EVIDENCE GENERAL PRINCIPLES Factum Probandum vs.

Factum Probans Factum Probandum Ultimate Facts Refers to the fact or the proposition to be established. Hypothetical Factum Probans Intermediate Facts Refers to the fact or the material evidencing the proposition Existence

What are the requisites of admissibility of evidence? Sec. 3 of Rule 128 provides that Evidence is admissible when it is RELEVANT to the issue and is not excluded by the law or these rules. From the provision, two requisites must be satisfied: 1. RELEVANCE: such a relation to the fact in issue as to induce belief in its existence or non-existence. A matter of relationship between the evidence and a fact in issue. Relevance is determined by logic, human experience, and common sense. 2. COMPETENCE: the evidence must not be excluded by the law or the rules. Competence of evidence is determined by the law or the Rules of Court. What are the kinds of admissibility of evidence? 1. MULTIPLE ADMISSIBILITY OF EVIDENCE - Where the evidence is relevant and competent for two or more purposes, such evidence may be admitted for any or all the purposes for which it is offered provided it satisfies all the requirements of law for its admissibility therefor. 2. CONDITIONAL ADMISSIBILITY OF EVIDENCE - Where the evidence at the time of its offer appears to be immaterial or irrelevant unless it is connected with the other facts to be subsequently proved, such evidence may be received on the condition that the other facts will be proved thereafter; otherwise, the evidence given will be stricken out. 3. CURATIVE ADMISSIBILITY OF EVIDENCE - Where improper evidence was admitted over the objection of the opposing party, he should be permitted to contradict it with similar improper evidence. Otherwise it would result in disparity of rulings to his prejudice. What are the important components of relevant evidence? 1. MATERIALITY - whether the evidence is offered upon a matter properly in issue i.e., whether it is directed toward a fact within the range of allowable controversy. Material evidence is one which is directed to prove a fact in issue as determined by the rules of substantive law and pleadings ( Regalado, Remedial Law Compendium, (vol. 2) 2008). 2. PROBATIVENESS The tendency of evidence to establish the proposition that it is offered to prove. To be relevant, it need not be conclusive, the evidence must merely help a little (5 Herrera, 1999 ed., p. 60). What are Collateral Matters? May evidence on such matters be allowed? Collateral Matters refer to matters other than the fact in issue. These are matters outside the controversy, or are not directly connected with the principal matter or issue in dispute, as indicated in the pleadings of the parties. It connotes an absence of a direct connection between the matter and the matter in dispute (Riano, Evidence The Bar Lecture Series, 2009). 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 (Sec. 1, Rule 128).

WHAT NEED NOT BE PROVED (RULE 129)

