself, but even against third persons -- which is not so in admissions. EXAMPLE: A declaration is made by X, who is now deceased, wherein he says that B is innocent; that he did not burn the building; that it was he (X) who burned the building. In effect, the declaration is being used against the claim of A, to defeat the claim of A against B. A insists that for him, it was B who burned the building. According to A: “Res Inter Alios Acta. What you said does not bind me. I am not bound; B is not bound. the agent is not bound. That is an admission; that is a declaration against interest.” But the law says it is admissible against third persons. Q: Is the Dead Man’s Statute applicable in this case? A: No. The Dead Man’s Statute pertains to a claim being made by a party against the estate of the deceased through an administrator. Here (Section 38), the declaration is being used to prove that he is the person who committed the crime, but it is being used by another to defend himself. In effect, the narration is being used to defend one party against another party’s claim. Q: Can the admission of a party be considered as an exception to the hearsay rule? A: No. In admission, the party is alive; in hearsay, usually the party would be dead. In admission, what a party said is now being used against him in order to bind him. But in hearsay, the declarant is already dead. Another: An admission could be in favor of or against you. In declaration against interest, the admission must always be against you. Plus the fact that an admission cannot be used against third persons, unless the case falls under any of the exceptions. FUENTES vs. CA 253 SCRA 430 Facts: In a benefit dance on Agusan del Sur, Julieto Malaspina was stabbed by petitioner, Alejandro Fuentes, Jr. Petitioner claims, on the other hand, that it was his cousin, Zoilo Fuentes, alias “Jonie”, who knifed Malaspina, as Jonie admitted spontaneously that he stabbed Malaspina because after the boxing match before the latter untied his gloves and punched him. 158

Petitioner would make much of the alleged confession of Jonie since, as he contends, it is a declaration against penal interest and therefore an exception to the hearsay rule. Issue: whether or not the admission is admissible in evidence. Holding: Such declaration is inadmissible. One striking feature that militates against the acceptance of such a statement is its patent untrustworthiness. Zoilo who is related to accused had every motive to prevaricate. Let us assume that the trial court admitted the statement of Zoilo and on that basis acquitted the accused. Let us assume further that Zoilo was subsequently captured and upon being confronted with his admission of guilt readily repudiated the same. There is nothing, absolutely nothing, that can bind Zoilo legally to that statement. Such, then according to Wigmore, would be shocking to the sense of justice. But more importantly, the far weightier reason why the admission against penal interest cannot be accepted in the instant case is that the declarant is not unable to testify. There is no showing that Zoilo is either dead, mentally incapacitated or physically incompetent which Sec. 38 obviously contemplates. His mere absence from the jurisdiction does not make him ipso facto unavailable under this rule. For it is incumbent upon the defense to produce each and every piece of evidence that can break the prosecution and assure the acquittal of the accused. Other than the gratuitous statements of accused-appellant and his uncle to the effect that Zoilo admitted having killed Malaspina, the records show that the defense did not exert any serious effort to produce Zoilo as a witness. Lest we be misunderstood, the Court is always for the admission of evidence that would let an innocent declaration of guilt by the real culprit. But this can be open to abuse, as when the extrajudicial statement is not even authenticated thus increasing the probability of its fabrication; it is made to persons who have every reason to lie and falsify; and it is not altogether clear that the declarant himself is unable to testify. SECTION 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 facts occurred, and the

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names of the relatives. It embraces also facts of family history intimately connected with pedigree.

Q: What is “pedigree”? A: It pertains to one’s background -- who your father is, your grandfather, relationship, family genealogy, when your father was born, events in your family, marriage, death, etc. In the language of an American author, “pedigree” is the history of family descent which is transmitted from one generation to another by both oral and written declarations and by tradition. ILLUSTRATION: B1 is the brother of B2 | | | .. .. .. .. ..X (illegitimate child of B2) W 

witness

Before B1 died, he had a conversation with W. B1 said to W: “You know my playboy brother, B2? X is his illegitimate child. Later on, B2 dies, and there is a question of inheritance. According to the family of B2, X is a stranger. X claims to be the son of B2. To prove this, X presents W: W says, “X is the son of B2.” How did he know that? W: “B1 told me.” Who is B1? W: “B1 is the brother of B2” Q: Is the testimony of W admissible? A: Yes, because it is an act or declaration about pedigree made by someone who is already deceased. The statement was made long before the controversy, not before it. And the relationship between the two persons (B1 and B2) is shown by evidence other than by such act or declaration. There must really be proof that B1 and B2 are brothers. Q: What are the requisites in the above case? (1) the declarant is related to the person whose pedigree is in question; (2) such relationship is shown by evidence other than by such act or declaration; (3) the act or declaration was made prior to the controversy (ante litem motam); and, (4) the declarant is dead or unable to testify. Q: What is the justification for this rule? Why the law does allow this? A: NECESSITY. Because the facts about pedigree are usually those which occurred long before the trial and known to only a few persons. Meaning, family history is limited to only some persons. One does 160

not usually bother to research on the family of other persons. Also, the sources of such information are very few. B:TRUSTWORTHINESS. Because those facts are matters which members of a family are presumed to be interested in, in ascertaining the truth. There is a presumption that members of a family will make a research on their own pedigree. Q: Up to what civil degree in relationship is covered by this rule? A: There is no limit, but credibility will be affected the more distant the relation of the witness is to the deceased. SECTION 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. There is a similarity between Section 39 and 40: The testimony is limited only to pedigree of an individual. What is the difference? In Section 39, the declarant is already dead. That is the requirement. But in Section 40, the declarant is not deceased. As a matter of fact, it is the declarant himself who is talking about his pedigree, or the pedigree of another person in the witness stand. Q: Why would this be considered hearsay when the witness himself is on the witness stand? The witness is merely quoting the declarant, B. If B himself is on the witness stand, how can this be hearsay? A: Many things that one knows about himself are actually hearsay. They are usually merely passed on to him by his parents. For example, when your parents were married. It is not possible that you were actually there (unless they have been living together for 50 years without the benefit of marriage, and they decide to finally get married now...) Even one’s age -- how can one justify his own age when the same can be attacked as hearsay? It is hearsay because one actually has no personal knowledge of the actual circumstances of his birth. One cannot actually remember his birth. But many things that we know are based on reputation and family tradition. Q: What are the requisites in this Section? (1) the reputation or tradition is one existing in the family of the person whose pedigree is in question;

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(2) the reputation or tradition was formed before the controversy (ante lite motam); (3) the witness testifying to the reputation of a person is a member of the family. Evidence on pedigree is not limited to oral testimony in court. It applies also to documentary evidence. EXAMPLE: entries in family bibles or other family books or charts, engravings on rings, family portraits, and the like -- may be received in evidence as to pedigree. A family bible is handed down from generation to generation. There may be some entries or charts there -- that so and so is the wife of so and so, and that these are their children... These may be written there. So, these may be admitted in evidence to prove genealogy; this is considered as another exception. Sometimes, when you wish to prove that a person is a family member, you look at the family portrait. A person will not be there unless he is a member of that family. Definitely, they would not allow anybody not related to them (e.g., houseboy) to pose with them. So, all the above examples are evidence of pedigree although they are hearsay. In the phrase “x x x family portraits and the like x x x “ a good example, based on American jurisprudence, would be monuments or tombstones. Or even obituaries -- that so and so died on this date; the following are the bereaved... That is allowed. That is still evidence of pedigree. A person’s name will not appear on the obituary notice unless he is really a relative of the deceased person. HISTORY: There was a case before, here in Davao, where the relationship between the defendant and the plaintiff was established through the epitaph. There were a brother and a sister who were Chinese. Both were born in China but were brought to the Philippines by their parents when they were still very young. Now, based on Chinese tradition, only the male inherits. The female child does not inherit, but all her needs must be cared for and supplied by her brother. So, when their father died, the brother inherited everything. One day, the child of the sister fell ill, and so she asked her brother to help her out with the medical expenses. The brother refused to help the sister. When the sister finally became angry, she decided to claim her share of the inheritance. Under Philippine laws, the sister is supposed to get an equal share as her brother’s. Thus, they were each supposed to receive half of the inheritance.

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The brother’s defense was that the woman was actually not his sister. So, there was a denial of the relationship between them. The trouble here, according to the lawyer, was that they could not secure any birth certificate, because both were born in China. And they did not have any known relatives in Davao. So, the counsel of the sister had to prove that she is really the daughter of the deceased -- but how in the absence of any document? Until somebody tipped the sister’s lawyer. Examine the tombstone of the parents’ graves. When they went to see the epitaph, everything was written in Chinese characters -- and there they found it: “ x x x survived by the following x x “ The sister was mentioned there as one of the children. Therefore, in this case, the epitaph was used in order to prove pedigree. SECTION 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. EXAMPLE: Reputation in the community. You go to a certain barrio, or town, and you ask the people there: Where is the next town? They answer that you would know you are already in the next town when you see a balete tree. How did they know that? Because that is what everybody in their town is saying. Since they were still children; even when their parents were still children, and their parents’ parents were still children... But if you ask them they got this information -- they do not know except that this was what their grandparents told them. Q: Is the above admissible to prove the truth? A: Yes -- and most of all as evidence of common reputation. It is hearsay because everybody just believes in the story without being able to explain the source of the information. Take note that evidence of common reputation is not confined to oral testimony by a resident of the community. The law says that monuments or inscriptions in public places may be received as evidence of common reputation. EXAMPLE: We accept the fact that the Rizal Monument at the Luneta Park is the spot where Dr. Jose Rizal was executed. It is stated there in the monument that: On this spot and on this date Jose Rizal was executed. Is that allowed? No, because that is hearsay. There must be a person presented who actually was present when Rizal was being executed. But the problem is, we could never find such a person anymore. That even happened such a long time ago already. In the United States, a small street is the place where Thomas Jefferson read the American Declaration of Independence. This street is now know as the Wall Street, which is now being referred to as the financial 163

center of the world. But here is located a marker which reads that such is the place where the Declaration of Independence was read. That was over 200 years ago. Obviously, there is no more eyewitness alive to corroborate the story of that even. Therefore, the markers and the monuments should be sufficient to prove events of common knowledge. Q: What are the justification for this? A: We go back to necessity and trustworthiness. 1. NECESSITY. because the fact to be proved is of too ancient a date such that eyewitnesses are no longer available. We are trying to prove something which started over 30 years ago, and it is very difficult to look for eyewitnesses who really know the story. 2. TRUSTWORTHINESS. because if the reputation has existed for so long a time, there must be some truth to it. It must be true, because if it were otherwise, it would not have lasted. People will somehow disprove it if it were not really true. Q: What does “common” in this Section mean? A: By “common”, the Supreme Court said, it is of general or undivided reputation in the community. Unanimity is not required. For as long as there is a majority consensus in the community, that is enough. There might be one in one million who refuses to believe, but this does not mean to say that there is no common reputation. Q: What is meant by “interest”? A: “Interest” means a pecuniary interest, or some interest by which legal rights or liabilities of a community are affected. And when one speaks of public interest, it means that all the inhabitants of a country have an interest. General interest means the interest of an entire particular community. That is why by proving the boundaries of a private property by common reputation IS NOT a matter of interest of the community, but of only a particular landowner; EXCEPT, if that private property is also affecting the whole community. Q: What are the requisites in this Section? (1) the reputation refers to a matter of public or general interest (i.e., it must be of ancient reputation); (2) the reputation was formed ante litem motam; and, (3) the reputation is one formed in the community. Q: What else may be proved by common reputation? A: Aside from facts of public or general interest more than 30 years old, the following may be proved by common reputation: 164

(1) matters respecting facts of public or general interest; (2) matters respecting marriage; (3) matters respecting moral character. BAR PROBLEM: You go to a small town, and you meet there a long-time resident. He tells you that when he was in his fourth year, his grandparents were already there in the town. That is why his family knows practically all the families in that town. Then you ask him abort the family of Mr. X. He answers that he knows the family of X -- his parents, grandparents, etc. He knows practically everything about everybody in that town because of its small size. So, what the resident is trying to prove here is family genealogy through common reputation. QUESTION: Is the testimony of the resident admissible as an exception to the hearsay rule? ANSWER: No, because matters of pedigree cannot be proved by common reputation. they can only be proven by family reputation. The person testifying must be a member of the family. A stranger, although he may know your family very well, is still talking of something that is considered hearsay. So, again, facts of family history are not provable by common reputation (Section 41), but should be proved under the provisions of the previous Section. For pedigree to be proven, the person testifying must be a member of the family, and not just a member of the community. exception: the only matter of pedigree which may be proved by common reputation is MARRIAGE. EXAMPLE: Consider this conversation: RALPH: Are the parents of Vilma legally married? GINA: Yes. RALPH: Why do you know so? Were you present when they were married? GINA: No, but everybody here says they are legally married. Actually, the community-member is talking about hearsay. But that is allowed. The marriage of somebody may be proved through common reputation. But all the rest of the matters concerning pedigree CANNOT BE PROVED by common reputation. The last item which is provable by common reputation is MORAL CHARACTER. EXAMPLE: BENNY: Do you know Mac? JUNE: 165

