Evidence: A C B O 2007 Remedial Law

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ATENEO CENTRAL BAR OPERATIONS 2007
Remedial Law
SUMMER REVIEWER

Advisers: Atty. Tranquil Salvador III; Head: Mary Elizabeth M. Belmonte, Renee Lynn C. Miciano, Ma. Cecillia G.
Natividad; Understudies: Neliza Macapayag, Benjamin C. Yan

EVIDENCE

RULE 128
GENERAL PROVISIONS

Section 1. Evidence defined

Section 2. Scope

PROOF - the result or effect of evidence. When the
requisite quantum of evidence of a particular fact has
been duly admitted and given weight, the result is
called the proof of such fact.

FACTUM PROBANDUM
- the ultimate fact or the fact sought to be
established.
- Refers to proposition

FACTUM PROBANS
- is the evidentiary fact or the fact by which the
factum probandum is to be established.
- Materials which establish the proposition.

The law of evidence is fundamentally a
procedural law.

In criminal cases, if the alteration of these
rules may validly be made applicable to cases
pending at the time of such change, as the parties to
an action have no vested right in the rules of
evidence.

In criminal cases, if the alteration of these
rules of evidence would, for instance, permit the
reception of a lesser quantum of evidence than what
the law required at the time of the commission of the
offense in order to convict, then the retroactive
application of such amendatory law would be
unconstitutional for being ex post facto.

The rules of evidence are specifically
applicable only in judicial proceedings.

In quasi-judicial proceedings, the rules of
evidence shall apply by analogy, or in a suppletory
character and whenever practicable and convenient
except where the governing law on that particular
proceeding specifically adopts the rules of evidence
in the Rules of Court.

In cases before the Court of Agrarian
Relations, the Rules of Court were not applicable
even in a suppletory character, except in criminal and
expropriation cases, which procedure has been
superseded by the provisions of RA 6657.

CLASSIFICATION OF EVIDENCE ACCORDING TO
FORM

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

2. DOCUMENTARY EVIDENCE evidence
supplied by written instruments or derived
from conventional symbols, such as letters,
by which ideas are represented on material
substances

3. TESTIMONIAL EVIDENCE is that which is
submitted to the court through the testimony
or deposition of a witness.
RELEVANT, MATERIAL AND COMPETENT
EVIDENCE
RELEVANT EVIDENCE evidence having any value
in reason as tending to prove any matter provable in
an action. The test is the logical relation of the
evidentiary fact to the fact in issue, whether the
former tends to establish the probability or
improbability of the latter.
MATERIAL EVIDENCE evidence directed to prove
a fact in issue as determined by the rules of
substantive law and pleadings. The test is whether
the fact it intends to prove is an issue or not. AS to
whether a fact is in issue or not is in turn determined
by the substantive law, the pleadings, the pre-trial
order and by the admissions or confessions on file.
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Consequently, evidence may be relevant but may be
immaterial in the case.
COMPETENT EVIDENCE one that is not excluded
by this Rules, a stature or the Constitution.
DIRECT AND CIRCUMSTANTIAL EVIDENCE
DIRECT EVIDENCE that which proves the fact in
dispute without the aid of any inference or
presumption
CIRCUMSTANTIAL EVIDENCE - is the proof of a
fact or facts from which taken either singly or
collectively, the existence or a particular fact in
dispute may be inferred as a necessary or probable
consequence.
CUMULATIVE AND CORROBORATIVE EVIDENCE
CUMULATIVE EVIDENCE evidence of the same
kind and to the same state of facts.
CORROBORATIVE EVIDENCE is additional
evidence of a difference character to the same point.
PRIMA FACIE AND CONCLUSIVE EVIDENCE
PRIMA FACIE EVIDENCE that which is standing
alone, unexplained or uncontradicted, is sufficient to
maintain the proposition affirmed.
CONCLUSVE EVIDENCE the class of evidence
which the law does not allow to be contradicted.
PRIMARY AND SECONDARY EVIDENCE
PRIMARY EVIDENCE that which the law regards
as affording the greatest certainty of the fact in
question. Also referred to as the best evidence.
SECONDARY EVIDENCE that which is inferior to
the primary evidence and is permitted by law only
when the best evidence is not available. Known as
the substitutionary evidence.
POSITIVE AND NEGATIVE EVIDENCE
POSITIVE EVIDENCE when the witness affirms
that a fact did or did not occur. Entitled to a greater
weight since the witness represents of his personal
knowledge the presence or absence of a fact.
NEGATIVE EVIDENCE - when the witness did not
see or know of the occurrence of a fact. There is a
total disclaimer of persona knowledge, hence without
any representation or disavowal that the fact in
question could or could not have existed or
happened. It is admissible only if it tends to contradict
positive evidence of the other side or would tend to
exclude the existence of fact sworn to by the other
side.
What do the rules of evidence determine?
All rights and liabilities are dependent upon and arise
out of facts.

Every judicial proceeding whatever has for its
purpose the ascertaining of some right or liability. If
the proceeding is Criminal, the object is to ascertain
the liability to punishment of the person accused. If
the proceeding is Civil, the object is to ascertain
some right of property or status, or the right of one
party and the liability of other to some form of relief.

Two branches of the law of procedure
1. The law of the pleadings which determines
the questions in a dispute between the
parties
2. The law of evidence, which determines how
the party can convince the court of the
existence of facts which according to the
provisions of substantive law, would establish
the existence of the right or liability which
they allege to exist.

Why should the rule of evidence be uniform?
1. the relation between the evidentiary fact and
a particular proposition is always the same,
without regard to the kind of litigation in
which that proposition becomes material to
be proved.
2. if the rules of evidence prescribe the best
course to arrive at the truth, that must be and
are the same in all civilized countries.

Differences in the Rules of Evidence in Criminal
and Civil Cases
CIVIL CRIMINAL
Parties attend by
accord
The accused attends
by compulsion
There is no
presumption as to
either party
Presumption of
innocence attends the
accused throughout
the trial until the same
has been overcome by
prima facie evidence
of his guilt
An offer to
compromise does not,
as a general rule,
It is an implied
admission of guilt.
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amount to an
admission of liability

Must prove by
preponderance of
evidence: Reason is
that there is no
presumption and due
to the fact that the
proof will only result in
a judgment of
pecuniary damages or
establish CIVIL
RIGHT.
Guilt beyond
reasonable doubt

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

Reason: The rules of evidence are merely
methods for ascertaining facts. It must be
supposed that change of law merely makes it
more likely that the fact will be truly ascertained,
either by admitting evidence whose former
suppression or by suppressing evidence helped
to conceal the truth.

There are rules of evidence established merely for
the protection of the parties. If according to the well-
established doctrine, the parties may waive such
rules during the trial of a case, there is no reason why
they cannot make the waiver in a contract. However,
if the rule of evidence waived by the parties has been
established by law on grounds of public policy, the
waiver is void.

Trial courts are enjoined to observe the strict
enforcement of the rules of evidence which
crystallized through constant use and practice and
are very useful and effective aids in the search for
truth and for the effective administration of justice.
But in connection with evidence which may appear to
be of doubtful relevancy or incompetence or
admissibility, it is safest policy to be liberal, not
rejecting them on doubtful or technical grounds, but
admitting them unless plainly irrelevant, immaterial or
incompetent, for the reason that their rejection places
them beyond the consideration of the court, if they
are thereafter found relevant or competent; on the
other hand, their admission, if they turn out later to be
irrelevant or incompetent, can easily be remedied by
completely discarding them or ignoring them.
Section. 3 Admissibility of evidence.
Section 4. Relevancy; collateral matters.

2 AXIOMS OF ADMISSIBILITY
1. None but facts having rational probative
value are admissible
2. all facts having rational probative value are
admissible unless some specific rule forbids
their admission.

The Admissibility of Evidence is Determined at
the Time it is Offered to the Court
When offered When may be
objected

Object
evidence
When the same
is presented for
its view or
evaluation, as in
ocular inspection
or
demonstrations,
or when the
party rest his
case and the
real evidence
consists of
objects exhibited
in court.
Be made either
at the the time it
is presented in
an ocular
inspection or
demonstrations
or when it is
formally offered

Testimonial
evidence
By calling of the
witness to the
stand
As to the
qualification of
the witness
should be made
at the time he is
called to the
stand.
If otherwise
qualified -
objection should
be raised when
the
objectionable
question is
asked or after
the answer is
given if the
objectionable
features became
apparent by
reason of such
answer.

Documentar
y evidence
Formally offered
by the proponent
immediately
before he rests
his case.
At the time it is
formally offered.

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Every objection to the admissibility of evidence
shall be made at the time such evidence is
offered, or as soon thereafter as the objection to
its admissibility shall have become apparent,
otherwise the objection shall be considered
waived.

CERTAIN DOCTRINES OR RULES OF
ADMISSIBILITY

1. Conditional admissibility

Where the evidence at the time of its offer
appears to be immaterial or irrelevant unless it is
connected with the other facts to be subsequently
proved, such evidence may be received ob condition
that the other facts will be proved thereafter,
otherwise the evidence given will be stricken out.
This is subject to the qualification that there should
be no bad faith on the part of the proponent.

2. Multiple admissibility

Where the evidence is relevant and competent
for two or more purposes, such evidence should be
admitted for any or all the purposes for which it is
offered provided it satisfies all the requirements of
law for its admissibility therefore.

3. Curative admissibility

This treats upon the right of the party to introduce
incompetent evidence in his behalf where the court
has admitted the same kind of evidence adduced by
the adverse party.

Three theories on curative admissibility:

a. American rule the admission of
such incompetent evidence, without
objection by the opponent does not
justify such opponent in rebutting it
by similar incompetent evidence.

b. English rule if a party has
presented inadmissible evidence, the
adverse party may resort to similar
inadmissible evidence

c. Massachusetts rule the adverse
party may be permitted to introduce
similar incompetent evidence in
order to avoid a plain and unfair
prejudice caused by the admission of
the other partys evidence.

What should determine the application of the rule
of curative admissibility:

1) whether the incompetent evidence was
seasonably objected to
2) whether, regardless of the objection, the
admission of such evidence shall cause a
plain and unfair prejudice to the party against
whom it is admitted.

The evidence which was illegally obtained is
inadmissible on a timely motion or action to suppress.

The rules prohibit the admission of irrelevant
collateral facts only.

Circumstantial evidence is legal evidence and if
sufficient, can sustain a judgment. Circumstantial
evidence is evidence of relevant collateral facts.

ISSUE is the point or points in question, at the
conclusion of the pleadings which one side affirms,
and the other side denies.

FACT thing done or existing.

FACTS IN ISSUE - are those facts which the plaintiff
must prove in order to establish his claim and those
facts which the defendant must prove in order to
establish a defense set up by him, but only when the
fact alleged by the one party is not admitted by the
other party..

FACTS RELEVANT TO THE ISSUE - are those facts
which render the probable existence or non-existence
of a fact in issue, or some other relevant fact.

The effect of the pleadings is that they help in
determining whether the evidence offered is relevant
to the case, for it is a familiar proposition that the
evidence must be confined to the facts put in issue by
the pleadings.

RULE 129
WHAT NEED NOT BE PROVED

Section 1. Judicial Notice, when mandatory

JUDICIAL NOTICE no more than that the court will
bring to its aid and consider, without proof of the
facts, its knowledge of those matters of public
concern which are known by all well-informed
persons.

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- cognizance of certain facts which judges may take
and act on without proof because they are already
known to them

The object of judicial notice is to save time, labor
and expense in securing and introducing evidence on
matters which are not ordinarily capable of dispute
and not actually bona fide disputed, and the tenor of
which can safely be assumed form the tribunals
general knowledge or from slight search on its part.

J udicial notice is based on convenience and
expediency.

Two kinds of judicial notice
1) mandatory
2) discretionary

The direct effect of judicial notice upon the burden of
proving a fact is to relieve the parties from the
necessity of introducing evidence to prove the fact
noticed. It makes evidence unnecessary.

The stipulation and admission of the parties or
counsel cannot prevail over the operation of the
doctrine of judicial notice, and such stipulation and
admissions are all subject to the operation of the
doctrine.

Municipal trial courts are required to take judicial
notice of the ordinances of the municipality or city
wherein they sit.

In the RTC, they must take such judicial notice
only
1. when required to do so by statute and
2. in a case on appeal before them and wherein
the inferior court took judicial notice of an
ordinance involved in said case.

Courts are required to take judicial notice of the
decisions of the appellate courts but not of the
decisions of coordinate trial courts

Section 2. Judicial Notice, when discretionary .

The mere personal knowledge of the judge is not the
judicial knowledge of the court; Judicial cognizance is
taken only of those matters which are commonly
known.

It is not essential that matters of judicial cognizance
be actually known to the judge if the subject is proper
for judicial knowledge, the judge may at his
discretion, inform himself in any way which may
seem best to him, and act accordingly.

The doctrine of judicial notice rests on the wisdom
and discretion of the courts. The power to take
judicial notice is to be exercised by courts with
caution; care must be taken that the requisite
notoriety exists; and every reasonable doubt upon
the subject should be promptly resolved in the
negative.

Foreign laws may not be taken judicial notice of and
have to be proved like any other fact EXCEPT where
said laws are within the actual knowledge of the court
such as when they are well and generally known or
they have been actually ruled upon in other cases
before it and none of the parties claim otherwise.

To prove a written foreign law, the requirements
must be complied with, that is, by an official
publication or by a duly attested and authenticated
copy thereof.

DOCTRINE OF PROCESSUAL PRESUMPTION
absent any of the evidence or admission, the foreign
law is presumed to be the same as that in the
Philippines.

Section 3. Judicial notice, when hearing
necessary

The purpose of the hearing is not for the presentation
of evidence but to afford the parties reasonable
opportunity to present information relevant to the
proprietary of taking such judicial notice or to the
tenor of the matter to be noticed.

What stage may the court take judicial notice of a
fact?
1. During trial
2. after trial and before judgment
3. appeal

A DISTINCTION is made between judicial notice
taken during trial and that taken after trial but before
judgment or on appeal.

During the trial: the Court may announce its
intention to take judicial notice of any matter and may
hear the parties thereon.

After trial but before judgment or on
appeal: the Court may take judicial notice of any
matter and allow the parties to be heard thereon if
such matter is decisive of a material issue in the case

The judge may consult works on collateral
science, or arts, touching the topic on trial.
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Section 4. Judicial Admissions.

JUDICIAL ADMISSIONS are those so made in the
pleadings filed or in the progress of a trial.

EXTRAJUDICIAL ADMISSIONS are those made out
of court, or in a judicial proceeding other than the one
under consideration

Extrajudicial admissions or other admissions are, as
a rule and where elements of estoppel are not
present, disputable.

A judicial admission may be oral as a verbal waiver of
proof made in open court, a withdrawal of a
contention or a disclosure made before the court, or
an admission made by a witness in the course of his
testimony or deposition, or may be in writing as in
pleading, bill of particulars, stipulation of facts,
request for admission, or a judicial admission
contained in an affidavit used in the case.

To be considered a judicial admission, the admission
must be made in the same case, otherwise, it is an
extrajudicial admission.

When a defendant is declared in default for having
failed to answer the complaint, such a failure does
not amount to an admission of the facts alleged in the
complaint.

Stipulations voluntarily entered into between the
parties will be respected and enforced by the courts
unless contrary to public policy or good morals.
However, the binding effect of the facts applies only
to the parties in agreement.

Pleadings superseded or amended disappear from
the record of judicial admissions, and in order that
any statements contained therein may be considered
as an extrajudicial admission, it should be offered
formally in evidence.

RULE 130
RULES ON ADMISSIBILITY

Section 1. Object as evidence

Where an object is relevant to a fact in issue, the
court may acquire knowledge thereof by actually
viewing the object, in which case such object
becomes object evidence or by receiving testimonial
evidence thereon.

The fact that an ocular inspection has been held does
not preclude a party from introducing other evidence
on the same issue.

Whether an ocular inspection is to be made or not
lies in the discretion of the trial court.

An ocular inspection conducted by a judge
without notice to or presence of the parties is
invalid as an ocular inspection is a part of the
trial.

THE COURT MAY REFUSE THE INTRODUCTION
OF OBJECT EVIDENCE AND RELY ON
TESTIMONIAL EVIDENCE ALONE IF:
1. the exhibition of such object is contrary to
morals or decency
2. to require its being viewed in court or in an
ocular inspection would result in delays,
inconvenience, unnecessary expenses out of
proportion to the evidentiary value of such
object
3. such object evidence would be confusing or
misleading, as when the purpose is to prove
the former condition of the object and there is
no preliminary showing that there has been
no substantial change in said condition
4. the testimonial or documentary evidence
already presented clearly portrays the object
in question as to render a view thereof
unnecessary.

Even if the object is repulsive or indecent, if a view of
the same is necessary in the interest of justice, such
evidence may still be exhibited but the court may
exclude the public from such view.

Object evidence includes any article or object which
may be known or perceived by the use of any of the
senses.
Example: examination of the anatomy of a
person or of any substance taken therefrom, or
the examination of the representative portrayals
of the object in question, such as maps, diagrams
or sketches, pictures or audio-visual recordings,
provided the same are properly authenticated.

J ust like ocular inspection, which are only auxiliary
remedies afforded to the court, such observations of
the court may be amplified by interpretations afforded
by testimonial evidence, especially by experts.

NOTE: Documents are object evidence if the purpose
is to prove their existence or condition, or the nature
of the handwriting thereon, or to determine the age of
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the paper used, or the blemishes or alterations
thereon, as where falsification is alleged. Otherwise,
they are considered documentary evidence if the
purpose is to establish the contents or tenor thereof.

Object evidence may consist of articles or persons,
which may be exhibited inside or outside the
courtroom; it may also be a mere inspection of an
object or an experiment.

OBJECT EVIDENCE - is a tangible object that
played some actual role on the matter that gave rise
to the litigation. For instance, a knife.

DEMONSTRATIVE EVIDENCE - is a tangible
evidence that merely illustrates a matter of
importance in the litigation such as maps, diagrams,
models, summaries and other materials created
especially for litigation.

The DISTINCTION between object and
demonstrative evidence is important because it
helps determine the standards that the evidence
must meet to be admissible. For OBJECT
EVIDENCE, the required foundation relates to
proving that the evidence is indeed the object used in
the underlying event. The foundation for
DEMONSTRATIVE EVIDENCE, does not involve
showing that the object was the one used in the
underlying event, but the foundation generally
involves the showing that the demonstrative object
fairly represents or illustrates what it is alleged to
illustrate.

Physical evidence is the highest form of
evidence.

REQUISITES FOR THE ADMISSIBILITY OF THE
OBJECT EVIDENCE:
1. Must be relevant to the fact in issue.

Example: In murder case, the prosecution
offered in evidence a gun. The gun must
have some connection to the crime. There
must be a logical nexus between the
evidence and the point on which it is offered.

2. Object must be authenticated before it is
admitted. Authentication usually consists of
showing that the object was involved in
underlying event.

The chain of custody method of authentication
requires that every link in the chain of custody
every person who possessed the object since it was
first recognized as being relevant to the case, must
explain what he did with it.

In order that photographs may be given as evidence,
it must be shown that it is the true and faithful
representation of the place or object which to which
they refer. Photographs may be verified by the
photographer or any person acquainted with the
object represented and testify that the same faithfully
represents the object.

For tape recordings, the ff. must be shown:
1. the recording device was capable of
recording testimony
2. the operator of the device was competent
3. establishment of the correctness or
authenticity of the recording
4. deletions, additions, changes have not been
made
5. manner of the preservation of the recording
6. identification of the speakers
7. Testimony elicited was voluntarily made.

Authenticated fingerprints may be compared to
fingerprints found on the crime scene.

2 theories on whether the court may compel the
plaintiff to submit his body for inspection in
personal injury cases:
1. No, because the right of a person to be
secured of the possession or control of his
person is sacred.
2. Yes, because if it is not allowed then the
court will be an instrument of the grossest
injustice and therefore the object for which
courts are instituted would be defeated since
the courts will be compelled to give a one-
sided decision.

Weight of authority favors the first 2
nd
theory

The accused may be compelled to submit himself to
an inspection of his body for the purpose of
ascertaining identity or for other purpose.

There cannot be any compulsion as to the accused
taking dictation from the prosecuting officer for the
purpose of determining his participation in the offense
charged.

Whenever the defendant, at the trial of his case,
testifying in his own behalf, denies that a certain
writing or signature is in his own hand he may on
cross-examination be compelled to write in open
court in order that the jury may be able to compare
his handwriting with the one in question.
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Where the object in question cannot be produced in
court because it is immovable or inconvenient to
remove, it is proper for the tribunal to go to the object
in its place and there observe it.

DOCUMENTARY EVIDENCE

Section 2. Documentary evidence

DOCUMENT any substance having any matter
expressed or described upon it by marks capable of
being read.

NOTE: If it is produced without regard to the
message which it contains, it is treated as real
evidence.

1. Best Evidence Rule

Section 3. Original document must be produced;
exceptions

GENERAL RULE: The original document must be
produced.

EXCEPTIONS:
1. When the original has been lost or destroyed,
or cannot be produced in court, without bad
faith on the part of the offeror;
2. When the original is in the custody or under
the control of the party against whom the
evidence is offered, and the latter fails to
produce it after reasonable notice;
3. When the original consists of numerous
accounts or other documents which cannot
be examined in court without great loss of
time and the fact sought to be established
from them is only the general result of the
whole; and
4. When the original is a public record in the
custody of a public officer or is recorded in a
public office

BEST EVIDENCE RULE - is that rule which requires
the highest grade of evidence obtainable to prove a
disputed fact.

Purpose of the rule requiring the production of
the best evidence: is the prevention of fraud
because if the best evidence is not presented then
the presumption of suppression of evidence will be
present.

NOTE: Best evidence rule applies only when the
purpose of the proof is to establish the terms of
writing.

For the application of the best evidence, it is
essential that: the original writing or if it is a private
document, be first duly identified, and a sufficient and
a sufficient foundation be laid, so as to entitle the
writing to be admitted in evidence, and it must be
available to the opposite party for cross-examination

Section 4. Original document.

WHAT IS AN ORIGINAL DOCUMENT?
(a) the original of a document is one in two the
contents of which are the subject of inquiry.
(b) When a document is in two or more copies,
executed at or about the same time, with
identical contents, all such copies are equally
regarded as originals
(c) When an entry is repeated in the regular
course, of business, one being copied from
another at or near the time of the transaction,
all entries are likewise equally regarded as
originals.

Document - is a deed, instrument or other duly
authorized appear by which something is proved,
evidenced or set forth.

Documentary evidence is that which is furnished by
written instruments, inscriptions and documents of all
kinds.

RULE OF EXCLUSION: that which is secondary
evidence cannot inceptively be introduced as the
original writing itself must be produced in court,
except in the four instances mentioned in Section 3.

The non-production of the original document unless
justified in Section 3, gives rise to the presumption of
suppression of evidence.

In the case of real evidence, secondary evidence of
the fact in issue may readily be introduced without
having to account for the non-production of such
primary evidence.

With respect to documentary evidence, the best
evidence rule applies only when the content of such
document is the subject of inquiry.

If carbon copies are signed, they are considered as
originals.

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In criminal cases, where the issue is not only with
respect to the contents of the document but also as
to whether such document actually existed, the
original itself must be presented.

Affidavits and depositions are considered as not
being the best evidence, hence not admissible if the
affiants or deponents are available as witness.

If the issue is the contents of the telegram as
received by the addressee, then the original dispatch
received is the best evidence; and on the issue as to
the telegram sent by the sender, the original is the
message delivered for transmission. If the issue is
the inaccuracy of transmission, both telegrams as
sent and received are originals.

GENERAL RULE: An objection by the party against
whom secondary evidence is sought to be introduced
is essential to bring the best evidence rule into
application. Where secondary evidence has been
admitted, the rule of evidence might have been
successfully invoked if proper and timely objection
had been taken.

When a duplicate or a copy is amended or altered by
the party, it becomes the original.

Blueprints and vellum tracings have been held to be
originals rather than copies.

Photocopies are not originals since they are
reproduced at a latter time.

When an entry is repeated in the regular course of
business, one being copied from another at or near
the time of the transaction, all the entries are
regarded as originals.

2. Secondary Evidence

Section 5. When original document is unavailable

SECONDARY EVIDENCE shows that better or
primary evidence exists as to the proof of fact in
question. It is deemed less reliable.

What must be proved to admit secondary
evidence?
(a) The execution of the original
(b) loss, destruction or unavailability of all such
originals
(c) Reasonable diligence and good faith in the
search for or attempt to produce the original.

The due execution can be proved through the
testimony of either:
1) the person who executed it
2) The person before whom its execution was
acknowledged
3) any person who was present and saw it
executed and delivered or who thereafter
saw it and recognized the signatures, or one
to whom the parties thereto had previously
confessed the execution thereof

Intentional destruction of the originals by a party who,
however, had acted in good faith does not preclude
his introduction of secondary evidence of the
contents thereof.

When the original is outside the jurisdiction of the
court, as when it is in a foreign country, secondary
evidence is admissible.

Secondary evidence may consist of (IN THE
SAME ORDER):
1. a copy of said document
2. recital of its contents in an authentic
document
3. the recollection of the witnesses

Where the law specifically provides for the class and
quantum of secondary evidence to establish the
contents of a document, such requirement is
controlling.

It is not necessary to prove the loss beyond all
possibility of mistake. A reasonable probability of its
loss is sufficient, and this may be shown by bona fide
and diligent search for it in place where it is likely to
be found.

Where both parties admit that an instrument has
been lost, it is sufficient to warrant the reception of
secondary evidence.

The fact of loss or destruction must, like any other
fact, be proved by a fair preponderance of evidence,
and this is sufficient.

The fact that a writing is really a true copy of the
original may be shown by the testimony of a person
who has had the opportunity to compare the copy
with the original and found it to be correct. In order
that the testimony of such person may be admissible,
it is sufficient that the original was read to him by
another person while he read the copy and found that
it corresponded with what was read to him. It is also
sufficient where the person who made the original a
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short time thereafter made a copy by writing down
the dictation of another reading from the original.

As long as the originals of a public document in the
possession of the parties have been proven lost, a
certified copy of the document made before it was
lost is admissible as secondary evidence of its
contents, and the burden of proof is upon the party
questioning its authenticity to show that it is not a true
copy of the original.

In proving the contents of the original in some
authentic document, it is sufficient if it appears in a
private document which is proved to be authentic.
Authentic means that the document should be
genuine. It need not be a public document.

It is not expected of a witness to state the contents of
a document with verbal accuracy, it is enough that
the substance of the documents be stated.

Section 6. When original document is in adverse
partys custody or control

FACTS WHICH MUST BE SHOWN BY THE PARTY
OFFERING SECONDARY EVIDENCE:
1) The adverse partys custody or control of the
original document.
2) That reasonable notice was given to the
adverse party who has the custody or control
of the document
3) Satisfactory proof of its existence
4) Failure or refusal by the adverse party to
produce it in court.

No particular form of notice is required, as long as it
fairly apprises the other party as to what papers are
desired.

Even an oral demand in open court for production at
a reasonable time thereafter will suffice.

Notice must be given to the adverse party, or his
attorney, even if the document is in the actual
possession of a third party.

Where receipt of the original of a letter is
acknowledged on a carbon copy thereof, there is no
need for a notice to the other party to produce the
original of the latter.

It should be observed that the duplicate copy, if
complete, is itself an original copy and the only point
in issue is the receipt of the basic original copy
thereof.

The justified refusal or failure of the adverse party to
produce the document does not give rise to the
presumption of suppression of evidence or create an
unfavorable inference against him. It authorizes the
introduction of secondary evidence.

Under this rule, the production of the original
document is procured by mere notice to adverse
party and the requirements for such notice must be
complied with as a condition precedent for the
subsequent introduction of secondary evidence by
the proponent.

Where the nature of the action is in itself a notice, as
where it is for the recovery or annulment of
documents wrongfully obtained or withheld by the
other party, no notice to produce said document is
required.

Section 7. Evidence admissible when original
documents is a public record

Such document may be evidenced by an official
publication thereof or by a copy attested by the
officer having the legal custody of the record, and
in case of an authorized public record of a private
writing, the same may also be proved by a copy
thereof attested by the legal keeper of the record.

Section 8. Party who calls for document not
bound to offer it.

Production of papers or documents upon the trial,
pursuant to a notice duly served, does not make such
papers or documents evidence. It is not until the party
who demanded the production of the papers examine
them and offers them in evidence that they assume
the status of evidentiary matter.

3. Parol Evidence Rule

Section 9. Evidence of written agreements

GENERAL RULE: When the terms of an agreement
have been reduced to writing, it is to be considered
as containing all the terms agreed upon and there
can be, between the parties and their successors in
interest, no evidence of such terms other than the
contents of the written agreement.

EXCEPTION: aparty may present evidence to
modify, explain or add to the terms of the written
agreement if he puts in issue in his pleading any of
the following:
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(a) An intrinsic ambiguity, mistake or
imperfection in the written agreement;
(b) The failure of the written agreement to
express the true intent and agreement of the
parties thereto;
(c) The validity of the written agreement; or
(d) The existence of other terms agreed to by
the parties or their successors in interest
after the execution of the written agreement.

The term agreement includes wills.

The parol evidence rule is based upon the
consideration that when the parties have reduced
their agreement on a particular matter into writing, all
their previous and contemporaneous agreements on
the matter are merged therein, hence evidence of a
prior or contemporaneous verbal agreement is
generally not admissible to vary, contradict, or defeat
the operation of a valid document.

PAROL EVIDENCE any evidence aliunde, whether
oral or written, which is intended or tends to vary or
contradict a complete and enforceable agreement
embodied in a document.

Formerly, even if there was a written agreement on a
particular subject matter, the parol evidence rule
did not apply to or bar evidence of a collateral
agreement between the same parties on the same
or related subject matter, in the ff instances:
1) Where the collateral agreement is not
inconsistent with the terms of the written
contract
2) Where the collateral agreement has not
been integrated in and is independent of the
written contract as where it is suppletory to
the original contract
3) where the collateral agreement is
subsequent to or novatory of the written
contract; and
4) Where the collateral agreement constitutes a
condition precedent which determines
whether the written contract may become
operative or effective, but this exception shall
not apply to a condition subsequent not
stated in the agreement.

Parol evidence rule does not apply, and may not
properly be invoked by either party to the litigation
against the other, where at least one party to the
suit is not a party or privy to the written
instrument in question and does not base a claim
or assert a right originating in the instrument or
the relation established thereby.

PAROL EVIDENCE
RULE
BEST EVIDENCE
RULE
It presupposes that the
original document is
available in court
Contemplates the
situation wherein the
original writing is not
available and/or there
is a dispute as to
whether said writing is
the original.
Prohibits the varying of
the terms of a written
agreement
Prohibits the
introduction of
substitutionary
evidence in lieu of the
original document
regardless of whether
or not it varies the
contents of the original
With the exception of
the wills, the parol
evidence rule applies
only to documents
which are contractual
in nature
Applies to all kinds of
writings
Can be invoked only
when the controversy
is between the parties
to the written
agreement, their
privies, or any party
directly affected
thereby (this is to
prevent fraudulent
operation of the
instrument upon the
rights of strangers)
It can be invoked by
any party to an action
regardless of whether
or not such party has
participated in the
writing involved.

In order that the parol evidence may be admissible,
the mistake or imperfection of the document, or its
failure to express the true intent and agreement of
the parties, or the validity of the agreement must be
put in issue by the pleadings. Where the plaintiff
failed to allege any such fact in his complaint, he
cannot introduce parol evidence thereon.

If the defendant invoked such fact in his answer,
parol evidence may be introduced as such fact is now
put in issue.

Even if such defenses were not raised in the
pleadings, but the parol evidence is not objected to,
such objection is deemed waived. Such mistake or
imperfection must be proved by clear and convincing
evidence.

When no timely objection or protest is made to the
admission of parol evidence in respect to a contract
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relative to real estate and when the motion to strike
out said evidence came too late; and if the other
party against whom such evidence was presented
cross-examined the witnesses who testified in
respect to the contract, said party will be understood
to have waived the benefits of the law. Parol
evidence under those facts is competent and
admissible.

An intrinsic ambiguity in the written agreement is now
required to be put in issue in the pleading in order
that parol evidence therein may be admitted.

The mistake under the first exception refers to a
mistake of fact which is mutual to the parties where
the innocent party was imposed upon by unfair
dealing of the other.

Imperfection includes an inaccurate statement in
the agreement, or incompleteness in the writing, or
the presence of inconsistent provisions therein. As a
matter of substantive law, when one party was
mistaken and the other knew that the instrument did
not state their real agreement but concealed the fact
from the former, the instrument may be reformed.

The purpose of the second exception is to enable
the court to ascertain the true intention of the parties
or the true nature of the transaction between the
parties.

As earlier stated, it now includes a latent or intrinsic
ambiguity in the writing. There is latent ambiguity
when the writing on its face appears clear and
unambiguous but there are collateral matters or
circumstances which make the meaning uncertain, or
where a writing admits of two constructions both of
which are in harmony with the language used.

Example of latent ambiguity is when the documents
refers to a particular person but such name pertains
to many persons with same name.

PATENT OR EXTRINSIC AMBIGUITY - is such
ambiguity which is apparent on the face of the writing
itself and requires something to be added in order to
ascertain the meaning of the words used. In this
case, parol evidence is not admissible, otherwise the
court would be creating a contract between the
parties.

INTERMEDIATE AMBIGUITY situation where an
ambiguity partakes of the nature of both patent and
latent. In this, the words are seemingly clear and with
a settled meaning, is actually equivocal and admits of
two interpretations. Here, parol evidence is
admissible to clarify the ambiguity provided that the
matter is put in issue by the pleader. Example:
Dollars, tons and ounces

NOTE: False description does not vitiate a document
if the subject is sufficiently identified. The incorrect
description shall be rejected as surplusage while the
correct and complete description standing alone shall
sustain the validity of the writing.

No express trust concerning an immovable or any
interest therein may be proved by parol evidence.

Rules governing the admissibility of parol
evidence to explain ambiguity
1) Where the instrument itself seem to be clear
and certain on its face, and the ambiguity
arises from extrinsic or collateral matter, the
ambiguity may be helped by parole evidence
(Latent ambiguity)

2) Where the ambiguity consists in the use of
equivocal words designing the person or
subject-matter, parole evidence of collateral
or extrinsic matter may be introduced for the
purpose of aiding the court in arriving at the
meaning of the language used (Intermediate
ambiguity)

3) Where the ambiguity is such that a perusal of
the instrument shows plainly that something
more must be added before the reader can
determine what of several things is meant,
the rule is inflexible that parol evidence
cannot be admitted to supply the deficiency.

To justify the reformation of a written instrument
upon the ground of mistake, the concurrence of
three things is necessary:

1. Mistake should be of fact does not
correctly express the intention of the parties
applies only to a mistake of facts

2. Mistake should be mutual or common to
both parties to the instrument
Reformation is then given because mistake is
mutual. The parties must have come to an
actual oral agreement before they have
attempted to reduce it in writing,

3. The mistake should be alleged and
proved by clear and convincing evidence

When the operation of the contract is made to
depend upon the occurrence of an event, which for
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that reason is a condition precedent, such may be
established parol evidence. This is not varying the
terms of the written contract by extrinsic agreement
for the simple reason that there is no contract in
existence; there is nothing to which to apply the
excluding rule.

Due execution of a writing may proved by parol
evidence because what the rule prohibits is varying
the terms of the writing by parol evidence.

To determine whether or not the subject of an
oral agreement is separate and distinct from the
subject of a writing: it is essential to ascertain first
what is the whole subject intended by the parties to
be covered by such writing. This question may be
determined from the contract itself, in the light of the
subject matter with which it deals and of the
circumstances standing its execution. The next step
is to ascertain the subject of the oral agreement
offered to be proved. Then a comparison should be
made between the writing and the oral negotiation
and from that comparison it may be seen whether or
not the subject of the writing is separate and distinct
from that of the oral negotiation. Parol evidence is
admitted if the subject of the oral negotiation is not so
closely connected with the subject of the writing.

The prohibition does NOT apply when the intent is to
show that there is no meeting of the minds or there is
no perfected contract.

This rule has no application to conditions or
stipulations which are antecedent to the existence of
the contract and on the faith of which the supposed
contract is executed.

Where the provisions of a written contract are
ambiguous and there is sufficient evidence showing
the existence of other agreements collateral thereto,
parol evidence is admissible to prove the real
agreement of the parties.

4. Interpretation of Documents

Section 10. Interpretation of a writing according
to its legal meaning

The language of a writing is to be interpreted
according to the legal meaning it bears in the place of
the execution unless the parties intended otherwise.

Section 11. Instrument construed so as to give
effect to all provisions

In the construction of an instrument where there are
several provisions or particulars such a construction
is, if possible, to be adopted as will give effect to all.

Section 12. Interpretation according to intention;
general and particular provisions

In the construction of an instrument, the intention of
the parties is to be pursued and when a general and
a particular provisions are inconsistent, the latter is
paramount to the former. So a particular intent will
control a general one that is inconsistent with it.

Section 13. Interpretation according to
circumstances

For the proper construction of an instrument, the
circumstances under which it was made, including
the situation of the object thereof and of the parties to
it, may be shown, so that the judge may be placed in
the position of those whose language he is to
interpret.

Section 14. Peculiar signification of terms

The terms of a writing are presumed to have been
used in their primary and general acceptation, but
evidence is admissible to show that they have been a
local, technical, or otherwise peculiar signification,
and were so used and understood in the particular
instance, in which case the agreement must be
construed accordingly

Section 15. Written words control printed

When an instrument consists partly of written words
and partly of a printed form, and the two are
inconsistent, the former controls the latter.

Section 16. Experts and interpreters to be used in
explaining certain writings

When the characters in which an instrument is written
are difficult to be deciphered, or the language is not
understood by the court, the evidence of persons
skilled in deciphering the characters, or who
understand the language, is admissible to declare the
characters or the meaning of the language.

Section 17. Of two constructions, which preferred

When the terms of an agreement have been intended
in a different sense by the different parties to it, that
sense is to prevail against either party in which he
supposed the other understood it, and when different
constructions of a provision are otherwise equally
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proper, that it is to be taken which is the most
favorable to the party in whose favor the provision
was made.

Section 18. Construction in favor of natural right

When an instrument is equally susceptible of two
interpretations, one in favor of natural rights and the
other against it, the former is to be adopted.

Section 19. Interpretation according to usage

An instrument may be construed according to usage,
in order to determine its true character.

The laws in force at the time the contract was made
must govern its interpretation and application.

The clear terms of the contract should not be subject
to interpretations.

QUALIFICATION OF WITNESSES

C. Testimonial Evidence

Section 20. Witness; their qualifications

WITNESS reference to a person who testifies in a
case or gives evidence before a judicial tribunal

COMPETENCY OF A WITNESS is the legal fitness
or ability of a witness to be heard on the trial of a
cause.

GENERAL RULE: When a witness takes the stand to
testify, the law, on grounds of public policy, presumes
that he is competent. The court cannot reject the
witness if there is not proof of his incompetency.

The burden is upon the party objecting to the
competency of a witness to establish the grounds of
incompetency.

It is the judge who has the decision as to the
competency of the witness.

NOTE: The objection to the competency of a witness
must be made before he has given any testimony if a
party knows before the trial that the witness is
incompetent, and if the incompetency appears on the
trial, the objection must be interpreted as soon as it
becomes apparent.

NOTE: When the incompetency of a witness is only
partial, the objection need not be raised until he is
asked to testify to those matters as to which he is
incapacitated.

The testimony of the interested witness, while
rightfully subjected to careful scrutiny, should not be
rejected on the ground of bias alone.

NOTE: The interest of the witness affects only his
credibility but not his competency.

When an attorney is a witness to his client, except as
to merely formal matters, such as the attestation or
custody of an instrument and the like, he should
leave the trial of the case to other counsel. Except
when essential to the ends of justice, a lawyer should
avoid testifying in court in behalf of his client.

It is objectionable for a judge to be a witness on the
same trial. However, the trial judge is competent
when his testimony concerns merely formal or
preliminary matters about which there is no dispute,
as where he testifies in a perjury prosecution that the
defendant gave testimony before him in another
proceeding in another court.

Persons who have been convicted of perjury is
cannot be discharged as a witness for the
government when he is a co-accused in a criminal
case. The same goes for witnesses to a will.

Upon the timely objection to the incompetency of a
witness being raised, it is the duty of the court to
make such examination as will satisfy him as to the
competency or incompetency of the witness to testify
in the case, and thereupon, to rule on the objection
accordingly.

NOTE: The failure to object to the competency of a
witness is tantamount to a waiver and once the
evidence is admitted the same shall stay in the
records and be judge according to its merits; the
judge has no right to discard it solely for the reason
that it could have been excluded had it been objected
to.

Acts of a party entitled to object that can be
considered as waiver of an objection:
1) where the party fails to raise the objection
when the witness testifies, though at that
time the party knows of his incompetency;
2) where one party who might have made the
objection calls the witness in support of his
own case.

Section 21. Disqualification by reason of mental
incapacity or immaturity
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THE FOLLOWING CANNOT BE WITNESSES:
1) Those whose mental conditions, at the time
of their production for examination, is such
that they are incapable of intelligently making
known their perception to others;
2) Children whose mental maturity is such as to
render them incapable of perceiving the facts
respecting which they are examined and
relating to them truthfully.

The qualifications and disqualifications of witnesses
are determined as of the time the said witnesses are
produced for examination in court or at the taking of
their depositions.

With respect to children of tender years, their
competence at the time of the occurrence to be
testified to should be taken into account, especially if
such event took place long before their production as
witnesses.

UNSOUND MIND - any mental aberration, whether
organic or functional, or induced by drugs or
hypnosis.

Unsoundness of mind does not per se render a
witness incompetent, one may be medically insane
but in law capable of giving competent testimony.

GENERAL RULE: Lunatic or a person affected with
insanity is admissible as a witness if he has sufficient
understanding to apprehend the obligation of an oath
and is capable of giving a correct account of the
matters which he has seen or heard with respect to
the questions at issue.

EXCEPTION: If the witness is a lawful inmate of an
asylum for the insane, he will not be presumed to be
competent and before he can testify his competency
should be made to appear by the party offering him.
This is because the insanity is presumed to continue
as a mental state, if it has once existed, until the
contrary is shown.

Idiots are incompetent witnesses. They may be
classed as insane persons. An idiot, being one who
has no understanding of his nativity, the law
presumes that he will never attain any.

However, it is not prudent to admit the interpretation
of a teacher if he cannot understand properly the
signs given by the deaf-mute who was not even his
student.

Drunkenness does not per se disqualify a witness
from testifying. The point of inquiry is the moment of
examination.

A witness is not rendered incompetent by the fact
that he was under the influence of a drug at the time
of the occurrence as to which he testifies, or at the
time of giving his testimony.

Deaf-mutes are competent witnesses when:
1. they can understand and appreciate the
sanctity of an oath;
2. can comprehend facts they are going to
testify to; and
3. can communicate their ideas through a
qualified interpreter.

In the case of a child witness, the court in
determining his competency must consider his
capacity:
(a) at the time the fact to be testified to occurred
such that he could received correct
impressions thereof
(b) to comprehend the obligation of an oath and
(c) to relate those facts truly at the time he is
offered as a witness. The court should take
into account his capacity for observation,
recollection and communication.

A child who witnessed the crime when he was 11
years old and testified thereto when he was already
15, is a competent witness.

The intelligence of the child is the test of his
competency and not his age.

The court, not the judge as an individual, is to be
satisfied of the competency of the child

Section 22. Disqualification by reason of marriage

This is called the spousal immunity . This is
different from marital privilege.

Basis
The rule forbidding one spouse to testify for or
against the other is based on principles which are
deemed important to preserve the marriage relation
as one of full confidence and affection, and that this
is regarded as more important to the public welfare
than that the exigencies of the lawsuits should
authorize domestic peace to be disregarded for the
sake of ferreting out facts within the knowledge of
strangers.

When Rule Applicable
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The rule applies to any form of testimony; therefore it
protects against using the spouse-witnesss
admission or against compelling him to produce
documents.

In order that this will apply, it is necessary that the
marriage is valid and existing as of the time of the
offer of testimony and that the other spouse is a
party to the action.

The privilege to object to testimony concerning anti-
marital facts may be claimed only when the
spouse for or against whom the testimony of the
other is offered as a party to the case.

After the death or the divorce of one spouse, the
privilege ceases, for the reason ceases.

The prosecuting attorney has no right to call a wife as
a witness or to attempt to draw from her statements
that the accused had married her for the purpose of
suppressing her testimony.

The wife is competent to testify for the other
defendant if the case against his husband as a party
was dismissed.

No unfavorable inference may be drawn from the fact
that a party spouse invokes the privilege to prevent
the witness-spouse from testifying against him or her

EXCEPTION TO THE RULE:
1. that the case in which the husband or the
wife is called to testify is a civil case instituted
by one against the other
2. it is a criminal case for a crime committed by
one against the other.

Reason for the Exception
The reason for the exception is that the identity of the
interest of person disappears and the consequent
danger of perjury based on that identity is non-
existent. And in such a situation, the security and
confidence of private life which the law aims at
protecting will be nothing but ideals which, through
their absence, merely leave a void in the unhappy
home.

This can be waived just like any other objection
to the competency of other witnesses. Can be
waived through failure to interpose timely objection or
by calling the other spouse as a witness

Where the accused husband in his testimony imputed
the commission of the crime to his wife, he is deemed
to have waived his objection to the latters testimony
in rebuttal.

In a prosecution of the husband for the rape of their
daughter, the wife is not disqualified to testify for the
prosecution since the crime may be considered as
having been committed against the wife and the
conjugal harmony sought to be protected by this rule
no loner exists.

The exception to the marital disqualification rule was
applied where the wife was the complainant in a case
against her husband for falsification of her signature
in a deed of sale involving their conjugal property.

Where the wife is a co-defendant in a suit charging
her and her husband with collusive fraud, she cannot
be called as an adverse party witness as this will
violate the disqualification rule.

Section 23. Disqualification by reason of death or
insanity of adverse party

This section is called THE SURVIVORSHIP
DISQUALIFICATION RULE OR DEAD MAN
STATUTE.

It constitutes only a partial disqualification as the
witness is not completely disqualified but is only
prohibited from testifying on the matters therein
specified, unlike the marital disqualification rule which
is complete and absolute disqualification.

NOTE: This applies to both civil and criminal cases

REQUISITES FOR THE APPLICATION OF THIS
RULE:
1. the witness offered for examination is a
party plaintiff, or the assignor of said
party, or a person in whose behalf a case
is prosecuted.
- Such plaintiff must be the real party in
interest. This disqualification does not apply
where a counterclaim has been interposed
by the defendant as the plaintiff would
thereby be testifying in his defense. The
same is true where the deceased contracted
with the plaintiff through an agent and said
agent is alive and can testify, but the
testimony of the plaintiff should be limited to
acts performed by the agent.
- The term assignor of a party means
assignor of a cause of action which has
arisen, and not the assignor of a right
assigned before any cause of action has
arisen
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- A witness may testify against an estate,
provided he is not a party, or an assignor of a
party, or a person in whose behalf the suit is
instituted. Interest in the outcome of the suit,
per se, seemingly, does not disqualify a
witness from testifying

2. the case is against the executor or
administrator or other representative of a
person deceased or of unsound mind
- The term representative of a deceased
person has been interpreted to include not
only the executor or administrator of a
deceased person, but also the person who
has succeeded to the right of the deceased,
whether by purchase or descent or operation
of law.
- It is necessary that the said defendant is
being sued and defends in such
representative capacity and not in his
individual capacity. Even if the properties
have been judicially adjudicated to the heirs,
they are still protected under this rule against
such prohibited testimony as they are
considered as the representatives of the
deceased.
- The rule applies regardless of whether the
deceased died before or alter the suit against
him is filed provided he is already dead at
the time the testimony is sought to be given

3. the case is upon a claim or demand
against the estate of such person who is
deceased or of unsound mind
- The rule does not apply where it is
administrator who brings an action to recover
property allegedly belonging to the estate or
the action is by the heirs of a deceased
plaintiff who were substituted for the latter.
- This is restricted to debts or demands
enforceable by personal actions upon which
money judgments can be rendered.
- An action for damages for breach of
agreement to devise property for services
rendered is a claim against an estate; hence
the plaintiff is not a competent witness.
- Estate of a deceased person includes all
properties, real and personal, belonging to
the deceased person.

4. The testimony to be given is on matter of
fact occurring before the death, of such
deceased person or before such person
became of unsound mind.
- This includes any matter of fact which bears
upon a transaction or communication
between the witness and the decedent, even
though without the presence or participation
of the latter.
- Negative testimony, that the fact did not
occur during the life time of the deceased, is
not covered by the prohibition.
- Testimony on the present possession by the
witness of a written instrument signed by the
deceased is also not covered by the
prohibition, as such fact exists even after the
decedents demise.
- the parties plaintiff to an action is not
rendered incompetent to testify to fraudulent
transactions of the deceased, as the rule is
not designed to shield wrongdoers. But
before admitting the testimony of parties
plaintiff in this kind of action, the court should
compel such parties to clearly establish the
alleged fraudulent acts.

In land registration case instituted by the decedents
representatives, this prohibition does not apply as the
oppositors are considered defendants and may
therefore, testify against the petitioner. This
prohibition does not also apply in cadastral cases
since there is no plaintiff or defendants therein.

Since the purpose of this rule is to discourage perjury
and protect the estate from fictitious claims, the
prohibition does not apply even if all the 4 requisites
above are present, where the testimony is offered to
prove a claim less than what is established under a
written document or is intended to prove a fraudulent
transaction of the deceased, provided such fraud is
first established by evidence aliunde.

Purpose
This is designed to close the lips of the party as
plaintiff when the death has closed the lips of the
party defendant. If the purpose of the oral testimony
is to prove a lesser claim than what might be
warranted by clear evidence, to avoid prejudice to the
estate of the deceased, the law has certainly no
reason for its application.

When Deemed Waived
The disqualification under this rule is waived if the
defendant does not timely object to the admission of
such evidence or testifies on the prohibited matters or
cross-examines thereon.

If the case is brought against the partnership of the
deceased, the witness is still credible because the
testimony is not against the deceased nor his estate.

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Section 24. Disqualification by reason of
privileged communication

THE FOLLOWING PERSONS CANNOT TESTIFY
AS TO MATTERS LEARNED IN CONFIDENCE IN
THE FF CASES:

1. The husband or the wife, during or after the
marriage, cannot be examined without the
consent of the other as to any
communication received in confidence by
one from the other during the marriage
except in a civil case by one against the
other, or in a criminal case for a crime
committed by one against the other or the
latters direct descendants or ascendants

2. An attorney cannot, without the consent of
his client, be examined as to any
communication made by the client to him, or
his advice given thereon in the course of, or
with a view to, professional employment, nor
can an attorneys secretary, stenographer, or
clerk be examined, without the consent of the
client and his employer, concerning any fact
the knowledge of which has been acquired in
such capacity.

3. A person authorized to practice medicine,
surgery or obstetrics cannot in a civil case,
without the consent of the patient, be
examined as to any evidence or treatment
given by him or any information which he
may have acquired in attending such patient
in a professional capacity, which information
was necessary to enable him to act in that
capacity, and which would blacken the
reputation of the patient.

4. A minister or priest cannot, without the
consent of the patient, be examined as to
any advice or treatment given by him or any
information which he may have acquired in
attending such patient in a professional
capacity, which information was necessary to
enable him to act in that capacity, and which
would blacken the reputation of the patient.

5. A public officer cannot be examined during
his term of office or afterwards, as to
communications made to him in official
confidence, when the court finds that the
public interest would suffer by the disclosure.

Objections under the disqualification rules can be
invoked only by the persons protected thereunder
and may be waived by said persons in the same
manner, either expressly or impliedly.

Marital Privilege

REQUISITES FOR MARITAL PRIVILEGE TO
APPLY:
1) there was a valid marital relation
2) the privilege is invoked with respect to a
confidential communication between the
spouses during said marriage
3) the spouse against whom such evidence is
being offered has not given his or her to such
testimony

NOTE: The privilege cannot be claimed with respect
to communications made prior to the marriage of the
spouse

The privilege on principle applies to any form of
confident disclosure. Usually this will be a
communication in words but it may also include
conduct.

Marital communications are presumed to be
confidential but the presumption may be overcome by
proof that they were not intended to be private.

Since the confidential nature of the communication is
the basis of the privilege, the same cannot be
invoked where it was not intended to be kept in
confidence by the spouse who received the
same, as in the case of a dying declaration of the
husband to his wife as to who was his assailant,
which communications was obviously intended to be
reported to the authorities.

The privilege is lost if the communication is
overheard or comes into the hands of a third
party, whether legally or not, by reason of the fact
that while the spouse is covered by the prohibition,
such third party is not and, consequently, can testify
thereon. It is necessary, however, that there was no
collusion with or voluntary disclosure by either
spouse to the third person, otherwise the latter
becomes an agent of the spouse and would thereby
be covered by the prohibition.

EXCEPTIONS TO MARITAL PRIVILEGE:
1. that the case in which the husband or the
wife is called to be examined is not a civil
case instituted by one against the other
2. that it is not a criminal case for a crime
committed by one against the other

DISQUALIFICATION MARITAL PRIVILEGE
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TIFF (
are
BY REASON OF
MARRIAGE
Can be invoked only if
one of the spouses is a
party to the action,
Can be claimed whether
or not the spouse is a
party to the action.
Applies only if the
marriage is existing at
the time the testimony is
offered
Can be claimed even
after the marriage has
been dissolved
Constitutes a total
prohibition against the
spouse of the witness
Applies only to
confidential
communications
between the spouse

The privilege in principle, belongs to the
communicating spouse not to the other one.

Even if the communication between the spouse who
is a party to the action can still prevent the other
spouse from testifying against him under the marital
disqualification rule

Even if the spouse who is a party to the action does
not object to the other testifying therein, thus waiving
the marital disqualification, he can still prevent the
disclosure by said spouse-witness of confidential
communications covered by the privilege.

Conspiracy between spouses to commit a crime is
not covered by the privilege since it is not the
intention of the law to protect the commission of a
crime.

This does not apply when spouses are living
separately and there is an active hostility. But if there
is a chance to reconcile, then this privilege will apply.

Attorney-Client Privilege

REQUISITES:
1) there is an attorney and client relation
2) The privilege is invoked with respect to a
confidential communication between them in
the course of professional employment
3) The client has not given his consent to the
attorneys testimony.

Basis: public policy

The client owns the privilege and therefore he alone
can invoke it.

For the privilege to apply, the attorney must have
been consulted in his professional capacity, even
if no fee has been paid therefore. However, if the
communications were not made for the purpose of
creating that relationship, they will not be covered by
the privilege even if thereafter the lawyer becomes
the counsel of the party in a case involving said
statements

The test is whether the communications are made to
an attorney with a view of obtaining professional
assistance or advice.

Communications to an attorney are not privileged
where they are voluntary made after he has refused
to accept employment.

There is NO privilege communication in cases where
abstract legal opinions are sought and obtained on
general questions of law, either civil or criminal, in
such cases, no facts are or need be disclosed
implicating the client, and so there is nothing of a
confidential character to conceal.

The communications covered by the privilege include
verbal statements and documents or papers
entrusted to the attorney, and of facts learned by the
attorney through the act or agency of his client.

Confidential relations made in reliance upon the
supposed relation of attorney and client, whether the
party assuming to act as such is an attorney or not,
are excluded by the court.

Sidewalk advice from attorney upon legal question for
which no compensation is asked or expected and
none given except a luncheon, should not be
regarded as privileged communications

NOTE: The privilege is applicable to counsel de
oficio.

Even in cases where the consent of the client is
obtained, it is his duty to ask first to be relieved and
have another attorney take his place before testifying
so that he may be cross-examined and not leave his
client without proper representation.

An attorney who becomes a subscribing witness to
his clients will, may testify to the attending
circumstances of the execution of his clients will for
by requesting his attorney to become a subscribing
witness to the will, the testator waives privilege as to
his attorneys testimony concerning testamentary
communications.

Communication made by a client to an attorney as a
public officer to enable him to act in his capacity is
not privilege.

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The privilege DOES NOT apply when the action was
brought by the client against the attorney.

THE PRIVILEGE DOES NOT APPLY TO
COMMUNICATIONS WHICH ARE:
1. intended to be made public
2. intended to be communicated to others
3. intended for an unlawful purpose
4. received from third person not acting in
behalf or as agent of the client
5. made in the presence of third parties who are
strangers to the attorney-client relationship

The period to be considered is that date when the
privileged communication was made by the client to
the attorney in relation to either a crime committed in
the past or with respect to a crime intended to be
committed in the future

Professional communications continues even after
the relation of client and attorney is terminated

Communications regarding a crime already
committed made by the offender to an attorney,
consulted as such, are privileged communications

Contemplated criminal acts are not covered.

The privilege DOES NOT attach when the attorney is
a conspirator.

The privilege DOES NOT apply when all the attorney
has to do it to either affirm or deny the secret
revealed by the client to the court.

Physician-Patient Privilege

Purpose
This privilege is intended to facilitate and make safe,
full and confidential disclosure by patient to
physician of all facts, circumstances, and symptoms,
untrammeled by apprehension of their subsequent
and enforced disclosure and publication on the
witness stand, to the end that the physician may form
a correct opinion, and be enabled safely and
efficaciously to treat his patient.

REQUISITES:
1) the physician is authorized to practice
medicine, surgery, or obstetrics
2) the information was acquired or the advice or
treatment was given by him in his
professional capacity for the purpose of
treating and curing the patient.
3) The information, advice or treatment, if
revealed, would blacken the reputation of the
patient
4) the privilege is invoked in a civil case,
whether patient is a party or not

It is not necessary that the physician-patient
relationship was created through the voluntary act of
the patient. For example the treatment may have
been given at the behest of another, the patient being
in extremis

The privilege extends to all forms of communications
as well as to the professional observations and
examinations of the patient

THE PRIVILEGE DOES NOT APPLY WHERE:
1) the communication was not given in
confidence
2) the communication is irrelevant to the
professional employment
3) the communication was made for an unlawful
purpose, as when it is intended for the
commission or concealment of a crime
4) the information was intended to be made
public
5) there was a waiver of the privilege either by
provisions of contract or law

The rule does not apply to mere causal
information stated by the witness because such
information is not necessary for the treatment of the
patient.

If the physician confined himself merely to the
ascertainment of the nature and character of the
injury for the purpose of reporting them to the
defendant, physician may testify.

The burden of proving that such relation does not
exist is upon the person objecting it.

Death of the patient does not extinguish the relation.

Under Rule 28 of the Rules of Court, the results of
the physical and mental examination of a person,
when ordered by the court, are intended to be made
public, hence they can be divulged in that proceeding
and cannot be objected to on the ground of privilege

Result of autopsies or post mortem examinations are
generally intended to be divulged in court, aside from
the fact the doctors services were not for purposes of
medical treatment

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An example of a waiver of the privilege by provision
of law is found in Section 4 of said Rule 28 under
which if the party examined obtains a report on said
examination or takes the deposition of the examiner,
he thereby waives any privilege regarding any other
examination of said physical or mental condition
conducted or to be conducted on him by any other
physician.

Waiver of the privilege by contract may be found in
stipulations in life insurance policies.

The disqualification due to privilege communications
between ministers or priests and penitents require
that the same were made pursuant to a religious duty
enjoined in the course of discipline of the sect or
denomination to which they belong and must be
confidential and penitential in character. Example:
under seal of the confessional

Privileged communications to Public Officers

REQUISITES:
1) that it was made to the public officer in official
confidence
2) that public interest would suffer by the
disclosure of such communication, as in the
case of State secrets.

Where no public interest will be prejudiced, this rule
will not apply.

PUBLIC INTEREST something in which the
community at large has some pecuniary interest by
which their legal rights or liabilities are affected.

Other instances of Privilege

Under RA 53 as amended by RA 1477, the
publisher, editor or duly accredited reporter of any
newspaper, magazine or periodical of general
circulation cannot be compelled to reveal the source
of any news report or information appearing in said
publication which was related in confidence to him
unless the court or a House or committee of
Congress finds that such revelation is demanded by
the Security of the State.

Art. 233 of the Labor Code provides that all
information and statements made at conciliation
proceedings shall be treated as privileged
communications and shall not be used as evidence in
the National Labor Relations Commission, and
conciliators and similar officials shall not testify in any
court or body regarding any matter taken up at the
conciliation proceedings conducted by them.

Voters are cannot be compelled to reveal
their bets

Trade Secrets will be covered by this
privilege

Prosecutor is not to be compelled to dispose
the identity of the informer unless the informer is
already known to the accused and when the identity
of the informer is vital.

GENERAL RULE: Bank deposits may not be
disclosed

EXCEPTION:
1. authorized by depositor
2. Impeachment under the Constitution
3. Upon order of the court in case of bribery or
deriliction of duty
4. When the subject matter is the deposits
5. Anti-graft cases

2. Testimonial Privilege

Section 25. Parental and filial Privilege

This section is an expanded amendment of the
former provision found in Section 20 (e), a
disqualification by reason of relationship which, in
turn, was reproduced from Art. 315 of the Civil Code.

It was not correctly a rule of disqualification, as the
descendant was not incompetent or disqualified to
testify against his ascendants, but was actually a
privilege to testify, hence it was referred to as filial
privilege .

However, under the Family Code, the descendant
may be compelled to testify against his parents and
grandparents, if such testimony is indispensable in
prosecuting a crime against the descendant by one
parent against the other (Art. 215).

Under the present formulation, both parental and filial
privileges are granted to any person, which privileges
against compulsory testimony he can invoke in any
case against any of his parents, direct ascendants,
children or direct descendants.

Reason for the Rule
The reason for the rule is to preserve family
cohesion deploring the lack of this provision under
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former laws as doing violence to the most sacred
sentiments between members of the same family.

NOTE: The privilege may now be invoked in both civil
and criminal cases.

3. Admissions and Confessions

Section 26. Admission of a party

ADMISSION - any statement of fact made by a party
against his interest or unfavorable to the conclusion
for which he contends or is inconsistent with the facts
alleged by him.

It is a voluntary acknowledgment in express terms or
by implication, by a party interest or by another by
whose statement he is legally bound, against his
interest, of the existence or truth of a fact in dispute
material to the issue (Francisco).

EXPRESS ADMISSIONS are those made in definite,
certain and unequivocal language.

Example: Action for personal injuries caused by a
collision between Ps carriage and Ds automobile. D
was not in the automobile when the accident
occurred. Ds son was driving the automobile, having
taken it without express permission from D. Before
trial D told Ps husband that he had bought the
automobile for the pleasure of his family and for
business; that members of the family might take it
without asking; and that so far as the liability
extended (D) was responsible. On the bases of this
express admission, verdict was rendered for P.
Likewise, defendant duly executes and signs a
document before a notary public stating therein that
his wife is the true and absolute owner of the lands
which are the subject matter of the litigation. Said
document is an express admission that defendant is
not the owner of the land, and admissible against
him.

IMPLIED ADMISSIONS are those which may be
inferred from the acts, declarations or omission of a
party. Therefore, an admission may be implied from
conduct, statement of silence of a party.

Examples: The payment of interest of a debt is an
implied admission of the existence of the debt.

The repair made by the landlord is the implied
admission that it is not the duty of the tenant to
repair.
The immediate flight of the accused and prolong stay
in other country is the implied consciousness of guilt.

NOTE: Failure to answer a letter does not give rise to
an implied admission as to the truth of the statements
contained therein, since there is no duty upon the
addressee to reply. However, where the good faith
requires that the addressee state his position frankly
so that the addressee be not misled, acquiescence
may be inferred from non-denial.

Failure to return or object to a bill or statement sent
by the debtor, within a reasonable time, is competent
evidence (but rebuttable) that the account is correct.
Undue delay in the enforcement of a right is strongly
persuasive of a lack of merit in the claim, since it is
human nature for a person to assert his rights most
strongly when they are threatened or invaded.

Delay in instituting a criminal prosecution unless
satisfactorily explained, creates suspicion about the
motive of the supposed offended party and gives rise
to reasonable doubt of the guilt of the defendant.

Implied admission is cannot be inferred from an act of
repairing a defect which caused on injury. This is
founded on sound reason and good policy. A person
may have exercised all the care which the law
required and yet, in the light of his new experience,
after an unexpected accident has occurred, and as a
measure of extreme caution, he may adopt additional
safeguards.

Admission and Confession Distinguished
ADMISSION CONFESSION
An admission is a
statement of fact which
does not involve an
acknowledgement of
guilt or liability
It involves an
acknowledgment of
guilt or liability
It may be express or
tacit
Must be express
May be made by third
persons
Can be made only by
the party himself and
in some instance, are
admissible against his
co-accused

The rule that the act, declaration or omission of a
party may be given in evidence against him is based
upon the presumption that no man could declare
anything against himself, unless such
declarations were true.

It is a rule that a statement is not competent as an
admission where it does not, under a reasonable
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construction, appear to admit or acknowledge the
fact which is sought to be proved by it.

REQUISITES FOR ADMISSIBILITY OF
ADMISSIONS:
1. They must involve matters of fact and not of
law;
2. They must be categorical and definite;
3. They must be knowingly and voluntarily
made;
4. They must be adverse to the admitters
interests, otherwise it would be self-serving
and inadmissible.

An admission may be introduced in evidence in
two ways:
1. independent evidence
2. impeaching evidence

Independent evidence admissions are original
evidence and no foundation is necessary for their
introduction in evidence

If the admission was made orally, it may be proved
by any competent witness who heard them or by the
declarant himself. The law does not require
impossibilities. If the witness states the substance of
the conversation or declaration, the admission of his
testimony is not erroneous.

Impeaching evidence a proper foundation must be
laid for the impeaching questions, by calling attention
of such party to his former statement so as to give
him an opportunity to explain before such admissions
are offered in evidence.

Example to illustrate the rules regarding the
introduction of admissions in evidence either as
an independent or as impeaching evidence:
P sues D for a balance due and unpaid for
groceries furnished. The claim is for P175 due on
J uly 31. D disputes the amount due, and offers a
statement of account sent by P in September reading
Balance due P75. This is admissible and may be
presented as part of the evidence in chief of D.
Action was brought by broker P for
commissions on stock shares bought and sold for D.
All the transactions had been made through Ds office
manager. P claims the interest at 8% was understood
to be charged monthly on balances. The manager
testifies that the interest was to be 5%. However,
there is a letter of D to P dated J une 1, containing the
sentence as usual this year, I expect to pay 8%
interest on monthly balances. I D had taken the stand
as a witness and had testified in corroboration of his
managers statements as to the understanding, it
would be necessary for Ps counsel to ask D if he had
written such a letter, before introducing it in rebuttal
as Ds admission for the purpose of discrediting Ds
testimony.

Admissions may be verbal or written, express or tacit,
judicial or extrajudicial.

JUDICIAL ADMISSION
It is one made in connection with a judicial
proceeding in which it is offered, while an
extrajudicial admission is any other admission.

NOTE: Section 26 and 32 of this Rule refer to
extrajudicial admissions.

Testimony of the accused in a particular case to the
effect that he was married to the victim is an
admission against his penal interest and sustain his
conviction even in the absence of independent
evidence to prove such marriage

Admission v. Declaration Against Interest
ADMISSION DECLARATION
AGAINST INTEREST
An admission need to
be, although, of course,
it will greatly enhance
its probative weight if it
be so made
The declaration against
interest must have been
made against the
proprietary or pecuniary
interest of the parties
Made by a party
himself, and is a
primary evidence and
competent though he
be present in court and
ready to testify
Must have been made by
person who is either
deceased or unable to
testify
Admission can be made
any time
The declaration against
interest must have been
made ante litem motam

SELF SERVING DECLARATION is one which has
been made extrajudicially by the party to favor his
interests. It is not admissible in evidence

The vital objection to the admission of this kind of
evidence is its hearsay character. To permit
introduction would open the door to frauds and
perjuries.

Reasons for the inadmissibility of self-serving
declarations:
1. the inherent untrustworthiness of the
declarations
2. the fact that to permit their introduction would
open the door to fraud and fabrication of
testimony.
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3. the fact that if testified to by one other than
the declarant, they would be hearsay.

Self serving testimony refers to extrajudicial
statement of a party which is being urged for
admission in court. It does not include his testimony
as a witness in court. It has no application to a court
declaration. Where the statement was not made in
anticipation of a future litigation, the same cannot be
considered self-serving.

The mere fact of death alone does not render
competent self-serving conduct, admissions or
declarations of the deceased person during his life-
time.

Unsworn declarations by others for the declarant
would be inadmissible.

Persons whose unsworn declarations in behalf of
a party are not admissible in favor of the latter:
1) agents, as regards their principals
2) a co-defendant or co-partner, as regards the
other
3) a guardian as regards his word.
4) a principal as regards his surety
5) a husband or wife as regards his or her
spouse
6) an employee, as regards his employer
7) officers of the corporation
8) public officers as regards public corporation
9) predecessors in title, as regards am owner of
property

Self serving declarations made by a party are
admissible in his own behalf in the ff:
1) when they form part of res gestae, including
spontaneous statements and verbal acts.
2) when they are in the form of complaint and
exclamations of pain and suffering.
3) when they are part of a confession offered by
the prosecution, that his testimony is a recent
fabrication, in which case his prior
declaration, even of a self serving character,
may be admitted, provided they were made
at a time when a motive to misrepresent did
not exist.
4) where they are offered by the argument. The
objections which have been pointed out do
not apply against the reception of the
statements of one party as evidence when
such statements are offered by his
adversary. Every written statements of a
party in his own favor can be successfully
turned when such statements are offered
against him.
5) when they are offered without objection, the
evidence cannot afterward be objected to as
incompetent.

Diaries, as a general rule, are inadmissible because
they are self-serving in nature, UNLESS they have
the nature of books of account; but it has been held
that an entry in diary, being in the nature of a
declaration, if it was against interest when made, is
admissible.

An invoice prepared by a merchant in the city
covering merchandise consigned to his agent in the
province, and a letter of said merchant requesting
confirmation of the receipt of said merchandise by the
agent, are not self-serving if they had been prepared
not in anticipation of litigation in which they were
presented as evidence. Carbon copies of letters of
demands sent to defendant, receipt of which was
acknowledged.

Flight from justice is an admission by conduct and
circumstantial evidence of consciousness guilt.

Evidence of attempts to suppress evidence, as by
destruction of documentary evidence are admissible
under the same rationale.

The act of reporting a machine, bridge, or other
facility after an injury has been sustained therein is
not an implied admission of negligence by conduct. It
is merely a measure of extreme caution by adopting
additional safeguards since, despite due care and
diligence, an unexpected accident can still occur.

Section 27. Offer of compromise not admissible

COMPROMISE - is an agreement made between two
or more parties as a settlement matters in dispute.

Civil cases - an offer of compromise is not an
admission of any liability, and is not admissible in
evidence against the offeror.

Criminal cases - except those involving quasi-
offenses (criminal negligence) or those allowed by
law to be compromised, an offer of compromise by
the accused may be received in evidence as an
implied admission of guilt.

A compromise agreement is valid when the true
essence of which resides in reciprocal concessions.

GENERAL RULE
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An offer of compromise is not an admission of any
liability and is not admissible in evidence against an
offeror.

EXCEPTIONS:
1. an express admission of liability made during
negotiations for a compromise;
2. Express and unqualified admission of
indebtedness accompanying an offer of
compromise;
3. An admission of the correctness of an
account or of specific items;
4. admission involving interest in property;
5. admission affecting liability for a tort.

It is the policy of the law to favor the settlement of
disputes, to foster compromise, and to promote
peace. If every offer to buy peace could be used as
evidence against him who presents it, many
settlements would be prevented, and unnecessary
litigation would be produced and prolonged.

While a bare offer to compromise does not constitute
an admission on the part of the person making it, the
fact that a writing contains an offer of compromise
does not render it inadmissible in evidence if it is
competent evidence for other purposes.

If a statement forming part of an offer of compromise
or made in the course of negotiations to effect a
settlement is an admission of fact pertinent to an
issue between the parties, it is admissible on the trial
of such issue, unless it is so closely connected with
the offer of compromise as to be inseparable
therefrom, is a tentative or hypothetical statement as
distinguished from a definite statement of fact or is
expressly made without prejudice or indicates that it
is made in confidence that a compromise will be
affected.

An express admission of liability made during
negotiations for a compromise has been held
admissible.

A pedestrian is run over by a driver, he was injured.
Later on the driver approached the pedestrian and
said sorry because he was drunk that night and
offered a payment. The pedestrian may not introduce
the fact that he was offered a money to show that
driver is liable. However, he can introduce the fact
that the driver was drunk.

In criminal cases, an offer of compromise is an
implied admission of guilt, although the accused may
be permitted to prove that such offer was not made
under consciousness of guilt but merely to avoid the
risks of criminal action against him.

GENERAL RULE: No compromise may be entered
into as regards the penal action.

EXCEPTION: Compromise may be entered into with
respect to the civil liability.

In criminal cases where compromise is allowed by
law as in opium or usury cases, no implied admission
of guilt arises against the accused who makes an
offer to compromise.

In prosecution for violation of the internal revenue
law, such offers of compromise are not admissible in
evidence as the law provides that the payment of any
internal revenue tax may be compromised, and all
criminal violations may likewise be compromised,
except those already filed in court and those involving
fraud.

Actual marriage, in rape case, criminal liability is
extinguished. An offer to compromise a monetary
consideration and not to marry the victim, is an
implied admission of guilt. The attempt of the parents
of the accused to settle the case with the complainant
was considered an implied admission of guilt. The SC
has held that an offer of marriage by the accused,
during the investigation of the rape case is also
admission of guilt.

NOTE: What matters is the fact of marriage and not
the intent behind the marriage. Example, it does not
matter whether the accused married the victim for the
reason of exculpating him from criminal liability.

The amendment regarding the admissibility of a plea
of guilty later withdrawn or an unaccepted offer to
plead guilty to a lesser offense is a consequence of
the present provisions in criminal procedure on plea
bargaining. One of the practical reasons advanced is
that encouragement of negotiations between the
defense and prosecution counsel with respect to
pleas requires flexibility in making and withdrawing
them without prejudice.

The court allows the accused to change plea when
the previous plea was made improvidently.

Criminal cases involving criminal negligence, or the
quasi-offenses contemplated in Art. 365 of the RPC,
are allowed to be compromised under the
amendment to this section, hence, an offer of
settlement is not an implied admission of guilt.

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An offer to pay or the actual payment of the medical,
hospital or other expenses by reason of the victims
injuries is not admissible to prove civil or criminal
liability therefore. Such humanitarian acts or
charitable responses should be encouraged and
rewarded, instead of being discouraged or penalized
by being considered as admissions of liability.

A troublesome question arises when an express
admission of liability is coupled with an offer of
assistance. Some courts have stated that both should
be admitted since the express admission insured that
the offer or tender of assistance was not merely an
act of benevolence, but some admission of fault. If
the admission can be disclosed without mentioning
the furnishing, offering or promise to pay medical
expenses, then it should be admitted.

Section 28. