You are on page 1of 61


Page 1


Introduction Definition the means, sanctioned by these rules, of ascertaining in a judicial proceeding, the truth respecting a matter of fact. (Rule 128, Sec. 1. Scope of applicability rules of e!idence shall be the same in all courts and in all trials and hearings, e"cept as other#ise pro!ided by la# or these rules. (Rule 128, Sec 2. Notes: The Rules on Evidence apply only when there is going to be a trial. Note that there can be a judgment on pleadings, by confession, consent and compromise etc. IN I!I" #$E$. %ere denial in the answer in a I!I" #$E will not present a probandum hence no need for the court to try the case. $uch general denial will be considered as an admission. In RI%IN#" #$E$, &e have to wait until the accused enters a plea. This time a general denial is allowed. If the accused enters a plea of guilty there is no probandum. 'owever in RI%IN#" #$E$, the court could still try the case if the case involves a heinous crime. The Rules on evidence are not self(e)ecuting. $o the rule is any evidence submitted will be admitted so long as there is no objection. This principle is only for the purpose of admissibility. It does not mean that the court will ta*e these irrelevant evidence in evaluating on the merits of the case. DIFFERENCE IN RULES ON EVIDENCE IN CRIMINAL CASES AND CIVIL CASES BASIS Criminal Case Civil Case $uantum of %roof %roof &eyond Reasonable Doubt %reponderance of e!idence Denial 'eneral Denial (llo#ed )ust be Specific Denial *ithdra#al of %lea+(dmission *ithdra#n plea is inadmissible ,udicial (dmission #ithdra#n becomes an e"trajudicial admission -ross ."amination in (pplicable /ot applicable Summary %rocedure .0uiponderance Rule (ccused is ac0uitted %arty #ho loses is the one #ho has burden of proof %resence of -ircumstantial )ore than one is re0uired 1ne suffices .!idence %ri!iliged -ommunication2 /ot applicable (pplicable Dr.2%atient -ompulsion as a #itness -annot compel accused to be a /o prohibition, rules pro!ides #itness only limitations

Evidentiary rivile!e" entitles the pri!ilege holder to #ithhold competent e!idence and, in some circumstances, to pre!ent others from re!ealing such e!idence. 3he pri!ilege is granted #hen the protected interest is considered important enough to out#eigh the concern #ith determining the truth. 3he pri!ilege holder need not be a party to the proceeding in 0uestion. 4nli5e a dis0ualification, a pri!ilege can be #ai!ed. %ri!ileges are often intended to preser!e confidential relationships. E#ecutive rivile!e" members of the e"ecuti!e branch of go!ernment cannot legally be forced to disclose their confidential communications #hen such disclosure #ould ad!ersely affect the operations or procedures of the e"ecuti!e branch. FAC$UM ROBANDUM vs% FAC$UM ROBANS +actum ,robandum(proposition to be established. The fact-s in issue. +actum ,robans( materials evidencing the proposition Notes: .. In both I!I" and RI%IN#" cases, the probandum contained in the pleadings could be


Page 2


changed in the pre(trial order. 'owever, with respect to RI%IN#" #$E$, the pre(trial order $'/0"1 N/T substantially change the accusation-indictment contained in the information, otherwise the case will be dismissed. 2. # court can validly try a fact in issue not raised in the pleadings or pre(trial order. Rule .3 provides that a fact in issue may be raised with the e)press or implied consent of the parties during the trial 4#mendment to conform to evidence5 6. #scertainment of probandum does not apply in special proceedings. 4i.e. If there is a petition for probate of a will, even if there is no opposition the petitioner is still re7uired by law to prove that the will has been duly e)ecuted in accordance with the ivil ode5 EVIDENCE vs% ROOF ,roof( is the effect of evidence. It is the probative effect of evidence and is the conviction or persuasion of the mind resulting from a consideration of the latter. Evidence( is the cause necessary to establish proof. I% Admissi&ility (. Rele!ance 3he e!idence has such a relation to the fact in issue as to induce belief in its e"istence or non2 e"istence. .!idence on collateral matters shall not be allo#ed, e"cept #hen it tends in any reasonable degree to establish the probability or improbability of the fact in issue. (Rule 128, Secs. 6 and 7. ( In conclusion, relevancy is not determined by law nor the rules of court. It is determined purely by "/8I . &. -ompetence 3he e!idence is not e"cluded by the la# or the rules (Rule 128, Sec. 6. Do not confuse -1)%.3./3 *83/.SS from -1)%.3./3 .98D./-.. 3he -1)%.3./-: 3.S3 of e!idence applies to the 3.S38)1/: of the 0ualified #itness. $ince admissibility of evidence is determined by its relevance and competence, admissibility is therefore an affair of logic and law. /n the other hand, the weight to be given to such evidence depends on judicial evaluation within the guidelines provided in Rule .66 and the jurisprudence laid down by the court. 4,eople vs. Turco, 23335 Relevant evidence is one that has any value in reason as tending to prove any matter probable in an action. Evidence is said to be material when it is directed to prove a fact in issue as determined by the rules of substantive law and pleadings, while competent evidence is one that is not e)cluded by law in a particular case. 49autista vs. #parece, .::;5 E#clusionary Rules under t'e ()*+ Constitution 1.1 Secs. 2 ; 6, (rt. 888 3he right of the people to be secure in their persons, houses, papers, and effects against unreasonable searches and sei<ures of #hate!er nature and for any purpose shall be in!iolable, and no search #arrant or #arrant of arrest shall issue e"cept upon probable cause to be determined personally by the judge after e"amination under oath or affirmation of the complainant and the #itnesses he may produce, and particularly describing the place to be searched and the persons or things to be sei<ed. 3he pri!acy of communication and correspondence shall be in!iolable e"cept upon la#ful order of the court, or #hen public safety or order re0uires other#ise as prescribed by la#. (ny e!idence obtained in !iolation of this or the preceding section shall be inadmissible for any purpose in any proceeding. 1.2 Sec. 12, (rt 888 (ny person under in!estigation for the commission of an offense shall ha!e the right to be informed of his right to remain silent and to ha!e competent and independent counsel preferably of his o#n choice. 8f the person cannot afford the ser!ices of counsel, he must be pro!ided #ith one. 3hese rights cannot be #ai!ed e"cept in #riting and in the presence of counsel. /o torture, force, !iolence, threat, intimidation, or any other means, #hich !itiate the free #ill, shall be used against him. Secret detention places, solitary, incommunicado, or other similar forms of detention are prohibited.


Page 3


(ny confession or admission obtained in !iolation of this or Section 1= hereof shall be inadmissible in e!idence against him. Sec. 1=, (rt 888 /o person shall be compelled to be a #itness against himself. 3his right is recogni<ed under he Rules on .!idence, #hich pro!ides that, it is the right of a #itness not to gi!e an ans#er #hich #ill tend to subject him to a penalty for an offense unless other#ise pro!ided by la#. >Sec. 6 (7 , Rule 162, R1/13.S (/D -1))./3S? 3he human body could be used as e!idence #ithout !iolating the right. )echanical acts #ithout the use of intelligence do not fall #ithin the scope of the protection. Some of the acts #hich are not co!ered by the right of self2incrimination are the follo#ing? a. @ingerprinting, photographing nd paraffin testing, physical e"amination. (4.S. !. 3ang, 26 %hil. 17AB b. %hysical e"amination of a #oman accused of adultery to determine if she is pregnant. (4.S. !. 1n Suy Con, 6D %hil. =6AE 9illaflor !. Summers, 71 %hil. D2 c. 4ndergoing ultra2!iolet rays e"amination to determine presence of flourescent po#der on the hands. (%eople !. 3ranca, 6A S-R( 7AA d. Subpoena directing go!ernment officials to produce official documents or public records in their custody. e. @itting the accused foot o!er a foot print, putting on a pair of trousers, etc. 2. Statutory Rules o, E#clusion 2.1 Sec. 2F1, /8R- (n instrument, document or paper #hich is re0uired by la# to be stamped and #hich has been signed, issued, accepted or transferred #ithout being duly stamped, shall not be recorded, nor shall it or any copy thereof or any record of transfer of the same be admitted or used in e!idence in any court until the re0uisite stamp or stamps shall ha!e been affi"ed thereto and cancelled. 2.2 R.(. 72FF (*ire2tapping (ct Sec. 1. 8t shall be unla#ful for any person, not being authori<ed by all the parties to any pri!ate communication or spo5en #ord, to tap any #ire or cable, or by using any other de!ice or arrangement, to secretly o!erhear, intercept, or record such communication or spo5en #or5 by using a de!ice commonly 5no#n as a Dictaphone or dictograph or detectaphone or #al5ie2tal5ie or tape recorder, or ho#e!er other#ise described. " " Sec. 7. (ny communication or spo5en #ord, or the e"istence, contents, substance, purport, effect, or meaning of the same or any part thereof, or any information therein contained, obtained or secured by any person in !iolation of the preceding sections of this (ct shall not be admissible in e!idence in any judicial, 0uasi2judicial, legislati!e or administrati!e hearing or in!estigation. #n e)tension telephone cannot be placed in the same category as a 1ictaphone, dictograph or the other devices enumerated in $ec. . of R# <233 as the use thereof cannot be considered as =tapping> the wire or cable of a telephone line. 48aanan vs. I# , .:?@5 R# <233 e)pressly ma*es tape recordings of tapped conversations inadmissible in evidence absent a clear showing that both parties to the phone conversations allowed the recording. 4$alcedo( /rtaAeB vs. #, .::<5 E-CLUSIONAR. RULES under t'e RULES OF COUR$ 1. &est .!idence Rule 2. %arole .!idence 6. Cearsay Rule Wigmores Axiom of Admissibility =None but facts having rational probative value are admissible>( 8GG4S3R(381/? In a trial for homicide, the fact is offered that the accused was re7uested, with others, to touch the corpse of the murdered man to see if blood flowed, but that he refused to do soC this is admissible, not because the flowing or retention of the blood at the guilty manDs touch would be rationally evidential of his guilt, but because his refusal to do could constitute a lin* to the chain of evidence necessary to produce a moral conviction of guilt.


Page 4


=#ny fact having rational probative value is admissible, unless some specific rule forbids its admission>( 8GG4S3R(381/? In an issue involving forgery, the disposition of the personDs character as to acts of honesty or dishonesty is of some rational probative value towards showing that he did or did not do the actC it is therefore admissible, but this can only be done if the accused steps forward first and adduces evidence of his good moral character. Irrelevant vs. Incompetent vs. Inadmissible vs. Immaterial Evidence Irrelevant( no probati!e !alueE /o tendency in reason to establish the probability or improbability of a fact in issue. 8t does not directly relate to a fact in issue. N.9. #ll facts and circumstances which afford reasonable inferences or throw light upon the probability of matter or matters contested are admissible in evidence, 0N"E$$ e)cluded by some established principle of evidence, such as 'E#R$#E E!I1EN E R0"E, R0"E /N ,#R/"E E!I1EN E and 9E$T E!I1EN E R0"E. Collateral Matters( matters other than the facts in issue and which are offered as a basis merely for inference as to the e)istence or non(e)istence of the facts in issue. These are not allowed unless satisfy #"" the re7uirements of relevancy. I""0$TR#TI/N$: a. finger mar5s, foot prints and a bat left by the accused in the place of the crime b. 3he resemblance of a child to his alleged father to pro!e paternity of the latter c. &loodstains on the clothing of the person charged #ith a crime d. 3he destruction or fabrication of e!idence e. @light of the accused. (/.&. /on2flight is not conclusi!e proof of innocence f. Delay in the identification of !ictimHs assailant Incompetent( e)cluded by the rules or any law Inadmissible( not competent and irrele!ant Immaterial( the offered e!idential fact is directed to pro!e some probandum #hich is not properly in issue. (/.&.2 3he rules on substanti!e la# and of pleading determine immateriality %aterial evidence( proves a main fact which is the subject of the in7uiry or any circumstance which tends to prove that fact or any fact or circumstance which tends to corroborate or strengthen the testimony relative to the subject of in7uiry or which legitimately affects the credibility of any witness who testifies. Direct vs% Circumstantial Evidence 1irect( Evidence that directly proves a fact without need to ma*e inference from another fact ."ample? 3he testimony of the prosecution #itness claiming that he sa# that it #as actually the deceased #ho attac5ed the accused #ithout the latterHs pro!ocation is a direct e!idence. ircumstantial( Indirectly proves a fact in issue through an inference which the fact finder draws from the evidence established E)ample: 3he testimony of the !ictim that he dreads the mere presence of the accused is direct e!idence that t'e statement /as made% 8t is li5e#ise circumstantial e!idence to sho# that this fear pre!ented the !ictim from attac5ing the accused #ithout pro!ocation. 8/ a. b. c. -R8)8/(G -(S.S, circumstantial e!idence is sufficient for con!iction #hen? 3here is more than one circumstance 3he facts from #hich the inferences are deri!ed are pro!en 3he combination of all the circumstances is such as to produce a con!iction beyond reasonable doubt (Sec. 7 Rule 166

Cumulative v% Corro&orative umulative( e!idence of the same 5ind that tends to pro!e the same fact .". 3#o or more #itnesses testify that they sa# the e!ent #hich the first #itness claimed he sa#, the subse0uent testimonies are cumulati!e


Page 5


orroborative( e!idence #hich tends to confirm, !alidate or strengthen e!idence already presented. .!idence may be of the same 5ind or different 5ind and tends to pro!e the same fact. .". ( #itness claims that he sa# )r. I sign the document subject of the action. )r. I denies the authenticity of his signature. .!idence by a hand#riting e"pert is corroborati!e. ositive v% Ne!ative Evidence ,ositive( ( #itness affirms in the stand that a certain state of facts do e"ist or that a certain e!ent happened Negative( ( #itness states that an e!ent did not occur or that the facts alleged to e"ist did not actually e"ist. (Denial Derivative Evidence" type of e!idence that is inadmissible as proof because of the application of the fruit of the poisonous tree doctrine, #hich treats the original e!idence and any e!idence deri!ed from it as tainted because of the illegal #ay in #hich it #as obtained by agents of the go!ernment. Re&uttal Evidence" offered to contradict other e!idence or to rebut a resumption of fact.

Admissibility v. Weight " .!idence is (D)8SS8&G. #hen it is rele!ant and is not e"cluded by any rule. " %robati!e !alue or *.8'C3 is to be determined by the court #hen it decides the case MUL$I LE ADMISSIBILI$. Evidence is admissible for two or more purposes. The rule is when a fact satisfies all rules applicable to it when offered for that purpose, its failure to satisfy some other rule which would be applicable to it if offered for another purpose would not e)clude it. I""0$TR#TI/N: (n e"trajudicial confession may be inadmissible as against a party #ho did not subscribe to it, yet such party may use said document as e!idence of lac5 of guilt. CONDI$IONAL ADMISSIBILI$. 8R: The time for determining the admissibility of a particular fact is ordinarily the time when it is offered to the court. E)ception: &hen some facts depend on some other facts needed to be established first in order that said former evidentiary facts would be admissible. I""0$TR#TI/N: )r. % files an action for reco!ery of o#nership of a parcel of land against )r. D. 3he complaint alleges that )r. % is the o#ner of the property. During the trial, )r. % testifies and adduces e!idence that a certain 1 bought the property from D. 3he testimony of 1 may be allo#ed if it #ould be sho#n the chain of e!ents that led to the o#nership of % of the land. CURA$IVE ADMISSIBILI$. 3here is curati!e admissibility #hen a party offers an inadmissible fact #hich is recei!ed because there is no objection by the other party. 3he other party does not ac0uire the right to introduce in reply to the same 5ind of e!idence, E-CE $ #hene!er it is needed for remo!ing an unfair prejudice #hich might other#ise ha!e ensued from the original e!idence. I""0$TR#TI/N: 8n an action for damages arising from a car accident, the plaintiff introduced e!idence to sho# that on se!eral occasions the defendant in the past had injured pedestrians because of his negligence. (3his is inadmissible under Sec. 67 Rule 16F2 %rior acts as e!idence . 0nder the concept of urative admissibility the court must give the party against whom the evidence was admitted the chance to contradict or e)plain the alleged past acts he committed to counteract


Page 6


the prejudice which the improperly admitted evidence may have caused. II% 0'at Need Not &e roved a. @acts #hich a court shall or may ta5e judicial notice. (Secs. 1 and 2, Rule 12J, R1b. ,udicial admissions. (Sec. 7, Rule 12J, R1c. -onclusi!e presumptions d. Disputable presumptions not disputed Distin!uis' mandatory 1udicial notice ,rom discretionary 1udicial notice% a. @or mandatory judicial notice the court is compelled to ta5e judicial notice because of the use of the #ord KshallK in Sec. 1, Rule 12J, R1- *C8G. for discretionary judicial notice the court is not compelled because of the use of the #ord KmayK in Sec. 2, Rule 12J, R1-. b. )andatory judicial notice ta5es place at the courtLs o#n initiati!e *C8G. discretionary judicial notice may ta5e place at the courtLs initiati!e, or on re0uest of a party. c. Discretionary judicial notice re0uires a hearing and presentation of e!idence *C8G. mandatory judicial notice does not re0uire hearing and presentation of e!idence. A. 1. 2 2 2 2 2 2 2 2 2 2 2 2. 2 2 2 Judicial otice ! "ule #$%& 'ecs #()* "ule #+& 'ec. , When Mandatory ! >.%@2SG(%21G2)'M ."istence and territorial e"tent of states 3heir political history @orms of go!ernment Symbols of nationality Ga# of nations (dmiralty and maritime courts of the #orld and their seals %olitical constitution and history of the %hilippines 1fficial acts of the legislati!e, e"ecuti!e, and judicial departments of the %hilippines Ga#s of nature )easure of time 'eographical di!isions When -iscretionary )atters of public 5no#ledge )atters capable of un0uestionable demonstration )atters #hich ought to be 5no#n to judges because of their judicial functions.

6. When .earing is ecessary 2 During the trial? the court, on its o#n initiati!e, or on re0uest of a party, may announce its intention to ta5e judicial notice of (/: )(33.R and allo# the parties to be heard thereon. 2 (fter the trial, and before judgment or on appeal? the proper court, on its o#n initiati!e or on re0uest of a party, may ta5e judicial notice of any matter and allo# the parties to be heard thereon if such )(33.R 8S D.-8S89. 1@ ( )(3.R8(G 8SS4. in the case. MUNICI AL ORDINANCES ourts are not mandated to ta*e judicial notice of municipal ordinances unless the charter of the concerned city provides for such judicial notice. 4 ity of %anila vs. 8arcia, .:@F5. 9ut IN+ERI/R /0RT$ sitting in the respective municipalities or cities are %#N1#TE1 to ta*e judicial notice. The reason is that violations of the ordinances are usually vested to the inferior court EG "0$I!E"E in the e)ercise of their original jurisdiction. I+ inferior court too* judicial notice and there was an appeal, such court ta*ing the appeal should li*ewise ta*e judicial notice. 40.$. v. 9lanco, 6F ,hil. .2@5 COUR$ RECORDS2 ( ourts may ta*e judicial notice of its own records of cases pending before it. 4E). ,leadingsC period of perfecting appeals. (Records of preliminary investigation shall not form part of the record, however the court on its own


Page 7


initiative or that of any party may order the production of the record or any part thereof whenever the same shall be necessary in the resolution of the case or any incident therein or shall be introduced as evidence by the party re7uesting for its production. ( ourts are not authoriBed to ta*e judicial notice of the contents of the record of other cases pending or heard before them notwithstanding they are pending before the same judge. E)ceptions: .. In the absence of objection from the adverse party, with the *nowledge of the adverse partyC or at the re7uest or with the consent of the parties, the case is clearly referred to or the original or part of the records of the case are actually withdrawn from the archives and admitted as part of the record of the case then pending. 4Tabuena vs. #, .::.5 2. The other case is so closely connected or interdependent 6. &hen interests of the public in ascertaining the truth is of paramount importance <. In cases see*ing to determine what is reasonable e)ercise of discretion ;. The finality of judgment in a case FOREI3N LA0S 8n general, courts may not ta5e judicial notice of foreign la#s, .I-.%3 in a fe# instances #here, in the e"ercise of sound discretion, they may ta5e judicial notice of such foreign la#s of #hich they are e!idently familiar. (Delgado !. Republic, G22A7D, ,anuary 28, 1JAFE %ardo !. Republic, 8A %hil. 626 0'en ,orei!n la/s may &e t'e su&1ect o, 1udicial notice . a. *hen the local court is e!idently familiar #ith the foreign la#. b. *hen the foreign la# refers to the la# of nations. (Sec. 1, Rule 12J, R1c. *hen the court ta5es judicial notice of a published treatise, periodical or pamphlet on a subject of la# as a learned treartise. (Sec. 7D, Rule 16F, Ibid. d. *hen the foreign statute is acepted by the %hilippine go!ernemnt. (Republic !. 'uan<on, D1 S-R( 6DF e. *hen a foreign judgmen containing foreign la# is recogni<ed for enforcement. (Sec. 78, Rule 6J, R1f. 8f the foreign la# refers to common la# doctrines and rules from #hich many of our la#s #ere deri!ed. ((l<ua !. ,ohnson, 21 %hil. 6F8 -octrine of /rocessual /resumption0 +oreign law is the same as the law of the forum. It arises if the foreign law, though properly applicable is either not alleged or if alleged is not duly proved before a competent court. B. Judicial Admissions ! "ule #$%& 'ec. 1 2Definition? admissions, !erbal or #ritten, made by the party in the course of the proceedings in the same case 2%roof is not re0uired. 2Co# contradicted? 1/G: by sho#ing N 3hat it #as made through palpable mista5e or N 3hat no such admission #as made 'aving been amended, the original complaint lost its character as a judicial admission, which would have re7uired no proof and became merely any e)trajudicial admission re7uiring a formal offer in order to be admissible. 4Torres vs. #, .:?<5 FORMS OF ADMISSIONS2 1. 8mplied admissions of allegations of usury and in actionable documents if not specifically denied under oath (Sec. 11 ; 8, Rule 8 2. (dmissions in pre2trial of ci!il cases and criminal cases (8n criminal cases the admission must be reduced in #riting and signed by accused and counsel2 Sec. 7 Rule 118 6. 8mplied admissions in the modes of disco!ery (DepositionsE 8nterrogatories2 Rule 26E @ailure to specifically deny under oath #+in 1A days a Re0uest for (dmission in a pending case( Rule 2@C 5

7. ;. D.

Page 8


(dmissions in amended pleadings (Sec. 8 Rule 1F > N.9. #dmissions in superseded pleadings are e)tra(judicial admissions which must be proven. 1ismissed pleadings are li*ewise e)trajudicial admissionsH ,lea of guilt in criminal case 4N.9. # withdrawn plea of guilt is inadmissible, unli*e in civil cases where a withdrawn judicial admission is considered an e)trajudicial admission5 (dmissions by counsel are generally conclusi!e upon a client absent any gross negligence #hich depri!es counsel of due process of la# or there is outright depri!ation of property or liberty. /ote? (dmissions in pleadings may not al#ays be considered as judicial admissions because there are 'y4ot'etical admissions in ci!il cases. (i.e. (ffirmati!e defenses in an ans#erE )otion to dismiss, #here defendant admits allegations but sets up grounds such as lac5 of jurisdiction etc.

/otes? 1. 8t is not essential that an admission is contrary to the interest of party at the time it is made. 8t is enough that it be 8/-1/S8S3./3 #ith the position a party ta5es in his pleadings or at trial. 2. (!erments in pleadings not deemed admissions e!en if there is failure to ma5e a specific denial? a 8mmaterial allegationsE b -onclusions and non2unltimate factsE c (mount of unli0uidated damages. Ado4tive Admissions ( partyHs reaction to a statement or action by another person #hen it is reasonable to treat the partyHs reaction as an admission of something stated or implied by the other person. Ado4ted Con,essions ( co2accused impliedly ac0uiesced in or adopted the otherHs confession by not 0uestioning its truthfulness, as #here it #as made in his presence and he did not demonstrate against his being implicated therein III% Rules o, Admissi&ility (. 1bject (Real .!idence Rule 16F, Sec. 1. 2 .!idence addressed to the senses of the court. 2 *hen an object is rele!ant to the fact in issue, it may be e"hibited to, e"amined or !ie#ed by the court. AU$O $IC ROFERENCE 5VIE0 OF AN OB6EC$7 2 *here the object in 0uestion cannot be produced in court because it is immo!able or incon!enient to remo!e, the natural recourse is for the court to order an ocular inspection and go to the object in its place and obser!e it there. Is t'ere an e#clusionary rule /'en it comes to o&1ect evidence8 3here is none. Co#e!er, the court is gi!en enough discretion to determine #hich object e!idence should be presented, upon determination #hether or not it #ill result to scandal or it does not #or5 any additional benefit to the plaintiff or that it #ill gi!e undue prejudice to the defendant. 8GG4S3R(381/S? 2ootprints ( bloody foot print #as found upon a floor near the dead body of a person. 4pon being arrested, the accused #as ta5en to the house #here the incident happen. 4pon placing his foot o!er the foot print it #as found that his foot corresponded e"actly to said footprint. 'E"1: %roof of this circumstance is admissible, not#ithstanding that no photograph of the footprint #as submitted in e!idence and that the board itself upon #hich the footprint #as made #as not produced in court. ( 0$ v. Iara, <6 ,hil. 63?5


Page 9


"esemblance& "ace& Age or /arentage 23o determine #hether a person is alien or not, his personal appearance, ethnological and racial characteristic, language, customs, dress and manners may be ta5en into consideration. 28n determining the age of the accused #ho had no positi!e information on the subject, the court too5 into account his appearance and judged that he #as a youth of 18 or 1J years of age. 2( physical comparison may be made bet#een a minor -hinese applying for admission into the country #ith his alleged father. /hotographs 2 *here deposition of subscribing #itnesses to a #ill are ta5en, a photographic copy of the #ill may be presented to the #itnesses on their e"amination and they may be as5ed the same 0uestion #ith respect to said copy as if it #ere the original #ill and testimony as to the identity of the photographic copy sho#n to the #itnesses is admissible in e!idence. 2%hotographs may be admissible upon proof of their e"actness and accuracy by the photographer himself #ho can testify of his personal 5no#ledge of the correctness of the representation. (3an 8t !. Sun 8nsurance 1ffice, A1 %hil. 212 /13.S? 3he photographer is not the only #itness #ho can identify the pictures. 3he faithful representation of the photograph may be pro!ed prima facie by the testimony of those #ho #ere present at the time it #as ta5en, or by any other competent #itness #ho can testify as to its e"actness and accuracy. 1nce pro!ed, the court may admit it subject to impeachment as to its accuracy. 3he !alue of a photograph lies in its being a correct representation or reproduction of the original, and its admissibility is determined by its accuracy in portraying the scene at the time the picture #as ta5en. (Sison !. %eople, 2AF S-R( A8, =A2=D %hotocopies or "ero" copies of signed documents are not duplicate originals because they are not signed. ()ahilum !. -ourt of (ppeals, 1= S-R( 782 Com4uter 4rintouts% 8f the data are stored in a computer or similar de!ice, any printout or other output readable by sight, sho#n to reflect the data accurately, is an original. (.!idence -ode of -alifornia, (dded by Stats. 1J==, Sec. 1 8n a labor case, 8&) %hilippines, 8nc., et al., !. /GR-, et al., '.R. /o. 11=221, prom. (pril 16, 1JJJ, the Supreme -ourt held that computer printouts #hich #ere not signed because they are unsigned. 3he -ourt #ent on further to say that its decisions, #hile adhering to a liberal !ie# in the conduct of proceedings before administrati!e agencies, ha!e nonetheless consistently re0uired some proof of authenticity or reliability as condition for the admission of documents. /ot one of the 18 print2out copies submitted by 8&) #as e!er signed, either by the sender or the recei!er. 3here is thus no guarantee that the message sent #as the same message recei!ed. /either #ere the print2outs certified or authenticated by any company official #ho could properly attest that these came from 8&)Hs computer system or that the data stored in the system #ere not and+or could not ha!ed been tampered #ith before the same #ere printed out. 3allots 2 .!ery ballot needs to be presented in a case of election protest. .!ery ballot constitutes the #ill of e!ery !oter. DEMONS$RA$IVE EVIDENCE 2 one #hich or represents demonstrates the real thing. (e". )ap, diagram, photograph, or a model ,hotographs: %ust faithfully represent what it depicts 4$ame rules apply to motion pictures and recordings5 G(Rays: %ust show location and e)tent of injury $cientific tests, demonstrations by physical act and e)periments: This is a matter of judicial


Page 10


&. Documentary .!idence Rule 16F, Sec. 2. 2 *ritings or any material containing letters, #ords, numbers, figures, symbols or other modes of #ritten e"pression offered as proof of their contents. 1. 3est Evidence "ule Rule 16F, Secs. 627 'eneral Rule? *hen the subject of in0uiry is the contents of a document, no e!idence shall be admissible other than the original document itself. ."ceptions? 1. *hen the original has been lost or destroyed, or cannot be produced in court, #ithout bad faith on the part of the offerorE 2. *hen the original is in the custody or under the control of the party against #hom the e!idence is offered, and the latter fails to produce it after reasonable noticeE 3. *hen the original consists of numerous accounts or other documents #hich cannot be e"amined in court #ithout great loss of time and the fact sought to be established from them is only the general result of the #holeE and 4. *hen the original is a public record in the custody of a public officer or is recorded in a public office. 1riginal of a Document 1 3he original of the document is one the contents of #hich are the subject of in0uiry. 2 *hen a document is in t#o or more copies e"ecuted at or about the same time, #ith identical contents, all such copies are e0ually regarded as originals. 3 *hen an entry is repeated in the regular course of business, one being copied from another at or near the time of the transaction, all the entries are li5e#ise e0ually regarded as originals. Rules on .lectronic .!idence (Rule 7 Sec. 1. 1riginal of an .lectronic Document (n electronic document shall be regarded as the e0ui!alent of an original document under the &est .!idence Rule if it is a printout or output readable by sight or other means, sho#n to reflect the data accurately. Sec. 2. -opies as e0ui!alent of the originals *hen a document is in t#o or more copies e"ecuted at or about the same time #ith identical contents, or is a counterpart produced by the same impression as the original, or from the same matri", or by mechanical or electronic re2 recording, or by chemical reproduction, or by other e0ui!alent techni0ues #hich accurately reproduces the original. /ot#ithstanding the foregoing, copies or duplicates shall not be admissible to the same e"tent as the original if? a genuine 0uestion is raised as to the authenticity of the originalE or in the circumstances it #ould be unjust or ine0uitable to admit the copy in lieu of the original. arbon copies are deemed duplicate originals. They may be introduced as evidence without accounting for the non(production of the original. 4,eople vs. Tan, .:;:5 The 9est Evidence Rule applies only when the contents of the document are the subject of in7uiry. It does not apply when the issue is only as to whether or not such document was actually e)ecuted or in the circumstances relevant to its e)ecution. 4,eople vs. Tandoy, .::35 SOME E-AM LES2 1. &aptismal and )arriage -ertificate " 3hey are only e!idence to pro!e the administration of the sacraments on the dates therein specified " &aptismal certificate is not conclusi!e proof of filiation being hearsay 2. " )edical -ertificate 3o pro!e torture inflicted by the police, the medical certificate alone #ithout the testimony of the e"amining physician is inadmissible (%eople !. 9illagracia, 22D S-R( 6J8


Page 11


6. "

Residence -ertificate 3he place of obtaining a residence certificate and the date contained are not conclusi!e as to the real residence or domicile of a person o#ning said certificate. (Ouellig !. Republic, 86 %hil. =D8 3a" declaration 8t can be used as e!idence that a portion of land had been sold. ('acos !. -(, 212 S-R( 8 (ccounts and (ccount &oo5s *here the custom bro5erHs authori<ed representati!e accepted the cargo P1Q and completeR as sho#n in the sur!eyorHs report countersigned by him and it #as ob!iously his assigned tas5 to note defects in the cargo, said acceptanceSif not being outright upon the customHs bro5erSis at least e!idence of the condition of the goods #hen thus recei!ed. (8nsurance -ompany of /orth (merica !s. -.@. Sharp ; -o., 8nc. 18 S-R( 7D2 (n audit made by or the testimony of a pri!ate auditor is inadmissible in e!idence as proof of the original records, boo5s of accounts, reports or the li5e. (-ompania )aritima !s. (llied @ree *or5ers 4nion, == S-R( 27

7. " A. "


A,ter com4lyin! /it' t'e BES$ EVIDENCE RULE /ill t'e court necessarily admit t'e ori!inal /ritin!8 /o. 1 3he re0uirements of authentication of documents must be met. 3here must be proof of authentication. Co#e!er this applies only #hen the #riting is a pri!ate document. 2 (fter authentication, the proponent has to comply #ith the rule that if the original #riting is not in an official language (.nglish or @ilipino , it is his duty to gi!e to the court a translation thereof. 6 8f there is an alteration, he must e"plain such alteration. Ce may sho# that the alteration #as made? a by another, b #ithout his concurrence, or c made #ith the consent of the parties affected by it, or d #as other#ise properly or innocent made, or e 3he alteration did not change the meaning or language of the instrument. RIVA$E DOCUMEN$S% 9o/ roven N Rule 162, Sec. 2F &efore any pri!ate document offered as authentic is recei!ed in e!idence, its due e"ecution and authenticity must be pro!ed either? (1 by anyone #ho say the document e"ecuted or #rittenE or (2 by e!idence of the genuineness of the signature or hand#riting of the ma5er. (ny other pri!ate document need only be identified as that #hich it is claimed to be. 2 (ncient Document Rule N Rule 162, Sec. 21 (/ot Re0uired to (uthenticate Re0uisites? (1 3he pri!ate document is more than 6F years oldE (2 8t is produced from a custody in #hich it #ould naturally be found if genuineE (6 8t is unblemished by any alterations or circumstances of suspicion. 8f all re0uisites ha!e been met, no other e!idence of its authenticity is re0uired. 2 9o/ 3enuineness o, 9and/ritin! is roven N Rule 162, Sec. 22 8t may be pro!ed by any #itness #ho belie!es it to be the hand#riting of such person because he has seen the person #rite, or has seen #riting purporting to be his upon #hich the #itness has acted or been charged, and has thus ac0uired 5no#ledge of the hand#riting of such person. .!idence respecting the hand#riting may also be gi!en by a comparison made by the #itness or the court, #ith #ritings admitted or treated as genuine by the party against #hom the e!idence is offered, or pro!ed to be genuine to the satisfaction of the judge. Not muc' /ei!'t is !iven to 'and/ritin! e#4erts . 4nless, therefore, there is, in a gi!en case, absolute absence, or manifest dearth, or direct or circumstantial competent e!idence of the character of a 0uestioned hand#riting, much #eight should not be gi!en to characteristic similarities,


Page 12


or dissimilarities, bet#een the 0uestioned hand#riting and an authentic one. (%un<alan !. -ommission on .lections, '.R. /o. 16276A prom. (pril 2=, 1JJ8 citing Goren<o !. Dia<, A6 1.'. 711F27111, cited in @rancisco on .!idence, 9ol. 988, %art 8, 1JJ= .dition, p. D=7 $uestions in!ol!ing the mere similarity or dissimilarity of hand#ritings could be determined by the court itself as authori<ed under Sec. 22, Rule 162 of the Rules of -ourt by ma5ing a comparison of the disputed hand#riting K#ith #ritings admitted or treated as genuine by the party against #hom the e!idence is offered, or pro!ed to be genuine to the satisfaction of the judge.K (%un<alan !. -ommission on .lections, supra 2. 'econdary Evidence Rule 16F, Secs. A28 2.1 8nstances #hen secondary e!idence may be introduced? 2.1.1 #hen original document is una!ailable (lost, destroyed or cannot be produced in court 2 2 3he offeror, upon proof of (1 its e"ecution or e"istence and (2 cause of its una!ailability, #ithout bad faith on his part may pro!e its contents by? N ( copy N ( recital of its contents in some authentic document N 3he testimony of #itnesses. 3he order stated must be follo#ed. 2.1.2 *hen original document is in ad!erse partyHs custody or control. 2 8f after reasonable notice is gi!en to the ad!erse party to produce the document and after satisfactory proof of the e"istence of the document is made, he fails to produce the document, secondary e!idence may be presented. 2.1.6 #hen original document is a public record. 2 8ts contents may be pro!ed by a certified copy issued by the public officer in custody thereof. 2.2 ( party #ho calls for the production of a document and inspects it is not obliged to offer it as e!idence. The voluminous character of the document must be established before evidence other than the original may be introduced. 4 ompania %aritima vs. #llied +ree &or*ers, .:FF5 In the case where the original is in the custody of the adverse party, it is not necessary that it be in the actual possession of the adverse party. It is enough that the circumstances show that the writing is in his possession or under his control. $econdary evidence is admissible where the adverse party denies having it in his possession. 4!illa Rey Transit vs. +errer, .:@?5 #ll duplicates or counterparts must be accounted for before using copies as evidence. 41e !era vs. #guilar, .:?65 6. /arol Evidence "ule Rule 16F, Sec. J Nature o, 4arol evidence rule2 8t is not a rule of e!idence but of substanti!e la#. 8t is part of the la# of contracts, the la# of negotiable instruments, and the la# of #ills. 8t is founded upon the substanti!e rights of the parties. 8t #as made part of the rules of e!idence in order that it may be considered in all its phases in one place. Reasons ,or t'e 4arol evidence rule2 1 *hen the parties ha!e reduced their agreement in #riting, 2 it is presumed that they ha!e made the #riting 6 the only repository and memorial of the truth, and 7 #hate!er is not found in the #riting must be understood to ha!e been #ai!ed or abandoned. 'eneral Rule? *hen the terms of an ('R..)./3 (including *8GGS ha!e been reduced to *R838/', it is considered as containing (GG the terms agreed upon and there can be, bet#een the parties and their successors in interest, /1 e!idence (testimonial or documentary of such terms other than the contents of the #ritten agreement. ."ceptions: ( party may present e!idence to a. )odify, b. ."plain or c. (dd to the terms of #ritten agreement if he puts in issue in his pleading?


Page 13


(a (n intrinsic ambiguity, mista5e or imperfection in the #ritten agreementE (b 3he failure of the #ritten agreement to e"press the true intent and agreement of the parties theretoE (c 3he !alidity of the #ritten agreementE or (d 3he e"istence of other terms agreed to by the parties or their successors in interest after the e"ecution of the #ritten agreement. 8GG4S3R(381/? 3he !endee can !alidly tell the court that the deed of sale is not really one of sale but one or mortgage as long as he puts in issue in the pleadings, any of the matters enumerated abo!e. >/.&. (rt. 1DF2, /-- presumes that a deed of sale is an e0uitable mortgage #hen? 1M price of sale #ith right to purchase is unusually inade0uateE 2 9endor remains in possession as lessee or other#iseE 6 *hen another instrument e"tending period of redemption is e"ecutedE 7 *hen purchaser retains for himself a part of purchase priceE A 9endor assumes ta"E D 1ther circumstancesM 8GG4S3R(381/? 3here is a sale of a piece of land in fa!or of ,uan dela -ru<. 8f you read the document there is really nothing #rong because there is a !endor, there is a !endee and there is an object and consideration. &ut it turns out that there are t#o persons #ho carry the name ,uan de la -ru<. That document is intrinsically ambiguous because we do not *now who the vendee in that sale. 3he defect can be remedied by the introduction of testimonial e!idence or other documentary e!idence to sho# to the court #ho is the ,uan dela -ru< mentioned in the deed of sale as the !endee. &ut if in that deed of sale #here ,uan dela -ru< is the !endee, and there is only one ,uan dela -ru<, but the property sold is simply a piece of land. 3here is an ambiguity #hat particular land is sold as there is no description. 3he ambiguity is e#trinsic. 8t arises from the face of the document itself. Cere #e cannot introduce e!idence aliunde. 3he contract is !oid, #hich under the Rules cannot allo# be corrected and con!erted into a !alid contract. 4S cases and some %hilippine cases recogni<ed intermediate am&i!uity, and e!idence aliunde may be admitted by the court to e"plain or add to its meaning. 3his arises by the use of e0ui!ocal #ord+s #hich is susceptible of more than one interpretation. E)ample: 1efendant sold to plaintiff a distilling apparatus of guaranteed capacity of @,333 liters daily. 1efendant claimed that the phrase referred to =receiving> capacity. 'ere the word =capacity> was susceptible of two interpretations. $ held that parol evidence is admissible to show which of the two interpretations meant by the parties. 4,alanca v. +red &ilson J o., 6F ,hil. ;3@5

What is the coverage of the parol evidence rule and 4hat are the exceptions to the parol evidence rule 5 a. Covered% 1nly prior and contemporaneous agreements #hich are deemed to ha!e been merged in the #riting conformably to the Kintegration of the agreement rule.K (*oodhouse !. Calili, J6 %hil. A2D b. Not covered% 1 Subse0uent agreements, not#ithstanding that such agreements may ha!e the effect of adding to, changing, modifying, or e!en altogether abrogating the contract of the parties as e!idenced by the #riting. 2 -ollateral agreements #hich although oral and contemporaneous #ith the #riting are separate and distinct agreements. (%/& !. Seeto, J1 %hil. =AD 6 8t also does not apply if the issue re!ol!es around fraud and false representation since they are incidental to the e"ecution and not to the integration. (*oodhouse !s. Calili, 1JA6 7 8t does not apply either #hen third parties are in!ol!ed. (Gechugas !s. -(, 1J8D


Page 14


/13.S? a. Contem4oraneous a!reement% ( contemporaneous agreement is one entered into at the same time as the agreement #hich has been reduced to #riting. b. $ests to determine /'et'er a contem4oraneous oral a!reement is se4arate and distinct ,rom t'e /ritten a!reement and t'ere,ore 4rova&le &y 4arol evidence2 1 3he first test is the subject2matter of the t#o agreements. 8f the subject2matter of the #ritten agreement is di,,erent from that of the contemporaneous oral agreement, then the latter is a separate and distinct agreement and, therefore, pro!able by parol e!idence. 2 8f the t#o agreements refer to the same subject2matter, the test is to determine #hether or not the contemporaneous oral agreement is se4ara&le, then the contemporaneous oral agreement is separate and distinct and, therefore, probable by parol e!idence. (Gese !. Gamprecht, 1JD /.:. 62 c. E#am4le o, a!reement /'ic' CANNO$ &e 4roven &y 4arol evidence ? ."press trusts concerning real property cannot be pro!en by parol e!idence because title and possession cannot be defeated by oral e!idence #hich can easily be fabricated and contradicted. (Sinaon, et al., !. Sorongon, et al., 16D S-R( 71F d. E#am4les o, collateral a!reements /'ic' CAN &e 4roved &y 4arol evidence2 1 (n agreement of recon!eyance is a distinct agreement, separate from the sale itself, although the t#o agreements are usually contained in one and the same document. (Gaureano !. Qilayco, 67 %hil. 178E :acapin !. /eri, 7F %hil. D1 2 8nducements and representations #hich led to the e"ecution of an agreement may be pro!en by parol e!idence because they do not !ary the terms of the agreement. (*oodhouse !. Calili, J6 %hil. A2DE &ough !. -anti!eros, 7F %hil. 2FJ 6 %arol e!idence is admissible to pro!e an independent and collateral agreement #hich constitutes an inducement to the ma5ing of the sale or part of the consideration thereof. (Robles !. Gi<arraga Cnos., AF %hil. 68= 7 ( condition precedent not stipulated in #riting is pro!able by oral e!idence. R.(S1/? &efore the happening of the condition, there is no #ritten agreement yet to #hich the parol e!idence may apply. A 9erbal assurances gi!en by the indorser of an out2of2to#n chec5 to the employees of the ban5 #here it #as presented for encashment that he #ould refund the amount if the chec5 should be dishonored by the dra#ee ban5 is a collateral agreement separate and distinct from the indorsement, by !irtue of #hich the first ban5 #as induced to cash the same, and therefore, pro!able by parol e!idence. (%/& !. Seeto, J1 %hil. =AD D (ny prior or contemporaneous con!ersaion in connection #ith a note or its indorsement may be pro!ed by parol e!idence. (%/& !. Seeto, J1 %hil. =ADE %hilips !. %reston, A Co#. >4.S.M 2=8 = (n e"trinsic agreement bet#een indorser and indorsee #hich cannot be embodied in the instrument #ithout impairing its credit may be pro!ed by parol e!idence. (%/& !. Seeto, J1 %hil. =ADE J *igmore 178 8. 3he fact that parties #ho appear to ha!e signed as principals did so as merely sureties is pro!able by parol e!idence. (3an )achan !. De la 3rinidad, 6 %hil. D87 2A6'A -EM7 '8"A8I7 7 7CE8 =+alse description will not invalidate an instrument> The erroneous description will be considered as a surplusage. I""0$TR#TI/N: 8n a deed of sale of a parcel of land co!ered by? 3-3 1267A, located in -ity of )untinlupa. 3here is really a land co!ered by 3-3 1267A #ith same technical description ho#e!er it is not located in )untinlupa, but in Gaguna. The erroneous description will not invalidate the contract.

" "


Page 15


Best evidence rule distin!uis'ed ,rom 4arol evidence rule2 1 4nder the best e!idence rule, the issue is contents of a #riting (Sec. 6, Rule 16F, R1- *C8G. under the parol e!idence rule, there is no issue as to contents of a #riting (Sec. J, Rule 16F, R1- E 2 4nder the best e!idence rule, secondary e!idence is offered to pro!e the contents of a #riting, #hich is not allo#ed unless the case falls under any of the e"ceptions (Sec. 6, Rule 16F, R1*C8G. under the parol e!idence rule, the purpose of the offer of parol e!idence is to change, !ary, modify, 0ualify, or contradict the terms of a complete #ritten agreement, #hich is not allo#ed unless the case falls under any of the e"ceptions. (Sec. J, Rule 16F, R11nly the parties and their successors in interest, and not strangers may in!o5e the protection of the parol e!idence rule. (Sec. J, Rule 16F, R1AROLE EVIDENCE DIS$IN3UIS9ED FROM S$A$U$E OF FRAUDS 3he Statute of @rauds re0uires that certain agreements be pro!ed by #riting or by some note or memorandum thereof in order to be enforceable. 1n the other hand, the %arole .!idence Rule has nothing to do #ith the manner of pro!ing agreements. 8ts object is to prohibit alteration, change, modification, !ariation or contradiction of the terms of a #ritten agreement by Pparol e!idenceR. 7. Inter4retation o, Documents : Rule (;<= Secs% (<"() S.-. 1F. Interpretation of a writing according to its legal meaning. S3he language of a #riting is to be interpreted according to the legal meaning it bears in the place of its e"ecution, unless the parties intended other#ise. S.-. 11. Instrument construed so as to give effect to all provisions. S8n the construction of an instrument #here there are se!eral pro!isions or particulars, such a construction is, if possible, to be adopted as #ill gi!e effect to all. S.-. 12. Interpretation according to intentionC general and particular provisions. S8n the construction of an instrument, the intention of the parties is to be pursuedE and #hen a general and a particular pro!ision are inconsistent, the latter is paramount to the former. So a particular intent #ill control a general one that is inconsistent #ith it. S.-. 16. Interpretation according to circumstances. S@or the proper construction of an instrument, the circumstances under #hich it #as made, including the situation of the subject thereof and of the parties to it, may be sho#n, so that the judge may be placed in the position of those #hose language he is to interpret. S.-. 17. ,eculiar signification of terms. S3he terms of a #riting are presumed to ha!e been used in their primary and general acceptation, but e!idence is admissible to sho# that they ha!e a local, technical, or other#ise peculiar signification, and #ere so used and understood, in the particular instance, in #hich case the agreement must be construed accordingly. S.-. 1A. &ritten words control printed. S*hen an instrument consists partly of #ritten #ords and partly of a printed form, and the t#o are inconsistent, the former controls the latter. S.-. 1D. E)perts and interpreters to be used in e)plaining certain writings. S*hen the characters in #hich an instrument is #ritten are difficult to be deciphered, or the language is not understood by the court, the e!idence of persons s5illed in deciphering the characters, or #ho understand the language, is admissible to declare the characters or the meaning of the language. S.-. 1=. /f two constructions, which preferred. S*hen the terms of an agreement ha!e been intended in a different sense by the different parties to it, that sense is to pre!ail against either party in #hich he supposed the other understood it, and #hen different constructions of a pro!ision are other#ise e0ually proper, that is to be ta5en #hich is the most fa!orable to the party in #hose fa!or the pro!ision is made. S.-. 18. onstruction in favor of natural right. S*hen an instrument is e0ually susceptible of t#o interpretations, one in fa!or of natural right and the other against it, the former is to be adopted. S.-. 1J. Interpretation according to usage. S(n instrument may be construed according to usage, in order to determine its true character.


Page 16


C. $estimonial Evidence >uali,ications o, 0itnesses : Rule (;<= Sec% ?< 2 -an percei!e, and percei!ing, can ma5e their 5no#n perception to others. 3R2 ( disinterested person could be compelled to gi!e his testimony through subpoena E#ce4tions2 ,ersons who are immune from the process of subpoena by tradition, convention or law: a. (mbassadors of foreign countries by !irtue of treaty obligations b. %resident of the %hilippines or other country -is9ualifications : a. )ental incapacity or immaturity (Sec. 21, Rule 16F, R1- E b. )arriage (Sec. 22, 8bid E c. Death or insanity of ad!erse party (Sec. 26, 8bid. d. %ri!ileged communication (Sec. 27, 8bid. >(pplies to Rules on .lectronic .!idenceM 1 )arital pri!ileged communication rule (Sec. 27 >aM, 8bid. E 2 Ga#yer2client pri!ileged communication rule (Sec. 27 >bM, 8bid. E 6 Doctor2patient pri!ileged communication rule (Sec. 27 >cM, 8bid. 2 (/+( in criminal cases 7 %riest2penitent pri!ileged communication rule (Sec. 27 >dM, 8bid. E and A %ublic officer pri!ileged communication rule (Sec. 27 >eM, 8bid. . e. %arental and filial testimonial pri!ilege rule (Sec. 2A, Rule 16F, R1/ote? -on!iction of a crime does not dis0ualify a person from testifying but may dis0ualify him from being discharged as a state #itness. (Sec. J >eM, Rule 11J, R1/ote? 3his is not an e"clusi!e enumeration of the Rules on pri!ilege communication. 1ther e"amples are? a. 4nder Rules on (lternati!e dispute Resolution, information or communication gi!en by parties #ho participate in (DR is confidential b. 8nformation deri!ed by editors, reporters and publishers c. 3he negotiations under the *itness %rotection %rogram ((ccused discharged as state #itness (. &y reason of mental incapacity or immaturity Rule 6F, Sec. 21 2 3hose #hose mental condition, at the time of their production for e"amination, is such that they are incapable of intelligently ma5ing 5no#n their perception to othersE 2 -hildren #hose mental maturity is such as to render them incapable of percei!ing the facts respecting #hich they are e"amined and of relating them truthfully. # mental retardate is not for this reason alone dis7ualified from being a witness. 4,eople vs. $alomon, .::65 Re7uisites of competency of a child as witness: capacity of observationC capacity of recollectionC and capacity of communication. 4,eople vs. %endoBa, .::@5 &. )arital Dis0ualification Rule 16F, Sec. 22 8eneral Rule: During their marriage, neither the husband nor the #ife may testify for or against the other #ithout the consent of the affected spouse. E)ceptions: 2 8n a ci!il case by one against the other or, 2 8n a criminal case for a crime committed by one against the other or the latterLs direct descendants or ascendants. The right to invo*e this dis7ualification belongs to the spouse(party (1rti< !. (rambulo, 8 %hil. J8 against or for #hom the testimony is being proferred. 8t may be #ai!ed 1 &y a failure to interpose timely objection, or 2 &y calling the other spouse as #itness (8bid., %eople !. @rancisco, =8 %hil. DJ7


Page 17


The privilege could be invo*ed even if the spouse is testifying in favor of the spouse(party because damaging testimony may be elicited during the cross(e)amination.



a. %ri!ilege is applicable regardless of #hether the spouses are parties or not 2 )arital dis0ualification is applicable only #hen one or both spouses are parties b. 3he pri!ilege applies to testimonies on confidential communication only 2)arital dis0ualification applies to testimony on any fact c. )arital dis0ualification ceases after dissolution of marriage 2%ri!ileged communication lasts e!en after the death of either spouse d. .!en if the communication is not confidential, the marital dis0ualification may still be in!o5ed e. )arital dis0ualification is more concerned #ith the conse0uences. 8f the rule is not there, perjury and domestic disunity may result. 2 %ri!ilege protects the hallo#ed confidences inherent in marriage b+# husband and #ife and therefore guarantees the preser!ation of the marriage and further the relationship bet#een the spouses as it encourages the disclosure of confidential matters #ithout fear of re!elation. AMarryin! t'e 0itnessB (n accused can effecti!ely Pseal the lipsR of a #itness by marrying the #itness. (s long as a !alid marriage is in e"istence at the time of the trial, the #itness2spouse cannot be compelled to testifyS e!en #here the crime charged is against the #itnessH person, and e!en though the marriage #as entered into for the e"press purpose of suppressing the testimony. ()arriage for con!enience -(S.? ( filed a complaint against husband and #ife for annulment of a contract by reason of fraud. (C;* both defendants . ( subpoenaed the #ife to be his hostile #itness #hich is allo#ed in ci!il cases. *hen the #ife recei!ed the subpoena, the husband filed a motion in court for the 0uashing of the subpoeana, on the ground that there is a !iolation of the rule on marital dis0ualification+spousal immunity. ( told the court that this is not a case #here the #ife #ill be gi!ing testimony as an ad!erse #itness in fa!or of the plaintiff. So the rule on spousal immunity does not apply. Rulin! o, t'e Court2 Spousal immunity applies. 8f the #ife #as allo#ed to testify as an ad!erse #itness for the plaintiff, she might gi!e testimony that he #ill harm her interest and that of her husband. So that there #ill be a !iolation of the spousal immunity. ( conceded. ( told the court no# that if he cannot compel the #ife to be an ad!erse #itness, then he should be allo#ed to get the deposition of the #ife, because under the Rules of -ourt #hen the deposition of a person is ta5en, it does not necessarily mean that the deponent #ill be used as a #itness in court, since it is only a mode of disco!ery. Rulin! o, t'e Court2 .!en if the purpose is just to get the deposition of the #ife the rule on spousal immunity applies. -(S.? ( son filed a complaint against his o#n father for reco!ery of property or some assets. 3he son as5ed her mother to testify in his fa!or. S- held that there #ill be a !iolation of the spousal immunity rule. Note2 (s long as there is a case INVOLVIN3 the husband OR #ife, the dis0ualification is absolute. -. Dead )anHs Statute Rule 16F, Sec. 26 2 Sometime called the PSur!i!orHs dis0ualification ruleR %arties or assignor of parties to a case, or persons in #hose behalf a case is prosecuted, against 2 (n e"ecutor or 2 (dministrator or


Page 18


2 1ther representati!e 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 &.@1R. the death of such deceased person or before such person became of unsound mind. E#ce4tions to t'e survivorBs disCuali,ication rule2 1 1rdinary #itnesses, #ho are not the plaintiff, assignor of plaintiff, or person in #hose behalf the case is prosecuted may testify. (@rancia !. Cipolito, J6 %hil. JD8 2 *hen the plaintiff is a corporation, the officers or stoc5holders thereof are not dis0ualified. (Gichauco !. (tlantic 'ulf, et c., 87 %hil. 66F 6 *hen there is an imputation of fraud against the deceased, the plaintiff is not barred from testifying to such fraud. ('o -hi 'un !. -o -ho, JD %hil. D22 7 *hen the plaintiff is the e"ecutor, administrator or legal representati!e of the deceased, or the person of unsound mind, the defendant or defendants are free to testify against the plaintiff. (3ongco !. 9ian<on, AF %hil. DJ8 A *hen the defendant or defendants, though heirs of the deceased, are sued in their personal and indi!idual capacities, the plaintiff may testify against them. ('o -hi 'un !. -o -ho, JD %hil. D22 D *hen the sur!i!orLs testimony refers to a negati!e fact. ()ende<ona !. !da. de 'oitia, A7 %hil. AA= = *hen the sur!i!orLs testimony is fa!orable to the deceased. (8card !. )arasigan, =1 %hil. 71J 8 3he ad!erse party is competent to testify to transactions or communications #ith the deceased or incompetent person #hich #ere made #ith an agent of such person in cases in #hich the agent is still ali!e and competent to testify. &ut the testimony of the ad!erse party must be confined o those transactions or communications #hich #ere had #ith the agent. ('oni, et al., !. -ourt of (ppeals, et al., 177 S-R( 261 9o/ 4rotection o, t'e dead manBs statute is /aived2 1 &y not objecting to plaintiffLs testimony on prohibited matters. ()arella !. Reyes, 12 %hil. 1 2 &y cross2e"amining the plaintiff on prohibited matters. (3ongco !. 9ian<on, AF %hil. DJ8 6 &y calling #itnesses to testify on prohibited matters. ((rroyo !. (<ur, =D %hil. 7J6 7 *hen the plaintiffLs deposition is ta5en by the representati!e of the estate or #hen counsel for the representati!e cross2e"amined the plaintiff as to matters occurring during the deceasedLs lifetime. ('oni, et al., !. -ourt of (ppeals, et al., 177 S-R( 261 -(S.? )r. D approaches )r. - to borro# %1FF,FFF to be paid ne"t year. )r. - gi!es )r. D the amount. )r. - did not re0uire )r. D to e"ecute a promissory note. ( day before the agreed date of payment, )r. D died. )r. - #ent to the e"ecutor of the estate of )r. D and claims the payment of the debt. 8n this case, )r. - is incompetent to testify as to the transaction he had #ith )r. D. D. %ri!ileged -ommunication 1. )arital %ri!ilege Rule 16F, Sec. 27 (a Cusband or the #ife, during or after the marriage, cannot be e"amined #ithout the consent of the other as to any communication recei!ed in confidence by one from the other during the marriage 2 .I-.%3? N 8n a ci!il case by one against the other, or N 8n a criminal case for a crime committed by one against the other or the latterLs direct descendants or ascendantsE -(S.? 8f the communication is made in front of the children of the husband and #ife. -an the pri!ilege be in!o5edT :.S, if the children are still minors. /ote? 3he assumption is any communication gi!en by one spouse to the other is presumably confidential because there is no standard gi!en in the Rules.


Page 19


(pplications of the marital pri!ileged communciation rule? 1 .!ery communication bet#een spouses is presumed to be confidential. (Se"ton !. Se"ton, 12J 8a. 78=E *igmore, Sec. 266D 2 -ommunications made in the presence of third parties are not confidential, unless the third person may be considered as an agent of the spouses. (@loyd !. )iller, D1 8nd. 227 6 -ommunications o!erheard by third persons remain confidential as bet#een the spouses, but the third person #ho o!erheard may be called upon to testify. (%eople !. -arlos, 7= %hil. D2D 7 -ommunications coming into the hands of third persons, #hether legally or illegally, remain confidential as bet#een the spouses, but the third person may be called upon to testify. (%eople, and Cammons, supra &ut if the third person ac0uired 5no#ledge of the communication by collusion and !oluntary disclosure on the part of either of the spouses, he thereby becomes an agent of such spouses so that the pri!ilege is claimable against him. (8bid. A -ommunications intended for transmission to third persons are not confidential. (4.S. !. (ntipolo, 6= %hil. =2D 0aiver o, t'e marital 4rivile!ed communication rule2 3he pri!ilege is claimable by the spouse not called as #itness, so that it its #ai!able only by him or herE and it is #ai!able by any act of such spouse #hich might be considered as an e"press or implied consent to the disclosure of the communication. (%eople !. Cayes, 17F /.:. 787 2. (ttorney2-lient %ri!ilege Rule 6F, Sec. 27 (b (n attorney cannot, #ithout the consent of his client, be e"amined as to 2 (ny communication made by the client to him, or 2 Cis ad!ice gi!en thereon in the course of, or #ith a !ie# to, professional employment, nor can an attorneyLs secretary, stenographer, or cler5 be e"amined, #ithout the consent of the client and his employer, concerning any fact the 5no#ledge of #hich has been ac0uired in such capacityE 2 %ri!ilege is o#ned by the client. 8t is he #ho can in!o5e the pri!ilege. 8f the client #ai!es the pri!ilege, no one else including the attorney can in!o5e it. 'ence it the client is as*ed on cross( e)amination of his communications to his lawyer and reveals the same there would be a waiver. There is also a waiver if the client does not object to the attorneyDs testimony. The attorney(client privilege may not be invo*ed to refuse to divulge the identity of the client, EG E,T: 4.5 &hen a strong probability e)ists that revealing the name would implicate that person in the very same activity for which he sought the lawyerDs adviceC 425 &hen disclosure would open the client to liabilityC 465 &hen the name would furnish the only lin* that would form the chain of testimony necessary to convict. 4Regala vs. $andiganbayan, .::@5 LAS$ LIND DOC$RINE2 /on2pri!ileged information, such as identity of the client is protected if the re!elation of such information #ould necessarily re!eal the pri!ileged information. " " " It is enough that the client reasonably believed that the person consulted is a lawyer. ommunications may refer to anticipated litigations or may not refer to any litigation at all. ,rivilege does not e)tend to communications where the clientDs purpose is the furtherance of a future intended crime or fraud

6. %hysician2%atient %ri!ilege Rule 6F, Sec. 27 (c ( person authori<ed to practice medicine, surgery or obstetrics cannot in a -898G -(S., #ithout the consent of the patient, be e"amined as to 2 (ny ad!ice or treatment gi!en by him or 2 (ny information #hich he may ha!e ac0uired in attending such patient in a professional capacity, #hich information #as necessary to enable him to act in capacity, and #hich #ould blac5en the reputation of the patientE 2 3his pri!ilege belongs to the patient, so that it is only he that can claim or #ai!e it. 8t is #ai!able


Page 20


e"pressly or impliedly. 8t is impliedly #ai!ed li5e any other pri!ilege rule. (%enn. )utual Gife 8ns. -o. !. *iler, 1FF 8nd. J2 2 3he #ai!er may be by a contract as in medical or life insurance 2 *hen the patient ans#ers 0uestions on cross e"amination, there is #ai!er 2 4nder Rule 28 R1-, the court may order a party to submit to a physical or mental e"amination, so long as the mental or physical condition is in dispute. 3he party e"amined may re0uest a report of the e"amination. &y doing so, he #ai!es any pri!ilege he may ha!e in that action regarding the testimony of e!ery other person #ho has e"amined him in respect of the same e"amination. This privilege does not apply when the doctor is presented as an e)pert witness and only hypothetical problems were presented to him. 4"im vs. #, .::25 7. %riest2 %enitent %ri!ilege Rule 6F, Sec. 27 (d ( minister or priest cannot, #ithout the consent of the person ma5ing the confession, be e"amined as to 2 (ny confession made to or 2 (ny ad!ice gi!en by him in his professional character in the course of discipline enjoined by the church to #hich the minister or priest belongs A. %ublic 1fficer %ri!ilege Rule 6F, Sec. 27 (e ( public officer cannot be e"amined during his term of office or after#ards, as to communications made to him in official confidence, #hen the court finds that the public interest #ould suffer by the disclosure. D. %arental and @ilial %ri!ilege Rule 16F, Sec. 2A ( person cannot be compelled to testify against his parents, other direct ascendants, children or other direct descendants. /.&. 3here is an inconsistency bet#een the R1- and @amily -ode #ith respect to this pri!ilege. R1pre!ails since it too5 effect in 1J8J and is made by the S-. *hile the @amily -ode too5 effect in 1J8J, and though substanti!e is procedural in character. 0'o are not covered and may &e com4elled to testi,y2 1 Relati!es by affinity. 2 &rothers and sisters. 6 (unts, uncles, nephe#s, nieces. 7 -ousins of #hate!er degree. A 1ther collateral relati!es. /ote? %arental and filial testimony dies not prohibit !oluntary testimony or compelled testimony against relati!es by affinity or collateral relati!es. /ote? 8t is belie!ed that adopted and adopter are co!ered by the parental and filial testimonial pri!ilege rule but only insofar as the parent and child is concerned. 8t does not e"tend to the direct ascendants of the adopter because the adopti!e relation is bet#een the adopter and the adopted only. 3he reason for this opinion is the rationale behind the pri!ilege, #hich is to preser!e harmonious relations bet#een parent and child #hich could be ruptured through testifying in court. @urthermore, perjury may result because the parent or the child may gi!e false testimony to protect the other. Admissions and Con,essions Admissions Rule 16F, Sec. 2D 2 (ny act, declaration or omission of a party as to a rele!ant fact may be gi!en in e!idence against him. $uch admission may be received in evidence not only against the party who made it or his successors(in(interest but also against third persons. 4!iacrucis vs. #, .:?@5 The silence of an accused under custody or his failure to deny statements by another


Page 21


implicating him in a crime cannot be considered as a tacit confession of his participation in the commission of the crime. 4,eople vs. #legre, .:F:5 'elf(serving evidence (n admission fa!orable to the party ma5ing it. (Gichauco !. (tlantic 'ulf ; %acific -o., 87 %hil. 672 a. Sel,"servin! or ,avora&le admissions made out o, court not admissi&le2 REASONS ? 1 ( man may be safely belie!ed if he declares against his o#n interest, but not if he ad!ocates his interest. (Gichauco !. (tlantic 'ulf ; %acific -o., 87 %hil. 672 2 8t is e"cluded on the same ground as any hearsay e!idence, that, the lac5 of opportunity for cross2e"amination by the ad!erse party. (/ational De!elopment -o., !. *or5menLs -ompensation -ommission, 1J S-R( 8DA b. 0'en sel,"servin! or ,avora&le admissions are admissi&le ? 1 8f made in open court 2 gi!ing full opportunity to the ad!erse party 6 to e"ercise his right of cross2e"amination. Rule (?) Sec% E vs% Rule (;< Sec% ?F @irst is a ,4D8-8(G (D)8SS81/, #hich is conclusi!e upon the admitter #hether in #riting or oral. 3his applies to ci!il, criminal cases and e!en special proceedings. Second is an .I3R(,4D8-8(G (D)8SS81/. 4nder this rule, the admission is admissible only if it is against the interest of the admitter. (other#ise it is a self2ser!ing statement E)ample: +light is considered a disserving act, since it is prejudicial to the interest of the accused. +light is considered as circumstantial evidence of the guilt of the accused. 3:8 non(flight cannot be used as evidence to prove his innocence, because that will be considered as an act that is favorable to the interest of the accused. E#tra"1udicial Con,ession vs% Admission ( confession, as distinguished from admission, is a declaration made at any time by a person, !oluntarily and #ithout compulsion or inducement, stating or ac5no#ledging that he had committed or participated in the commission of a crime. 3he term, admission, on the other hand, is usually applied in criminal cases to statements of fact by the accused #hich do not directly in!ol!e an ac5no#ledgment of the guilt of the accused or of criminal intent to commit the offense #ith #hich he is charged. (4.S. !. -orrales, 28 %hil. 6DA Admission by silence. a. (n act or declaration made 1 in the presence and 2 #ithin the hearing or 6 obser!ation b. of a party #ho does or says nothing c. #hen the act or declaration 1 is such as naturally to call for action or comment if not true, and 2 #hen proper and possible for him to do so, d. may be gi!en in e!idence against him. (Sec. 62, Rule 16F, R1- arrangement and numbering supplied E#ce4tions to t'e rule on admission &y silence or instances /'ere t'ere is no admission &y silence? 1 *here no good reason e"ists for the party to comment on the act or declaration (9eil !. Strong, 1F 9t. 7AA , as #hen the act or declaration #as not specifically directed to the party #ho remained silent. (8F (.G.R., (nno., 12=2 2 *hen the party had no opportunity to comment on the act or declaration. (%eople !. Ranario, 7J %hil. 22F


Page 22


6 *here the act or declaration #as made in the course of an official in!estigation. (%eople !. 3ia @ong, J8 %hil. DFJ 7 *hen silence is upon ad!ice of counsel. (%eople !. Qo<lo#s5i, 11A (.G.R. 1AFA res inter alios acta alteri nocere non de&et or res inter alios acta Rule (@irst %art of Rule Statements made or matters accomplished bet#een t#o parties cannot prejudice a third party. (&lan<a !. (rcangel, 21 S-R( 7 3he rights of a party cannot be prejudiced by an act, declaration, or omission of another, e"cept as hereinafter pro!ided. (Sec. 28, Rule 16F, R1E#ce4tions to res inter alios acta2 1 *hen there is a rational similarity or resemblance bet#een the conditions gi!ing rise to he fact offered and the circumstances surrounding the issue or fact to be pro!ed. (-ru<, et al., !. -ourt of (ppeals, et al., '.R. /o. 12D=16, prom. ,uly 2=, 1JJ8 2 8n actions based on fraud and deceit, because it sheds light on the state of mind or 5no#ledge of a personE it pro!ides insight into such personLs moti!e or intentE it unco!ers a scheme, design or planE or it re!eals a mista5e. (-ru<, supra 6 (9icarious (dmissions 2 3he rights of a party may be prejudiced by the act, declaration or omission of another #hen bet#een the party ma5ing the admission and against #hom it is offered there e"ists a relation of? a partnershipE b agencyE c joint interestE d conspiracyE or e pri!ity. E#ce4tions to t'e rule t'at e#tra1udicial statements o, an accused im4licatin! a co" accused may not &e utiliGed a!ainst t'e latter2 (1 the co2accused impliedly ac0uiesced in or adopted the confession by not 0uestioning its truthfulnessE (2 the accused persons !oluntarily and independently e"ecuted identical confessions #ithout collusion and #ithout contradiction by the others presentE (6 the accused admitted the facts after being apprised of the confessionE (7 if they are charged as co2conspirators of the crime #hich #as confessed by 1 of the accused and the confession is used only as a corroborating e!idenceE (A the confession is used as circumstantial e!idence to sho# the probability of participation by the co2conspiratorE (D the confessant testified for his co2defendantE (= the co2conspiratorHs e"trajudicial confession is corroborated by other e!idence on record. (%eople !s. Ra0uel, 1JJD Rule on admission &y co"4artner or a!ent2 1 3he act or declaration of a partner or 2 agent #ithin the scope of his authority and during the e"istence of the partnership or agency, 6 may be gi!en in e!idence against such party 7 after the partnership or agency a is sho#n by e!idence >(testimonial or documentary, #hich may be 2ndary e!idence M b other than such act or declaration. A 3he same rule applies to the act or declaration of a joint o#ner, joint debtor, or other person jointly interested #ith the party% (Sec. 2J, Rule 16F, R1- arrangement and numbering supplied Rule on admission &y cons4irator2 1 3he act or declaration of a conspirator 2 relating to the conspiracy and during its e"istence, 6 may be gi!en in e!idence against the co2conspirator 7 after the conspiracy


Page 23


a is sho#n by e!idence (-ircumstantial .!idence2 cannot be pro!en by documentary e!idence, since conspirators do not normally reduce their agreement in #riting b other than such act or declaration. (Sec. 6F, Rule 16F U3his refers to e"trajudicial acts and declarations of a conspirator and not to his testimony as a #itness in the trial. (%eople !. (tencio, G2222A18, ,an. 1=, 1JD8 Rule on Admission &y rivies : Rule (;<= Sec% ;( 2 *here one deri!es title to property from another, the act, declaration, or omission of the latter, #hile holding the title, in relation to the property, is e!idence against the former ."ample? I, father of O, #hile the former #as ali!e, openly told his ac0uaintances, that the land #here his house stood had already been sold to :. 'ere, the declaration by G is not admissible against I, the sole heir of E, because the statement was made after G held title to the land. Second art o, Inter alios acta Rule 5Similar Acts as Evidence7 Rule 16F, Secs. 67 2 .!idence that one did or did not do a certain thing at one time is not admissible to pro!e that he did or did not do the same or similar thing at another timeE but it may be recei!ed to pro!e a specific intent or 5no#ledgeE identity, plan, system, scheme, habit, custom or usage, and the li5e. Con,essions Rule 16F, Sec. 166E Rule 11A (e E (rt. 888, Sec. 1=, 1J8= -onstitution 2 Declaration of an accused ac5no#ledging his guilt of the offense charged, or of any offense necessarily included thereinE may be gi!en in e!idence against him. 2 -onfession is e!idence of high order? 1 3here is no e!idence of a higher 0uality than a confession, 8t represents the out#ard manifestation of a man. 4nless, therefore, the confession is nullified by e!idence of duress, the same is admissible as an e!idence of guilt of a high 0uality. (%eople !. 'arcia, A7 %hil. 62J, 6A8 2 8f a confession be true and !oluntary, the deliberate act of the accused #ith a full comprehension of its significance, there is no impediment to its admission as e!idence and it then becomes e!idence of a high order, since it is supported by the presumption, a !ery strong one, that no person of normal mind #ill deliberately and 5no#ingly confess himself to be the perpetrator of a crime, especially if it be a serious crime, unless prompted by truth and conscience. (%eople !. Oea, et al., 16F S-R( 8=, 88 /robative value of recantations0 3hey are loo5ed upon #ith disfa!or as recantations are usually secured through intimidation or for a monetary consideration. ()olina !. %eople, 2AJ S-R( 168 3eneral rule on admissi&ility o, con,ession2 ( confession is admissible only against the accused #ho made it and not against his co2accused, for as against the latter, the confession #ould be hearsay and res inter alios acta. (%eople !. 3alledo, 8A %hil. A66 E#ce4tions2 #hen a confession is admissible against co2accused? 1 *hen the confession of an accused implicating his co2accused is made judicially at a joint trial (4.S. !. )acamay, 6D %hil. 8J6 or #hen the e"trajudicial statements implicating a co2accused are repeated in open court (%eople !. 1la, '.R. /o. G27=17=, ,uly 6, 1J8= , because the co2accused as a chance to cross2e"amine. 2 *hen the offer in e!idence of an e"trajudicial confession against a co2accused is not objected to. (%eople !. (tien<a, 8D %hil. A=D 6 *hen the co2accused against #hom an e"trajudicial confession is offered had, by his acts, conducts and declarations adopted he confession as his o#n. (%eople !. (tien<a, supraE %eople !. 1rencia, 7= %hil. J=F 7 *here se!eral accused, #ithout collusion, made e"trajduicial confessions #hich are identical in essential details and corroborated by other e!idence, such confession is admissible against the others. (%eople !. %elonia, G217D27, ,uly 27, 1JDF A 3he confession of a conspirator is admissible against his co2conspirator pro!ided it #as made during the e"istence of the conspiracy. (Sec. 6F, Rule 16F, R1-E %eople !. Ramire<, G2A8=A, )ay 1A, 1JA6


Page 24


D *hen the recitals in the e"trajudicial confession of an accused is corroborated in its important details by other proofs in the record, it may be admitted against the other accused. (%eople !. 9illanue!a, G212D8=, ,uly 61, 1JD2 E#tra1udicial con,essions identical in material res4ects 5also Hno/n as interlocHin! con,essions7 admissible against all declarants? 1 As circumstantial evidence% ."trajudicial confessions independently made #ithout collusion and are identical #ith each other in their material respects and confirmatory of the other are admissible as circumstantial e!idence against co2accused implicated therein to sho# the probability of the latterLs actual participation in the commission of the crime. (%eople !. .ncipido, et al., 17D S-R( 7J2 2 As corro&orative evidence% 3hey are admissible as corroborati!e e!idence against the other accused, if it is clear from other facts and circumstances presented that persons other than the declarants themsel!es participated in the commission of the crime charged and pro!ed. (8bid. 3hey are #hat is commonly 5no#n as interloc5ing confession and constitute an e"ception to the general rule that e"trajudicial confessions+admissions are admissible in e!idence only against the declarants thereof. (8bid. 3he in!ocation of amnesty is in the nature of a plea of confession and a!oidance, #hich means that the pleader admits the allegations against him, but disclaims liability therefor on account of inter!ening facts #hich, if pro!ed, #ould bring the crime charged #ithin the scope of the amnesty proclamation. (%eople !. Salig, et al., 166 S-R( DJ citing 9era !. %eople, = S-R( 1A6 0'at is meant &y cor4us delicti 8 a. 8t refers to a particular crime and signifies that the specific offense had been actually committed by someone, being composed of t#o elements? 1 certain results #ere produced, and 2 someone is criminally responsible. (%eople !. )ar0ue<, == %hil. 86 b. 8t also means actual commission of the crime charged. (%eople !. )adrid, 88 %hil. 1E %eople !. Sanche<, 8J %hil. 726 , or the specific fact of loss or injury. (%eople !. 'arcia, JJ %hil. 681 E#am4les o, cor4us delicti2 a. 8n murder or homicide, the corpus delicti is the fact of death (%eople !. 'arcia, JJ %hil. 681 , #hich may be pro!ed e!en circumstantially. (%eople !. Sasota, J1 %hil. 111E %eople !. )oro (nsang, J6 %hil. 77 . b. 8n robbery or theft, the fact of loss. (%eople !. /iem, =A %hil. DD8 c. 8n arson, the fact of burning, (%eople !. )ar0ue<, == %hil. 86E %eople !. )ones, A8 %hil. 7D d. 8n an affray, the fact that pistol shots #ere heard and a bystander #as 5illed by one of the shots constitute e!idence of corpus delicti, #hich is the !iolent death of a person, #hether feloniously caused or not. (%eople !. /ocum, == %hil. 1F18 -on!iction for murder proper e!en if !ictimHs body is not produced? 8n all crimes against persons in #hich the death of the !ictim is an essential element of the offense, there must be satisfactory e!idence of the fact of death and the identity of the !ictim that a crime has been committed #hich is #hat corpus delicti really means. 3he failure of the prosecution to produce the body of the !ictim does not imply the absence of corpus delicti for the term does not refer to the body of the murdered person. (%eople !. -enteno, et al., 16F S-R( 2FJ " Sec% (+= Art III : No 4erson s'all &e com4elled to &e a /itness a!ainst 'imsel,% The operative act in determining whether the right against self(incrimination has been violated is when the police investigation is no longer a general in7uiry into an unsolved crime but has begun to focus on a particular suspect who has been ta*en into custody by the police to carry out a process of interrogation that lends itself to eliciting incriminatory statements and not the


Page 25


signing by the suspect of his supposed e)trajudicial confession. 4,eople vs. ompil, .::;5 9y affi)ing their signatures on the bo)es, accused in effect made a tacit admission of the crime charged. These signatures are tantamount to an e)trajudicial confession made without the assistance of counsel, which is not sanctioned by the 9ill of Rights. 4,eople vs. &ong huen %ing, .::@5 #ny confession, including a re(enactment without admonition of the right to silence and to counsel, and without counsel chosen by the accused is inadmissible in evidence. 4,eople vs. Eip &ai %ing, .::@5 The declaration of an accused e)pressly ac*nowledging his guilt of the offense may be given in evidence against him and any person, otherwise competent to testify as a witness who heard the confession is competent to testify as to the substance of what he heard if he heard and understood it. 4,eople vs. %a7ueda, .::;5 Com4romises Rule 16F, Sec. 2= 1.-i!il -ases (n offer of compromise is not an admission of any liability, and is not admissible against the offeror. 2. -riminal -ases (n offer of compromise by the accused may be recei!ed in e!idence as an implied admission of guilt .I-.%3 in cases in!ol!ing 0uasi2offenses (criminal negligence or those allo#ed by la# to be compromised. 2 ( plea of guilty later #ithdra#n, or an unacce4ted o,,er of a plea of guilty to lesser offense, is not admissible in e!idence against the accused #ho made the plea or offer. $'e 3ood Samaritan Rule2 (n offer to pay or the payment of medical, hospital or other e"penses occasioned by an injury is not admissible in e!idence as proof of ci!il or criminal liability for the injury. It has long been held that in cases of public crimes, the accused is permitted to show that the offer was not made under a consciousness of guilt but merely to avoid the inconvenience of imprisonment of for some other reason which would justify a claim by the accused that the offer was not in truth an admission of his guilt or an attempt to avoid the legal conse7uences which would ordinarily ensue therefrom. 4,eople vs. 8odoy, .::;5 # plea of forgiveness may be considered as analogous to an attempt to compromise. 4,eople vs. 1e 8uBman, .::@5 #n offer to compromise does not re7uire that a criminal complaint be first filed before the offer can be received as evidence against the offeror. 4,eople vs. Eparriguirre, .::F5 8.E 9earsay Rule (% $estimonial Dno/led!e : Rule (;<= Sec% ;F 1 *hat can a #itness testify toT 2 ( #itness can testify only to those facts #hich he 5no#s of his personal 5no#ledge N those #hich are deri!ed from his o#n perception, e"cept as other#ise pro!ided in these rules. The hearsay evidence rule applies also to affidavits when the supposed affiant never identified the affidavit and there was no opportunity for the prosecution to cross(e)amine him-her. 4,eople vs. 9rioso, .:F.5. The testimony of a witness regarding a statement made by another person, if intended to establish the truth of the facts asserted in the statement is clearly hearsay evidence. It is otherwise if the purpose is merely to establish the fact that the statement was made, or the tenor of such statement. 4,eople vs. usi, .:@;5 The testimony of a witness on the confession made to him by the accused is not hearsay. 'e is testifying to a fact which he *nows of his personal *nowledge 4was testifying to the fact that the accused told him that he stabbed the victim5 and not to the truth of the statement of the accused. 4,eople vs. 8addi, .:?:5


Page 26


E)amples of hearsay evidence: .5 The testimony of a witness as to what he has heard another person say about the facts in dispute. 4,eople v. Reyes, F@ ,hil. 6;<C #ldecoa J o., v. &#rner 9arnes J o., 63 ,hil. .;65 N/TE: $ee concept of independent relevant statement. 25 #ffidavits. 4%arisfos7ue v. "una, "(:3:;, %ay 2;, .:;FC ,eople v. ,ag*aliwagan, F@ ,hil. <;F5 ;eneral rule0 #ffidavits without presenting affiant in court is mere hearsay: The constitutional right to confrontation precludes reliance on affidavits. $uch a constitutional safeguard cannot be satisfied unless the opportunity is given to the accused to test the credibility of any person, who, by affidavit or deposition would impute the commission of an offense to him. It would be to disregard one of the most valuable guarantees of a person accused if solely on the affidavits presented, his guilt could be predicated. 4,eople v. $antos, et al., .6: $ R# ;?@(;?F citing ,eople v. "avareB, 26 $ R# .63.5 Exceptions0 when affidavits are given weight: .5 &here said affidavits are overwhelming, uncontroverted by competent evidence and not inherently improbable. 4Top(&eld %anufacturing, Inc. v. E E1, $.#., et al., .6? $ R# .625 25 0nder the Rule on $ummary ,rocedure for civil casesC 65 &hen a motion is based on facts not appearing of record the court may hear the matter on affidavits or depositions presented by the respective parties, but the court may direct hat the matter be heard wholly or partly on oral testimony or depositions. 4$ec. F, Rule .66, R/ 5 65 # letter offered in evidence to establish the facts in issue. 4,astor v. 8aspar, 2 ,hil. ;:2C ,eople v. arlos, <F ,hil. @2@5 <5 # medical certificate to the e)tent of the injuries found by the doctor on the offended partyKs body. 41e 8uia v. %eralco, <3 ,hil. F3@5 ;5 # resolution of the municipal council of a certain municipality as to the character of an accused in a criminal case. 40.$. v. Tanjuatco, . ,hil. 6F<5 @5 Newspaper #rticles( 41ouble dec* hearsay or 1ouble hearsay5 8heory of the hearsay rule: &hen a human utterance is offered as evidence of the truth of the fact asserted in it, the credit of the assertor becomes the basis of inference, and therefore the assertion can be received as evidence only when made on the witness stand, subject to the test of cross(e)amination. 8W7 C7 CE/8' 72 .EA"'A< E=I-E CE0 .. $econd hand information 4not derived from personal *nowledge of witness5 2. Testimony by a witness derived from his personal *nowledge 90T the adverse party is not given opportunity to cross(e)amine E)ample 4No. 25: ,laintiff presents witness #. # testifies in court on matters personally *nown to him. #fter direct e)amination, court tells that defendant can cross e)amine on ne)t scheduled hearing. /n the ne)t scheduled hearing witness # no longer appears and could no longer be located. LThe remedy here now is to as* that the testimony of witness # be stric*en out since it now becomes hearsayH "ationale behind the non(admissibility of hearsay evidence0 .5 # witness can testify only to those facts which he *nows of his own *nowledgeC and 25 To preserve the right of parties to cross(e)amine the original witness or person claiming to have *nowledge of the transaction or occurrence. 4,eople v. ,ag*aliwagan, F@ ,hil. <;F5 The right to cross(e)amine he adverse partyKs witnesses is essential in the administration of justice for it is the only means of testing the credibility of witnesses and their testimony, and this right is not available in respect of hearsay evidence since he declarant is not in court. 41onnelly v. 0.$., 22? 0.$. 2<65 /rinciple of Independently "elevant 'tatements ( 0nder this principle regardless of the truth or falsity of a statement, the fact that such statements


Page 27


have been made is relevant. The hearsay rule does not apply, and the statements are admissible as evidence. Evidence as to the ma*ing of such statement is not secondary but primary, for the statement itself may constitute a fact in issue or be circumstantially relevant as to the e)istence of such a fact. ( Independent relevant statements are hearsay in character but not legal hearsay, hence they are not considered as e)ceptions to the hearsay rule. 8llustration? ( #as drin5ing #ith his buddies. ( told them that? P)y neighbor is a thiefR. Gater on (Hs neighbor #as charged #ith theft. %rosecution calls as his #itness one of the drin5ing buddies. 3he drin5ing buddy testifies in court saying? P3he accused is a thief because 8 heard ( says so.R >3C8S 8S C.(RS(: .98D./-.M /o#, supposing the neighbor filed a libel case against (. 3he drin5ing buddy ser!es as a #itness for the plaintiff, and says? P8 heard ( said that the plaintiff is a thief.R. >/o# this time this is not hearsay, because the @(-3 8/ 8SS4. is #hether or not the utterances #ere made by a particular person, regardless of the truth or falsity of the statementM CASE2 ES$RADA v% DESIER$O= A RIL ;= ?<<( 8ssue? *hether or not the use of the (ngara diary to determine the state of mind of %resident .strada !iolates the rule against the admission of hearsay e!idence Celd? 1 (ngara diary is not an 14321@2-14R3 S3(3.)./3, since it is part of the pleadings in the case. 2 (ngara diary is not co!ered by the hearsay rule. Evidence is called hearsay when its probative force depends in whole or in part, on the competency and credibility of some persons other than the witness by whom it is sought to produce it. 6 (dmission are not e"cluded by hearsay e!idence. The #ngara diary contains direct statements of petitioner which can be categoriBed as admissions of a party. #nd though the diary is not EstradaDs hence non(binding on him, $ held that the doctrine of adoptive admission applies. <5 res inter alios acta rule( e)ception: admissions by a co(partner or agent. ."ecuti!e Secretary (ngara #as the little president, an alter ego of the president. 8ndeed, he #as authori<ed by the petitioner to act for him in the critical hours and days before he abandoned )alacanan. A 8ndependently Rele!ant Statement2 there are t#o classes? (1 Statements #hich are the !ery facts in issueE (2 Statements #hich are circumstantial e!idence. 3he second class includes? a. Statement of a person 5no#ing his state of mind, that is his mental condition, 5no#ledge, belief, intention, ill #ill and other emotions b. Statements of a person #hich sho# his physical condition as illnesses and the li5e c. Statements of a person #hich an inference may be made as to the state of mind of another, that is the 5no#ledge, belief, moti!e, good or bad faith of the latter d. Statements #hich may identify the date, place and persons in 0uestions e. Statements sho#ing the lac5 of credibility of a #itness The #ngara diary contains statements of the petitioner which reflect his state of mind and are circumstantial evidence of his intent to resign . ?% E#ce4tions 2.1 -ying -eclaration Rule 16F, Sec. 6= 2 Declaration #as made under the consciousness of an impending death 2 Declaration refers to cause and surrounding circumstances of the death of the declarant 2 Declaration may be recei!ed in any case #herein declarantHs death is the subject of in0uiry (8n one case. 3he husband #as shot and #ife #as stabbed. 3he #ife died instantly. 3he husband #as brought to the hospital and made a statement that it #as I #ho stab her #ife. 3he husband then died. The statement is not a dying declaration because it pertains to the wife5 2 3he declarant must be competent as a #itness (*hat if declarant is pro!ed to be a congenital liarT Still this e"ception may apply, because he is not dis0ualified from testifying in court if he #ere ali!e 2 3he declarant actually died, other#ise, the declaration may be admitted as part of the res gestae and not as a dying declaration A LICABILI$.2 &oth -i!il and -riminal. >-riminal? 1nly those #hich in!ol!e death, homicide,


Page 28


murder, parricide, robbery #ith homicide, rape #ith homicideM Victim need not state t'at 'e 'as lost all 'o4e o, recovery% 8t is sufficient that circumstances are such as to ine!itably lead to the conclusion that at the time the declaration #as made, the declarant #ould not e"pect to sur!i!e the injury from #hich he actually died. 3he degree and seriousness of the #ounds and the fact that death super!ened thereafter constitute substantial e!idence of the !ictimLs consciousness of his impending death. (%eople !. 3anaman, et al., '.R. /o. =1=D8, ,uly 28, 1J8= Dyin! declaration 'as /ei!'t even i, declarant did not die immediately a,ter 'is declaration? 3he fact that the declarant died four (7 hours after his statement does not diminish the probati!e !alue of the dying declaration since it is not indispensable that the a declarant e"pires immediately thereafter. 8t is the belief of impending death and not the rapid succession of death that renders the dying declaration admissible. (%eople !. &autista, '.R. /o. 11117J, prom. September A, 1JJ= Mere !esture o, dyin! victim inconclusive2 3he gesture of a dying #oman in pointing to a direction, #hen as5ed for the identity of her assailant, is too !ague to be gi!en such probati!e !alue in determining the culpability of the accused. REASON2 4nli5e an oral or a #ritten declaration, a simple gesture of the hand unaccompanied by #ords, is open to !arious interpretations by the #itness #ho testifies to its e"istence. 3hus, the e!idence comes to the court couched in the #itnessL second hand perception and possibly, imbued #ith his personal meanings and biases. 3his is #hat ma5es hearsay e!idence objectionable. 3he second hand e!idence is placed before the court #ithout the benefit of cross2 e"amination by the party against #hom it is brought, nor of any other means of assessing the competence and credibility of the source. (%eople !. 1la, '.R. /o. G27=17=, ,uly 6, 1J8= CASE2 3he crime charged is rape #ith homicide. 3he !ictim before death tells to the police in!estigator+doctor? P8 #as raped.R >3his is not a dying declaration, because the statement has nothing to do #ith the cause and circumstances surrounding the death. &ut this may be admitted as part of res gestaeH 2.2 "es ;estae Rule 16F, Sec. 72 2 *hat are admissible as part of the res gestae? 2 Statements made by a person #hile a starting occurrence is ta5ing place or immediately prior or subse0uent thereto #ith respect to the circumstances thereof 2 Statements accompanying an e0ui!ocal act material to the issue and gi!ing it legal significance 3*1 -1/-.%3S? (. Spontaneous Statements &. Statements accompanying .0ui!ocal (cts2 .0ui!ocal means ambiguousC capable of different interpretations. E-AM LE2 a S%1/3(/.14S S3(3.)./3? I barged into the house of :, tied her to a chair and robbed her. I brought :Hs maid to a bedroom and raped her. : could hear the maid crying? PCu#agV )aa#a 5a sa a5inVR. *hen I fled, : #ith the maid rushed to the police station and told the police #hat happened. 3he maid told the police that despite her pleas I still raped her. 3he police noticed that the maid #as hysterical and on the !erge of collapse. I #as charged #ith robbery #ith rape. During the trial the maid could no longer be located. 3he prosecution presents the policeman to testify on #hat the maid told him. > The testimony would be hearsay but as an e)ception to the hearsay rule. The statements made by the maid fall within the res gestae ruleH b .$4891-(G+9.R&(G (-3S? ( #itness testifies on the stand for the plaintiff in a collection case #here the defendant denies ha!ing borro#ed %1F,FFF from the plaintiff. 3he debt is not e!idenced by a promissory note because plaintiff claims that defendant had orally borro#ed money from him in the past and had al#ays paid. 3his time he refuses to pay. 3he #itness testifies that one year ago he sa# the plaintiff gi!e money to the defendant. (nd that he heart the plaintiff said that? PCereHs the money you are borro#ing from me.R @urther, he said that he heard the defendant say? P3han5 you, 8 #ill pay one year after.R >Cere the e0ui!ocal act of handing the money #as gi!en

significance by the statement of the plaintiffM D.IN3 DECLARA$ION vs% RES 3ES$AE

Page 29


Time when statements made: D:8/' D.-G(R(381/2 statements must be made after the injury has been inflicted upon the applicant. R.S '.S3(.2 in so far as startling occurrence is concerned, the statements could be made prior or simultaneous #ith or after the startling occurrence. 1eath of declarant: D:8/' D.-G(R(381/2 declarant must die R.S '.S3(.2 no need for declarant to die 1eclarant: D:8/' D.-G(R(381/2 must be the !ictim R.S '.S3(.2 anybody EO LE vs% CLOUD 5?FI SCRA E+?7 Conce4t o, inde4endently relevant statements and res !estae a44lied simultaneously% JN%B% dyin! declaration may liHe/ise &e a44lied simultaneously /it' inde4endently relevant statementK Mosephine #guilar was at the emergency room of a hospital to have some stitches removed from her daughterDs head when she saw a boy being carried by a man, followed by an old woman who was shouting hysterically. The boyDs face was swollen and bruised and his body covered with dry blood. The old woman, apparently the boyDs grandmother, cried and repeatedly screamed. =,inatay siya ng sariling amaN>. The old woman told the people inside the emergency room that the boyDs father had beaten him up, tied his hands, and stabbed him. Ruling of $ : Insofar as the statements of Rufina #lconyes4old woman5 are concerned, they are admissible as part of the res gestae, they having been caused by and did result from the startling, if not gruesome, occurrence that she witnessedC and these were shortly thereafter uttered by her with spontaneity, without prior opportunity to contrive the same. The report made thereof by Mosephine #guilar is not hearsay since she was actually there and personally heard the statements of #lconyes which she recounted in court. 'er account of said statements of #lconyes are admissible under the doctrine of independently relevant statements, with respect to the tenor and not the truth thereof, since independent of the truth or falsity of the same they are relevant to the issue on the cause of the death of the victim. 2.6 -eclaration Against Interest Rule 16F, Sec. 68 &y #hom made? a person deceased, or unable to testify, against the interest of the declarant Subject of declaration+act? the fact asserted in the declaration #as at the time it #as made so far contrary to declarantLs o#n interest, that a reasonable man in his position #ould not ha!e made the declaration unless he belie!ed it to be true (gainst #hom recei!ed? such may be recei!ed in e!idence against himself or his successors in interest and against third persons. "E>:I'I8E'0 a. 3he declaration is made by 1 a person deceased, or 2 unable to testify >i.e. in foreign country or physical+mental impairmentsM b. against the interest of the declarant, >declarant )4S3 Q/1* that it is against his interestM c. if the fact asserted in the declaration 1 #as at the time it #as made 2 so far contrary to declarantLs o#n interest, 6 that a reasonable man in his position a #ould not ha!e made the declaration b unless he belie!ed it to be true% (Sec. 68, Rule 16F, R1-


Page 30


Declaration a!ainst interest distin!uis'ed ,rom admission2 1 (n admission is not necessarily against the interest of the admitter *C8G. the declaration must be against the declarantLs o#n interest(penal, proprietary, financial 2 (n admission may be recei!ed e!en if the admitter is ali!e *C8G. the declarant must be dead or is unable to testifyE 6 (n admission may be recei!ed in e!idence only against the admitter and those identified #ith him in legal interest *C8G. the declaration may be recei!ed e!en against third persons. (Smith !. )oore, 172 /.-. 2== 8nability to testify N either dead, mentally incapacitated or physically incompetent. )ere absence from the jurisdiction does not ma5e him ipso facto una!ailable. @uentes !s. -( (1JJD CASE2 eo4le v% 9ol!ado ,ose #as 5illed. %edro admitted that he #as the one #ho 5illed ,ose. 4nfortunately, %edro also died. 3he prosecutor filed an information charging ,uan #ith homicide of ,ose. 3he defense presented a #itness #ho heard %edro say that he #as the one #ho 5illed ,ose. S- held that %edroHs declaration is a declaration against interest. 8t is therefore admissible to sho# that the accused did not commit the crime charged. 2.7 /edigree Rule 16F, Sec. 6J &y #hom made? person deceased, or unable to testify Subject of declaration+act? pedigree of another person related to him by birth or marriage *hen admissible? occurred before the contro!ersy, and the relationship bet#een the t#o persons is sho#n by e!idence other than such act or declaration. %edigree 2 includes relationship, family genealogy, birth, marriage, death, the dates #hen and the places #here these fast occurred, and the names of the relati!es. 8t embraces also facts of family history intimately connected #ith pedigree. 2.A 2amily 8radition Rule 16F, Sec. 7F Subject of e"ception? reputation or tradition e"isting in a family pre!ious to the contro!ersy, in respect to the pedigree of any one of its members, may be recei!ed in e!idence if the #itness testifying thereon be also a member of the family, either by consanguinity or affinity. 2.ntries in family bibles or other family boo5s or charts, engra!ings on rings, family portraits and the li5e, may be recei!ed as e!idence of pedigree. 2.D Common "eputation Rule 16F, Sec. 71 2 *hat are admissibleT 2 -ommon reputation e"isting pre!ious to the contro!ersy, respecting facts of public or general interest W 6F years old, or respecting marriage or moral character, may be gi!en in e!idence. 2 )onuments and inscriptions in public places may be recei!ed as e!idence of common reputation Note: &hen it comes to presentation of evidence concerning the good or bad moral character, the only evidence admissible is evidence of /%%/N RE,0T#TI/N. $o if character evidence is allowed a litigant cannot present proof that he is of good moral character. E)ample: ( parish priest of the community #here the accused belongs is presented as #itness. (nd the parish priest testifies that the accused goes to mass e!eryday and recei!es holy communion. >3he testimony is not admissible to sho# the accusedHs good moral characterE )oral character for purposes of e!idence can be demonstrated 1/G: by e!idence of R.%43(381/M. $o the parish priest should tell the court what is the reputation of the accused in the community. rinci4le o, NE3A$IVE RE U$E 8f in a community nothing good or bad is heard about a particular person, the presumption is that he is really a good person, because that flo#s from the established principle in substanti!e la# that e!eryone is acting in good faith.


Page 31


2.= Entries in the Course of 3usiness Rule 16F, Sec. 72E Rule 8, R.. *hen made? .ntries made at, or near the time of transactions to #hich they refer &y #hom made? by a person deceased, or unable to testify, #ho #as in a position to 5no# the facts therein stated, 3reatment of such e!idence? prima facie e!idence, if such person made the entries in his professional capacity or in the performance of duty and in the ordinary or regular course of business or duty. Rule 8, Section 1. Cearsay rule e"ception? ( memorandum, report, record or data compilation of acts, e!ents, conditions, opinions, or diagnoses, made by electronic, optical or other similar means at or near the time of or from transmission or supply of information by a person #ith 5no#ledge thereof, and 5ept in the regular course or conduct of a business acti!ity, and such #as the regular practice to ma5e the memorandum, report, record, or data compilation by electronic, optical or similar means, all of #hich are sho#n by the testimony of the custodian or other 0ualified #itnesses. Rule 8, Section 2. 3his presumption may be o!ercome by e!idence of the untrust#orthiness of the source of information or the method or circumstances of the preparation, transmission or storage thereof. 2.8 7fficial "ecords Rule 16F, Sec. 77 *hen made? .ntries made at, or near the time of transactions to #hich they refer. &y #hom made? by a person deceased, or unable to testify, #ho #as in a position to 5no# the facts therein stated, 3reatment of such e!idence? prima facie e!idence, if such person made the entries in his professional capacity or in the performance of duty and in the ordinary or regular course of business or duty. The report submitted by a police officer in the performance of his duties on the basis of his own personal observation of the facts reported, may properly be constituted as an e)ception. 4 alte) vs. #frica, .:@@5 Entries in a police blotter are not conclusive proof of the truth of such entries. 4,eople vs. abuang, .::65 2.J Commercial 6ists Rule 16F, Sec. 7A .!idence 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 pro!e the truth of any rele!ant 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. 2.1F 6earned 8reatises Rule 16F, Sec. 7D ( published treatise, periodical or pamphlet on a subject of history, la#, science, or art is admissible as tending to pro!e the truth of a matter stated therein if the court ta5es judicial notice, or a #itness e"pert in the subject testifies, that the #riter of the statement in the treatise, periodical or pamphlet is recogni<ed in his profession or calling as e"pert in the subject. 2.11 /rior 8estimony Rule 16F, Sec. 7= &y #hom made? a #itness deceased or unable to testify, *hen gi!en? in a former case or proceeding, judicial or administrati!e, in!ol!ing the same parties and subject matter, *hen admissible? may be gi!en in e!idence against the ad!erse party #ho had the opportunity to cross2e"amine him. P4nable to testifyR refers to an inability proceeding from a gra!e cause almost amounting to death as #hen the #itness is old and has lost the po#er of speech. (3an !s. -(, 1JD= Conduct and C'aracter as Evidence


Page 32


Conduct Rule 16F, Secs. 6726A 2 .!idence that one did or did not do a certain thing at one time is not admissible to pro!e that he did or did not do the same or similar thing at another timeE but it may be recei!ed to pro!e a specific intent or 5no#ledgeE identity, plan, system, scheme, habit, custom or usage, and the li5e. 2 (n offer in #riting to pay a particular sum of money or to deli!er a #ritten instrument or specific personal property is, if rejected #ithout !alid cause, e0ui!alent to the actual production and tender of the money, instrument, or property. C'aracter Rule 16F, Sec. A1E Rule 162, Sec. 17 'eneral Rule? -haracter e!idence is not admissible, >because it is purely circumstantialM e"ceptions2 1. 8n criminal cases 2 (ccused N may pro!e his good moral character #hich is pertinent to the moral trait in!ol!ed in the offense charged. 2 %rosecution N may not pro!e his bad moral character unless in rebuttal. 2 1ffended %arty N his+her good or bad moral character may be pro!ed if it tends to establish in any reasonable degree the probability or improbability of the offense charged. 2. 8n ci!il cases 2 .!idence of the moral character of a party in a ci!il case is admissible only #hen pertinent to the issue of character in!ol!ed in the case. 2 *itness N .!idence of his+her good character is not admissible until such character has been impeached. &hile evidence of another crime is, as a rule, not admissible in a prosecution for robberyC it is admissible when it is otherwise relevant, as when it tends to identify defendant as the perpetrator and tends to show is presence at the scene of the crime or in the vicinity of the crime at the time charged, or when it is evidence of a circumstance connected with the crime. 4,eople vs. Irang, .:6F5 8ood or bad moral character of the victim is not necessary in a crime of murder where the *illing is committed through treachery or premeditation. 4,eople vs. $oliman, .:;F5 V% O4inion Rule Rule 16F, Secs. 782AF 'eneral Rule: 3he opinion of a #itness is not admissible (R16F, X78 ."cept? 1. ."pert #itness? opinion of a #itness on a matter re0uiring special 5no#ledge, s5ill, e"perience or training #hich he sho#n to possess (R16F, X7J 2. 1rdinary #itness? 3he opinion of a #itness for #hich proper basis is gi!en, may be recei!ed in e!idence regarding S (a 3he identity of a person about #hom he has ade0uate 5no#ledgeE (b ( hand#riting #ith #hich he has sufficient familiarityE and (c 3he mental sanity of a person #ith #hom he is sufficiently ac0uainted. (d 3he #itness may also testify on his impressions of the emotion, beha!ior, condition or appearance of a person. (R16F, XAF There is no precise re7uirement as to the mode in which s*ill or e)perience shall have been ac7uired. $cientific study and training are not always essential to the competency of a witness as an e)pert. Onowledge ac7uired by doing is no less valuable than that ac7uired by study. 41ilag o. vs. %erced, .:<:5 ,olygraph test has not as yet attained scientific acceptance as a reliable and accurate means of ascertaining truth or deception. 4,eople vs. #doviso, .:::5 E)pert opinions are not ordinarily conclusive in the sense that they must be accepted as true on the subject of their testimony, but are generally regarded as purely advisoryC the courts may place whatever weight they choose upon such testimony and may reject it, if they find that it is inconsistent with the facts in the case or otherwise unreasonable.4,unBalan v. ommission on Elections, et al., 8.R. No. .2@@@:5 Testimony of handwriting e)pert not indispensable to /%E"E . 'andwriting e)perts, while probably useful, are not indispensable in e)amining or comparing handwritingC this can be done by the /%E"E itself. It was ruled by the $upreme ourt that evidence aliunde is not allowed to


Page 33


prove that a ballot is mar*ed, an inspection of the ballot itself being sufficient. ommission on Elections, et al., 8.R. No. .2@@@:5

44,unBalan v.

VI% Burden o, roo, and resum4tions 1. &urden of %roof Rule 161, Sec. 1 &urden of proof (Ris5 of non2persuasion ? duty of a party to present e!idence on the facts in issue necessary to establish his claim or defense by the amount re0uired by la#. -riminal -ases? 3he burden of proof is on the prosecution, because under Rule 166 the accused is entitled to ac0uittal unless his guilt is demonstrated by proof beyond reasonable doubt -i!il -ases? 3he usual principle is that #hoe!er ma5es an affirmati!e allegation has the burden of proof 8nfringement cases? 3he burden of proof to substantiate a charge of infringement is #ith the plaintiff. &ut #here he plaintiff introduces the patent in e!idence, and the same is in due form, there is created a prima facie presumption of its correctness and !alidity. 3he decision of the -ommissioner of %atent (no# the Director of the 8ntellectual %roperty 1ffice , in granting the patent is presumed to be correct. 3he burden of going for#ard #ith the e!idence (burden of e!idence then shifts to the defendant to o!ercome by competent e!idence this legal presumption. ()aguan !. -ourt of (ppeals, et al., 17D S-R( 11D, 11= 3#o separate burdens in &urden of %roof? 1. &urden of going for#ard2 that of producing e!idence 2. &urden of persuasion2 burden of persuading the trier of fact that the burdened party is entitled to pre!ail 8llustration of going for#ard #ith the e!idence? @or e"ample after the e"istence of a debt has been pro!en by the creditor the burden of pro!ing payment de!ol!es upon the debtor. *here the debtor introduces e!idence of payment, the burden of going for#ard #ith the e!idence 2 as distinct from the general burden of proof2 shifts to the creditor #ho is then under the duty of producing e!idence to sho# non2payment. (,imene<, et al, !. /GR-, et al., '.R. /o,. 11DJDF, prom. (pril 2, 1JJD 8n short, the burden of going for#ard is the burden of producing e!idence. E22EC8 72 A3'E CE 72 E=I-E CE or no evidence is presented -R8)8/(G -(S.? (ccused is ac0uitted -898G -(S.? a. *hen defendant does not file an ans#er2 %laintiff #ins b. *hen defendant files an ans#er and sets up purely negati!e defenses and no e!idence is presented by both sides2 Defendant #ins because plaintiff has not carried his burden c. *hen defendant files an ans#er and sets up affirmati!e defenses and no e!idence is presented by both sides2 %laintiff #ins E)ample: The defendant filed an answer: =I admit that I borrowed money from the plaintiff, but the plaintiff has no reason to run after me because I have paid that account long time ago.> LIf no evidence is presented by both sides then plaintiff wins because the defendant admitted the e)istence of loan. #nd it is the defendantDs burden to prove his affirmative defense.H BURDEN OF EVIDENCE" the duty resting upon a party, by means of e!idence, to create or meet a prima facie case. BURDEN OF ROOF vs% BURDEN OF EVIDENCE 9urden of ,roof NE!ER $'I+T$ , #hile 9urden of Evidence is TR#N$+ERRE1 from one litigant to another depending on the progress of trial. 8llustration? %laintiff files a complaint for reco!ery of a defaulted loan. Defendant files an ans#er #ith a negati!e defense, denying the e"istence of the loan. > (t the start, the plaintiff has the burden of


Page 34


proof and also burden of e!idence, he should go to trial and present e!idence to sho# that he has a cause of action. 8f he has introduced enough proof that he has a cause of action, the burden of e!idence #ill no# be shifted to the defendant. 8f defendant presents enough e!idence to pro!e his negati!e defense then the burden of e!idence is shifted again to the plaintiff on rebuttal e!idence.M Can t'e accused in a criminal@civil case &e,ore 4resentin! 'is o/n evidence ascertain conditionally or 4rovisionally /'et'er t'e evidence 4resented &y t'e 4rosecution is enou!' to convict 'im8 :es. 8n a criminal+ci!il case, the accused(defendant+plaintiff can easily determine the sentiment of the court concerning the 0uantum of e!idence presented by the prosecution(defendant+plaintiff by simply filing a demurrer to evidence #ith lea!e of court. RINCI LE OF NE3A$IVIN3 AVERMEN$ ( negati!e a!erment do not ha!e to be pro!en 4/G.SS the negati!e a!erment is an essential part of the cause of action or defense. E)ample: In an information for illegal possession of firearms, the information will contain an averment that the accused does not have a license to possess the firearmLnegative avermentH. P In this case, the negative averment is an essential part of the commission of the crime, hence this must be proven. Doctrine o, eCui4oise or ECui4onderance Rule &here the evidence on an issue of fact is in e7uipoise or there is doubt on which side the evidence preponderates, the party having the burden of proof fails upon that issue. 4Rivera v. ourt of #ppeals, et al., 8.R. No. ..;@2;, prom. Manuary 26, .::?5 Therefore, as neither party was able to ma*e out a case, neither side could establish its cause of action and prevail with the evidence it had. They are thus no better off than before they proceeded to litigate, and, as a conse7uence thereof, the courts can only leave them as they are. 4Rivera, supra citing %unicipality of andijay, 9ohol v. ourt of #ppeals, 2;. $ R# ;635 2. %resumptions Rule 161, Secs. 227 %resumption2 an inference as to the e"istence or non2e"istence of a fact #hich courts are permitted to dra# from the proof of other facts. CLASSIFICA$IONS (% RESUM $ION 6URIS OR OF LA0 2 a deduction #hich the la# e"pressly directs to be made from particular facts 2)ust be made #hene!er the facts appear #hich furnish the basis for the inference 2Reduced to fi"ed rules and form part of the system of jurisprudence ?% RESUM $ION 9OMINIS OR OF FAC$" a deduction #hich reason dra#s from facts pro!ed #ithout an e"press direction from the la# to that effect 2Discretionary on the court 2Deri!ed from circumstances of a particular case through common e"perience of man5ind CLASSIFICA$IONS OF RESUM $IONS OF LA0 1. -onclusi!e2 not permitted to be o!ercome by any proof to the contrary 2. Disputable2 la# permits to be o!ercome or contradicted $.# Conclusive 2.1.1. *hene!er a party by his o#n declaration, act, omission, has led another 1 to belie!e a particular thing to be true (/D 2 to act upon such belief, he cannot in any litigation arising out of such declaration, act or omission be permitted to falsify it. (.stoppel 2.1.2. 3he 3./(/3 is not permitted to deny the title of his landlord at the time of the


Page 35


-1))./-.)./3 of the relation of landlord and tenant bet#een them. Note: There is also a conclusive presumption under the Rule 6:, which is a public policy principle of res judicata 4a judgment is conclusive upon the title to the thing or upon the political or legal condition of a person, Qjudgment in rem or in personamR5 $.$ -isputable CLASSIFICA$IONS2 1. %resumption of innocence (%resumption of good faith 2. %resumption of regularity of official and judicial acts 6. %resumption of regularity of pri!ate transactions 2 %erson is innocent of a crime or #rongE 2 4nla#ful act is done #ith an unla#ful intentE 2 %erson intends the ordinary conse0uences of his !oluntary actE 2 %erson ta5es ordinary care of his concernsE 2 .!idence #illfully suppressed #ould be ad!erse if produced E"E%ENT$: a. 3he suppression is #ilful. (Sec. 62e, Rule 161, R1- continue b. 3he suppression is not in the e"ercise of a pri!ilege. c. 3he e!idence suppressed is not merely corroborati!e. d. 3he e!idence is at the disposal only of the suppressing party. /13.S? 8nstances #here ad!erse presumption from suppression of e!idence does not apply? a. 8f the e!idence is at the disposal of both parties. (%eople !. Ducay, 22A S-R( 1 b. 3he suppression #as not #illful. c. 3he suppressed e!idence is merely corroborati!e or cumulati!e. d. 3he suppression is an e"ercise of a pri!ilege. (%eople !. /a!aja, 22F S-R( D27 2 )oney paid by one to another #as due to the latterE 2 3hing deli!ered by one to another belonged to the latterE 2 1bligation deli!ered up to the debtor has been paidE 2 %rior rents or installments had been paid #hen a receipt for the later ones is producedE 2 ( person found in possession of a thing ta5en in the doing of a recent #rongful act is the ta5er and doer of the #hole actE other#ise, that things #hich a person possesses or e"ercises acts of o#nership o!er, are o#ned by himE 2 %erson in possession of an order on himself for the payment of the money or the deli!ery of anything has paid the money or deli!ered the thing accordinglyE person acting in public office #as regularly appointed or elected to itE 2 1fficial duty has been regularly performedE 2 ( court or judge acting as such, #hether in the %hilippines or else#here, #as acting in the la#ful e"ercise of jurisdictionE 2 (ll the matters #ithin an issue raised in a case #ere laid before the court and passed upon by itE all matters #ithin an issue raised in a dispute submitted for arbitration #ere laid before arbitrators and passed upon by themE 2 %ri!ate transactions ha!e been fair and regularE 2 ordinary course of business has been follo#edE 2 there #as a sufficient consideration for a contractE 2 negotiable instrument #as gi!en or indorsed for a sufficient considerationE 2 (n indorsement of negotiable instrument #as made before the instrument #as o!erdue and at the place #here the instrument is datedE 2 ( #riting is truly datedE 2 Getter duly directed and mailed #as recei!ed in the regular course of the mailE 2 (bsentee of = years, it being not 5no#n #hether or not he is ali!e, is considered dead for all purposes e"cept for succession. N @or the purpose of opening his succession? an absence of 1F years, if disappeared after age of =A,


Page 36


absence of A years. N 3he follo#ing shall be considered dead for all purposes including the di!ision of the estate among the heirs? N %erson on board a !essel lost during a sea !oyage, or an aircraft #ith is missing, #ho has not been heard of for 7 years since the loss of the !essel or aircraftE N )ember of the armed forces #ho has ta5en part in armed hostilities, and has been missing for 7 yearsE N %erson #ho has been in danger of death under other circumstances and #hose e"istence has not been 5no#n for four yearsE N Spouse, of a married person absent for 7 consecuti!e years, may contract a subse0uent marriage if he or she has #ell2founded belief that the absent spouse is already deathE 2 years in case of disappearance, #here there is a danger of death the circumstances hereinabo!e pro!ided. &efore marrying again, the spouse present must institute a summary proceedings as pro!ided in the @amily -ode and in the rules for declaration of presumpti!e death of the absentee, #ithout prejudice to the effect of reappearance of the absent spouse. 2 (c0uiescence resulted from a belief that the thing ac0uiesced in #as conformable to the la# or factE 2 3hings ha!e happened according to the ordinary course of nature and ordinary nature habits of lifeE 2 %ersons acting as copartners ha!e entered into a contract of co2partnershipE 2 ( man and #oman deporting themsel!es as husband and #ife ha!e entered into a la#ful contract of marriageE 2 %roperty ac0uired by a man and a #oman #ho are capacitated to marry each other and #ho li!e e"clusi!ely #ith each other as husband and #ife #ithout the benefit of marriage or under !oid marriage, has been obtained by their joint efforts, #or5 or industry. 2 8n cases of cohabitation by a man and a #oman #ho are not capacitated to marry each other and #ho ha!e ac0uire properly through their actual joint contribution of money, property or industry, such contributions and their corresponding shares including joint deposits of money and e!idences of credit are e0ual. 2 8f the marriage is terminated and the mother contracted another marriage #ithin three hundred days after such termination of the former marriage, these rules shall go!ern in the absence of proof to the contrary? 2 ( child born before 18F days after the solemni<ation of the subse0uent marriage is considered to ha!e been concei!ed during such marriage, e!en though it is born #ithin the 6FF days after the termination of the former marriage. 2 ( child born after 18F days follo#ing the celebration of the subse0uent marriage is considered to ha!e been concei!ed during such marriage, e!en though it be born #ithin the 6FF days after the termination of the former marriage. 2 ( thing once pro!ed to e"ist continues as long as is usual #ith things of the nature 2 3he la# has been obeyedE 2 ( printed or published boo5, purporting to be printed or published by public authority, #as so printed or publishedE 2 ( printed or published boo5, purporting contain reports of cases adjudged in tribunals of the country #here the boo5 is published, contains correct reports of such casesE 2 ( trustee or other person #hose duty it #as to con!ey real property to a particular person has actually con!eyed it to him #hen such presumption is necessary to perfect the title of such person or his successor in interestE 2 ."cept for purposes of succession, #hen 2 persons perish in the same calamity, and it is not sho#n #ho died first, and there are no particular circumstances from #hich it can be inferred, the sur!i!orship is determined from the probabilities resulting from the strength and the age of the se"es, according to the follo#ing rules? N &oth Y 1A? older sur!i!edE N &oth W DF? younger sur!i!edE N 1ne Y1AE other WDF? Y1A sur!i!edE N &oth W1A, YDF and the se" be different, the male is deemed to ha!e sur!i!ed, if the se" be the same, the olderE N 1ne Y 1A or W, and the other bet#een those ages, the latter is deemed to ha!e sur!i!ed.


Page 37


2 3hat if there is a doubt, as bet#een t#o or more persons #ho are called to succeed each other, as to #hich of them died first, #hoe!er alleges the death of one prior to the other, shall pro!e the sameE in the absence of proof, they shall be considered to ha!e died at the same time. (Aa The presumption that evidence not produced or willfully suppressed is adverse to the party, will not apply if the evidence is at the disposal of both the defense and the prosecution and if the evidence is merely conclusive. 4,eople vs. ,adiernos, .:F@5 VII% resentation o, Evidence

/ote? 3he Rules apply to Summary %rocedure but in a modified form, since in Summary %rocedure the testimonies of the #itnesses, (in ci!il cases #ill be reduced into #riting in the form of affida!it. Cence, there is no direct, cross, re2cross or re2direct e"amination. (ffiant is not allo#ed in Summary %rocedure to embody hearsay testimony. 8n criminal cases under Summary %rocedure, the affida!its of the #itnesses ta5e the place of the direct e"amination. 3here is cross e"amination VOIR DIRE2 preliminary e"amination of #itnesses for the purpose of establishing #hether or not a #itness really is 0ualified as such. (Gi5e#ise done in e"amination of a child #itness, but it is only the judge #ho can as5 0uestions, plaintiff and defendant can #rite their 0uestions and gi!e it to the judge Note: /rdinary witnesses are not allowed to be e)amined in a narrative form, e)cept a child witness. ."amination of *itnesses .o4 done Rule 162, Sec. 1 open court under oath or affirmation 2 )ode of ans#ering 'eneral Rule? oral ."ception? o *itness is incapacitated to spea5 or o $uestion calls for a different mode of ans#er A. 1. 2. "ights and 7bligations Rule 162, Sec. 6 1bligation of a #itness? ans#er 0uestions, although his ans#er may tend to establish a claim against him. Rights of a #itness? 2.1 3o be protected from irrele!ant, improper, or insulting 0uestions, and from harsh or insulting demeanorE 2.2 /ot to be detained longer than the interests of justice re0uireE 2.6 /ot to be e"amined e"cept only as to matters pertinent to the issueE 2.7 /ot to gi!e an ans#er #hich #ill tend to subject him to a penalty for an offense unless other#ise pro!ided by la#E or 2.A /ot to gi!e an ans#er #hich #ill tend to degrade his reputation, unless it to be the !ery fact at issue or to a fact from #hich the fact in issue #ould be presumed. &ut a #itness must ans#er to the fact of his pre!ious final con!iction for an offense. -ase? Supposing a #itness refused to ans#er because he feels the 0uestion is incriminatory. Co#e!er, the court directs the #itness to gi!e an ans#er and the #itness obeys the order of the court. Gater on the ans#er turns out to be incriminatory and later on the #itness #as indicted for the commission of this offense, can his testimony in court be gi!en in e!idence against him in the form of an admissionT /1, because the #itnsess has initially objected and he ga!e the ans#er only in compliance #ith an order of the court. (ccording to some decisions that could be treated as a compelled testimony


Page 38


gi!en under duress and therefore could not be used against the #itness. E-CE $IONS $O RULE A3AINS$ SELF"INCRIMINA$ION (% Use Immunity2 the #itness #ill still be indicted for the commission of an offense, but the statements gi!en by the #itness cannot be used against him. Ce is not immuni<ed from prosecution. ?% $ransactional Immunity" 3here is absolute immunity, both to prosecution and use of the statements gi!en by the #itness. 6. 7rder in the Examination Rule 162, Sec. 7 6.1 Direct ."amination Rule 162, Sec. A 2 ."amination2in2chief of a #itness by the party presenting him on the facts rele!ant to the issue. 6.2 -ross2."amination Rule 162, Sec. D 2 &hen conducted: upon termination of direct e"amination 2 %atters covered: #itness may be cross2e"amined by the ad!erse party as to N (ny matters stated in the direct e"amination, or connected there#ith, #ith sufficient fullness and freedom to test his accuracy and truthfulness and freedom from interest or bias, or the re!erse, and N 3o elicit all important facts bearing upon the issue. 8mplied #ai!er of cross2e"amination 3he party #as gi!en the opportunity Dela %a< !s. 8(- (1J8= 8W7 ":6E' 7 6IMI8' 72 C"7'' E?AMI A8I7 1. En!lis' Rule2 #here a #itness is called to testify to a particular fact, he becomes a #itness for all purposes and may be fully cross2e"amined upon all matters material to the issue, the e"amination not being confined to the matters in0uired about in the direct e"amination. 2. American Rule2 restricts cross2e"amination to facts and circumstances #hich are connected #ith the matters that ha!e been stated in the direct e"amination of the #itness. (applies #hen #itness is the accused in a criminal caseE and #hen #itness is hostile or ad!erse party #itness 6.6 Re2direct ."amination Rule 162, Sec. = ( &hen conducted: after the cross2e"amination of the #itness has been concluded ( &hy conducted: to e"plain or supplement his ans#ers gi!en during the cross2e"amination. 1n re2 direct2e"amination, the court in its discretion may allo# 0uestions on matters not dealt #ith during the cross2e"amination. 6.7 Re2cross ."amination Rule 162, Sec. 8 2 (d!erse party may re2cross2e"amine the #itness on matters stated in his re2direct e"amination, and also on such other matters as may be allo#ed by the court in its discretion, upon the conclusion of the re2direct e"amination. 7. "ecalling Witnesses Rule 162, Sec. J 2 (fter the e"amination of a #itness has been concluded by both sides has been concluded, the #itness cannot be recalled #ithout lea!e of court. 3he court #ill grant or #ithhold lea!e in its discretion as the interests of justice may re0uire. There must be a satisfactory showing of some concrete, substantial ground 4i.e. particularly identified material points were not covered in the cross(e)aminationC particularly described vital documents were not presented to the witnessC the cross(e)amination was conducted in so inept a manner as to result in a virtual absence thereof. 4,eople vs. Rivera, .::.5 A. 6eading and Misleading >uestions Rule 162, Sec. 1F Geading 0uestions Z $uestions that suggest to the #itness the ans#er, #hich the e"amining party desires, are leading 0uestions. Z 8eneral Rule: /ot allo#ed Z E)ceptions: 1. 1n cross e"aminationE 2. 1n preliminary mattersE

6. 7.

Page 39



*hen there is a difficulty is getting direct and intelligible ans#ers from a #itness #ho is ignorant, or a child of tender years, or is of feeble mind, or a deaf2muteE 1f an unwilling or hostile witnessE or o ( #itness may be considered as un#illing or hostile only if so declared by the court upon ade0uate sho#ing of his 2 Z ad!erse interest, Z unjustified reluctance to testify, or Z his ha!ing misled the party into calling him to the #itness stand. 1f a #itness #ho is an ad!erse party or an officer, director, or managing agent of a public or pri!ate corporation or of a partnership or association #hich is an ad!erse party. &hen the answer is derived from a leading 7uestion the evidence has no probative value at all even if there is no objection to a leading 7uestion.

Misleadin! Cuestions 1 3hose that assume as true a fact not yet testified to by the #itness, or contrary to that #hich he has pre!iously stated. 2 /ot allo#ed. DOC$RINE OF INCOM LE$E $ES$IMON. ? *hen cross e"amination cannot be done or completed due to causes attributable to the party #ho offered the #itness, the incomplete testimony is rendered incompetent and should be stric5en from the record. E#ce4t2 #here the prosecution #itness #as e"tensi!ely cross2e"amined on the material points and thereafter failed to appear and cannot be produced despite a #arrant for his arrest. (%eople !. '1rospe, 'R A1A16, )ay 1A, 1J87 Sco4e o, 1ud!eBs 4artici4ation at trial ? ( judge #ho presides at a trial is not a mere referee. Ce must acti!ely participate therein by directing counsel to the facts in dispute, by as5ing clarifying 0uestions, and by sho#ing an interest in a fast a fair trial. (-larin !. :atco, AD 1.'. =F72, /o!. 17, 1JDF Ce can interrogate #itnesses to elicit the truth, to obtain clarification, or to test their credibility. (%eople ! )oreno, 86 %hil. 28D Co#e!er, this po#er must be e"ercised by the court sparingly and judiciously. (%eople !. @errer, 77 1.'. 112 . 1f course, the judge cannot curtail counselLs right to interrogate #itnesses. (%eople !. &edia, 86 %hil. JFJ 3here is no prohibition against the judge conducting the e"amination of the #itness. 3he counsel may object to the 0uestions propounded by the judge. o/er o, court to sto4 ,urt'er evidence? 1 3he court may stop 2 the introduction of further testimony 6 upon any particular point 7 #hen the e!idence upon it is already so full A that more #itnesses to the same point D cannot be reasonably e"pected = to be additionally persuasi!e. &ut this po#er should be e"ercised #ith caution % *hen the e!idence already presented on one point is sufficient and the party merely see5s to present cumulati!e e!idence #hich cannot produce additional persuasi!e effect or that he is not sure of #hat the other #itnesses #ould testify, the court may in its sound discretion stop the introduction of such further e!idence. (%eople !. Reyes, et al., 166 S-R( A1 Role o, attorney durin! 4resentation o, evidence ? relati!e to pro!ing the truth respecting a matter of fact. (n attorney has a dual role to perform


Page 40


Ce must ensure that all e!idence supporting the material allegations, #hether raised in the pleadings or not are admitted by the court. Cis other role is to bloc5 the admission of e!idence supporting his opponentsL material allegations #hether raised in the pleadings or not. 8n order to perform this dual role the attorney should ensure that the e!idence he offers are admissible in accordance #ith the Rules of -ourt and those of his opponent are properly objected to for being inadmissible @. Impeachment of Witnesses D.1. 8mpeachment of (d!erse %artyHs *itness Rule 162, Sec. 11 2 Co# done? by contradictory e!idenceE by e!idence that his general reputation for truth, honesty or integrity is badE or by e!idence that he has made at other times statements inconsistent #ith his present testimony. 2 .!idence of particular #rongful acts is not allo#ed e"cept that it may be sho#n by the e"amination of the #itness, or the record of the judgment, that he has been con!icted of an offense. D.2. 8mpeachment of 1#n *itness Rule 162, Sec. 12 2 'eneral Rule? 3he party producing a #itness is not allo#ed to impeach the latterHs credibility. 2 ."ception? 3he #itness is an un#illing or hostile #itness. N ( #itness may be considered as un#illing or hostile only if so declared by the court upon ade0uate sho#ing of his 2 Z ad!erse interest, Z unjustified reluctance to testify, or 2 Z his ha!ing misled the party into calling him to the #itness stand. 2 3he impeachment may be made by the party presenting the hostile or un#illing #itness in all respects as if he had been called by the ad!erse party, e"cept by e!idence of bad character. Ce may also be impeached and cross2e"amined by the ad!erse party, but such cross2e"amination must only be on the subject matter of his e"amination2in2chief. D.6. 8mpeachment by %rior 8nconsistent Statements Rule 162, Sec. 16 2 &efore a #itness can be impeached by e!idence that he has made at other times statements inconsistent #ith his present testimony? the statements must be related to him, #ith the circumstances of the times and places and the persons present, and he must be as5ed #hether he made such statements, and if so, be allo#ed to e"plain themE if the statements be in #riting they must be sho#n to the #itness before any 0uestion is put to him concerning them 5layin! t'e 4redicate7% Layin! t'e ,oundation or layin! t'e &asis" refers to a situation #here an e!idence #hich is other#ise incompetent #ill be introduced in e!idence because it falls under the e"ceptions to that rule on e"clusion. ."ample? 8f a party desires to introduce secondary or substitutionary e!idence he must first lay the foundation or lay the basis. Ce must first pro!ed that there #as a #riting duly e"ecuted and that the original has been lost or destroyed. =. Exclusion and 'eparation of Witnesses Rule 162, Sec. 17 2 3he judge may e"clude from the court any #itness not at the time under e"amination, so that he may not hear the testimony of other #itnesses. 3he judge may also ha!e the #itnesses separated and pre!ented from con!ersing #ith each other until all ha!e been e"amined. 8. "efreshing "ecollection of Witnesses Rule 162, Sec. 1D 8.1 Re!i!al of %resent )emory 2 ( #itness may be allo#ed to refresh his memory respecting a fact, by anything #ritten or recorded by himself or under his direction at the time #hen the fact occurred, or immediately thereafter, or at any other time #hen the fact #as fresh in his memory and 5ne# that the same #as correctly #ritten or recorded,


Page 41


2 &43 in such case the #riting or record must be produced and may be inspected by the ad!erse party, #ho may, if he chooses, cross e"amine the #itness upon it, and may read it in e!idence. Note: The memorandum is not evidence, it is still the testimony 8.2 %ast Recollection Recorded 2 ( #itness may testify from such #riting or record, (as in the case in re!i!al of present memory though he retain no recollection of the particular facts, if he is able to s#ear that the #riting or record correctly stated the transaction #hen madeE but such e!idence must be recei!ed #ith caution. Note: It is the memorandum that will serve as evidence 4documentary evidence5 *hat is the conse0uence of gi!ing in e!idence a part of an act, declaration, con!ersation, #riting or recordT (Rule 162, Section 1= >R4G. 1@ -1)%G.3./.SSM 2 3he #hole of the same subject may be in0uired into by the other, and #hen a detached act, declaration, con!ersation, #riting or record is gi!en in e!idence, any other act, declaration, con!ersation, #riting or record necessary to its understanding may also be gi!en in e!idence. Rule on E#amination o, a C'ild 0itness (pplicability of the Rule. S 4nless other#ise pro!ided, this Rule shall go!ern the e"amination of child #itnesses #ho are !ictims of crime, accused of a crime, and #itnesses to crime. 8t shall apply in all criminal proceedings and non2criminal proceedings in!ol!ing child #itnesses. (X1 -hild #itness I. Definition (X7(a (ny person #ho at the time of gi!ing testimony is Y 18 years. 8n child abuse cases? a child includes one o!er eighteen (18 years but is found by the court as unable to fully ta5e care of himself or protect himself from abuse, neglect, cruelty, e"ploitation, or discrimination because of a physical or mental disability or condition. II. -ompetency of a -hild *itness? .!ery child is presumed 0ualified to be a #itness. 3o rebut the presumption of competence enjoyed by a child, the burden of proof lies on the party challenging his competence. (XXD, D(b -ompetency e"am A. *hen conducted2 ( %otu proprio or on motion of a party, #hen it finds that substantial doubt e"ists regarding the ability of the child to percei!e, remember, communicate, distinguish truth from falsehood, or appreciate the duty to tell the truth in court. (XD ( ( party see5ing a competency e"amination must present proof of necessity of competency e"amination. 3he age of the child by itself is not a sufficient basis for a competency e"amination. (XD(a B. *ho are allo#ed to attend2 ( 3he judge and necessary court personnelE ( 3he counsel for the partiesE ( 3he guardian ad litemE ( Support person+s for the childE and ( 3he defendant, unless the court determines that competence can be fully e!aluated in his absence. (XD(c C. Co# conducted2 ( &y #hom conducted? by the judge, counsel for the parties, ho#e!er, can submit 0uestions to the judge that he may, in his discretion, as5 the child. (XD(d ( $uestions as5ed? appropriate to the age and developmental level of the childE shall not be related to the issues at trialE and shall focus on the ability of the child to remember, communicate, distinguish bet#een truth and falsehood, and appreciate


Page 42


the duty to testify truthfully. (XD(e 3he court has the duty of continuously assessing the competence of the child throughout his testimony. (XD(f


3estifying (. 1ath? &efore testifying, a child shall ta5e an oath or affirmation to tell the truth. (X= &. ."amination 1. Co# conducted 8eneral Rule: open court, unless the #itness is incapacitated to spea5, or the 0uestion calls for a different mode of ans#er, the ans#ers of the #itness shall be gi!en orally. (X8 E)ception-s: a) ."clusion of the public ( *hy made? Z 3o protect the right to pri!acy of the child or Z 8f the court determines on the record that re0uiring the child to testify in open court #ould cause psychological harm to him, hinder the ascertainment of truth, or result in his inability to effecti!ely communicate due to embarrassment, fear, or timidity. ( 8n ma5ing its order, the court shall consider the de!elopmental le!el of the child, the nature of the crime, the nature of his testimony regarding the crime, his relationship to the accused and to persons attending the trial, his desires, and the interests of his parents or legal guardian. ( 3he court may, motu proprio, e"clude the public from the courtroom if the e!idence to be produced during trial is of such character as to be offensi!e to decency or public morals. ( 3he court may also, on motion of the accused, e"clude the public from trial, e"cept court personnel and the counsel of the parties. (X26 b) 3he court may order that persons attending the trial shall not enter or lea!e the courtroom during the testimony of the child. (X27 c) )otion by party #ho presents a child #itness or the guardian ad litem of such child #itness may, ho#e!er, mo!e the court to allo# him to testify in the manner pro!ided in this Rule (X8 ? i. "ive(lin* television testimony in criminal cases where the child is a victim or a witness. (X2A *ho may apply for an order that testimony of the child be ta5en in a room outside the courtroom and be tele!ised to the courtroom by li!e2lin5 tele!ision? 1 prosecutor, 2 counsel or the 3 guardian ad litem %eriod for application? 3he person see5ing such an order shall apply at least fi!e (A days before the trial date, unless the court finds on the record that the need for such an order #as not reasonably foreseeable. Cearing on the application? 3he court may motu proprio hear and determine, #ith notice to the parties, the need for ta5ing the testimony of the child through li!e2lin5 tele!ision. 3he judge may 0uestion the than the courtroom, in the prosecutor, and counsel for related to the issues at trial courtroom. child in chambers, or in some comfortable place other presence of the support person, guardian ad litem, the parties. 3he 0uestions of the judge shall not be but to the feelings of the child about testifying in the

3he judge may e"clude any person, including the accused, #hose presence or


Page 43
conduct causes fear to the child.


1rder denying+granting use of li!e2lin5 39? 3he court shall issue an order granting or denying the use of li!e2lin5 tele!ision and stating the reasons therefor.

@actors considered by the court in granting+denying application? (1 [3he age and le!el of de!elopment of the childE (2 [Cis physical and mental health, including any mental or physical disabilityE (6 [(ny physical, emotional, or psychological injury e"perienced by himE (7 [3he nature of the alleged abuseE (A [(ny threats against the childE (D [Cis relationship #ith the accused or ad!erse partyE (= [Cis reaction to any prior encounters #ith the accused in court or else#hereE (8 [Cis reaction prior to trial #hen the topic of testifying #as discussed #ith him by parents or professionalsE (J [Specific symptoms of stress e"hibited by the child in the days prior to testifyingE (1F [3estimony of e"pert or lay #itnessesE (11 [3he custodial situation of the child and the attitude of the members of his family regarding the e!ents about #hich he #ill testifyE and (12 [1ther rele!ant factors, such as court atmosphere and formalities of court procedure. 3he court may order that the testimony of the child be ta5en by li!e2lin5 tele!ision if there is a substantial li5elihood that the child #ould suffer trauma from testifying in the presence of the accused, his counsel or the prosecutor as the case may be. 3he trauma must be of a 5ind #hich #ould impair the completeness or truthfulness of the testimony of the child. Co# done? #here testimony is ta5en? in a room separate from the courtroom #ho are present? o guardian ad litemE o one or both of his support personsE o the facilitator o and interpreter, if anyE o a court officer appointed by the courtE o persons necessary to operate the closed2circuit tele!ision e0uipmentE and o other persons #hose presence are determined by the court to be necessary to the #elfare and #ell2being of the childE 2 3he judge, prosecutor, accused, and counsel for the parties shall be in the courtroom. 3he testimony of the child shall be transmitted by li!e2lin5 tele!ision into the courtroom for !ie#ing and hearing by the judge, prosecutor, counsel for the parties, accused, !ictim, and the public unless e"cluded. 2 8f it is necessary for the child to identify the accused at trial, the court may allo# the child to enter the courtroom for the limited purpose of identifying the accused, or the court may allo# the child to identify the accused by obser!ing the image of the latter on a tele!ision monitor. 2 3he court may set other conditions and limitations on the ta5ing of the testimony that it finds just and appropriate, ta5ing into consideration the best interests of the child.


Page 44


3he testimony of the child shall be preser!ed on !ideotape, digital disc, or other similar de!ices #hich shall be made part of the court record and shall be subject to a protecti!e order as pro!ided in section 61(b .

ii. $creens, one(way mirrors, and other devices to shield child from accused. (X2D *ho may apply for an order that the chair of the child or that a screen or other de!ice be placed in the courtroom in such a manner that the child cannot see the accused #hile testifying? 1 prosecutor or 2 guardian ad litem (consultation #ith prosecutor or counsel as in application for use of li!e2lin5 39. also re0uired 1rder granting application? 3he court shall issue an order stating the reasons and describing the appro!ed courtroom arrangement 8f the court grants an application to shield the child from the accused #hile testifying in the courtroom, the courtroom shall be arranged to enable the accused to !ie# the child. iii. !ideotaped deposition. (X2= *ho may apply for an order that a deposition be ta5en of the testimony of the child and that it be recorded and preser!ed on !ideotapeT 1 prosecutor, 2 counsel, or 3 guardian ad litem (consultation #ith prosecutor or counsel as in application for use of li!e2lin5 39. also re0uired *hen allo#ed?[8f the court finds that the child #ill not be able to testify in open court at trial, it shall issue an order that the deposition of the child be ta5en and preser!ed by !ideotape. Deposition2ta5ing? *ho are present o o o o o ,udge #ho shall preside at the !ideotaped deposition of a childE %rosecutorE defense counselE 'uardian ad litemE (ccused, pro!ided that, if the order of the court is based on e!idence that the child is unable to testify in the physical presence of the accused, the court may direct the latter to be e"cluded from the room in #hich the deposition is conducted. 8n case of e"clusion of the accused, the court shall order that the testimony of the child be ta5en by li!e2lin5 tele!ision in accordance #ith section 2A of this Rule. 8f the accused is e"cluded from the deposition, it is not necessary that the child be able to !ie# an image of the accused. 1ther persons #hose presence is determined by the court to be necessary to the #elfare and #ell2being of the childE Support person+s, the facilitator and interpreter, if anyE -ourt stenographerE and [%ersons necessary to operate the !ideotape e0uipment. 1bjections to testimony or e!idenceE rights of the accused

o o o o


Page 45


1bjections to deposition testimony or e!idence, or parts thereof, and the grounds for the objection shall be stated and shall be ruled upon at the time of the ta5ing of the deposition. 3he rights of the accused during trial, especially the right to counsel and to confront and cross2e"amine the child, shall not be !iolated during the deposition.

3he !ideotaped deposition shall be preser!ed and stenographically recorded. 3he !ideotape and the stenographic notes shall be transmitted to the cler5 of the court #here the case is pending for safe5eeping and shall be made a part of the record. 3he court may set other conditions on the ta5ing of the deposition that it finds just and appropriate, ta5ing into consideration the best interests of the child, the constitutional rights of the accused, and other rele!ant factors. 3he !ideotaped deposition and stenographic notes shall be subject to a protecti!e order as pro!ided in section 61(b . 8f, at the time of trial, the court finds that the child is unable to testify for a reason stated in section 2A(f of this Rule, or is una!ailable for any reason described in section 7(c , Rule 26 of the 1JJ= Rules of -i!il %rocedure, the court may admit into e!idence the !ideotaped deposition of the child in lieu of his testimony at the trial. 3he court shall issue an order stating the reasons therefor. (fter the original !ideotaping but before or during trial, any party may file any motion for additional !ideotaping on the ground of ne#ly disco!ered e!idence. 3he court may order an additional !ideotaped deposition to recei!e the ne#ly disco!ered e!idence. *hen conducted? 3he court may order that the testimony of the child should be ta5en during a time of day #hen the child is #ell2rested. (X17 %ro!isions for ease of child in testifying+accommodations for a child a. 8nterpreter for child (XJ Co# appointed? the court motu proprio or upon motion *hen appointed?[*hen a child does not understand the .nglish or @ilipino language or is unable to communicate in said languages due to his de!elopmental le!el, fear, shyness, disability, or other similar reason *ho may be interpreterT Z[8f a #itness or member of the family of the child is the only person #ho can ser!e as an interpreter for the child, he shall not be dis0ualified and may ser!e as the interpreter of the child. 3he interpreter, ho#e!er, #ho is also a #itness, shall testify ahead of the child. Z (n interpreter shall ta5e an oath or affirmation to ma5e a true and accurate interpretation. b. @acilitator to pose 0uestions to child (X1F Co# appointed? 3he court motu proprio or upon motion, *hen appointed? child is unable to understand or respond to 0uestions as5ed. *ho may be a facilitator? 3he facilitator may be a child psychologist, psychiatrist, social #or5er, guidance counselor, teacher, religious leader, parent, or relati!e. 3he facilitator shall ta5e an oath or affirmation to pose 0uestions to the child according to the meaning intended by counsel. @unction of facilitator?[ Respecti!e counsels for the parties shall pose 0uestions to the child only through the facilitator. 3he 0uestions shall either be in the #ords used by counsel or, if the child is not li5ely to understand the same, in #ords that are comprehensible to the child and #hich con!ey the meaning intended by counsel.


Page 46


Support persons (X11 ( child testifying at a judicial proceeding or ma5ing a deposition shall ha!e the right to be accompanied by one or t#o persons of his o#n choosing to pro!ide him emotional support. (1 [&oth support persons shall remain #ithin the !ie# of the child during his testimony. (2 [1ne of the support persons may accompany the child to the #itness stand, pro!ided the support person does not completely obscure the child from the !ie# of the opposing party, judge, or hearing officer. (6 [3he court may allo# the support person to hold the hand of the child or ta5e other appropriate steps to pro!ide emotional support to the child in the course of the proceedings. (7 [3he court shall instruct the support persons not to prompt, s#ay, or influence the child during his testimony. Support person, also a #itness 1 1isapproved if Z it is sufficiently established that the attendance of the support person during the testimony of the child #ould pose a substantial ris5 of influencing or affecting the content of the testimony of the child.[ 2 8f allowed Z his testimony shall be presented ahead of the testimony of the child. *aiting area for child #itnesses (X12 that is separate from #aiting areas used by other persons. -ourtroom en!ironment (X16

d. e.

(im? create a more comfortable en!ironment for the child court may, in its discretion, direct and super!ise the location, mo!ement and deportment of all persons in the courtroom including the parties, their counsel, child, #itnesses, support persons, guardian ad litem, facilitator, and court personnel. 3he child may be allo#ed to testify from a place other than the #itness chair. 3he #itness chair or other place from #hich the child testifies may be turned to facilitate his testimony but the opposing party and his counsel must ha!e a frontal or profile !ie# of the child during the testimony of the child. 3he #itness chair or other place from #hich the child testifies may also be rearranged to allo# the child to see the opposing party and his counsel, if he chooses to loo5 at them, #ithout turning his body or lea!ing the #itness stand. 3he judge need not #ear his judicial robe. /othing in this section or any other pro!ision of la#, e"cept official in2court identification pro!isions, shall be construed to re0uire a child to loo5 at the accused. (ccommodations for the child under this section need not be supported by a finding of trauma to the child. f. Recess during testimony (X1A Z 3he child may be allo#ed reasonable periods of relief #hile undergoing direct, cross, re2direct, and re2cross e"aminations as often as necessary depending on his de!elopmental le!el. 3estimonial aids (X1D ? use of dolls, anatomically2correct dolls, puppets, dra#ings, manne0uins, or any other appropriate demonstrati!e de!ice to assist him in his testimony. .motional security item (X1= ? *hile testifying, a child shall be allo#ed to ha!e an item of his o#n choosing such as a blan5et, toy, or doll -onduct in 0uestioning the #itness?

g. h. i.


Page 47


i. -onduct of counsel? a counsel may be prohibited from approaching a child if it appears that the child is fearful of or intimidated by the counsel. (X18 ii. )ode of 0uestioning? 2 3he court shall e"ercise control o!er the 0uestioning of children so as to (1 facilitate the ascertainment of the truth, (2 ensure that 0uestions are stated in a form appropriate to the de!elopmental le!el of the child, (6 protect children from harassment or undue embarrassment, and (7 a!oid #aste of time. 2 3he court may allo# the child #itness to testify in a narrati!e form. iii. $uestions and objections thereto leading 0uestions in all stages of e"amination of a child may be allo#ed if the same #ill further the interests of justice (X2F 1bjections to 0uestions should be couched in a manner so as not to mislead, confuse, frighten, or intimidate the child. (X21 *eight gi!en to testimony of child #itness? strongE corroboration not re0uired 2 Cis testimony, if credible by itself, shall be sufficient to support a finding of fact, conclusion, or judgment subject to the standard of proof re0uired in criminal and non2criminal cases. (X22


IV. >uestions o, Admissi&ility C% 9earsay E#ce4tion in C'ild A&use Cases 5L?*7 0'ere admitted2 child abuse cases, criminal or non2criminal 9o/ admitted2 1) &efore such hearsay statement may be admitted, its proponent shall ma5e 5no#n to the ad!erse party the intention to offer such statement and its particulars to pro!ide him a fair opportunity to object. a% -hild is a!ailable Z 3he court shall, upon motion of the ad!erse party, re0uire the child to be present at the presentation of the hearsay statement for cross2e"amination by the ad!erse party. b. -hild is una!ailable Z the fact of such circumstance must be pro!ed by the proponent. Z *hen una!ailable? (1 [8s deceased, suffers from physical infirmity, lac5 of memory, mental illness, or #ill be e"posed to se!ere psychological injuryE or (2 [8s absent from the hearing and the proponent of his statement has been unable to procure his attendance by process or other reasonable means. Z[*hen the child #itness is una!ailable, his hearsay testimony shall be admitted only if corroborated by other admissible e!idence. 8n ruling on the admissibility of such hearsay statement, the court shall consider the time, content and circumstances thereof #hich pro!ide sufficient indicia of reliability. 8t shall consider the follo#ing factors? c. *hether there is a moti!e to lieE d. 3he general character of the declarant childE e. *hether more than one person heard the statementE f. *hether the statement #as spontaneousE g. 3he timing of the statement and the relationship bet#een the declarant child and #itnessE h. -ross2e"amination could not sho# the lac5 of 5no#ledge of the declarant childE i. 3he possibility of faulty recollection of the declarant child is remoteE and j. 3he circumstances surrounding the statement are such that there is no reason to suppose the declarant child misrepresented the in!ol!ement of the accused.



Page 48


D. 9ideotaped and audiotaped in2depth in!estigati!e or disclosure inter!ie#s in child abuse cases (X2J *hen admissible? 1 3he child #itness 2 (1 [8s deceased, suffers from physical infirmity, lac5 of memory, mental illness, or #ill be e"posed to se!ere psychological injuryE or (2 [8s absent from the hearing and the proponent of his statement has been unable to procure his attendance by process or other reasonable means. 2 &efore the !ideotape or audiotape is offered in e!idence, all parties shall be afforded an opportunity to !ie# or listen to it and shall be furnished a copy of a #ritten transcript of the proceedings.

&y #hom conducted? Z duly trained members of a multidisciplinary team or representati!es of la# enforcement or child protecti!e ser!ices in situations #here child abuse is suspected so as to determine #hether child abuse occurred. Z indi!idual conducting the inter!ie# of the child shall be a!ailable at trial for e"amination by any party. %roof of the follo#ing must be gi!en by party offering the !ideotape or audiotape? (1 [3he !ideotape or audiotape discloses the identity of all indi!iduals present and at all times includes their images and !oicesE (2 [3he statement #as not made in response to 0uestioning calculated to lead the child to ma5e a particular statement or is clearly sho#n to be the statement of the child and not the product of improper suggestionE (6 [3he !ideotape and audiotape machine or de!ice #as capable of recording testimonyE (7 [3he person operating the de!ice #as competent to operate itE (A [3he !ideotape or audiotape is authentic and correctE and (D [8t has been duly preser!ed. 9alue of an in!estigati!e inter!ie# that #as not done as re0uired in this Rule? 3he fact that an in!estigati!e inter!ie# is not !ideotaped or audiotaped as re0uired by this section shall not by itself constitute a basis to e"clude from e!idence out2of2court statements or testimony of the child. 8t may, ho#e!er, be considered in determining the reliability of the statements of the child describing abuse. .. Se#ual a&use s'ield rule 8nadmissible e!idence in any criminal proceeding in!ol!ing alleged child se"ual abuse? (1 .!idence offered to pro!e that the alleged !ictim engaged in other se"ual beha!iorE and (2 .!idence offered to pro!e the se"ual predisposition of the alleged !ictim. *hen admissible? .!idence of specific instances of se"ual beha!ior by the alleged !ictim to pro!e that a person other than the accused #as the source of semen, injury, or other physical e!idence shall be admissible. Co# admitted? 1. ( party intending to offer such e!idence must? (1 @ile a #ritten motion at least 1A days before trial, specifically describing the e!idence and stating the purpose for #hich it is offered, unless the court, for good cause, re0uires a different time for filing or permits filing during trialE and (2 Ser!e the motion on all parties and the guardian ad litem at least 6 days before the hearing of the motion.


Page 49


2. &efore admitting such e!idence, the court must conduct a hearing in chambers and afford the child, his guardian ad litem, the parties, and their counsel a right to attend and be heard. 3he motion and the record of the hearing must be sealed and remain under seal and protected by a protecti!e order set forth in section 61(b . 3he child shall not be re0uired to testify at the hearing in chambers e"cept #ith his consent. V. @. 1ther protecti!e measures for the child (X61 -onfidentiality of records. *hen records may be released? upon #ritten re0uest and order of the court 3o #hom may be released? (1 (2 (6 (7 (A (D )embers of the court staff for administrati!e useE 3he prosecuting attorneyE Defense counselE 3he guardian ad litemE (gents of in!estigating la# enforcement agenciesE and 1ther persons as determined by the court.

'. %rotecti!e order *hat are co!ered? (ny !ideotape or audiotape of a child that is part of the court record %ro!isos of the protecti!e order? (1 3apes may be !ie#ed only by parties, their counsel, their e"pert #itness, and the guardian ad litem. (2 /o tape, or any portion thereof, shall be di!ulged by any person mentioned in sub2 section (a to any other person, e"cept as necessary for the trial. (6 /o person shall be granted access to the tape, its transcription or any part thereof unless he signs a #ritten affirmation that he has recei!ed and read a copy of the protecti!e orderE that he submits to the jurisdiction of the court #ith respect to the protecti!e orderE and that in case of !iolation thereof, he #ill be subject to the contempt po#er of the court. (7 .ach of the tape cassettes and transcripts thereof made a!ailable to the parties, their counsel, and respecti!e agents shall bear the follo#ing cautionary notice? P3his object or document and the contents thereof are subject to a protecti!e order issued by the court in (case title , (case number . 3hey shall not be e"amined, inspected, read, !ie#ed, or copied by any person, or disclosed to any person, e"cept as pro!ided in the protecti!e order. /o additional copies of the tape or any of its portion shall be made, gi!en, sold, or sho#n to any person #ithout prior court order. (ny person !iolating such protecti!e order is subject to the contempt po#er of the court and other penalties prescribed by la#.R (A /o tape shall be gi!en, loaned, sold, or sho#n to any person e"cept as ordered by the court. (D *ithin 6F days from receipt, all copies of the tape and any transcripts thereof shall be returned to the cler5 of court for safe5eeping unless the period is e"tended by the court on motion of a party. (= 3his protecti!e order shall remain in full force and effect until further order of the court. C. (dditional protecti!e orders. S 3he court may, motu proprio or on motion of any party, the child, his parents, legal guardian, or the guardian ad litem, issue additional orders to protect the pri!acy of the child. 8. %ublication of identity contemptuous. *hat is prohibited? %ublication or causing publication in any format the name, address,


Page 50


telephone number, school, or other identifying information of a child #ho is or is alleged to be a !ictim or accused of a crime or a #itness thereof, or an immediate family of the child Giability of !iolator? contempt of court ,. %hysical safety of childE e"clusion of e!idence. ( child has a right at any court proceeding not to testify regarding personal identifying information, including his name, address, telephone number, school, and other information that could endanger his physical safety or his family. 3he court may, ho#e!er, re0uire the child to testify regarding personal identifying information in the interest of justice. Q. Destruction of !ideotapes and audiotapes produced under the pro!isions of this Rule or other#ise made part of the court record shall be destroyed after A years ha!e elapsed from the date of entry of judgment. Records of youthful offender? pri!ileged 1. :outhful offender has been charged before any city or pro!incial prosecutor or before any municipal judge and the charges ha!e been ordered dropped Z (ll the records of the case shall be considered as pri!ileged and may not be disclosed directly or indirectly to anyone for any purpose #hatsoe!er. 2. :outhful offender has been charged and the court ac0uits him, or dismisses the case or commits him to an institution and subse0uently releases him pursuant to -hapter 6 of %. D. /o. DF6, Z (ll the records of his case shall also be considered as pri!ileged and may not be disclosed directly or indirectly to anyone .I-.%3 to determine if a defendant may ha!e his sentence suspended under (rticle 1J2 of %. D. /o. DF6 or if he may be granted probation under the pro!isions of %. D. /o. JD8 or to enforce his ci!il liability, if said liability has been imposed in the criminal action. Z 3he youthful offender concerned shall not be held under any pro!ision of la# to be guilty of perjury or of concealment or misrepresentation by reason of his failure to ac5no#ledge the case or recite any fact related thereto in response to any in0uiry made to him for any purpose. VI. Suppletory application of Rules of -ourt? 3he pro!isions of the Rules of -ourt on deposition, conditional e"amination of #itnesses, and e!idence shall be applied in a suppletory character. (X62 Aut'entication and roo, o, Documents


1. -lasses of Documents 1.1 /ublic -ocuments Rule 162, Sec. 1J 1.1.12( *ritten official acts of the so!ereign authority, official bodies and tribunals, and public officers, #hether of the %hilippines or of a foreign countryE 2 9o/ roven N Rule 162, Sec. 26 2 Documents consisting of entries in public records made in the performance of a duty by a public officer are prima facie e!idence of the facts therein stated. (ll other public documents are e!idence, e!en against a third person of the fact #hich ga!e rise to their e"ecution and of the date of the latter. 1.1.12& Records of the official acts of the so!ereign authority, official bodies and tribunals, and public officers, #hether of the %hilippines or of a foreign country. 2 9o/ roven N Rule 162, Sec. 27 2 3he record may be e!idenced by? (1 an official publication thereofE (2 a copy attested by the


Page 51


officer ha!ing the legal custody of the record, or by his deputy, and accompanied, if the record is not 5ept in the %hilippines, #ith a certificate that such officer has the custody. 8f the record is in a foreign country, the certificate may be made by a secretary of the embassy or legation, consul2general, consul, !ice2consul, or consular agent or by any officer in the foreign ser!ice of the %hilippines stationed in the foreign country in #hich the record is 5ept, and authenticated by the seal of his office. MContents o, Attestation N Rule 162, Sec 2A 2 3he attestation must state that the copy is a correct copy of the original or a specific part thereof, as the case may be. 3he attestation must be under the official seal of the attesting officer, if there be any, or if he be the cler5 of a court ha!ing a seal, under the seal of such court. " Irremova&ility o, Record N Rule 162, Sec. 2D 2 (ny public record, an official copy of #hich is admissible in e!idence, must not be remo!ed from the office in #hich it is 5ept, e"cept upon order of a court #here the inspection of the record is essential to the just determination of a pending case. 1.1.2 /otarial Documents e"cept last #ills and testamentsE 2 9o/ roven N Rule 162, Sec. 6F 2 /otarial documents may be presented in e!idence #ithout further proof, the certificate of ac5no#ledgment being prima facie e!idence of the e"ecution of the instrument or document in!ol!ed. 1.1.6 %ublic Records (5ept in the %hilippines of %ri!ate Documents re0uired by la# to be entered therein 2 9o/ roven N Sec. 2= 2 Such may be pro!ed by the original record, or a copy thereof, attested by the legal custodian of the record, #ith an appropriate certificate that such officer has the custody. 2 roo, o, LacH o, Record N Sec. 28 ( #ritten statement signed by an officer ha!ing the custody of an official record or by his deputy that after diligent search, no record or entry of a specified tenor is found to e"ist in the records of his office, accompanied by a certificate that such officer has the custody, is admissible to pro!e that the records of his office contain no such record or entry. 1.2 /rivate -ocuments 2 9o/ roven N Rule 162, Sec. 2F &efore any pri!ate document offered as authentic is recei!ed in e!idence, its due e"ecution and authenticity must be pro!ed either? (1 by anyone #ho say the document e"ecuted or #rittenE or (2 by e!idence of the genuineness of the signature or hand#riting of the ma5er. (ny other pri!ate document need only be identified as that #hich it is claimed to be. 2 Ancient Document Rule N Rule 162, Sec. 21 Re0uisites? (1 3he pri!ate document is more than 6F years oldE (2 8t is produced from a custody in #hich it #ould naturally be found if genuineE (6 8t is unblemished by any alterations or circumstances of suspicion. 8f all re0uisites ha!e been met, no other e!idence of its authenticity is re0uired. 1. 9o/ 3enuineness o, 9and/ritin! is roven N Rule 162, Sec. 22 8t may be pro!ed by any #itness #ho belie!es it to be the hand#riting of such person because he has seen the person #rite, or has seen #riting purporting to be his upon #hich the #itness has acted or been charged, and has thus ac0uired 5no#ledge of the hand#riting of such person. .!idence respecting the hand#riting may also be gi!en by a comparison made by the #itness or the court, #ith #ritings admitted or treated as genuine by the party against #hom the e!idence is offered, or pro!ed to be genuine to the satisfaction of the judge. 2. Im4eac'ment o, 6udicial Record Rule 162, Sec. 2J Co# done &y e!idence of (a #ant of jurisdiction in the court or judicial officerE (b collusion


Page 52


bet#een the partiesE or (c fraud in the party offering the record, in respect to the proceedings. 6. Alterations Rule 162, Sec. 61 2 3he party producing a document as genuine, #hich has been altered and appears to ha!e been altered after its e"ecution, in a part material to the 0uestion in dispute, must account for the alteration. @ailure to do so #ould result in the inadmissibility of e!idence. 2 Ce may sho# that the alteration #as made f by another, g #ithout his concurrence, or h made #ith the consent of the parties affected by it, or i #as other#ise properly or innocent made, or j 3he alteration did not change the meaning or language of the instrument. Seal : Rule (;?= Sec% ;? 2 3here shall be no difference bet#een sealed and unsealed pri!ate documents insofar as their admissibility as e!idence is concerned. Documents 0ritten in an Uno,,icial Lan!ua!e Rule 162, Sec.66 2 /ot admissible unless accompanied #ith a translation into .nglish or @ilipinoE parties or their attorneys are directed to ha!e such translation prepared before trial. IS $9ERE AN. 0A. $O AVOID $9E $EDIOUS ROCESS OF AU$9EN$ICA$ION8 1. Rule on actionable documents (Rule 8 . 8t pro!ides that if an actionable document is the basis of a complaint of an ans#er, the la# re0uires that it should be anne"ed to the pleading or that the contents thereof be copied in !erbatim. 8f there is failure to specifically deny under oath the genuineness and due e"ecution of an actionable document that judicial admission #ill ta5e the place of authentication 2. )ode of disco!ery2 Re0uest for admission of the genuineness and due e"ecution of a pri!ate #riting. @ailure to object #ithin 1A days, deemed admitted. 6. %re2trial of ci!il and criminal case #herein parties may enter into stipulations, #here they #ill admit the genuineness and due e"ecution of the pri!ate #riting. O,,er and O&1ection 1. O,,er o, Evidence Rule 162, Sec, 67 1 &hy madeS 2 @or e!idence to be considered by the court 2 court shall consider no e!idence, #hich has not been formally offered. 1.1 *hen to ma5e offer Rule 162, Sec. 6A 2 3estimonial .!idence N at the time the #itness is called to testify. 2 Documentary .!idence N after the presentation of a partyHs testimonial e!idenceE offer shall be done orally unless allo#ed by the court to be done in #riting. When evidence admitted even if not formally offered0 1. 3he same must ha!e been duly identified by testimony duly recorded 2. 3he same must ha!e been incorporated to the records of the case ( %ata !da. 1e /nate vs.


S$A3ES in t'e 4resentation o, documentary evidence 1. 8dentification2 proof that the document being offered is the same one referred to by the #itness in his testimony 2. )ar5ing 6. (uthentication2 proof of documentHs due e"ecution and genuineness 7. 8nspection A. @ormal 1ffer D. 1bjections 2. O&1ection 2 Rule 162, Sec. 6D 2 3estimonial .!idence N must be objected to immediately after the offer is made.


Page 53


N 1bjection to a 0uestion propounded in the course of the oral e"amination of a #itness shall be made as soon as the grounds therefore shall become reasonably apparent. 2 Documentary .!idence N shall be objected to #ithin 6 days after notice of the offer unless a different period is allo#ed by the court. Dinds o, O&1ection 1. 'eneral or broadside2 does not go beyond declaring the e!idence as immaterial, incompetent, irrele!ant, or inadmissible. Does not specify the grounds 2. Specific2 States the ground " 0'en re4etition is unnecessary : Rule (;?= Sec% ;+ 5Rule on Continuin! O&1ection7 8t shall not be necessary to repeat the objection #hen it becomes reasonably apparent in the course of the e"amination of a #itness that the 0uestions being propounded are of the same class as those to #hich objection has been made, #hether such objection #as sustained or o!erruled. 8t shall be sufficient for the ad!erse party to record his continuing objection to such class of 0uestions. 2 Rulin! : Rule (;?= Sec% ;* N 'i!en immediately after the objection is made, unless the court desires to ta5e a reasonable time to inform itself on the 0uestion presentedE but the ruling shall al#ays be made during the trial and at such time as #ill gi!e the party against #hom it is made an opportunity to meet the situation presented by the ruling. N 3he reason for sustaining or o!erruling an objection need not be stated. Co#e!er, if the objection is based on t#o or more grounds, a ruling sustaining the objection on one or some of them must specify the ground or grounds relied upon. 6. Motion to StriHe Rule 162, Sec. 6J 2 3he court may sustain an objection and order the ans#er gi!en to be stric5en off the record should a #itness ans#er the 0uestion before the ad!erse party had the opportunity to !oice fully its objection and such objection is found to be meritorious. 2 3he court may also, upon proper motion, order the stri5ing out of ans#ers, #hich are incompetent, irrele!ant or other#ise improper. 7. $ender o, E#cluded Evidence Rule 162, Sec. 7F 2 Documentary e!idence the offeror may ha!e the same attached or made part of the record. 2 3estimonial e!idence the offeror may state for the record the name and other personal circumstances of the #itness and the substance of the proposed testimony. There is a distinction between identification of documentary evidence and its formal offer as an e)hibit. The former is done in the course of the trial and is accompanied by the mar*ing of the evidence while the latter is done only when the party rests his-her case. That a document has been identified does not mean that it will be offered. 4Interpacific Transit vs. #viles, .::35 &hile there was no offer of the testimony, petitioner waived this defect by failing to object when the ground became reasonably apparent the moment private respondent was called to testify without any prior offer having been made. 4 atuira vs. #, .::<5 The rule re7uiring that there must be a formal offer of evidence before the evidence can be considered may be rela)ed provided the evidence must have duly identified by testimony duly recorded and they must have been incorporated in the records of the case. 4!da. 1e /Aate vs. #, .::;5 OFFER OF ROOF@$ENDER OF E-CLUDED EVIDENCE vs% OFFER OF EVIDENCE +irst, is only resorted to if admission is refused by the court for purposes of review on appeal. $econd, 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.


Page 54


VIII% 0ei!'t and Su,,iciency o, Evidence A. ReCuired >uantum o, Evidence 1. re4onderance o, Evidence 5Civil Cases7 Rule 166, Sec. 1 ( 'ow determinedS 3he court may consider? N (ll the facts and circumstances of the caseE N 3he #itnessesH manner of testifyingE N 3heir intelligenceE N 3heir means and opportunity of 5no#ing the facts to #hich they testifyE N 3he probability or improbability of their testimonyE N 3heir interest or #ant of interestE N %ersonal credibility so far as the same may legitimately appear upon the trialE N /umber of #itnesses (note preponderance that is not necessarily e0uated #ith the no. of #itnesses 2. roo, Beyond Reasona&le Dou&t 5Criminal Cases7 Rule 166, Sec. 2 ( &hat is proof beyond reasonable doubtS N 3hat degree of proof #hich produces con!iction in an unprejudiced mind. N (bsolute certainty is not re0uired, only moral certainty. 6. Su&stantial Evidence 5Administrative@>uasi"6udicial Cases7 Rule166, Sec. A ( &hat is substantial evidenceS 3he amount of rele!ant e!idence #hich a reasonable mind might accept as ade0uate to support a conclusion. B. E#tra1udicial Con,essions : Rule (;;= Sec% ; 2 (n e"trajudicial confession made by an accused, is not a sufficient ground for con!iction 4/G.SS corroborated by e!idence of corpus delicti. C. Circumstantial Evidence : Rule (;;= Sec% E ( Re7uisites for circumstantial evidence to be sufficient for conviction: a. 3here is more than 1 circumstanceE b. 3he facts from #hich the inferences are deri!ed are pro!enE and c. 3he combination of all the circumstances is such as to produce a con!iction beyond reasonable doubt. OU$"OF"COUR$ IDEN$IFICA$ION, 3C. 313(G83: 1@ -8R-4)S3(/-. 3.S3 1. *itnessH opportunity to !ie# the criminal act at the time of the crime 2. *itnessH degree of attention at that time 3. 3he accuracy of any prior description gi!en by the #itness 4. 3he le!el of certainty demonstrated by the #itness at the identification 5. 3he length of time bet#een the crime and the identification 6. 3he suggesti!eness of the identification procedure res i4sa loCuitur 5$'e t'in! s4eaHs ,or itsel,7" ( procedural de!ice #hich presumes that the person is negligent, #hen he is in control of an instrumentality causing an injury in the absence of some e"planation by him. Falsus in uno= ,alsus in omni&us 5False in one t'in!= ,alse in everyt'in!7 2 8f the testimony of the #itness on a material issue is #illfully false and gi!en #ith an intention to decei!e, court may disregard all the #itnessH testimony. (/ot a mandatory rule of e!idence " It deals only with the weight of evidence and not a positive rule of law " The witnessesD false or e)aggerated statements on other matters shall not preclude the acceptance of such evidence as is relieved from any sign of falsehood " The court may accept and reject portions of the witnessD testimony depending on the inherent credibility thereof.


Page 55


U)ay the court stop the introduction of further testimonyT :.S upon any particular point #hen the e!idence upon it is already so full that more #itnesses to the same point cannot be reasonably e"pected to be additionally persuasi!eE this po#er should be e"ercised #ith caution. (Rule 166, Section D UCo# #ill the court dispose of a motion #hich is based on facts not appearing of recordT -ourt may hear the matter on 2 (ffida!its or 2 Depositions presented by the respecti!e parties but the court may direct that the matter be heard #holly or partly on oral testimony or depositions. (Rule 166, Section = E)amples of motion which need hearing hence the presentation of evidence: RI%IN#" #$E$: %otion for bail 40nder riminal ,rocedure, the evidence ta*en up during the hearing of the motion will form part automatically of the records of the case, so there is no need to repeat in the trial what have been covered in the hearing of the motion5 #$E$: #pplication for preliminary attachment-injunction %otion to dismiss founded on certain facts which are not solely predicated on absence of jurisdiction or failure to state a /#, i.e. it is predicated on the ground of payment (Same #ith -riminal -ase, e!idence ta5en up during hearing made part automatically of records of the case Rules on Electronic Evidence Scope 4nless other#ise pro!ided herein, these Rules shall apply #hene!er an electronic document or electronic data message (R1, X1 -ases co!ered. (ll ci!il actions and proceedings, as #ell as 0uasi2judicial and administrati!e cases. (R1, X2 .lectronic data message 8nformation generated, sent, recei!ed or stored by electronic, optical or similar means. (R2, X1g .lectronic Signatures (R2, X1j Refers to any distincti!e mar5, characteristic and+or sound in electronic form, representing the identity of a person and attached to or logically associated #ith the electronic data message or electronic document or any methodology or procedure employed or adopted by a person and e"ecuted or adopted by such person #ith the intention of authenticating, signing or appro!ing an electronic data message or electronic document. 8ncludes digital signatures o Refers to an electronic signature consisting of a transformation of an electronic document or an electronic data message using an asymmetric or public cryptosystem such that a person ha!ing the initial untransformed electronic document and the signerHs public 5ey can accurately determine? (i *hether the transformation #as created using the pri!ate 5ey that corresponds to the signerHs public 5eyE and, (ii *hether the initial electronic document had been altered after the transformation #as made. (R2, X1e o PDigitally signedR refers to an electronic document or electronic data message bearing a digital signature !erified by the public 5ey listed in a certificate. (R2, X1f I!I"


Page 56


(dmissible in e!idence as the functional e0ui!alent of the signature of a person on a #ritten document. (RD, X1 Co# authenticatedT (RD, X2 1. &y e!idence that a method or process #as utili<ed to establish a digital signature and !erify the sameE 2. &y any other means pro!ided by la#E or 6. &y any other means satisfactory to the judge as establishing the genuineness of the electronic signature. Disputable presumptions relating to e2signatures? (RD, X6 1. 3he electronic signature is that of the person to #hom it correlatesE 2. 3he electronic signature #as affi"ed by that person #ith the intention of authenticating or appro!ing the electronic document to #hich it is related or to indicate such personHs consent to the transaction embodied thereinE and 3. 3he methods or processes utili<ed to affi" or !erify the electronic signature operated #ithout error or fault. Disputable presumptions relating to digital signatures? (RD, X7 1. 3he information contained in a certificate is correctE 2. 3he digital signature #as created during the operational period of a certificateE 3. /o cause e"ists to render a certificate in!alid or re!ocableE 4. 3he message associated #ith a digital signature has not been altered from the time it #as signedE and, 5. ( certificate had been issued by the certification authority indicated therein. Electronic document (R2, X1h 8nformation or the representation of information, data, figures, symbols or other modes of #ritten e"pression, described or ho#e!er represented, by #hich a right is established or an obligation e"tinguished, or by #hich a fact may be pro!ed and affirmed, #hich is recei!ed, recorded, transmitted, stored, processed, retrie!ed or produced electronically. 8ncludes digitally signed documents and any printout or output, readable by sight or other means, #hich accurately reflects the electronic data message or electronic document. @or purposes of these Rules, the term Pelectronic documentR may be used interchangeably #ith Pelectronic data messageR. Functional eCuivalent o, 4a4er"&ased documents . (R6, X1 (dmissible in e!idence if it complies #ith the rules on admissibility prescribed by the Rules of -ourt and related la#s and is authenticated in the manner prescribed by these Rules. (R6, X2 -onfidential character of a pri!ileged communication is not lost solely on the ground that it is in the form of an electronic document. (R6, X6 BES$ EVIDENCE RULE2 (R7 o (n electronic document shall be regarded as the e0ui!alent of an original document under the &est .!idence Rule if it is a printout or output readable by sight or other means, sho#n to reflect the data accurately. o 1riginals (nd -opies? Z *hen copies or duplicates regarded as originals? 1. *hen a document is in t#o or more copies e"ecuted at or about the same time #ith identical contents, or 2. 8s a counterpart produced by the same impression as the original, or from the same matri", or by mechanical or electronic re2recording, or by chemical reproduction, or by other e0ui!alent techni0ues that accurately reproduces the original. Z *hen copies or duplicates shall not be admissible to the same e"tent as the original?

3. 4.

Page 57


8f a genuine 0uestion is raised as to the authenticity of the originalE or 8f in the circumstances it #ould be unjust or ine0uitable to admit the copy in lieu of the original. Aut'entication o, Electronic Documents 5RI7 1 9urden of proving authenticity: person see5ing to introduce an electronic document in any legal proceeding has the burden of pro!ing its authenticity. 2 %anner of authentication &efore any pri!ate electronic document offered as authentic is recei!ed in e!idence, its authenticity must be pro!ed by any of the follo#ing means? (a by e!idence that it had been digitally signed by the person purported to ha!e signed the sameE (b by e!idence that other appropriate security procedures or de!ices as may be authori<ed by the Supreme -ourt or by la# for authentication of electronic documents #ere applied to the documentE or (c by other e!idence sho#ing its integrity and reliability to the satisfaction of the judge. 3 ( document electronically notari<ed in accordance #ith the rules promulgated by the Supreme -ourt shall be considered as a public document and pro!ed as a notarial document under the Rules of -ourt.

T Evidentiary 0ei!'t O, Electronic Documents (R= W +actors for assessing evidentiary weight. (a 3he reliability of the manner or method in #hich it #as generated, stored or communicated, including but not limited to input and output procedures, controls, tests and chec5s for accuracy and reliability of the electronic data message or document, in the light of all the circumstances as #ell as any rele!ant agreementE (b 3he reliability of the manner in #hich its originator #as identifiedE (c 3he integrity of the information and communication system in #hich it is recorded or stored, including but not limited to the hard#are and computer programs or soft#are used as #ell as programming errorsE (d 3he familiarity of the #itness or the person #ho made the entry #ith the communication and information systemE (e 3he nature and 0uality of the information #hich #ent into the communication and information system upon #hich the electronic data message or electronic document #as basedE or (f 1ther factors #hich the court may consider as affecting the accuracy or integrity of the electronic document or electronic data message. W Integrity of an information and communication system . 8n any dispute in!ol!ing the integrity of the information and communication system in #hich an electronic document or electronic data message is recorded or stored, the court may consider, among others, the follo#ing factors? (a *hether the information and communication system or other similar de!ice #as operated in a manner that did not affect the integrity of the electronic document, and there are no other reasonable grounds to doubt the integrity of the information and communication systemE (b *hether the electronic document #as recorded or stored by a party to the proceedings #ith interest ad!erse to that of the party using itE or (c [*hether the electronic document #as recorded or stored in the usual and ordinary course of business by a person #ho is not a party to the proceedings and #ho did not act under the control of the party using it. 9earsay rule e#ce4tion? ( memorandum, report, record or data compilation of acts, e!ents, conditions, opinions, or diagnoses, made by electronic, optical or other similar means at or near the time of or from transmission or supply of information by a person #ith 5no#ledge thereof, and 5ept in the regular course or conduct of a business acti!ity, and such #as the regular practice to ma5e the memorandum, report, record, or data compilation by electronic, optical or similar means, all of #hich are sho#n by the testimony of the custodian or other 0ualified #itnesses. (R8, X1 3his presumption may be o!ercome by e!idence of the untrust#orthiness of the source of information or the method or circumstances of the preparation, transmission or storage thereof. (R8, X2


Page 58


9o/ are matters relatin! to t'e admissi&ility and evidentiary /ei!'t o, an electronic document esta&lis'ed8 5R)7 o by an affida!it stating facts of direct personal 5no#ledge of the affiant or based on authentic records. Z 3he affida!it must affirmati!ely sho# the competence of the affiant to testify on the matters contained therein. Z 3he affiant shall be made to affirm the contents of the affida!it in open court and may be cross2e"amined as a matter of right by the ad!erse party. E#amination O, 0itnesses 5R(<7 Electronic testimony 1 (fter summarily hearing the parties pursuant to Rule J of these Rules, the court may authori<e the presentation of testimonial e!idence by electronic means. &efore so authori<ing, the court shall determine the necessity for such presentation and prescribe terms and conditions as may be necessary under the circumstances, including the protection of the rights of the parties and #itnesses concerned. 2 *hen e"amination of a #itness is done electronically, the entire proceedings, including the 0uestions and ans#ers, shall be transcribed by a stenographer, steno typist or other recorder authori<ed for the purpose, #ho shall certify as correct the transcript done by him. 3he transcript should reflect the fact that the proceedings, either in #hole or in part, had been electronically recorded. 3 3he electronic e!idence and recording thereof as #ell as the stenographic notes shall form part of the record of the case. Such transcript and recording shall be deemed prima facie e!idence of such proceedings. E4'emeral electronic communication 1 Refers to telephone con!ersations, te"t messages, chatroom sessions, streaming audio, streaming !ideo, and other electronic forms of communication the e!idence of #hich is not recorded or retained. (R2, X15 2 Shall be pro!en by the testimony of a person #ho #as a party to the same or has personal 5no#ledge thereof. 8n the absence or una!ailability of such #itnesses, other competent e!idence may be admitted. (R11, X2 Audio= 4'oto!ra4'ic and video evidence 5R((= LL("?7 (udio, photographic and !ideo e!idence of e!ents, acts or transactions shall be admissible pro!ided it shall be sho#n, presented or displayed to the court and shall be identified, e"plained or authenticated by the person #ho made the recording or by some other person competent to testify on the accuracy thereof. o Same rule co!ers a recording of the telephone con!ersation or ephemeral electronic communication shall be co!ered by the immediately preceding section. 8f ephemeral, audio, photographic and !ideo e!idence are recorded or embodied in an electronic document, then the pro!isions authentication electronic documents apply. (R11, X2 RULE ON DNA EVIDENCE (a KBiolo!ical sam4leK means any organic material originating from a personLs body, e!en if found in inanimate objects, that is susceptible to D/( testing. 3his includes blood, sali!a and other body fluids, tissues, hairs and bonesE (b KDNAO means deo"yribonucleic acid, #hich is the chain of molecules found in e!ery nucleated cell of the body. 3he totality of an indi!idualLs D/( is uni0ue for the indi!idual, e"cept identical t#insE


Page 59


(c ODNA evidenceO constitutes the totality of the D/( profiles, results and other genetic information directly generated from D/( testing of biological samplesE (d ODNA 4ro,ileO means genetic information deri!ed from D/( testing of a biological sample obtained from a person, #hich biological sample is clearly identifiable as originating from that personE (e ODNA testin!O means !erified and credible scientific methods #hich include the e"traction of D/( from biological samples, the generation of D/( profiles and the comparison of the information obtained from the D/( testing of biological samples for the purpose of determining, #ith reasonable certainty, #hether or not the D/( obtained from t#o or more distinct biological samples originates from the same person (direct identification or if the biological samples originate from related persons (5inship analysis E and (f O ro&a&ility o, arenta!eO means the numerical estimate for the li5elihood of parentage of a putati!e parent compared #ith the probability of a random match of t#o unrelated indi!iduals in a gi!en population. A44lication ,or DNA $estin! Order% 3he appropriate court may, at any time, either motu proprio or on application of any person #ho has a legal interest in the matter in litigation, order a D/( testing. Such order shall issue after due hearing and notice to the parties upon a sho#ing of the follo#ing? (a ( biological sample e"ists that is rele!ant to the caseE (b 3he biological sample? (i #as not pre!iously subjected to the type of D/( testing no# re0uestedE or (ii #as pre!iously subjected to D/( testing, but the results may re0uire confirmation for good reasonsE (c 3he D/( testing uses a scientifically !alid techni0ueE (d 3he D/( testing has the scientific potential to produce ne# information that is rele!ant to the proper resolution of the caseE and chan robles !irtual la# library (e 3he e"istence of other factors, if any, #hich the court may consider as potentially affecting the accuracy or integrity of the D/( testing. 3his Rule shall not preclude a D/( testing, #ithout need of a prior court order, at the behest of any party, including la# enforcement agencies, before a suit or proceeding is commenced. (n order granting the D/( testing shall be immediately e#ecutory and shall not &e a44eala&le. %etition for certiorari shall not stay the implementation of order unless a higher court issues an injuncti!e order. 'rant of a D/( testing application /13 an automatic admission of D/( e!idence. %ost2con!iction D/( testing may be a!ailable, #ithout need of prior court order, to the prosecution or any person con!icted by final and e"ecutory judgment pro!ided that (a a biological sample e"ists, (b such sample is rele!ant to the case, and (c the testing #ould probably result in the re!ersal or modification of the judgment of con!iction. Factors in Assessment o, 4ro&ative value o, DNA evidence% (a 3he chain of custody, including ho# the biological samples #ere collected, ho# they #ere handled, and the possibility of contamination of the samplesE (b 3he D/( testing methodology, including the procedure follo#ed in analy<ing the samples, the ad!antages and disad!antages of the procedure, and compliance #ith the scientifically !alid standards in conducting the testsE (c 3he forensic D/( laboratory, including accreditation by any reputable standards2setting


Page 60


institution and the 0ualification of the analyst #ho conducted the tests. 8f the laboratory is not accredited, the rele!ant e"perience of the laboratory in forensic case#or5 and credibility shall be properly establishedE and (d 3he reliability of the testing result

FAC$ORS in evaluatin! t'e Relia&ility o, DNA $estin! Met'odolo!y% (a 3he falsifiability of the principles or methods used, that is, #hether the theory or techni0ue can be and has been testedE (b 3he subjection to peer re!ie# and publication of the principles or methodsE (c 3he general acceptance of the principles or methods by the rele!ant scientific communityE (d 3he e"istence and maintenance of standards and controls to ensure the correctness of data generatedE (e 3he e"istence of an appropriate reference population databaseE and (f 3he general degree of confidence attributed to mathematical calculations used in comparing D/( profiles and the significance and limitation of statistical calculations used in comparing D/( profiles. FAC$ORS in Evaluation o, DNA $estin! Results% (a 3he e!aluation of the #eight of matching D/( e!idence or the rele!ance of mismatching D/( e!idenceE (b 3he results of the D/( testing in the light of the totality of the other e!idence presented in the caseE and (c D/( results that e"clude the putati!e parent from paternity shall be conclusi!e proof of non2 paternity. 8f the !alue of the %robability of %aternity is less than JJ.J\, the results of the D/( testing shall be considered as corroborati!e e!idence. 8f the !alue of the %robability of %aternity is JJ.J\ or higher, there shall be a disputable presumption of paternity. Remedy i, t'e Results Are Favora&le to t'e Convict . 3he con!ict or the prosecution may file a petition for a #rit of habeas corpus in the court of origin. 8n case the court, after due hearing, finds the petition to be meritorious, it shall re!erse or modify the judgment of con!iction and order the release of the con!ict, unless continued detention is justified for a la#ful cause. ( similar petition may be filed either in the -ourt of (ppeals or the Supreme -ourt, or #ith any member of said courts, #hich may conduct a hearing thereon or remand the petition to the court of origin and issue the appropriate orders. "E6EA'E 72 - A results. 3hrough order of the court. Shall only be released to any of the follo#ing, under such terms and conditions as may be set forth by the court? (a %erson from #hom the sample #as ta5enE (b Ga#yers representing parties in the case or action #here the D/( e!idence is offered and presented or sought to be offered and presentedE (c Ga#yers of pri!ate complainants in a criminal actionE (d Duly authori<ed la# enforcement agenciesE and (e 1ther persons as determined by the court. Indirect Contem4t2 to those #ho publishes or disclose the D/( results #ithout proper court order reservation o, DNA Evidence% 3he trial court shall preser!e the D/( e!idence in its totality, including all biological samples, D/( profiles and results or other genetic information obtained from D/( testing. @or this purpose, the court may order the appropriate go!ernment agency to preser!e

the D/( e!idence as follo#s?

Page 61


(a 8n criminal cases? i. for not less than the period of time that any person is under trial for an offenseE or ii. in case the accused is ser!ing sentence, until such time as the accused has ser!ed his sentenceE and (b 8n all other cases, until such time as the decision in the case #here the D/( e!idence #as introduced has become final and e"ecutory. chan robles !irtual la# library 'ysical destruction o, a &iolo!ical sam4le &e,ore t'e e#4iration o, t'e 4eriods set ,ort' a&ove= 4rovided t'at2 (a 3here is a court order or (b 3he person from #hom the D/( sample #as obtained has consented in #riting to the disposal of the D/( e!idence.