Yes, he is from this town. His family grew up here. BENNY: What can you say about Mac? JUNE: Mac is a good person. BENNY: Why do you say that? JUNE: Well, because that is what everybody here says. BUT, for example: BENNY: Do you know Maggie? APRIL: Yes, she is from this town. she is a bad person. BENNY: What did she did to you? What makes you say that she is a bad person. APRIL: She did not do anything. but everybody here says that she is a bad person. therefore, she is not a good person. In other words, her bad character may be proved. How? Through the reputation that he formed in the community. That is hearsay, but under the law that is allowed. So, the moral character of a person can be proved by evidence of common reputation. Q: What are the requisites? 1. it was formed in the place where the person in question is best known; 2. it was formed ante litem motam. Q: Why is the above admissible in evidence? A: According to American jurisprudence: experience has shown that the good or bad character of a person is accurately determined by the reputation he has established in his community. The best judge of your character is your community, where everybody knows you. Suppose, Lauro went to a town and asked about Maria: LAURO: Do you know Maria? ROMEO: Well, she is from this town. She grew up here; her family is from this town. LAURO: What can you say about Maria? Is she a good or bad woman? ROMEO: Nothing. There is nothing that I can say about her. Q: What kind of a statement is that? Is that evidence of a good or bad reputation? 166

A: If you have nothing to say about somebody, that is evidence of his good character. According to American ruling, that is evidence of a good character because a person’s character is not talked about if there is no fault to be found in him. SECTION 42. Part of the res gestae.  Statements made by a person while a startling occurrence is taking place or immediately prior or subsequent thereto with respect to the circumstances thereof, may be given in evidence as part of the 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. This is the sixth exception to the Hearsay Rule. Among the eleven exceptions, the most important rules are: dying declaration (in the Bar Exams, most of the questions in Evidence that are asked are on Dying Declaration) Res Gestae Rule. Res Gestae is a Latin term, literally translated as “a thing done”; “an occurrence”; “a transaction” -- something that happens, an event. According to the Ballatine’s Law Dictionary, “res gestae” refers to matter incidental to the main fact and explanatory of it, including acts and words which are so closely connected therewith as to constitute a part of the transaction, and without a knowledge of which, the main fact might not be properly understood. Q: When is a statement part of the res gestae? A: There are two types of res gestae statements: statements made by a person while a startling occurrence is taking place, or immediately prior, or subsequent thereto with respect to circumstances thereof, may be given in evidence as part of the res gestae. This is known as SPONTANEOUS EXCLAMATIONS. These are statements made instinctively. statements accompanying an equivocal act material to the issue, and giving it legal significance, may be received as part of the res gestae. This is popularly known as VERBAL ACTS. The first type: There is spontaneous exclamation when a statement is made instinctively -- as in, when you are surprised. You are taken by surprise because there is a startling occurrence that happened. With that startling occurrence, you uttered words by instinct. You uttered those words JUST IMMEDIATELY BEFORE the startling experience, or immediately AFTER IT. EXAMPLE: In the case of Pp. vs. Anemias, the victim was stabbed. He started shouting for help. A person came to him and the victim told him that it was the accused who stabbed him. The Prosecution now presents as its

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witness the person who came to the victim when the latter was shouting for help. The witness testifies as to what the victim said. Q: Is the testimony of the above witness admissible, because actually that is hearsay? A: Yes, the statement was made by the victim instinctively. It was a SPONTANEOUS EXCLAMATION which was made after the stabbing, which is the startling occurrence. In the case of Pp. vs. Avila, the statement was made by a shooting victim to persons who answered his cries for help. The statement that the accused shot him was considered admissible as part of the res gestae. In the case of Pp. vs. Gozon, the witness who discovered the crime pursued the accused immediately thereafter, and pointed to the accused as the perpetrator of the crime. In the case of Pp. vs. Alfaro, the declaration made by a person immediately after being shot; “That is the man who shot me!” was considered as a res gestae statement. So people who overheard it can testify. Q: What is the difference between a statement which forms part of the res gestae, and a dying declaration? A: There is a very close similarity between them. However, in a dying declaration, there are some requisites which are not present in res gestae statements. Like, for example, that the statement was made under the consciousness of an impending death. That is required in a dying declaration. In res gestae statements, that is not required. Another example: In dying declaration, the victim or declarant must die. He believed that he would be dying soon, and he did die. But if he believed that he would survived when he made the statement, then that si not a dying declaration. WITNESS: Who shot you? VICTIM: X shot me. WITNESS: We will bring you to the hospital. VICTIM: No... I am all right. (but later on, the victim died) Q: Would the testimony of the above witness be admissible in evidence as a dying declaration? A: No, it is not a dying declaration. The declarant himself thought that he would still survive. but if such statement that X shot the victim was made by him (victim) and he claimed that he was dying, but one or five seconds 168

after he was shot, he was promptly brought to the hospital and was thus saved, the statement may be admitted as a res gestae statement. So, here the case would be frustrated, not consummated. Also the statement cannot be considered as a dying declaration because the declarant’s death is not the subject of inquiry. Q: Distinguish a dying declaration from a res gestae statement. A: A statement could either be one of the two, one or the other, or both. A statement may be inadmissible as a dying declaration for the reason that it does not meet the requisites under Section 37, however, it may still qualify as a statement which forms part of the res gestae. Q: Suppose a person dies after he makes a statement. This may be offered as a dying declaration, or as a res gestae statement. But this is dangerous. If you offer this as a dying declaration, that mat be possible. But what if you are not certain as to one of the requisites, what should you do? A: You should offer it as a dying declaration. OR, in the alternative, as a statement which forms part of the res gestae. MULTIPLE ADMISSIBILITY. You offer it under both conditions, so that if it is declared inadmissible as a dying declaration, it can still be admitted as a statement which forms part of the res gestae. PRINCIPLE: According to the Supreme Court, a statement which is admissible as part of the res gestae is a statement made by the person while a startling occurrence is taking place. Therefore, the person who heard it may testify about the statement as an exception to the hearsay rule. These statements are admissible because they were made instinctively -- immediately before, during, or after. When a statement is made by instinct, the theory is that it reflects what happened when the human mind has no time yet to contrive or invent things. Q: What does startling occurrence mean? A: It is anything under the sun. In a Philippine case, there was an accident which happened, for example, “today.” On the following day, the victim executed an affidavit, testifying as to what happened “last night”. Then, the victim died. QUESTION: Is the statement made by the deceased on the following day in his affidavit admissible? ANSWER: Not, anymore, because it was not made “immediately thereafter”. Q: What are the justifications for this Rules? A: Again, necessity and trustworthiness. NECESSITY, because such natural and spontaneous utterances are more convincing than the testimony of some person on the witness stand. TRUSTWORTHINESS, because the statements are made instinctively -- by instinct. The mind has more time to contrive. If by instinct, it must be true. There was no lapse of time to invent some other story. To borrow the language of the Supreme Court in the case of Pp. vs. Baguio (supra), Res gestae statements are the reflex product of 169

immediate, sensual impressions, unaided by the retrospective mental action x x x pure emanations of the occurrence itself. It is the event speaking through the witness, not the witness speaking through the event. BAR PROBLEM: The accused, X, invited a married woman to a fiesta. While in the fiesta, the accused forced to drag the woman to an isolated portion of the field where she was abused. There she spend the whole night crying. The following day, she went home. When she reached her home, her daughter asked her what happened to her. The woman answered: “I was raped last night by X.” During the trial, the daughter testified about what her mother told her. QUESTION: Is the testimony of the daughter admissible? -- Meaning, does it fall under any of the exceptions to the hearsay rule? ANSWER: (the examiner was pointing to res gestae obviously) No. It was not made immediately thereafter. The law says that it must be made immediately thereafter. So, the testimony is hearsay; it is not admissible because it does not fall under any of the exceptions. Q: What are the requisites for the admissibility of spontaneous exclamations? (1) the principal fact or res gestae is a startling occurrence; (2) the statements were made before the declarant had time to contrive or devise; and, (3) the statements refer to the occurrence in question or to its immediate attending circumstances. The second type: Statements accompany an equivocal act material to the issue and giving it a legal significance, may be received as part of the res gestae. Statements accompanying an equivocal act. Q: What is meant by an equivocal act? A: “Equivocal”, not clear; there is an ambiguity. An act is equivocal when it is susceptible of two or more meanings. ILLUSTRATION: A is seen handing over money to B. That act may be interpreted as: (a) A is handing over money to B as payment for a debt (creditor-debtor relationship); (b) A is handing over money to B, as B’s salary (employer-employee relationship); (c) A is handing over money to B because A is asking B to buy something for him (principal-agent relationship), etc... In other words, one cannot really identify the correct legal transaction by the act alone. However, if the act of giving money is accompanied by some statement on the part of A, that statement might clarify what the transaction is all about. The statement which accompanied the act, which clarifies what the transaction is all about-- gives legal significance to the correct nature of the transaction, is covered by VERBAL ACTS.

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Q: What are the requisites for verbal acts? (1) the res gestae is an equivocal act; (2) the equivocal act must be material to the issue; (3) the statement in question must be necessary for the understanding of the equivocal act; and, (4) the statement must accompany the equivocal act. EXAMPLE: A person is occupying a piece of land. What kind of possession is that? Is that possession as an owner, lessee, tenant, or squatter? Therefore, the mere act of A in possession of the land is susceptible of two or more interpretations. Therefore, any statement made by a person stating the circumstances of his possession may be considered as a statement which forms part of the res gestae. It is considered a statement accompanying an equivocal act which could shed some light on the nature of his possession over the property. Q: Distinguish spontaneous exclamations from verbal acts. A: There are 3 distinctions, to wit: SPONTANEOUS EXCLAMATIONS

VERBAL ACTS

the principal fact is a startling the principal fact is an equivocal act. occurrence the statement may precede, statements must accompany, or succeed the equivocal act startling occurrence

accompany

the

the statements need not statements must explain the equivocal act explain the principal fact, and give it a legal significance. which is startling SECTION 43. Entries in the course of business.  Entries made at, or near the time of the transactions to which they refer, by 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 course of business or duty. This is the seventh exception to the Hearsay Rule. There are some people who, because of the nature of their work, make entries in ledgers, etc. These are part of the regular course of their business. For example, in banks -- ledgers, deposits, withdrawals -everything is kept and recorded by the accountants or bookkeepers.

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Q: Suppose an entry is made in such a kind of book (journals, ledgers, etc.) and there is now a case where it is being proved that there was such a transaction, can such book be presented in order to prove that there really was or there was no such transaction? A: As a general rule, the document or book is hearsay. The person who made the entries must be presented in court so that he may be crossexamined. However, according to the law, when the person who made the entry is unable to testify, then the entries made are admissible in evidence to prove the truth of such entry, without anymore presenting the entrant. This is admissible on the ground that this is an exception to the hearsay rule. Q: What are the requisites in this exception? (1) the entrant made the entry in his professional capacity, or in the performance of his duty; (2) the entry was made in the ordinary course of business or duty; Q: What is meant by ordinary course? A: That what was done is part of a regular system of entries being kept in the establishment. Meaning, it is an entry done everyday, not simply dated. It is part of a pattern of usual activities. (3) the entry was made at or near the time of transaction to which it relates; (4) the entrant was in the position to know the facts stated in the entry; and’ (5) the entrant is dead or unable to testify. Q: What are the justifications? A: NECESSITY (because the entrant is already dead or unable to testify, and no equally satisfactory proof of the entry can be had) and TRUSTWORTHINESS (because a man who makes regular entries for purposes of business or duty usually makes them with accuracy. If businessmen can rely upon the accuracy of the entries, there is no reason why the courts cannot also rely on the accuracy of these entries) In the United states, the following were considered as falling under this: i. records of transfer from slips; ii. invoices and vouchers; iii. index cards; iv. time cards; v. journal; vi. ledger entries; vii. check stubs; viii. book of accounts...

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On the other hand, the following were not considered as falling under this: i. balance sheets; ii. profit & loss statements. The above are also accounting records, but they are not made at or near the time of the transaction. Also matters primarily connected with prosecuting and defending a claim such as Employees’ Accident Report or Police Report. PHILIPPINE AIRLINES vs. RAMOS 207 SCRA 461 Facts: Private respondents, Ramos et al., are officers of the Negro Telephone Company who held confirmed tickets for PAL Flight 264 from Naga City to Manila on September 24, 1985, scheduled to depart for Manila at 4:25 in the afternoon. Among the conditions included in the private respondents’ tickets is the following: CHECK-IN TIME -- Please check in at the Airport Passenger check-in counter at least one hour before PUBLISHED departure time of your flight. We will consider your accommodation forfeited in favor of waitlisted passengers if you fail to check-in at least 30 minutes before published departure. Private respondents’ tickets were canceled and their seats given to chance passengers because they were late for their flight. However, they claim that they went to the check-in counter at least one hour before their published departure time, but that no one was at the counter until 30 minutes before departure. Thus, they seek actual, moral, and exemplary damages, and attorney’s fees for breach of contract of carriage. The check-in clerk wrote on the plaintiffs’ tickets the notation “late” and the time “4:02” which appeared on the upper right-hand of the tickets. These notations were presented by PAL to prove that the private respondents were indeed late for their flight. The trial court found PAL guilty of breach of contract of carriage in bumping-off the court’s decision. Hence, the present petition to the Supreme Court. Issue: (1) whether or not the notations on the tickets are admissible as evidence even without presenting the PAL employee who made them.

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(2) whether or not the hearsay rule may be invoked to deem such evidence as inadmissible in court. Holding: The above evidence is admissible and is not excluded by the Hearsay Rule, as the said notations are entries made in the regular course of business, which the private respondents failed to overcome with substantial and convincing evidence other than their testimonies. Private respondents’ objection that the above document is self-serving, cannot be sustained. The hearsay rule will not apply in this case as statements, acts or conduct accompanying, or so nearly connected with the main transaction as to form part of the res gestae. Petition granted. The questioned decision of the CA is annulled and set aside. Thus, the Supreme Court held that the notations are admissible either under the res gestae, or entries in the course of business. However, so many commentators are attacking the ruling of the Supreme Court in this case. To qualify as an entry made in the course of business, is it not that it must be a REGULAR entry in the course of business? Every time a passenger checks-in at the airport, is it a regular duty of the clerk in the check-in counter to place on the ticket the time of the check-in? No, it is not. But this was done for the private respondents in the above case. Since that was so, is that part of the course of business? That element is missing. Thus, it could not be said that the notations are part of the business to evince regularity. There should be a duly-lined or provided space on the passengers’ tickets, which should be ordinarily filled out upon check-in by the passenger. Therefore, in order to be an regular entry, every ticket must have a regular line. In the case, therefore, the notation is an ISOLATED entry, not a regular entry in the course of business. As to being part of the res gestae, the notation must either be a spontaneous exclamation, or a verbal act. A late arrival at the airport is not a startling occurrence. This happens everyday. If it should be a verbal act, it should have been an oral statement or utterance which accompanied a certain act or conduct. A verbal act suggests an oral utterance and does not include writing or written notations. Thus, it would not qualify under the res gestae also. That is why the Supreme Court ruling in this case is very shaky. SECTION 44. Entries in official records.  Entries in official records made in the performance of his duty by a public officer of the 174

Philippines, or by a person in the performance of a duty specially enjoined by law, are prima facie evidence of the facts therein stated. This is the eight exception to the Hearsay Rule. Section 43 refers to business entries done by private personnel. Section 44 refers to entries in official records by public officers. EXAMPLE: The Register of Deeds is a public officer tasked with the duty, or is enjoined by law to make entries in official books. He records the transactions regarding real property everyday. The Clerk of Court makes entries in the Book of Entry of Judgments rendered by the court. The Sheriff makes entries in logbooks kept in the Sheriff’s office. The Civil Registrar makes entries of records of deaths, births, marriages, etc. The Assessor makes entries about its findings as to the assessed value of land. Take note that these transactions concern public officers. They make entries of documents, notarized in Notarial Books. EXAMPLE: You wish to prove in court that you were born on this particular date. So, you go to the Civil Registrar and get a copy of your birth certificate. The Civil Registrar will give you a CERTIFIED TRUE COPY. So, you offer your certified official true copy in court to prove your background, the circumstances of your birth. Then comes the other party objecting to the admissibility of such documentary evidence on two grounds: (1) that it violates the Best Evidence Rule, because the original is not offered in court; (2) that it violates the Hearsay Rule, because the Civil Registrar should be in court to identify this document in his custody. Are the above objections tenable? ANSWER: Both objections are untenable. As to (1) One of the exceptions to the Best Evidence Rule is when the original is recorded in a public office. A certified true copy is admissible. Therefore, invoking the Best Evidence Rule is wrong. As to (2) The objection is wrong, because when the document is an entry in an official record, the official record or certified true copy is admissible. There is thus no need for the Civil Registrar to testify in court. PEOPLE vs. SAN GABRIEL 253 SCRA 84 Facts: On the evening of November 26, 1989, within the vicinity of Pier 14 at North Harbor, a fistfight ensued between Jamie Tonog on one hand, and the accused Ricardo San Gabriel and a certain “Ramon Doe” on the other. The fight was eventually broken up when onlookers pacified the protagonists. 175

Ricardo and “Ramon” then hastened towards Marcos Road but in no time was back with bladed weapons. They approached Tonog surreptitiously, surrounded him and simultaneously stabbed him in the stomach. Prosecuted for murder, San Gabriel contended that it was a certain Mando who was the real culprit. He leans heavily on the Advanced Information Sheet prepared by Pat. Steve Casimiro, which did not mention him at all and named only “Ramon Doe” as the principal suspect. Issue: whether or not a police blotter is admissible as evidence. Holding: Entries in official records, as in the case of a police blotter, are not only prima facie evidence of the facts therein stated. They are not conclusive. The entry in the police blotter is not necessarily entitled to full credit for it could be incomplete and inaccurate. It is understandable that the testimony during the trial would be more lengthy and detailed than the matters stated in the police blotter. Significantly, the Advance Information Sheet was never formally offered by the defense during the proceedings in the court below. Hence, any reliance by the accused on the document must fail since the court cannot consider any evidence which has not been formally offered. Parenthetically, the Advance Information Sheet was prepared by the police officer only after interviewing Camba, an alleged eyewitness. The accused then could have compelled the attendance of Camba as a witness. The failure to exert the slightest effort to present Camba on the part of the accused should militate against his cause. Entries in official records made in the performance of his duty by a public officer or by a person in the performance of a duty specially enjoined by law are prima facie evidence of the facts therein stated. But to be admissible in evidence three requisites must concur: The entry was made by a police officer or by another person specially enjoined by law to do so; The entry was made by a police officer in the performance of his duties, or by such other person in the performance of a duty specially enjoined by law; and The public officer or other person had sufficient knowledge of the facts by him stated, which must have been acquired by him personally or through official information. The Advance Information Sheet does not constitute an exception to the hearsay rule, hence, inadmissible. The public officer who prepared the document had no sufficient and 176

personal knowledge of the stabbing incident. Any information possessed by him was acquired from Camba which therefore could not be categorized as official information because in order to be classified as such the persons who made the statements not only must have personal knowledge of the facts stated but must have the duty to give such statements for the record. Q: Why are official records admissible? A: On the grounds of necessity and trustworthiness.  NECESSITY. Because the litigation are numberless, in which the testimony of a public official is required. Without this exception, every time a public officer issues a certified true copy, he has to go to court and testify that the original is among his files, that the document is an accurate copy, and that the same bears his signature. If that is necessary, the time will come when public officers cannot anymore report to work because most of their time will be spent in court identifying all the documents that they have issued.  TRUSTWORTHINESS. Official records are trustworthiness because the law reposes a particular confidence in public officials, such that it presumes that they will discharge their duties with fidelity and accuracy. The presumption is, that they will really issue a correct copy. They will not issue a document for which they do not have an original. They are aware that they can be otherwise held liable for falsification. Take note that the law says that the entry is made by a person in the performance of his duty -- public officers, or BY A PERSON IN THE PERFORMANCE OF A DUTY ESPECIALLY ENJOINED BY LAW. An example is where a person is not a public officer, but he makes an entry in the performance of a duty especially enjoined by law, like a priest or minister. They solemnize marriages. They are the ones who report to the Civil Registrar the marriages and supply such office with a record of the marriage they have performed. So, in effect, the entries that appears in the Civil Registry are actually entries made by a priest or minister, which they had reported to the Civil Registrar. The priest or minister considered as made a person especially enjoined by law to make the entry. For example, a birth certificate. You will find a copy of your birth certificate in the City Hall. But where does a birth certificate actually come from? From the hospital. And the person who made an entry is a private physician. So, in effect, private physicians are enjoined by law to make accurate entries and report the same to the Civil Registrar. That is covered by this Section on entries in official records.

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Q: What are the requisites in this Section? 1. the entry was made by a public officer, or a person especially enjoined by law to do so; 2. the entry was made in the performance of a duty, or a duty especially enjoined by law; 3. the public officer or the person who made the entry had sufficient knowledge of the facts by him entered, acquired by him personally or through official information. Q: Suppose one wishes to prove his age, date of birth and identity of his parents, can he present his baptismal certificate in lieu of his birth certificate? A: No, legally, the public document to evidence one’s citizenship, parentage, civil status, date of birth and place of birth is the birth certificate. According to the Supreme Court, a baptismal certificate is admitted even if the birth certificate is the one that is being required. The law says that these documents are prima facie evidence of their contents. Meaning, they will suffice to prove the truth of the entries. But one may prove that they are wrong, because the truth may be rebutted. Q: Suppose a person is mauled. He is a victim of physical injuries. He is examined by a physician who issues a medical certificate. Later on, a case of physical injuries is filed against the accused. During the trial, to prove the injury and the nature of the injuries, the victim presents as evidence the medical certificate. Is the medical certificate admissible in evidence by itself? A: The long-standing doctrine has been NO. This is hearsay. To prove the injuries, the doctor who examined the patient must testify. The doctor must be subjected to cross-examination. So, one of the species of hearsay evidence is that A MEDICAL CERTIFICATE IS NOT ADMISSIBLE. However, the following case provides an exception: PEOPLE vs. LEONES 117 SCRA 382 Facts: Complainant, Irene Dulay, was a salesgirl employed in the store of Mr. & Mrs. Pepito Leones in San Fernando, La Union, where she resided. On April 22, 1973, the complainant, who was having a headache, stayed in her room. Earlier that day, the members of the Leones family, including the accusedappellant, and his sister, Elizabeth, had gone to a nearby beach resort for a picnic. At around past noon, accused-appellant and Elizabeth returned to the house. While they were at home, accusedappellant and Elizabeth entered the room where complainant was lying down, and forced her to take 3 tablets dissolved in a spoon, which according to them, were aspirin. Complainant refused to take the tablets, but were forced into doing so when the accused-appellant held her mouth while Elizabeth pushed 178

down the medicine. Then, accused-appellant and Elizabeth left her room. After a while, complainant felt dizzy. Later the accused-appellant returned to complainant’s room and took off her underwear. Then the accused-appellant went on top of her. The complainant tried to push him away, but she was too weak and dizzy. Thus, accused-appellant succeeded in abusing her. At around 4:30 in the afternoon of the same date, Natividad Leones, stepmother of accused-appellant, found the complainant unconscious near her room without any underwear on. She was then taken to the La Union Provincial Hospital by the driver of the Leones family. When admitted to the hospital at around 6:00 PM, the complainant was semi-conscious, incoherent and hysterical. She refused to talk and be examined by the doctors. She was irritated when approached by a male figure. Complainant was attended to by a government physician who issued a medical certificate with the following findings, among others: healing lacerations of the hymen... smear exam for sperm cell -- NEGATIVE... Accused-appellant denied the charge imputed to him. The defense also objected to the admissibility of the medical certificate as the examining physician who prepared it was not presented in the stand. Therefore, the medical certificate is hearsay; thus, inadmissible. Issue: whether or not the medical certificate is admissible in court without presenting the examining physician who issued the same. Holding: The written entries in the clinical case record showing: the date of complainant’s admission to the hospital, her complaint of vaginal bleeding, and the diagnosis by the physician, are prima facie evidence of the facts stated therein, said entries having been made in official records by a public officer of the Philippines in the performance of his duty especially enjoined by law, which is that of a physician in a government hospital. Very important: The Supreme Court declared that a medical certificate issued by a physician of a government hospital is considered a PUBLIC DOCUMENT. The entries therein are considered entries in official record. They are prima facie evidence of the facts therein stated. Thus, there is NO NEED TO PRESENT THE ISSUING PHYSICIAN -- this case being an exception. The general rule is that the physician must testify.

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The Supreme Court also held that it is permissible for another physician to testify on a medical certificate issued by another physician. The physician who issued the medical certificate is unable to testify because he has left the hospital, or is somewhere else and cannot be found. The other physician will be merely asked to interpret the said medical certificate. Such procedure was allowed by the Supreme Court. The case of Pp. vs. Leones is an exception to the general rule because the physician in this case is a government physician. SECTION 45. Commercial lists and the like.  Evidence of statements of matters of interest to persons engaged in an occupation contained in a list, register, periodical, or other published compilation is admissible as tending to prove the truth of any relevant matter so stated if that compilation is published for use by persons engaged in that occupation and is generally used and relied upon by them therein. EXAMPLE: X is a businessman who subscribes to a business journal. He reads the journal for business use -- data, currency fluctuations, etc. In a certain case, he wishes to prove that the price of copra three years ago was higher than last year’s. As a matter of fact, he wishes to show that the price of copra is going down by such percent every year. So, he presents these facts which he gets from the business journal. So, his evidence is the particular issue or issues of such journal. Q: Is such evidence admissible? A: No, the journal(s) is hearsay, because the person who prepared the data therein, the editor, or publisher, is not presented in court. But under Section 45, the above evidence is admissible because it is a statement of a matter of interest to persons engaged in an occupation obtained in a list of commercial or other published information. However, it is not necessary that the journal or publication be devoted purely to business, or to the particular topic being proven in court. Other examples under this Section are:  business section of the news paper: Everyday the rate of exchange is published there. If you need to prove the dollar rate on a particular day, you can present the newspaper. Again, this is supposed to be hearsay because the editor cannot testify. However, a daily newspaper can be considered as a LIST, REGISTER or OTHER PUBLISHED COMPILATION of business news, rate of exchange or declaration of stocks.  table of logarithms, weights & measures, stock market quotations, standard price lists, encyclopedia, dictionaries, almanacs, journals, medical journals. These are covered by this Section.

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Q: What are the justifications? 1. NECESSITY. According to American jurisprudence, commercial lists are admissible on the ground of necessity. It would be inconvenient to call the persons who prepared the list to testify. They will be inconvenienced. 2. TRUSTWORTHINESS. , because these persons who prepared the list have no motives to falsify. By the long usage of lists in the practical affairs of life, they have come to be accepted as standard and undying authority. Authors of dictionaries, encyclopedia, business journals, etc. have the tendency to be accurate. They have no reason to falsify. Otherwise, if their work is found to be inaccurate, they will be disadvantaged. People will not read and patronize their journals. SECTION 46. Learned treatises.  A published treatise, periodical or pamphlet on a subject of history, law, science or art is admissible as tending to prove the truth of a matter stated therein if the court takes judicial notice, or a witness expert in the subject testifies, that the writer of the statement in the treatise, periodical or pamphlet is recognized in his profession or calling as expert in the subject. Do not confuse this Section with Section 45. Section 45 refers to data. Section 46 refers to books, articles, pamphlets, writings on specialized topics -- for example, those involving history, law, science and the arts. EXAMPLES: A book on neuro-surgery (brain damage) written by an expert neuro-surgeon. A book on fingerprints written by a famous expert. A book on ballistics written by an expert in that field. There are many things that one find in these books. During a trial, X wishes to prove a certain fact on brain damage, or a certain fact in gunshot wounds. To prove his point, he offers in evidence a statement found in the book of a particular author. QUESTION: Is the statement in the book admissible in evidence considering the fact that the author is not in court? ANSWER: Yes, under Section 46, it will qualify as a LEARNED TREATISE. The publication, treatise, periodical or pamphlet is the subject of history, law, science, or art is admissible as tending to prove the truth of a matter as stated therein. Q: What are the justifications? NECESSITY. According to Wigmore, there is necessity because the author is probably not available as a witness. Perhaps the author is already dead. Besides, his work may be based on the studies of others who long existed. This may be considered as the product of an advancing 181

civilization. If the scientist, writer, or expert will be required to testify personally, he will practically be asked to rely also on the works of others who have long existed before him. How could you subpoena his predecessor who may be already dead? TRUSTWORTHINESS. Because the authority has no motives to misrepresent. An author of a book in science has no reason to misrepresent. He will only be condemned by his peers. Q: How do we know that the writer of the treatise is qualified? A: There are two ways, according to Section 46. It is admissible as tending to prove a matter stated therein: (a) if the court takes judicial notice -- meaning, if the court takes judicial notice of the controversial matter; or, (b) if a witness expert on the subject testifies that the writer of the statement in the treatise, periodical, or pamphlet is recognized in his profession or calling or calling as expert on the subject. Either the court takes judicial notice of the qualification of the author. OR, if the court does not take judicial notice, another expert -- a local guy, will testify that this is the author and that such author is really an expert in that field. EXAMPLE: There is a book on brain damage written by an American surgeon. The court says that it does not know the author; it is not convinced that the author is an expert in that field. So, the party presenting the book as evidence asks a doctor in Davao, who is also a neuro-surgeon, to testify: COURT: What can you say about the author? DOCTOR: He is an expert in neuro-surgery. As a matter of fact, his book is the standard textbook being used in the medical school. So, the court has identified the author as qualified. Or, if the court does away with the above procedure, the court may take judicial notice of the expertise of the author. So, the court may or may not take judicial notice. CONCLUSION: This is an example of permissive or discretionary judicial notice as stated in Section 2 of Rule 129. SECTION 47. Testimony or deposition at a former proceeding.  The testimony or deposition of a witness deceased or unable to testify, given in a former case or proceeding, judicial or administrative, involving the same parties and subject matter, may be given in evidence against the adverse party who had the opportunity to cross-examine him. EXAMPLE: In a criminal case against the accused, the offended party reserved his right to file a separate civil action. So, there are two cases arising from the same incident. Practically, the witnesses will be the same. So, the criminal case was tried. The witness for the prosecution testified, 182

was cross-examined, etc. Later on, after several months, the civil case is tried. The same witnesses are subpoenaed to testify for the plaintiff. The problem is that, between the time of the trial for the civil and criminal cases, a witness for the plaintiff died. So the plaintiff loses his witness in the civil case. He turns to the transcript of the witness’ testimony in the criminal case. He wishes to use this transcript in the civil case. QUESTION: Will the transcript be admissible in the civil case, even without presenting the witness himself? ANSWER: Yes, this is classified as a testimony in a former trial. Take note that it is not necessary that what will be offered in evidence is his testimony in court. Even a deposition would suffice. This jibes with the law on depositions -- the deposition of a witness is not admissible in court as a substitute for his oral testimony. It can be used only for impeachment purposes; EXCEPT, when the witness is dead, or outside of the Philippines, etc. where the deposition is admissible to take the place of the witness in the stand. There was no cross-examination in deposition-taking. One’s presence in court may be waived for as long as a person is given the opportunity. But if the witness is still alive, he must testify again. The transcript or stenographic notes in this case cannot take the place of his testimony. The provision provides that he must be deceased or unable to testify. “Unable” does not mean that he is merely busy. Q: What if it was the civil case which came first. The witness, after testifying in such trial, died. Can the transcript of his testimony in the civil case be admissible to take the place of his testimony in the criminal case? A: Yes, the accused may object because under the law, in a criminal case, the accused has the right to confront and cross-examine the witnesses against him. The transcript may be admissible in a civil case. Q: How can a transcript be admissible when it cannot be subjected to cross-examination by the accused? A: Section 1(f) of Rule 115, which is the exception to the right of the accused to personal confrontation, provides the reply: In all criminal prosecutions, the accused shall be entitled: xxx (f) to confront and cross-examine the witnesses against him at the trial. EITHER PARTY MAY UTILIZE AS PART OF ITS EVIDENCE THE TESTIMONY OF A WITNESS who is deceased, out of or cannot with due diligence be found in the Philippines, unavailable or otherwise unable to testify, given in another case or proceeding, judicial or administrative, involving the same parties and subject matter, the adverse party having had the opportunity to cross-examine him; xxx Q: What are the requisites in this Section?

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(a) the testimony was given in a former case or proceeding, judicial or administrative; (b) the former case or proceeding was between the same parties; (c) the former testimony relates to the same subject matter or issues; (d) the adverse party has had opportunity to cross-examine the witness; and, (e) the witness is dead or is unable to testify in the subsequent trial. CONCLUSION: The testimony given in another case is admissible as a witness’ testimony in the present case without violating the hearsay rule. 7. Opinion Rule SECTION 48. General rule.  The opinion of a witness is not admissible; except as indicated in the following sections. The opinion of a witness is not admissible. When a witness testifies, what matters should come out from him? Facts, as he saw them. He should testify on facts which he knows, which he perceived, and which are his personal knowledge. The OPINION of a witness has no relevance to the case. Opinion is purely conjecture, speculation. The opinion of a person is just the same as the opinion of another person. That is why, it has no value. It is the judge who had the right to render an opinion, in his decision -- his opinion on what the truth is. The succeeding two sections may be considered as exceptions to the hearsay rule. In some cases, the opinion of a witness is admissible in evidence to prove the truth, which is supported by his opinion. These exceptions are found in Section 49 and 50. The difference between the two is that Section 49 talks of the opinion of an expert witness; Section 50 is about the opinion of an ordinary witness. SECTION 49. Opinion of an expert witness.  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. ILLUSTRATION: The issue in a case is: “Whose blood is this particular blood sample?” In the preliminary hearing, the blood “expert” testifies and is asked about the probability of the occurrence that the particular blood sample to be the blood of a specific person. Or, in the case of physical injuries, the expert witness is asked what instrument could have caused such an injury. Or, in his opinion as an expert, from what angle the gun could have been fired, considering the wounds of the victim. This is because nobody saw the victim being shot. So, such matters require expert testimony. Q: What is meant by expert here?

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A: A person or witness is an expert on any matter which requires special knowledge, skill, experience or training, which he is shown to possess. Q: How does a person become an “expert”? A: A person’s field of expertise can be very broad. It could be on any matter -- science, art, etc. Being an expert is not limited to one who has been able to undergo further studies. This is not limited only to special knowledge. It can be acquired through skill, training or experience. Expertise here is not acquired only by study of books. EXAMPLE: A mechanic can be considered an expert even if he acquired his knowledge only through training or experience. Q: When is expert evidence considered admissible (requisites)? (1) when the fact to be proved is one requiring expert knowledge; (2) when the witness is really an expert, that ordinary mortals are not aware of the complexities of a particular matter. The first element. Things which are of the general knowledge of mankind need not be proven. Some matters do not require expert knowledge for their proof. Q: Is it necessary to present an expert witness to testify on the law of gravity? Is it necessary to prove that such law exists? A: No, the court can take judicial notice of that. When a matter does not require an expert opinion, expert evidence is admissible but is not given much weight. But when the matter is very complicated such that, really, no one knows about it, then expert evidence is given due weight. However, there are instances when even the experts themselves have conflicting views regarding a particular matter. Their expert testimonies may be admitted in evidence, but the court may not consider them. But if the knowledge on a particular matter is really limited, the court has no choice but to consider the expert testimonies. Such testimonies must be taken as true. The second element. The witness must really be an expert. For all we know, the witness may only be claiming to be an expert, but is actually not. The process of showing to the court that the witness is really an expert is called qualifying the witness. Otherwise, his opinion will not matter. QUALIFYING THE WITNESS means proving that the witness presented is an expert and this is done by asking him preliminary questions as to his education, training, experience, and the like. Q: How is “qualifying the witness” done? A: You cannot just say that the witness is an expert. How would we know that if that has not been shown? For example, Dr. No is a biologist, or a surgeon, or is presented as an expert witness in neuro-surgeon. If the 185

other party admits that he is an expert, then there is no problem. But if the other party does not admit that he is an expert, then you must go through the process of qualifying the witness. Ask some questions as, what profession the witness is engaged in, where he took up Medicine, when he graduated, took the board exams, when he passed, how many cases of such-and-such type he has encountered so far, how many times he has testified on such-and-such matter, etc. In other words, you dig into his bio-data. Has he written books or articles on the particular matter he is testifying on? An admission that one is a doctor is not an admission that he is a witness. You must show that he is an expert. Q: How does one lay the foundation for expert testimony? A: Laying the foundation for expert testimony is divided into several parts: Part I: The foundational elements for the expert’s qualifications must show that the witness: (i) has acquired degrees from educational institutions; (ii) has had other specialized training in his field of expertise; (iii) is licensed to practice in the field; (iv) has practiced in the field for a substantial period of time; (v) has taught in that field; (vi) has published in that field; (vii) belongs to a professional organization in that field; (viii) has previously testified as an expert in that subject. Part II: After describing his credentials, the expert explains the general theory or principle the expert relies on. To lay this element of the foundation, the proponent should establish the following: (i) the expert used a particular theory to evaluate the facts in the case; (ii) the theory in question has been experimentally verified; (iii) the theory is generally accepted by the majority of experts in the pertinent scientific specialty. Part III: If the expert witness testifies on his personal knowledge, the foundation for his testimony shall include the following: (i) WHERE the witness observed the fact; (ii) WHEN the witness observed the fact; (iii) WHO was/were present; (iv) HOW the witness observed the fact; (v) a description of the facts observed. Part IV: If the expert testifies on the reports of third parties, the foundation for his testimony should include the following: (i) the source of the third party report; (ii) the contents/terms of the report; 186

(iii) that it is customary to consider that type of report. Part V: The expert witness may now testify on the basis of assumed facts or give his opinion on hypothetical questions. When one has done all of the above, the witness is now ready to testify. LIM vs. CA 214 SCRA 273 Facts: On November 25, 1987, private respondent filed a petition for annulment of marriage on the ground that petitioner has been allegedly suffering from a mental illness called schizophrenia, before, during, after the marriage, and until the present. Private respondent’s counsel presented three witnesses, one of whom was the Chief of the Female Services of the National Mental Hospital. Petitioner’s counsel filed an opposition alleging that the testimony sought to be elicited from the witness is privilege since the latter had examined the petitioner in a professional capacity, and had diagnosed her to be suffering from schizophrenia. Counsel for private respondent contended, on the other hand, that the witness would be presented as an expert witness and would not testify on any information acquired while attending to the petitioner in a professional capacity. The lower court and the CA denied the motion and allowed the witness to testify as an expert witness. Issue: whether or not an attending physician is qualified to be an expert witness, without violating the physician-patient privilege communication rule. Holding: The statutory physician-patient privilege, though duly claimed, is not violated by permitting a physician to give expert opinion testimony in response to a strictly hypothetical question in a lawsuit involving the physical or mental condition of a patient whom he has attended professionally, where his opinion is strictly upon the hypothetical facts stated, excluding and disregarding any personal professional knowledge he may have concerning such patient. The physician must base his opinion solely upon the facts hypothesized in the question, excluding from consideration his personal knowledge of the patient acquired through the physician-patient relationship.

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If he cannot or does not exclude from consideration his personal knowledge of the patient’s condition, he should not be permitted to testify as to his expert opinion. How about the opinions of people who are not experts? Will their opinion qualify as admissible in evidence. YES, that is an exception to the Opinion Rule. SECTION 50. Opinion of ordinary witness.  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) the handwriting with which he has sufficient familiarity; and, (c) the mental sanity of a person with whom he is sufficiently acquainted. The witness may also testify on his impressions of the emotion, behavior, condition or appearance of a person. (a) the identity of a person about whom he has adequate knowledge; For example: COUNSEL: Last week, while you were at home, the telephone rang. Your companion said that it was for you, or that someone on the telephone would like to talk to you. So, you took the call... X: Yes, I did. It was Mr. Y. Meaning, X identifies Y as the person he was talking to over the telephone. QUESTION: Is it an opinion when X says that it was Mr. Y who was then at the other end of the line (X never saw Y while they were talking on the telephone, hence, he actually does not have personal knowledge of the identity of such caller)? Q: Is a witness qualified to identify the caller on the telephone? A: Yes, if there was a showing that the witness knows very well the caller and he (witness) can easily recognize his (caller) voice. This is a good example of Section 50(a). Principle: When one knows a person very well such that he can readily recognize him, as well as his voice, even if he tries to camouflage it, the former may identify him. Suppose the person testifies that it was very dark due to brownout. But he could see the other person’s silhouette. Then the former is asked whether or not he could then recognize the person in front of him even in the dark. The witness says yes. He could recognize the person referred to because it was his classmate, Z, with whom he was very familiar. 188

However, one must show the prior basis which is the acquaintance. He must show that he has adequate knowledge about the other person. So, there really are persons who can recognize easily the persons they know. In effect, when one identifies a person as Mr. So-and-so, he is expressing an opinion. But he must establish first that he has adequate knowledge of such person. That he knows him very well. One cannot make the testimony here admissible without proper showing that there is sufficient familiarity between the witness and the person he is identifying. (b) the handwriting with which he has sufficient familiarity; and, Q: In resolving the dispute as to whom a certain signature belongs (whether it belongs D or to E), the usual next step for a lawyer is to call a handwriting expert from the NBI. So, the handwriting expert compares the signatures of D and E. In effect, the handwriting expert is merely giving an opinion on D’s or E’s signatures. Is this admissible? A: YES, under Section 49. But calling a handwriting expert is actually NOT NECESSARY. Under the law, an ordinary witness is qualified to render his opinion on the handwriting of somebody, for as long as he can establish that he has sufficient familiarity with the handwriting of the person concerned. So, again, there is no need to go to the NBI. For example, F produces as his witness his secretary. COUNSEL: (shows the signature to the secretary) Do you recognize this signature? SECRETARY: Yes, that is the signature of my boss, Mr. F. COUNSEL: Why do you know that? Why are you familiar with his signature? SECRETARY: Well, because I am his secretary. I have been coming across his signatures everyday for thirty years now. Q: Is the above testimony admissible in evidence? A: YES, under Section 50, because counsel has established the witness’ familiarity with the signature of somebody. So, contrary to the common impression, in order to determine whether or not a signature is forged, or genuine, the NBI need not be called to examine it. This latter process is expensive and takes time. So, why not look for somebody who is familiar with the disputed signature, such as the husband, wife, children, secretary, office mates, etc.? Present such person in court; they will say the same thing as the expert will. It will have the same effect as the opinion of an NBI expert. The law does allow that an ordinary witness identify the signature of somebody. One does not have to

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be an expert in order to identify. But one has to establish familiarity with the signature. (c) the mental sanity of a person with whom he is sufficiently acquainted. For example, somebody testifies that he knows X. COUNSEL: What is your opinion with respect to X’s mental condition at about this period last year? WITNESS: I think he was out of his mind then. COUNSEL: Are you a graduate of Psychiatry? WITNESS: No. Q: So, how can the witness give his opinion on whether or not X is mentally sound? A: Under the law, it is not necessary that a witness be an expert in Psychiatry in order to give his opinion on the mental sanity of a person. Any witness who is sufficiently acquainted with the person who is the subject matter of the case is qualified. Q: Why is it that when there is a showing that one person is sufficiently acquainted with someone, his opinion as to the mental condition or sanity of such person is admissible? A: Because, chances are, if one knows the person very well, he will be the first one to detect some changes in him. If one knows another person very well, he already knows his pattern of life or behavior. If there be any change in such person’s behavior, it would be easily noticed by people who are close to him. The witness may also testify on his impressions of the emotion, behavior, condition or appearance of a person. This portion is an addition to the 1989 Rules. However, in the 1964 Rules, authorities already then considered this as covered. In other words, such testimony of a witness under this paragraph is considered as admissible. Note that this is close to the subject matter of Section 50. ILLUSTRATION: COUNSEL: How did A react when he heard the news? WITNESS: My friend, A, felt very bad. The witness here is practically merely stating an opinion. How did he come to know of his friend’s actual feeling? So, when one testifies that

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somebody was happy, sad, nervous, or angry, he is practically giving his opinion of the emotions of somebody. However, a person can sometimes detect whether another person is happy, sad, nervous or angry. There is something in his appearance which could lead one to reach that conclusion or opinion. But one cannot fully explain why. That, in American jurisprudence, is what is called a testimony of collective facts. It is “a combination of so many factors that you see”. Based on experience, one arrives at a conclusion as to the emotions or behavior of somebody. BAR QUESTION: At N’s trial for illegal possession and use of a prohibited drug, known as shabu, his girlfriend, L, testified that on a certain day she would see N very alert and sharp, but three days later, he would appear haggard, tired, and nervous at the slightest sound he would hear. N objects to the admissibility of the testimony of L, on the ground that L merely stated her opinion without having been qualified as an expert witness. Should you as judge exclude the testimony of L? ANSWER: I will not. I will allow the testimony. It falls under Section 50. An ordinary witness can testify on his impressions of the emotion, behavior, condition or appearance of a person. 8. Character Evidence 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 a 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. ILLUSTRATION of Section 51: Bad Character Sec. 51(A)(2) Accused Criminal Case good character Sec. 51(A)(1)

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Character Evidence of a party

Offended Party Sec. 51 (A)(3)

Civil Case Sec. 51(b) Recall that in the order of trial in criminal cases, it is the prosecution which presents its evidence first (reception of evidence-in-chief or of the main evidence). The reason for this is because the accused is entitled to the presumption of innocence. RULES IN THE PRESENTATION OF CHARACTER EVIDENCE: 1) Character Evidence in Criminal Cases In criminal cases, the law on evidence is divided into two parts: (a) the character of the accused - Rule 130, Sec. 51(a)(1) and (2); (b) the character of the offended party - Rule 130, Sec. 51(a)(3). 2) Character Evidence in Civil Cases:  the governing provision is Sec. 51(b), Rule 130 Q: Is character evidence admissible in criminal cases? (ILLUSTRATION: A is accused of estafa by means of deceit. The prosecution, as part of its evidence, tries to prove that A had fooled so many people in the past. So, it is shown here that A is, by nature, a man of a bad moral character because he is dishonest. Under the law, is such type of evidence admissible? Is the prosecution, in presenting evidence to prove that the accused committed the crime, allowed to present evidence of his BAD moral character?) A: NO. That is not allowed because paragraph 2 of Sec. 51 provides that the prosecution is not allowed to prove an accused moral character which is pertinent to the moral trait involved in the offense charged. Thus, the prosecution cannot present evidence of the bad moral character of the accused, for the following reasons: 1) because of the presumption of innocence; 2) there is no connection between the bad moral character of the accused and the commission of the crime; 3) to prevent unfair prejudice against the accused. The third reason is the most important because if the fiscal or prosecutor is allowed to character assassinates the accused, Justice Moran in his Commentaries said that, the mind of the judge and the jury (as in the case of United States) would now be poisoned... Therefore, in deciding a case, the mind of the judge may already be prejudice against the accused and that he might convict him not because his guilt is strong 192

but because of his bad moral character. The law would like to avoid such a situation. Q: So what should the prosecution do? A: The prosecution should present evidence to prove that the crime was committed and prove that it was the accused who committed the crime. But it cannot present evidence to prove that the character of the accused is bad. That is Rule #1. With that, the prosecution would have to rely on OTHER EVIDENCE other than bad moral character evidence. Q: After the prosecution, it is the turn of the accused to present evidence. Can the accused present evidence of his good moral character? A: YES, because of Sec. 51 (a)(1). EXAMPLE: A is accused of estafa by means of deceit. He allegedly used fraud and deceit to defraud B. A denies the allegation and claims that he never practices deceit. So, the issue is: Did A employ deceit in his transaction with B, or not? A says no, so he presents evidence to show that all throughout his life, he has never fooled anybody. He presents in court people who know him and who testify that he never exercised fraud or deceit. A is trying to prove here that his nature is such that he is an honest and upright person. So, A is presenting evidence of his good moral character. Q: Is this allowed? A: Yes. Because, according to the Supreme Court, such type of evidence strengthens the presumption of innocence of the accused. That it is unlikely that a person with such character could commit the crime. It is naturally improbable for a person who is known to be very honest, upright, a man of integrity, to employ deceit. So, doubt will be created in the mind of the court. Thus, the presumption of innocence is strengthened, which may lead to the acquittal of the accused. Recall that this is also known as CIRCUMSTANTIAL EVIDENCE. Moral character is a collateral matter which may tend to prove the probability or improbability of the fact in issue. However, take note that when one proves the character of the accused, what is being proved about the accused must have something to do with moral trait in the offense charged. For example, the accused is charged with estafa by means of deceit. Then the defense tries to prove that the accused is a very peaceful man. What does being a peaceful man have something to do with being deceitful? Even a peaceful man can employ deceit. So, there is an incompatibility here. In this case, therefore, what must be proved should be the honesty and integrity of the accused. This is Rule # 2. Q: After the accused has presented evidence of his good moral character, the prosecution, on rebuttal, presents evidence of the BAD moral character of the accused. Is this allowed? 193

A: YES. This time, it is possible, because the accused has already put his character in issue in the case. The accused himself had brought out the fact that he is honest, has integrity, deals with people in a fair manner, and never fools people, for example. The prosecution may not prove his bad moral character which is pertinent to the moral trait involved in the offense charged UNLESS IN REBUTTAL. Since the accused has already put his own character in issue, the other party can now prove his bad moral character. If the accused never presented evidence of his good moral character, then there is nothing to rebut or refute; the prosecution is thus barred. This is Rule # 3. So, the following are the three points to remember in the presentation of the character evidence of an accused in a criminal case: 1) the prosecution cannot initially present evidence of the BAD moral character of the accused pertaining to the moral trait involved in the offense charged; 2) on the other hand, if it is already the turn of the accused to present evidence, the accused is allowed to present evidence of his GOOD moral character pertaining to the moral trait involved in the offense charged; and, 1) if the accused presents evidence of his good moral character, ON REBUTTAL, now the prosecution has the right to present evidence of the BAD moral character of the accused. On the other hand, as to the offended party, the victim. Can evidence of the good or bad moral character of the offended party be allowed in criminal cases? ANSWER: Paragraph 3. So, the character of the offended party may be established if it will prove the probability or improbability of the fact in issue -- collateral matters. EXAMPLE: One of the elements of rape is that there is sexual intercourse where there is no consent. The complainant was practically forced. The defense of the accused is that the complainant consented. The complainant denies this. So, the question now is: who is telling the truth? What the accused will now try to establish is that the complainant consented, as against the complainant’s claim that she did not consent. What the accused then does is present evidence in court that the complainant is a woman of loose moral character. He will present evidence that she goes with any man even if they are complete strangers to each other, and that she agrees to have carnal knowledge with these people. He is presenting her bad moral character. Why? Does it mean to say that if a woman is a prostitute, she cannot be raped? Of course not! Even if a prostitute can be a victim of rape, for as long as she did not consent. But if the woman is of loose morals, chances are she agreed. So, this creates doubt upon the mind of the court. If the woman always consent, is it probable that this time she did not consent? Or, in all probability, did she consent? The answer would depend 194

on her character. In the latter case, the possibility that she did not consent is remote. That is the purpose there. There was an author who said that in a rape case, there are two people on trial -- the victim and the accused. Especially if the version of the accused is that the complainant consented. The defense will prove that the victim herself consented. They will both attempt to prove each other’s bad character. Another example: X is accused of homicide. X killed Y. X claims that Y is the aggressor, not him (X). Because the version of the prosecution is that Y is the aggressor, X will present evidence that the aggressor, Y, is really a bully. That Y attacks people without provocation, wounds people without any reason. So, Y is of a violent character. The accused presents people who can vouch that Y is a person with violent character. Or the rule on common reputation -- hearsay, may be applied. The moral character of a person is provable by common reputation (the common reputation in the community where one is best known). These people can really vouch for a person’s character. When this happens, it is a party’s word against the community’s. A party is portrayed as a rude person. He shouts in public. So, the defense, for example, looks for a credible witness to testify that his client is not a rude person, one who could vouch for his client’s character from way back ten or twenty years. When defense counsel will find him, he will testify that the client is a good person because, for example, at one instance when they were together, somebody shouted at them and insulted them The client could have stood up and hit the person who insulted them. But he did not. He was pictured at first as a rude or bad person; the witness had proved that such fact was untrue, that the client is a good person after all. So, character evidence is used here to prove the improbability of the offense charged. IN CIVIL CASES  Q: What is the rule? A: Evidence of the good or bad moral character is admissible only when pertinent to the issue involved in the case. In general, it is not admissible. As an exception, it is admissible only when pertinent to the issue -- the character is pertinent to the issue in the case. Meaning, if the issue in the case is whether a party is good or bad, the character of the party. Thus, evidence may be presented as to a party’s character which is good or bad. Rarely can one find a civil case wherein the issue is the character of a person. Best example: A case for custody of a minor child. The father and the mother fight over the child. The issue here is: With whom should the child stay according to the best interests of the child? The court will have to determine the character of the parents. The husband, for example, presents evidence that since the time he and his wife separated, she had 195

been going out on dates every night; that she would even bring her boyfriend to their house; that their child saw everything -- in effect, the husband is trying to prove the bad moral character of the wife. What is paragraph (c) all about? The case provided for in Rule 132, Sec. 14. That refers to character evidence of witnesses. There are two classes of character evidence provisions: (a) character evidence of parties; (b) character evidence of witnesses. Meaning, a party will present evidence of the good character of the witness so that the court will believe him. Or, a party will present evidence of the bad character of the witness, so that the court will not believe him. That is governed by Rule 132.

Rule 131 BURDEN OF PROOF AND PRESUMPTIONS SECTION 1. Burden of proof.  Burden of proof is the duty of a party to present evidence on the facts in issue necessary to establish his claim or defense by the amount of evidence acquired by law. BURDEN OF EVIDENCE is defined by American jurisprudence as the duty resting upon a party, by means of evidence to create or meet a prima facie case. Q: Distinguish “Burden of Proof” from “Burden of Evidence” (bar question) A: Burden of proof does not shift during the course of trial. It remains with the party upon whom the law cast it at the beginning of the trial. On the other hand, burden of evidence shifts or passes from side to side as the trial progresses and evidence is produced. ILLUSTRATION: burden of proof: Q: In criminal cases, who has the burden of proof, the prosecution or the defense? A: The burden of proof rests on the prosecution because of the presumption of innocence. The prosecution has the burden from the beginning to end, to show the guilt of the accused beyond reasonable doubt. The burden of proof does not shift. burden of evidence: This has something to do with the order of trial. Q: When trial in a criminal case starts, who presents evidence first? A: The duty of presenting evidence initially belongs to the prosecution. The prosecution has the burden of presenting evidence to prove prima facie the guilt of the accused. 196

Q: After the prosecution has rested and has proven the crime, under the order of trial, who presents evidence next? A: It is now the turn of the accused to present evidence. The duty of presenting evidence is shifted to the accused after the prosecution has rested. Q: After the presentation of evidence by the accused, under the order of trial, what follows next? A: Under the order of trial, the prosecution can present rebuttal evidence. In other words, the burden of evidence is shifted back to the prosecution to rebut what the accused has proven. After the rebuttal of evidence, the accused can present evidence to rebut the rebuttal evidence of the prosecution. The presentation of evidence in a trial shifts from one party to another, from prosecution to defense. That is what burden of evidence means. It shifts from side to side, but the burden of proof always remains with the prosecution, or plaintiff in a civil case. That is why American jurisprudence has another term for burden of proof: the risk of nonpersuasion; burden of evidence is also called as the duty of going forward with evidence. PEOPLE vs. MANALO 230 SCRA 309 Facts: On January 24, 1992, a team of the Dangerous Drug Enforcement Division conducted an entrapment, with Police Officer Corpuz acting as poseur-buyer. The transaction yielded from the accused a deck of shabu, a sealed plastic bag containing an undetermined amount of suspected marijuana leaves, an improvised glass totter containing suspected shabu residue, and a P100-marked bill used by the police officers in the entrapment operation. Accused was found guilty beyond reasonable doubt for selling shabu without authority. On appeal, accused-appellant, in her assignment of errors, contends that there was no showing by the prosecution that she had no license or authority to sell shabu which is a regulated drug. Citing the case of Pp. vs. Pajenado, accused-appellant maintains that since the absence of a license or authority is an essential ingredient of the crime, proof of such negative allegation should have been presented by the prosecution. Issue: who has the burden of proof in proving a negative allegation?

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Holding: The general rule is that if a criminal charge is predicated on a negative allegation, or a negative averment is an essential element of a crime, the prosecution has the burden to prove the charge. However, this rule admits of exceptions. Where the negative of an issue does not permit of direct proof, or where the facts are immediately within the knowledge of the accused, the onus probandi rests upon him. Stated otherwise, it is not incumbent on the prosecution to adduce positive evidence to support negative averment the truth of which is fairly indicated by established circumstances and which, if untrue, could readily be disproved by the production of documents or other evidence within the defendant’s knowledge and control. For example, where a charge is made that a defendant carried on a certain business without a license (as in the case at bar, where the accused is charged with the sale of a regulated drug without authority), the fact that he has a license is a matter which is peculiarly within his knowledge and he must establish that fact or suffer conviction. Even in the case of Pajenado, the Court has categorically ruled that although the prosecution has the burden of proving a negative averment which is an essential element of a crime, the prosecution, in view of the difficulty of proving a negative allegation, need only establish a prima facie case from the best evidence obtainable. In fact, Pajenado was acquitted of the charge of illegal possession of firearm, for the court found that, in said case, the prosecution was not able to establish even a prima facie case upon which to hold him guilty of the crime charged. Q: What need not be proved? A: There are three facts which need not be proved. (a) judicial notice; (b) admissions; (c) presumptions. Q: What is a presumption? A: A presumption is an inference as to the existence of a fact not actually known arising from its usual connection with another which is known. In a Philippine case, a presumption is defined as a conjecture based on past experience as to what course human affairs ordinarily take. The two kinds of presumptions are: (a) presumption of facts (presumption hominis) (b) presumption of law (presumption juris) Q: Distinguish a presumption of fact from a presumption of law.

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A: A presumption of fact is an inference which leaves the trial court at liberty to infer certain conclusions from a certain set of circumstances. This is actually not a mandatory deduction. The court is at liberty to lay its inference. It stands more on logic or human experience. A presumption of law is a presumption which the law allows to be drawn from ascertained state of facts. The law lays down the presumptions. This is mandatory. The court cannot disregard this presumptions. The main difference between the two is that a presumption of fact is no more than a permissible deduction which the law allows. It is allowed, but the law does not require it. A presumption of law is a mandatory deduction which the law commands to be done. There are two types of presumptions of law: (a) conclusive presumptions(presumption juris et de jure) (b) disputable presumptions (presumptions juris tantum) Conclusive presumptions are presumptions which the law does not allow to be contradicted. They are unrebuttable and admit of no proof to the contrary. In effect, conclusive presumptions belong to the branch of the rule of substantive law because they are final. SECTION 2. Conclusive presumptions.  The following are instances of conclusive presumptions: a) Whenever a party has, by his own declaration, act or omission, intentionally and deliberately led another to believe a particular thing true, and to act upon such belief, he cannot, in any litigation arising out of such declaration, act or omission, be permitted to falsify it; b) The tenant is not permitted to deny the title of his landlord at the time of the commencement of the relation of landlord and tenant between them. Rule 131, Sec. 2(a) lays down the Doctrine of Estoppel. The principle of estoppel is a conclusive presumption. When a person causes another to believe that something is true, and the latter is relying upon it and acts upon such belief, the former cannot later on go against his own representation. The second type is self-explanatory. A enters into a contract of tenancy with B. A is the tenant; he will till the land and will pay B an amount. That is an admission on the part of A, that B is the owner and A is the landlord. Then later on, A denies B’s ownership. That is estoppel. He cannot be a tenant and at the same time deny title of ownership of the person whose land he is tilling. The same rule holds true in lease contracts. He cannot enter into a lease contract with somebody whose ownership he recognizes, and later on denies it. He is in estoppel. These are the two presumptions laid down in the Rules. 199

Under the old Rules, there was a third type of presumption: the QUASI-CONCLUSIVE. This was taken from the Civil Code. An example of this is the presumption on legitimacy. EXAMPLE: A person born within so many days from the time of the marriage is presumed to be legitimate. This, the law allows to be disputed by evidence presented. But the provisions in the Civil Code were changed. The Family Code changed the language of the law. The so-called QuasiConclusive Presumptions on Legitimacy for children born during the marriage, were eliminated or removed. Disputable presumptions are the majority. Ninety-nine percent of presumptions are disputable, or may be contradicted or overcome by evidence. Meaning, they can be rebutted. One can present evidence to prove that they are actually not true. For example, the presumption of innocence. That is not conclusive. Otherwise, every person who is accused will be acquitted, because everybody will be presumed innocent. And their guilt cannot be proven. Disputable presumptions can be found in the Civil Code, Negotiable Instruments Law, Criminal Law, Law on Succession, etc. SECTION 3.. Disputable presumptions.  The following presumptions are satisfactory if uncontradicted, but may be contradicted and overcome by other evidence: (a) That a person is innocent of crime or wrong; This is the fundamental presumption of innocence. Q: Is the presumption of innocence applicable only in criminal cases? A: NO. When the law says: “x x x innocent of crime or wrong”, the “wrong” could be a cause of action in a civil case. According to the Supreme Court, the presumption of innocence is a very broad presumption which carries with it automatically other presumptions. That is why it is called a mother presumption. There are many other presumptions arising from it, such as, that good faith is always presumed, as well as honesty and integrity. There is no such a thing as presumption of bad faith. There are also presumptions of morality and decency. There is no presumption of immorality; everybody is presumed to be moral and decent. As a consequence, there are presumptions of marriage, the legitimacy of children, and the presumption of chastity of every woman. Included here is also the presumption that all contracts are legal. (b) That an unlawful act was done with an unlawful intent; This is also a very broad presumption. Man is a rational being, has intelligence and, therefore, knows what is right from wrong. This presumption, according to the Supreme Court, includes the presumption of knowledge of the law. Everyone is presumed to know the law. Therefore, 200

when one commits a crime, an unlawful act, the presumption is that it was done intentionally. Remember that in Criminal Law, criminal intent is presumed from the commission of the criminal act. Q: Why is it that criminal intent is presumed when one commits a felony? A: Because of the presumption that “x x x an unlawful act was done with an unlawful intent”. (c) That a person intends the ordinary consequences of his voluntary act; This is also of Criminal Law. One intends the consequences of his actions. That is why in Criminal Law, there is praeter intentionem. A person is criminally liable even if the wrongful act done be different from that which he intended. Because the presumption is that one is prepared for all the effects of his act. These things are considered as risks. (d) That a person takes ordinary care of his concerns; A person is presumed to act with the diligence of a good father of a family. One is presumed to take ordinary care of his won concerns, his own responsibilities. There is no presumption of irresponsibility. Things entrusted to a person must be kept by him and he must exercise the due diligence of a good father of a family in doing so. This is the presumption. (e) That evidence willfully suppressed would be adverse if produced; In the course of the trial, X did not present the document in evidence. He kept it. QUESTION: Will this work against X? ANSWER: YES. X is suppressing evidence. So, X’s version will not be honored by the court, because if X’s version were really correct, he would have had the evidence to show it; but he did not. So, the presumption is: if X presented the evidence, it would have worked against him. Therefore, there is a presumption that a person suppresses evidence because the evidence is against him. That is why he decided to hide it. This is especially important in criminal cases. There are some requisites that must be proved in order to establish this presumption: (1) the suppression is willful, deliberate, and not due to negligence or carelessness; (2) the suppression is not in the exercise of a privilege; EXAMPLE: A subpoenas B’s lawyer to produce in court all the documents that are in his possession. B’s lawyer refuses to do so because he is invoking his client’s right against self-incrimination, or he is invoking the lawyer-client privilege communication. B is barring his lawyer from testifying. So in this sense, B is suppressing evidence from A, and A raises such a presumption against B. 201

Q: Is the presumption raised by A proper? A: NO. There is no suppression of evidence here because the refusal to produce the documents is done in the exercise of a privilege. This section will not apply. If a person refuses to produce documents because he is invoking his right against self-incrimination, this will not work against him. A right cannot, at the same time, be a source of a presumption against the same person who has a right. If there is no privilege, there is no adverse presumption. (3) the evidence suppressed is not merely corroborative or cumulative. Meaning, the evidence will support what is there on record. Generally, this applies when the evidence suppressed will prove something for the first time. If it is intended to support what is already proven, there is no suppression. There is no suppression because what is being presented is merely additional evidence. And it is for the offeror of the evidence to determine whether it should be presented or not in court. This should not work against him. This has happened for several times in buy-bust operations. For example, there is a team of NARCOM agents. One member poses as the buyer; the other two hide. When the poseur-buyer gives the signal, the other two members of the team come out and arrest the drug pusher. During the trial, the prosecution presents the agent who posed as the buyer and says that his other companions are SPO1 A and SPO1 B. Then, the drug dealer is convicted. On appeal, both SPO1 A and SPO1 B resign. The drug dealer says: “No, that is not the truth; that is not what happened. As a matter of fact, the evidence for the prosecution is weak. They should have presented also the other two members of the team. They said there were three of them during the buy-bust operation. Therefore, they suppressed evidence from us.” According to the Supreme Court: it is for the prosecution to determine how many witnesses it will present. If it believed that the presentation of a witness is not necessary, that is its concern. And if the accuse believed that the testimonies of SPO1 A and SPO1 B will favor him, he should have subpoenaed them. But he did not, Because he knows that their testimonies would be cumulative and corroborative. They will only serve to support the statement of the prosecution witness. So, there is no willful suppression of evidence here. There is, consequently, no adverse presumption arising from the suppression of evidence. (4) the evidence is at the disposal of the suppressing party. There is no way for the other side to question it. One party cannot say: 202

COUNSEL: Why did you not present the document in your possession? Your Honor, since he did not present it, this should work against him. He should lose. JUDGE: Do you have a copy of the document? COUNSEL: Yes. JUDGE: Well, why did you not present it? So, the section is not applicable here. The document should only be at the disposal of the suppressing party. Take note that there is another presumption which is not found in the Rules, but is related to this, as laid down by the Supreme Court: PRESUMPTION OF FABRICATION OF EVIDENCE. When one presents evidence, such as falsified documents to help him in his case, the Supreme Court said: the presumption arises that the case is groundless and it affects the whole mass of evidence presented by the party. Meaning, this will work against the person who fabricated his evidence. All other evidence presented in court by him for his defense will be tainted. There is a presumption that he fabricated his evidence because his case is groundless. (f) That money paid by one to another was due to the latter; This self-explanatory. When one pays to A, the presumption is that the amount is due A. There is no presumption of payment by mistake, wrong payment. If one says that A should not have been paid, that the payment was a mistake, that can be done. But the law presumes that when one pays to somebody, the money is due him. That is common sense. (g) That a thing delivered by one to another belonged to the latter; If one delivers to another an object, the presumption is that the latter owns it. There is no presumption of wrong delivery. (h) That an obligation delivered up to the debtor has been paid; Said in another manner: Evidence of an obligation is delivered to the debtor. For example, promissory note. An obligation may be proved by a promissory note. The promissory note was returned to the debtor. With that, the creditor has no more evidence to prove the debtor’s obligation in his favor. Why was the promissory note returned to the debtor? Because the debt has been paid.

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A specific example of this is where people keep with then the bouncing checks issued to them. The issuer of the checks redeem the same by paying the amount of their debts. The checks issued are then returned to them. The presumption is that the debt has been paid; the obligation has been extinguished. But when the creditor remains in possession of the instrument of indebtedness, the presumption is that the obligation has not yet been paid. (i) That prior rents or installments had been paid when a receipt for the later ones is produced; For example: A rents an apartment unit. He gets a receipt every month when he pays rentals. If he has in his possession the receipt for the Payment of Rentals for the Month of August, the presumption is that he had already paid rentals for the months of June and July. The receipts for the previous months need not be presented. If one presents as evidence the latest receipt, the presumption is that he had already paid for the previous balances. Or, if a receipt for the fourth installment is in the possession of the debtor, the presumption is that he had already paid for the first, second, and third installments. This is how people normally behave in business. When one owns an apartment which he rents out and his tenant has been in arrears for three months, the tenant tells him that he would be paying for one month. He accepts the payment. when he makes out the receipt, the payment would be applied to the oldest balance. Otherwise, if he applies the payment to the latest balance, the earlier balances are presumed paid. A consequence of the above presumption is related presumptions which have been encountered in the study of Obligations & Contracts: when one presents a receipt showing payment of the principal obligation, the presumption is that the interest has already been paid. But a receipt showing the payment of the interest does not raise the presumption that the principal has already been paid. However, this is only a disputable presumption. The trouble is, if one goes against the normal pattern of the behavior of man, certain presumptions will arise against him. (j) That a person found in possession of a thing taken in the doing of a recent wrongful act is the taker and the doer of the whole act; otherwise, that things which a person possesses, or exercises acts of ownership over, are owned by him; This provision refers to the Adverse Presumption from Possession of Stolen Goods. When a certain property is the object of robbery or theft, and is now found in the possession of A, the presumption is that he is the robber or thief. There is also a similar presumption in other crimes: The possessor and the user of a falsified document is presumed to be the author of the falsification.

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This has been applied in a certain case. The accused used a falsified check. It was a dollar check from abroad. The check was genuine, but the signature of the payee was bogus. It was taken from the post office and nobody knew how it happened that the check was encashed here in Davao. It was honestly believed that the person (A) who went to the bank and encashed it was not the same person who stole it and falsified the signature. But the trouble was, nobody knew who did it. So, since the person who deposited the check was the one who used it, the presumption was that he was the falsifier. The prosecution could not charge other persons because he did not know who they were. The bank would testify that A was the one who encashed it; therefore, he must be the falsifier. The burden of proving that he was not the falsifier was shifted to him. The possessor of stolen property is deemed to be the robber or thief. For this presumption to apply, the Supreme Court said that the following requisites must be established: (1) the crime of theft or robbery was committed; (2) that is was committed recently; For example, stolen property was found in the possession of X, and Y proved that this was the same property that was stolen before. When was the robbery or theft committed? Three years ago. The presumption there is weak. In three years’ time, the property could have passed on to so many hands already. The presumption disappears, or becomes weaker and weaker if there is a big gap between the time and the alleged robbery or theft was committed, and the time the stolen property was found in a person’s possession. Suppose the property was stolen at 3:00 in the afternoon. At 3:15 PM, only fifteen minutes later, it was found in the possession of Z. What is the presumption? In 15 minutes, the property could not have been disposed of immediately. The lesser is the length of time between the time it was stolen and the time it was found in somebody’s possession, the stronger is the presumption. That is what “recently” means. (3) that the property which is the object of the crime was found in the accused’s possession; (4) that the accused is unable to explain his possession satisfactorily -- he is unable to give a satisfactory or credible explanation as to how the property came into his possession. (k) That a person in possession of an order on himself for the payment of the money or the delivery of anything, has paid the money or delivered the thing accordingly; This refers to negotiable instruments. For example, X issued a check payable to the order of Y. The check is now with X. The presumption is

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that the check has already been paid. It has already been returned by the bank. Another example: X issues a check payable to Y or order. It was given to Y. After three or four months, the check is back with X. The presumption: To whomever the check was negotiated, it has already been paid by X. Or, the obligation has already been extinguished by merger. Or, because the check was indorsed by Y to Z, then Z to A; A indorsed it to B, and because B owes X a particular amount, B indorsed it to X. So, the presumption is that the obligation is extinguished by merger or confusion of debts. (l) That a person acting in a public office was regularly appointed or elected to it; (m) That official duty has been regularly performed; Both are briefly called the PRESUMPTION OF REGULARITY OF OFFICIAL ACTS. There is a presumption that one is not a usurper; that one is elected or was duly appointed. There is no presumption of usurpation, nor neglect of duty, or irregular performance of duty. This presumption is usually applied in buy-bust operations of the NARCOM. The defense sometimes assails the validity of the operation by saying that the evidence was planted, etc. So, who is telling the truth? The Rules of Court states that there is a presumption of regularity. Normally, between the story of the arresting officer and that of the accused, the Supreme Court leans towards the story of men in authority, because of the presumption of regularity of duty. Although this disputable, the evidence against it should be clear and strong. PEOPLE vs. DE GUZMAN 229 SCRA 795 Facts: Accused-appellant has been in the watch list of the police as a prohibited drug peddler. On two occasions, they tried to entrap him but without success. The third time, however, yielded a positive result. The buy-bust operation was conducted by two policemen, with one of them acting as a Metro Aide who casually approached de Guzman and asked him if he could “score” a deck of shabu, worth P50.00. In exchange, the accused gave him an aluminum foil containing crystalline granules, and then signaled to his companion. Thereafter, the accused was frisked and the search yielded four aluminum foils which contained shabu. Both policemen executed a joint affidavit of apprehension, relating in detail the events leading to the arrest of the accused. 206

The lower court found the accused guilty of the crime of drug pushing and imposed upon him the life sentence. On appeal, the accused questioned the joint affidavit executed by the policemen. Issue: whether or not the court erred in upholding the credibility of the policemen-witnesses for the prosecution and in convicting the accused on the basis thereof. Holding: A disputable presumption has been defined as a species of evidence that may be accepted and acted on where there is no other evidence to uphold the contention for which it stands or one which may be overcome by other evidence. A presumption of this nature is indulged by the law for the following fundamental reasons: (i) innocence and not wrong-doing is to be presumed; (ii) an official oath will not be violated; (iii) a republic form of government cannot survive long unless a limit is placed upon controversies, and a certain trust and confidence reposed in each governmental department or agent by every other department or agent, at least to the extent of such presumption. The presumption of regularity of official acts may be rebutted by affirmative evidence of irregularity or failure to perform a duty. The presumption, however, prevails until it is overcome by no less than clear and convincing evidence on the contrary. Thus, unless the presumption is rebutted, it becomes conclusive. Without this presumption, the government would be at a loss. The people must put or repose trust and confidence upon their public officers. Therefore, this presumption evidences a RULE OF CONVENIENT POLICY universally applied and without which great distress would spring in the affairs of the government. Society would be more difficult to govern unless public officers are given this kind of presumption. (n) That a court, or judge acting as such, whether in the Philippines or elsewhere, was acting in the lawful exercise of jurisdiction; (o) that all the matters within an issue raised in a case were laid before the court and passed upon by it; and in like manner that all matters within an issue raised in a dispute submitted for arbitration were laid before the arbitrators and passed upon by them;

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There is a presumption that every judge is acting in the exercise of his authority, and that his decision is valid unless it shows on its face the lack of jurisdiction. The presumption is, when the court decides a case, all the issues raised upon it were considered by the court. This is called the PRESUMPTION OF REGULARITY OF JUDICIAL ACTS. This is similar to official acts, but this is more specific.

(p) That private transactions have been fair and regular; This is called the PRESUMPTION OF REGULARITY OF PRIVATE TRANSACTIONS. When there is a transaction between two businessmen, the presumption is that it is fair and regular, and that there is no fraud. There is no presumption of unfairness and irregularity. He who alleges fraud must prove it. (q) That the ordinary course of business has been followed; This is still the presumption of regularity in the ordinary course of business. The presumption is that everything has been done with sufficient regularity. (r) That there was a sufficient consideration for a contract; If there is no consideration for a contract, it is void. There is no presumption of lack of cause or consideration. Every contract is presumed to have a cause or consideration, and is presumed to have been validly concluded. (s) That a negotiable instrument was given or indorsed for a sufficient consideration; There is no valid negotiation if there is no sufficient consideration. The presumption is that an instrument was given or indorsed for a sufficient consideration. If there is a promissory note, it is presumed that there was an obligation. (t) That an indorsement of a negotiable instrument was made before the instrument was overdue and at the place where the instrument is dated; (u) That writing is truly dated; For example, it is dated August 9, 1996. Of course, the date may be altered to August 11, 1996. A person can write a letter today and antedate it to August 1, 1996, or he can write a letter on August 1, 1996, and postdate it to August 5, 1996. But that is not the presumption. The presumption is that the date that appears on the letter is the real date. 208

(v) That a letter duly directed and mailed was received in the regular course of the mail; That writing duly addressed to someone was received by him during the regular course of the mail. That is why the law insists on sending through registered mail -- so that the letter can still be traced as to the time when it was delivered or received. This is the reason why the laws on pleadings require registered mail. But as to registered, or even ordinary or special, mail for as long as the letter was not returned to the sender, the presumption is that it was received by the addressee. This considers also that the letter was properly addressed and properly mailed. If the letter was not returned to its sender, between the sender’s word and the addressee’s, the presumption remains that the letter was received. For this provision to apply, the Supreme Court said the following requirements must be complied with: 1) a letter was written and signed; 2) it was placed in an envelope, sealed and properly addressed; 3) the postage was pre-paid; and, 4) it was deposited in a post office mailbox. Normally, in the course of the trial, a party is required to narrate the process of sending the letter. He must establish step-by-step that the requisites were followed strictly. If there is any requisite that was not observed, no presumption arises. This process is applicable where there is a controversy as to whether the letter was received or not. Q: Does the presumption apply also to telegrams? A: YES, provided the following requisites are proved and complied with: a) the telegraphic message was duly or properly addressed; b) it was duly delivered for transmission; c) the charges were pre-paid, not collect. d) there is a receipt to prove payment. The placing of the sender’s return address on the envelope is not necessary in order for the presumption to apply. This is applicable to lawyers. But this presumption applies to all, even to lay people. But for purposes of establishing constructive service of notice, motion or pleadings, under Rule 13, a sender’s address is important because the main proof that the letter was not delivered is the Return-to-Sender certification. So, if the return address of the sender is indicated on the envelope, the presumption becomes stronger. (w) That after an absence of seven years, it being unknown whether or not the absentee still lives, he is considered dead for all purposes, except for those of succession. The absentee shall not be considered dead for the purpose of opening his succession till after an absence of ten years. If he 209

disappeared after the age of seventy-five, an absence of five years shall be considered sufficient in order that his succession may be opened. The following shall be considered dead for all purposes including the division of the estate among the heirs: (1) A person on board a vessel lost during a sea voyage, or an aircraft which is missing, who has not been heard of for four years since the loss of the vessel or aircraft; (2) A member of the armed forces who has taken part in armed hostilities, and has been missing for four years; (3) A person who has been in danger of death under other circumstances and whose existence has not been known for four years; (4) If a married person has been absent for four consecutive years, the spouse present may contract a subsequent marriage if he or she has a well-founded belief that the absent spouse is already dead. In case of disappearance, where there is danger of death under the circumstances hereinabove provided, an absence of only two years shall be sufficient for the purpose of contracting a subsequent marriage. However, in any case, before marrying again, the spouse present must institute a summary proceeding as provided in the Family Code and in the rules for declaration of presumptive death of the absentee, without prejudice to the effect of reappearance of the absent spouse. This is called the PRESUMPTION OF DEATH. The substantial law for this may be found in Articles 390 to 391 of the Civil Code, on the provisions of Absence. This has not been released by the Family Code. The general rule is: seven years. So, a person is presumed dead for all purposes, except for that of succession. For example, X disappeared for seven years. There was on news of him; his family tried to look foe him. QUESTION: After 7 years, can the family of X now partition the properties of X among themselves? ANSWER: NOT YET. They must wait until after three more years, because for purposes of succession, it must be ten years (not seven). The period therefore depends upon the purpose. However, the period is shortened even for succession, when a person disappears under extraordinary circumstances -- situations where a person is in danger of death. Examples: disappearance while on board a vessel lost on a sea voyage, or in an aircraft that is missing and for four years, the person has been unheard of -- then he can be presumed dead for all purposes, even for succession. The same rule applies if a person disappears while he is fighting in a war. Four years will be enough to raise the presumption of his death.

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The remaining paragraphs of this provision were taken from the Family Code. Q: When is a person presumed dead? A: He is presumed dead, if: (a) under ORDINARY CIRCUMSTANCES, at the end of the period prescribed by law; (b) under EXTRAORDINARY CIRCUMSTANCES, at the time of the disappearance. Take note that, according to American jurisprudence, the exact date of death is a matter of proof. There is no presumption as to the date of death. There is merely a presumption of death. The law will not venture to give an exact date as to the death of a person. (x) That acquiescence resulted from a belief that the thing acquiesced in was conformable to the law or fact; When one agrees to something, there is a presumption that what he agreed to is conformable to law, or is legal. There is no presumption of agreeing to something illegal. This is a presumption of good faith. (y) That things have happened according to the ordinary course of nature and the ordinary habits of life; The value of this presumption is in weight. This is important in the discussion of Rule 133. When evidence is submitted and is admissible, normally, there are more than two versions of the story, which are at times conflicting. The court is now called upon to decide on which version is to be given weight. The judge has to use many factors such as witnesses. But one factor which the Supreme Court keeps on applying is this very effective guide: How do things normally happen? When something happens, such-and-such is the normal reaction. The Supreme Court always presumes that things happen according to the ordinary course of events and nature. The test is: What is ordinary? What is normal? Whether or not the action is conformable with human experience? And if a person’s reaction seems to be abnormal -- of course, it is possible that he might be telling the truth. But the court will take note that his conduct seemed to be out of the ordinary, that it did not conform to the normal reaction of persons. With that, the court will decide which version of the story is true, because it is natural and normally occurs, as well as conforms with everyday experience. Try to read all the decisions of the Supreme Court, and they will often say that that the case boiled down to the issue of who is telling the truth. And this presumption is applied. That is why, if a lawyer has been in practice for so long, and his client tells him an unusual version of the story, 211

the lawyer’s problem would be how to convince the court of the truthfulness of the story, considering that it was not in accordance with the ordinary course of nature. And as between what is probable and improbable, the court will always lean on what is probable. To paraphrase this provision, the Supreme Court says: the story of the victim or accused, as the case be, is logical, natural, probable, and therefore, has the earmarks of truth. Conversely, what is illogical does not necessarily pertain to the truth. This means that the story is in accordance with the ordinary course of nature and in the habits of life. In criminal cases, such as rape, the usual defense of the accused is that the reaction of the victim, if not that of reporting the alleged rape until one week is unnatural. The Supreme Court said that it is a natural reaction. It is natural for the woman-victim to be silent for a while. She may be afraid of being embarrassed. (z) That person acting as co-partners have entered into a contract of co-partnership; This is self-explanatory. Partnerships are valid, whether or not it is in writing. If the members thereof are partners, the law presumes that there must be a contract of partnership. (aa) That a man and woman deporting themselves as husband and wife have entered into a lawful contract of marriage; This is self-explanatory. There is no presumption that a couple are merely living together. A man and a woman purporting themselves as husband and wife are presumed to have entered into a lawful contract of marriage. (bb) That property acquired by a man and a woman who are capacitated to marry each other and who live exclusively with each other as husband and wife without the benefit of marriage or under a void marriage, has been obtained by their joint efforts, work or industry; There is no conjugal or absolute community presumption in this provision. They acquired the property through their efforts because they are living together. This is the presumption if they are capacitated to marry -- meaning, there is no impediment for them to get married. In effect, this is a co-ownership. But they are not married. (cc) That in cases of cohabitation by a man and a woman who are not capacitated to marry each other and who have acquired property through their actual joint contribution of money, property or industry, such contributions and their corresponding shares including joint deposits of money and evidences of credit are equal; 212

Q: What is the difference between paragraphs (bb) and (cc)? A: The difference is that in paragraph (bb), there is no marriage but the parties are capacitated to marry. In paragraph (cc), there is a marriage (but not to each other). They are not capacitated to marry. In this case, their assets will be divided equally among them. This is also a presumption of co-ownership. (dd) That if the marriage is terminated and the mother contracted another marriage within three hundred days after such termination of the former marriage, these rules shall govern in the absence of proof to the contrary: 1) A child is born before one hundred eighty days after the solemnization of the subsequent marriage is considered to have been conceived during the former marriage, provided it be born within three hundred days after the termination of the former marriage; 1) A child born after one hundred eighty days following the celebration of the subsequent marriage is considered to have been conceived during such marriage, even though it be born within the three hundred days after the termination of the former marriage. This provision is taken from Article 168 of the Family Code. This is about a widowed woman and how to determine a doubtful paternity. (ee) That anything once proved to exist continues as long as is usual with things of that nature; Briefly, this the PRESUMPTION OF CONTINUITY OF EXISTENCE. For example, A witness, X, testified. According to him, he was able to personally see this particular piece of land. Questions were asked of him with respect to that piece of land: COUNSEL: What improvements exist on the land? X: There was a house made of concrete. There were 50 durian trees and 100 coconut trees. COUNSEL: When did you see this? X: In 1991. COUNSEL: From 1991 to the present, were you able to go back to that land? X: No, that was the last time I saw it.

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So, based on the testimony, there are durians and coconut trees as well as a concrete house there. The witness himself admitted that he saw them in 1991. It is possible, though, that the trees may have already been felled. But the presumption is that they are still alive. It is for the other party to prove that they ceased to exist in that piece of land between 1991 and 1999. Therefore, when a thing is proven to have existed before, the presumption is that it is still existing today. But this provision cannot be applied to certain objects. For example, a witness testified that the last time, four years ago, he saw a block of ice inside a particular house. The presumption cannot be that the block of ice is still in that house now. Naturally, the ice would have melted and disappeared by now. That is why the law says: “x x x as long as is usual with things of that nature x x “ -- meaning, the thing being referred to is not consumable; it cannot just disappear. Therefore, the presumption here cannot be applied to all objects. There are other presumptions not found in the law, but are recognized in jurisprudence, and which, through common sense, can be connected to the presumption of continuity of existence.  presumption of continuity of life. Q: A testifies that X was alive last year. A was able to talk to him. Although he has not seen X recently, may it be presumed that he is already dead by now? A: NO. The presumption is that X is still alive now. It is for the party interested to prove his death to do so. There is a presumption of continuity of life. Q: But what if, during the last time A saw X, the latter was in the Intensive Care Unit (ICU) of the hospital, and was already gasping for breath, does the presumption of continuity of life still apply? A: NO. This is another story. The presumption will not lie.  presumption of continuity of mental condition This is taken from American jurisprudence. If a person is mentally normal during the last time he was seen, the presumption is that he is still mentally normal at this time.  presumption of continuity of physical condition The last time a person was seen, he was healthy. The presumption is that he is still healthy now.  presumption of continuity of possession This is taken from the Civil code. If one was a possessor of a thing in good faith before, the presumption is that he continues to be the possessor of that thing in good faith now.

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(ff) That the law has been obeyed; It is disputably presumed that the law has been obeyed. there is a presumption by the provision by the provision of law. Every person is assumed to be law-abiding. It is for the party disputing this presumption to prove the contrary. (gg) That a printed or published book, purporting to be printed or published by public authority, was so printed or published; For example, you come across a book or pamphlet on which is indicated that it was printed by the Bureau of Printing of the Republic of the Philippines. This is according to the official government publication. Presumption: It is true; it was printed by the public authority as stated there. (hh) That a printed or published book, purporting to contain reports of cases adjudged in tribunals of the country where the book is published, contains correct reports of such cases; For example, the SCRA. It is book, the publisher of which claims that it compiles all decisions of the Supreme Court for the month. It is a private publication. The presumption is that the cases are ACCURATELY reported. Since the presumption is that the cases as reported are accurate, the courts can rely upon them as they are published. (ii) That a trustee or other person whose duty it was to convey real property to a particular person has actually conveyed it to him when such presumption is necessary to perfect the title of such person or his successor-in-interest; This is related to the Law on Trusts. For example, when a person is a trustee, under the law he holds the property for the benefit of the beneficiary or somebody else. The presumption is that the trustee has complied with the trust. That he actually conveyed the property to the beneficiary when such presumption is necessary to perfect the title of such person of his successor-in-interest. (jj) That except for purposes of succession, when two persons perish in the same calamity, such as wreck, battle or conflagration, and it is not shown who died first, and there are no particular circumstances from which it can be inferred, the survivorship is determine from the probabilities resulting from the strength and age of the sexes, according to the following rules: 1) If both were under the age of fifteen years, the older is deemed to have survived; 2) If both were above the age of sixty, the younger is deemed to have survived; 215

3) If one is under fifteen and the other above sixty, the former is deemed to have survived; 4) If both be over fifteen and under sixty, and the sex be different, the male is deemed to have survived; if the sex be the same, the older; 1) If one be under fifteen or over sixty, and the other between those ages, the latter is deemed to have survived. This is briefly called the PRESUMPTIONS OF SURVIVORSHIP. This talks about two people who died in a calamity, quake, battle, fire, etc. It is highly probable that they died at the same time. But they might not have died at exactly the same time -- at the same minute and in the same second. Maybe, one lived a little longer than the other. The question being settled here is: In all probability, who died first? Which one died before the other? The law lays down the presumption. Taking into consideration their ages, sexes, strengths, the probability is that one would live longer than the other. However, this provision can be applied, EXCEPT FOR PURPOSES OF SUCCESSION. The court will not apply this for the purpose of determining who succeeded to whom. Q: What does “for purposes of succession” mean? A: For example, father and son died. Under the Laws of Succession, they are heirs of each other. If the father died ahead of the son, by operation of law, the son inherited the father’s properties. But after five minutes, the son died also. A party is contending now that one died ahead of the other, so that one’s heirs will get the bigger share of the properties. It is very clear in the opening clause of paragraph (jj) that this provision will not apply to succession. The phrase except for purposes of succession was inserted in the 1989 Rules. (kk) That if there is doubt, as between two or more persons who are called to succeed each other, as to which of them died first, whomever alleges the death of one prior to the other, shall prove the same; in the absence of proof, they shall be considered to have died at the same time. This is called as the presumption of simultaneous death. This compliments the previous presumption, that of survivorship. For purposes of succession, when the issue is: Who died first?... Whoever alleges the death of one or the other shall prove the same. So, the presumption of survivorship cannot be applied here. What are their distinctions? A: SURVIVORSHIP refers to death in calamity

SIMULTANEOUS DEATH this presumption is silent as how the parties died -- whether in a calamity or in whatever 216

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may be invoked only if the applies only if there is doubt as facts on which they are based to who of several persons who are known or knowable are called to succeed each other, died first Q: What is meant by facts of which they are based are known or knowable? A: There is evidence as to ages of the parties and their successors-ininterests. That is why the presumption is applied based on what is known -- how old is this person, how is his physical condition -- these are facts that are known or knowable. SECTION 4. No presumption of legitimacy or illegitimacy.  There is no presumption of legitimacy or illegitimacy of a child born after three hundred days following the dissolution of the marriage or the separation of the spouses. Whoever alleges the legitimacy or illegitimacy of such child must prove his allegation. Q: What happens if a woman is widowed, without remarrying, she delivered a baby after 300 days, is the child presumed to be the child of the late husband or not? A: The law will not render an answer. There is no presumption of legitimacy or illegitimacy in this case. POINTS TO BE REMEMBERED REGARDING PRESUMPTIONS Q: What is a PRESUMPTION? A: It is defined as an inference on something unknown arising from something which is known. A presumption cannot be created unless there is a basis. Based on what is already known, one must relate that inference to something which is unknown. A presumption can only be based on facts. A presumption cannot be made to rest on another presumption. Presumptions are allowed when the facts from which they are deduced are fully proven. Otherwise, it will lead to a fallacy. One will merely be going into a series of syllogisms without definite bases. In this case, one arrives at an absurd conclusion. Q: What is the role of presumptions in evidence? A: Presumptions do not constitute evidence. They have no value as such. They only determine who should present evidence. As a matter of fact, a presumption need not be proved. Evidence displaces presumption.

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Presumptions merely aid in establishing a prima facie case. presumptions are rebuttable.

But

For example, a person is presumed innocent. That is not yet evidence because even before being able to do anything, the presumption is already in his favor. Because of the presumption of innocence, the prosecution must destroy that first. It helps the defense initially, but once evidence to the contrary is proven, the presumption will be destroyed. To borrow the language of American jurisprudence: Presumptions merely act in establishing a prima facie case and have no probative effect when the counter-evidence has been offered. Evidence to the contrary can destroy presumptions, such as the presumption of innocence. According to American courts: Presumptions may be looked on as the bats of the law, fleeting in the twilight, but disappearing in the sunshine of actual facts. At night, the bats fly around; then when the sun comes out, they hide. Q: What happens if there is a collision between two presumptions? Which one prevails? A: According to American jurisprudence, “The weaker presumption has to kneel to the stronger one. To determine which weaker or stronger presumption is, one must look at the evidence. If the evidence leans towards a presumption which is backed up by evidence, it is the stronger presumption then. The weaker presumption must yield to the stronger one. So, the relative strength of a presumption can be determine only upon the evidence presented. EXAMPLE: Presumption #1 -- every person accused of a crime is presumed innocent thereof. Presumption #2 -- every person found in possession of stolen things is presumed guilty. The prosecution must present its evidence first in order to prove that a crime of theft or robbery was committed. So, there is no conflict. The second presumption arises only upon the presentation of evidence.

Rule 132 PRESENTATION OF EVIDENCE This Rule consists of three parts: A) examination of witnesses (Secs. 1 -18) 218

B) authentication and proof of documents (Secs. 19 - 33) C) offer and objection (Secs. 34 - 40) A. EXAMINATION OF WITNESSES SECTION 1. Examination to be done in open court.  The examination of witnesses presented in a trial or hearing shall be done in open court and under oath or affirmation. Unless the witness is incapacitated to speak, or the question calls for a different mode of answer, the answers of the witness shall be given orally. The examination of witnesses presented in a trial or hearing shall be done in open court. There is a rostrum, a portion near the rostrum where the witness may sit. The witness testifies under oath or affirmation. There is the crime of false testimony that is why he has to swear to tell only the truth. This Section reinforces the Hearsay Rule. Because here, the witness must be presented in a trial or hearing, he is under oath, and he must give his testimony orally. In a hearsay testimony, the witness is in court, and he is just being quoted. So, the Hearsay Rule is violated also. The witness is not under oath; he is not personally making his testimony. So, affidavits are not acceptable because they are not done orally, and are not done in open court. Q: How is a testimony given? A: ORALLY. This means that there is a question-and-answer form. EXCEPTIONS:  unless the witness is incapacitated to speak; For example, the witness is deaf and dumb. Under the rules of disqualification, for as long as the witness can perceive, and can make known his perception to others, he is qualified to testify. Although his perception cannot be communicated through speech, because his perception cannot be communicated orally, he can still do it through sign language. The witness is qualified, even if he can give his testimony only through sign or body language.  if the questions call for a different mode of answer. There are questions which call not for oral answers, but for something else other than oral. For example, the witness is asked: COUNSEL: Mr. Witness, what did you see? WITNESS: I saw the accused twist the arm of the deceased. While he was holding it, this was what he did ... (Witness demonstrates.)

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This time the question does not call for an oral answer. So, the demonstration should be recorded, instead of recording an oral answer given by the witness. There must be someone to interpret the dÜ¥e_3À ___T_e_______________p=__ %____________________