What is judicial notice and what is its basis? Judicial notice is the cognizance of certain facts which judges may properly take and act on without proof because they already know them (31 C.J.S. 509). It is based on considerations of considerations of expediency and convenience. It displaces evidence since, being equivalent to proof, it fulfills the object which the evidence is intended to achieve and, therefore, makes such evidence unnecessary ( Regalado, Remedial Law Compendium, (vol. 2) 2008; citing Alzua, et al., v. Johnson 21 PHIL 308). What is the doctrine of Processual Presumption? Is there any exception to the rule? The doctrine of processual presumption lays down the rule that foreign laws must be proven as a matter of fact. In the absence of proof, the foreign law will be presumed to be the same as the laws of the jurisdiction hearing the case ( Riano, Evidence The Bar Lecture Series, 2009; citing Northwest Airlines v. CA, 241 SCRA 192). There is an exception to the rule on processual presumption. Where the foreign law is within the actual knowledge of the court such as when the law is generally well known, had been ruled upon in previous cases before it and none of the parties claim otherwise, the court may take judicial notice of the foreign law (See PCIB v. Escolin, 56 SCRA 266). How does one prove an unwritten foreign law e.g. common law? To prove an unwritten foreign law, the provisions of Sec. 46, Rule 130 supply the evidential sources or remedies (Regalado, Remedial Law Compendium, (vol. 2) 2008; citing Wildvalley Shipping Co., Ltd. v. CA, G.R. No. 119602): Sec. 46. Learned treatises.A published treatise, periodical or pamphlet on a subject of history, law, science or art is admissible as tending to prove the truth of a matter stated therein if the court takes judicial notice, or a witness expert in the subject testifies, that the writer of the statement in the treatise, periodical or pamphlet is recognized in his profession or calling as expert in the subject. Can a judicial admission still be controverted? No. A party who judicially admits a fact cannot later challenge that fact as judicial admissions are waiver of proof; production of evidence is dispensed with. A judicial admission also removes an admitted fact from the field of controversy. Consequently, an admission made in the pleadings cannot be controverted by the party making such admission and are conclusive as to such party, and all proofs to the contrary or inconsistent therewith should be ignored, whether objection is interposed by the party or not ( Alfelor v. Halasan. G.R. No. 165987). Can the courts take judicial notice of matters previously tried in another case? As a general rule, courts are not authorized to take judicial notice of the contents of the records of other cases, even when such cases have been tried or are pending in the same court and pending before the same judge (People v. Hernandez, G.R. No. 108028). The rule however admits several exceptions: 1. When, at the initiative of the judge or of the parties, and without objection of any party, the records of the previous action are read and adopted into the present action, or attached to the records of the present action by court order; 2. When the present action is closely interrelated to another case pending between the same parties; 3. Where the interest of the public in ascertaining the truth are of paramount importance; or 4. Where there is finality of a judgment in another case that was previously pending determination and therefore, res judicata (5 Herrera, 1999 ed., pp. 89-90). May courts take judicial notice of customs?

IT DEPENDS. Courts cannot take judicial notice of a local custom. A local custom must be proved as a matter of fact, according to the rules of evidence (Art. 12, CC). Courts can however, take judicial notice of international customs as they are considered sources of international law (see Art. 38 of the ICJ Statute; Sec. 2, Rule 129). RULES ON ADMISSIBILITY (Rule 130) BASIC DEFINITIONS Object Evidence Evidence directly addressed to the senses of the court and is capable of being exhibited to, examined or viewed by the court. Also known as autoptic proference or real or physical evidence. Documentary Evidence Supplied by written instruments or derived from conventional symbols and letters by which ideas are represented on material substances. Testimonial Evidence Verbal or oral evidence. It is evidence which consists of the narration or deposition by one who has observed or has personal knowledge of that to which he is testifying.

OBJECT EVIDENCE Are there any instances where the court may refuse the introduction of object evidence? Yes. The court may refuse the introduction of object evidence and rely on testimonial evidence alone if: 1. The exhibition of such object is contrary to public policy, morals or decency ( 5 Moran, op. cit., p.72); 2. To require its being viewed in court or in an ocular inspection would result in delays, inconvenience, and unnecessary expenses out of proportion to the evidentiary value of such object (People v. Tavera, et al., 47 PHIL 645); 3. Such object evidence would be confusing or misleading, as when the purpose is to prove the former condition of the object and there is no preliminary showing that there has been no substantial change in said condition (People v. Saavedra, 50 O.G. 5407); or 4. The testimonial or documentary evidence already presented clearly portrays the object in question as to render a view thereof unnecessary (see Sec. 6, Rule 133). (Regalado, Remedial Law Compendium, (vol. 2) 2008) What is Demonstrative Evidence? How does one test its admissibility? Demonstrative evidence is not the actual thing but it is referred to as demonstrative because it represents or demonstrates the real thing. It is not strictly real evidence because it is not the very thing involved in the case. A map, a diagram, a photograph and a model, fall under this category. The admissibility of this type of evidence largely depends on laying the proper foundation for the evidence. The rule boils down to one basic question: Does the evidence sufficiently and accurately represent the object it seeks to demonstrate or represent? If it does, the evidence would be admissible (Riano, Evidence The Bar Lecture Series 2009). May written instruments be considered as object evidence? YES. Documents are object evidence if the purpose is to prove their existence or condition, or the nature of the handwritings thereon, or to determine the age of the paper used, or the blemishes or alterations thereon. Otherwise, they are considered documentary evidence if the purpose is to establish the contents or tenor thereof (Regalado, Remedial Law Compendium, (vol. 2) 2008. p.717).

What is the rule on the chain of custody of seized evidence under R.A. No. 9165?

As a mode of authenticating evidence, the chain of custody rule requires that the presentation of the seized prohibited drugs as an exhibit be preceded by evidence sufficient to support a finding that the matter in question is what the proponent claims it to be. This would ideally cover the testimony about every link in the chain, from seizure of the prohibited drug up to the time it is offered in evidence, in such a way that everyone who touched the exhibit would describe how and from whom it was received, to include, as much as possible, a description of the condition in which it was delivered to the next link in the chain (People v. Gutierrez, G.R. No. 177777). Is failure to comply strictly with the mandate of Sec. 21 of R.A. No. 9165 (pertaining to the custody and disposition of confiscated, seized, and surrendered dangerous drugs, etc.) fatal to the prosecution? No. Non-compliance by the apprehending/buy-bust team with Section 21 is not fatal as long as there is justifiable ground, and as long as the integrity and the evidentiary value of the confiscated/seized items are properly preserved by the apprehending officer/team. Its noncompliance will not render an accuseds arrest illegal or the items seized/confiscated from him inadmissible. What is of utmost importance is the preservation of the integrity and the evidentiary value of the seized items, as the same would be utilized in the determination of the guilt or innocence of the accused. Crucial in proving the chain of custody is the marking of the seized driugs or other related items immediately after thet are seized from the accused. Marking after seizure is the starting point in the custodial link, thus, it is vital that the seized contraband are immediately marked because succeeding handlers of the specimens will use the markings as reference. The marking of the evidence serves to separate the marked evidence from the corpus of all other similar or related evidence from the time they are seized from the accused until they are disposed of at the end of criminal proceedings, obviating switching, planting, or contamination of evidence ( People of the Philippines v. Allen Udtojan Mantalaba, G.R. No. 186227). May a person who has already been convicted by final judgment, still be allowed to undergo DNA testing to prove his innocence or guilt? YES. A post-conviction DNA testing may be available without court order under the following conditions: 1. A biological sample exists; 2. Such biological sample is relevant to the case; and 3. The testing would probably result in the reversal or modification of the judgment of conviction (Sec. 6, A.M. No. 06-11-5-SC). In case the results of a post-conviction testing be favorable to the accused, the convict or the prosecution may file a petition for a writ of habeas corpus in the court of origin. If the petition is found to be meritorious, the court shall reverse or modify the judgment of conviction. A similar petition may be filed with the CA or the SC, or with any member of said courts (Sec. 6, A.M. No. 06-11-5-SC). What factors must be considered in assessing the probative value of DNA evidence? In assessing the probative value of DNA evidence, courts should consider, inter alia, the following factors: how the samples were collected, how they were handled, the possibility of contamination of the samples, the procedure followed in analyzing the samples, whether the proper standards and procedures were followed in conducting the tests, and the qualification of the analyst who conducted the tests (People v. Yatar, G.R. No. 150224). DOCUMENTARY EVIDENCE Does the Best Evidence Rule apply absolutely in all cases a document is presented as an evidence in court? NO. With respect to documentary evidence, the best evidence rule applies only when the contents of such document is the subject of inquiry. Where the issue is only as to whether such a document was actually executed, or exists, or on the circumstances relevant to or surrounding its execution, the best evidence rule does not apply and testimonial evidence is admissible (Regalado, Remedial Law Compendium (vol.2) 2008 ed.).

Under what instances may secondary evidence be admitted in the absence of the best evidence? KEYWORD: PLAN 1. When the original has been lost, or destroyed, or cannot be produced in court, without bad faith on the part of the offeror; 2. When the original is in the custody or under the control of the party against whom the evidence is offered, and the latter fails to produce it after reasonable notice; 3. When the original consists of numerous accounts or other documents which cannot be examined in court without great loss of time and the fact sought to be established from them is only the general result of the whole; 4. When the original is a public record in the custody of a public officer or is recorded in a public office. (see Sec. 3, Rule 130). What requirements must first be satisfied for the courts to allow the presentation of a photocopy of a document to prove the contents thereof? Under the best evidence rule, the original document must be produced whenever its contents are the subject of inquiry. A photocopy, being mere secondary evidence, is not admissible unless it is shown that the original is unavailable. Before a party is allowed to adduce secondary evidence to prove the contents of the original, the offeror must prove the following: 1. The existence or due execution of the original; 2. The loss and destruction of the original or the reason for its non-production in court; and 3. On the part of the offeror, the absence of bad faith to which the unavailability of the original can be attributed. The correct order of proof is as follows: existence, execution, loss, and contents ( Country Corporation v. Antonio Lagman, G.R. No. 165487). When can secondary evidence be accepted, if the original is in the possession of the adverse party? Only when the adverse party was notified to produce it. If after such notice and after satisfactory proof of its existence, he fails to produce the document, secondary evidence may be admitted (Rule 130, Sec. 6). However, the party who called for its production is not bound or obliged to offer it (Rule 130, Sec. 8) Does the best evidence rule also apply to electronic documents? YES. An electronic document shall be regarded as the equivalent of an original document under the Best Evidence Rule if it is a printout or output readable by sight or other means, shown to reflect the data accurately (Sec. 1, Rule 4, A.M. No. 01-7-01-SC). May a print-out or photocopy or both of facsimile transmissions be considered as electronic evidence and admissible as the term is defined under the E-Commerce Act and its implementing rules? NO. The definitions under the E-Commerce Act, its IRR and the Rules on Electronic Evidence, at first glance, convey the impression that facsimile transmissions are electronic data messages or electronic documents because they are sent by electronic means. When the Senate voted to adopt the term electronic data message, it was consonant with the explanation of Senator Miriam Defensor-Santiago that it would not apply to telexes or faxes, except computer generated faxes, unlike the UN model law on electronic commerce. There is no question that when Congress formulated the term electronic data message, it intended the same meaning as the term electronic record in the Canada law. This construction of the term electronic data message, which excludes telexes or faxes, except computer generated faxes, is in harmony with the Electronic Commerce Laws focus on

paperless communications and the functional equivalent approach that it espouses. In fact, the deliberations of the Legislature are replete with discussions on paperless and digital transactions. Since a facsimile transmission is not an electronic data message or an electronic document, and cannot be considered as electronic evidence by the Court, with greater reason is a photocopy of such a fax transmission not considered electronic evidence ( MCC Industrial Sales, Corp. v. Ssangyong Corp., G.R. No. 170633). How does one treat text messages as evidence? Text messages have been classified as ephemeral electronic communication under Sec. 1 (k), Rule 2 of the Rules on Electronic Evidence, and shall be proven by the testimony of a person who was a party to the same or has personal knowledge thereof. Ephemeral electronic communication refers to telephone conversations, text messages and other electronic forms of communication the evidence of which is not recorded or retained (Vidallon-Magtolis v. Salud., A.M. No. CA-05-20-P). What is Parol Evidence? Parol evidence is any evidence aliunde, whether oral or written, which is intended or tends to vary or contradict a complete and enforceable agreement embodied in a document. (Regalado, Remedial Law Compendium (vol.2) 2008 ed.). Parol Evidence Rule vs. Best Evidence Rule Parol Evidence Rule Presupposes that the original document is available in court. Prohibits the terms of agreement. varying of a written Best Evidence Rule Contemplates the situation wherein the original writing is not available and/or there is a dispute as to whether said writing is the original. Prohibits the introduction of substitutionary evidence in lieu of the original document regardless of whether or not it varies the contents of the original. applies to all kinds of writings. Can be invoked by any party to an action regardless of whether or not such party has participated in the writing involved.

Availability of the Original Document

What the rule prohibits

What kind of documents does the rule apply? Who may invoke?

Applies only to documents which are contractual in nature, including wills. Only when the controversy is between the parties to the written agreement, their privies, or any party directly affected thereby.

(Regalado, Remedial Law Compendium (vol.2) 2008 ed.) What are the instances where authentication of a document is not required? Authentication of a document is not required when: 1. The writing is an ancient document, under the requisites of Sec. 21, Rule 132; 2. The wrting is a public document or record under Sec. 19, Rule 132; 3. It is anotarial document acknowledged, proved or certified in accordance with Sec. 30, Rule 132; 4. The authenticity and due execution of the document has been expressly or impliedly admitted by a failure to deny the same under oath, as in the case of actionable documents under Sec. 8, Rule 8. (Regalado, Remedial Law Compendium (vol.2) 2008 ed.) How does one prove the genuineness and authenticity of a persons handwriting?

The authenticity of a persons handwriting may be proven by: 1. A witness who actually saw the person writing the instrument ( Sec. 20(a), Rule 132); 2. A witness familiar with such handwriting (Sec. 22, Rule 132), and who can give his opinion thereon, such opinion being an exception to the opinion rule ( Sec. 50(b), Rule 130); 3. A comparison by the court of the questioned handwriting and admitted genuine specimens thereof (Sec. 22, Rule 132); 4. Expert evidence (Sec. 49, Rule 130). TESTIMONIAL EVIDENCE Are deaf-mutes disqualified to testify as witnesses? NO. deaf-mutes are not necessarily incompetent as witnesses. They are competent where they: (a) can understand and appreciate the sanctity of an oath; (b) can comprehend the facts they are going to testify to; and (c) can communicate their ideas through a qualified interpreter (People v. Tuangco, 345 SCRA 429) Distinguish competency of a witness and credibility of a witness. Competency of a witness Has reference to the qualifications of a witness as his capacity to perceive and his capacity to communicate his perception to others. It also includes the absence of any disqualifications imposed upon a witness. Credibility of a witness Refers to the believability of the witness and has nothing to do with the law or the rules. it refers to the weight and the trustworthiness or reliability of the testimony.

May a person over 18 years old be considered a child witness? YES under certain instances. In child abuse cases, a child includes one over 18 years but is found by the court as unable to fully take care of himself or protect himself from abuse, neglect, cruelty, exploitation, or discrimination because of a physical or mental disability or condition (Sec. 4(a), A.M. No. 00-4-07-SC). How does the court determine the competence of a child witness? Every child is presumed qualified to be a witness. To rebut the presumption of competence enjoyed by a child, the burden of proof lies on the party challenging his competence. When the court finds that substantial doubt exists regarding the ability of the child to perceive, remember, communicate, distinguish truth from falsehood, or appreciate the duty to tell the truth in court, the court may motu proprio or on motion of a party conduct a competency examination of the child. Proof of such necessity mutt be grounded on reasons other than age of a child because such age in itself is not a sufficient basis for a competency examination (see Sec. 6, A.M. No. 00-4-07-SC). Distinctions between a child witness and an ordinary witness Child Witness Only the judge is allowed to ask questions to a child witness during preliminary examination. Leading questions are allowed. Testimony in a narrative form is allowed. The child witness is assisted by a facilitator. Ordinary Witness Opposing counsels are allowed to ask questions during preliminary examination. Leading questions are generally not allowed. Testimony in a narrative form is not allowed. An ordinary witness is not assisted by a facilitator.

What are the elements of the dead mans statute? 1. The defendant in the case is the executor or administrator or a representative of the deceased or the person of unsound mind; 2. The suit is upon a claim by the plaintiff against the estate of said deceased person or person of unsound mind;

3. The witness is the plaintiff, or an assignor of that party, or a person in whose behalf the case is prosecuted; 4. The subject of the testimony is as to any matter of fact occurring before the death of such person or before such person became of unsound mind (Riano, Evidence The Bar Lecture Series, 2009 ed.). Distinguish disqualification by reason of marriage from disqualification by reason of privileged communication between spouses Disqualification Reason of Marriage Period for Prohibition Scope of Prohibition Disqualification by Reason of Privileged Communication between spouses Applies only during their Applies even after the marriage marriage Any communication received As to communication by one from the other received in confidence by one from the other during their marriage 1. Unless there is consent by the other spouse; or 2. Except in a civil case by one against the other, or in a criminal case fro a crime committed by one against the other or the latters direct descendants or ascendants. by

Exception

(Copied this one from last years tips) What is the purpose of the marital disqualification rule under Sec. 22, Rule 130? The reasons given for the rule are: 1. There is identity of interests between husband and wife; 2. If one were to testify for or against the other, there is a consequent danger of perjury; 3. The policy of the law is to guard the security and confidences of private life, even at the risk of an occasional failure of justice, and to prevent domestic disunion and unhappiness; and 4. Where there is want of domestic tranquility there is danger of punishing one spouse through the hostile testimony of the other (Alvarez v. Ramirez, 473 SCRA 72). When are leading questions allowed? Under Sec. 10, Rule 132, leading questions may be allowed under the following instances: 1. On cross-examination 2. On preliminary matters; 3. When there is difficulty in getting direct and intelligible answers from a witness who is ignorant, or a child of tender years, or is of feeble mind, or a deaf-mute; 4. Of an unwilling or hostile witness; or 5. Of a witness who is an adverse party or an officer, director, or managing agent of a public or private corporation or of a partnership or association which is an adverse party. In addition, the court may allow leading questions in all stages of examination of a child under the condition that the same will further the interest of justice ( Sec. 20, A.M. No. 004-07-SC). What are the different modes of impeaching a witness? A witness may be impeached through the following modes: 1. By contradictory evidence; 2. By evidence that his general reputation for truth, honesty and integrity is bad; or

3. By evidence that he has made at other times statements inconsistent with his present testimony (Sec. 11, Rule 132). A lawyer was attempting to impeach a witness by submitting before the court the latters inconsistent prior declarations. Will such presentation be sufficient? NO. the mere presentation of the prior declarations of the witness without the same having been read to him while testifying in court is insufficient for the desired impeachment of his testimony if he was not given the ample opportunity to explain the supposed discrepancy. This rule is founded not only upon common sense but is essential to protect the character of the witness (People v. De Guzman, 288 SCRA 346). What is the principle of Res Inter Alios Acta? The res inter alios acta rule ordains that the rights of a party cannot be prejudiced by an act, declaration, or omission of another. An extrajudicial confession is binding onlyupon the confessant and is not admissible against his co-accused. the reason for the rule is that, on a principle of good faith and mutual convenience, a mans own acts are binding upon himself, and are evidence against hi,. So are his conduct and declarations. Yet it would not be rightly inconvenient, but also manifestly unjust, that a man should be bound by the acts of mere unauthorized strangers; and if a party ought not to be bound by the acts of strangers, neither ought their acts or conduct be used as evidence against him (People v. Raquel, G.R. No. 119005). What the doctrine of adoptive admission? An adoptive admission is a partys reaction to a statement or action by another person when it is reasonable to treat the partys reaction as an admission of something stated or implied by the other person (Estrada v. Desierto, G.R. Nos. 146710-15 ). In this case, Estradas admission of his resignation as President was based on the diary of Angara. When is a statement considered hearsay? To constitute hearsay, there must be: 1. An out-of-court statement, oral, written or non-verbal conduct, made by one other than the one made by the declarant or witness testifying at the trial; and 2. The out-of-court statement must be offered to prove the truth of the matter asserted in the out-of-court statement ( Riano, Evidence The Bar Lecture Series, 2009 ed.; citing 29 Am Jur 2d, 2nd Ed). What is the doctrine of independently relevant statements? The doctrine provides that a witness ma testify to the statements made by a person if, for instance, the fact that such statements were made by the latter would indicate the latters mental state or physical condition. Such statements are relevant since the statements made are the very facts in issue or circumstantial evidence of the facts in issue ( Regalado, Remedial Law Compendium (vol.2) 2008 ed.) Must a dying declaration be in writing? NO. The Revised Rules on Evidence do not require that a dying declaration must be made in writing to be admissible. Indeed, to impose such a requirement would be to exclude many statements from a victim in extremis for want of paper and pen at the critical moment (People v. Viovicente, G.R. No. 118707). Res Gestate vs. Dying Declarations Res Gestae Statement may be made by any person. Statement may precede, accompany or be made after the homicidal act was committed. Trustworthiness is based on the spontaneity of the statement. Dying Declarations Statement must be made by the victim of the killing itself. Made only after the homicidal act is committed. Trustworthiness is based upon its being given under an awareness of an impending

death. (Regalado, Remedial Law Compendium (vol.2) 2008 ed.) Classification of Res Gestae Verbal Acts The res gestae is the equivocal act. Verbal act must be contemporaneous with or must accompany the equivocal act. Spontaneous Statements The res gestae is the startling occurrence. Statements may be made prior, or immediately after the startling occurrence.

When are business records excepted from the rule of hearsay evidence under the rules on Electronic Evidence? The hearsay rule is inapplicable if the following requisites are present: 1. A memorandum, report, record or data compilation of acts, events, conditions, opinions, or diagnoses, 2. Made by electronic, optical, or other similar means, 3. At or near the time of or from transmission or supply of information, 4. By a person with knowledge thereof, 5. And kept in the regular course or conduct of a business activity, 6. And such was the regular practice to make such memorandum or report, 7. All of which are shown by the testimony of the custodian or other qualified witness (Sec. 1, Rule 8, REE). When is Expert Evidence Admissible? Expert evidence is admissible only if: 1. The matter to be testified to is one that requires expertise; and 2. The witness has been qualified as an expert ( Regalado, Remedial Law Compendium (vol.2) 2008 ed.). DEGREE OF PROOF REQUIRED Civil Cases Preponderance of evidence Criminal Cases To Sustain a conviction: proof beyond reasonable doubt Preliminary Investigation: Engenders a well founded belief of the fact of the commission of a crime Issuance of a warrant of arrest: probable cause. OFFER AND OBJECTION When is Evidence Offered? As to when the offer of evidence is made depends upon the nature of the evidence: 1. As regards the testimony of the witness, the offer is to be made at the time the witness is called to testify (Sec. 35, Rule 132); 2. As regards documentary and object evidence, they are offered after the presentation of a partys testimonial evidence. The offer is orally made unless allowed by the court in writing (Sec. 35, Rule 132). Administrative Cases Substantial evidence

What is the effect when there are inconsistencies between a witness affidavit and his testimony in open court?

Discrepancies and/or inconsistencies between a witness affidavit and testimony in open court do not impair credibility as affidavits are taken ex parte and are open incomplete or inaccurate for lack or absence of searching inquiries by the investigating officer. The general rule that contradictions and discrepancies between the testimony of a witness and his statements in an affidavit do not necessarily discredit him is not without exception, as when the omission in the affidavit refers to a very important detail of the incident that one relating to the incident as an eyewitness would not be expected to fail to mention, or when the narration in the sworn statement substantially contradicts the testimony in court ( Edwin Tabao v. People, G.R. No. 187246). Tender of Excluded Evidence vs. Offer of Evidence Offer of Proof/tender of excluded evidence Only resorted to if admission is refused by the court for purposes of review on appeal. Offer of evidence Refers to testimonial, documentary or object evidence that are presented or offered in court by a party so that the court can consider his evidence when it comes to the preparation of the decision.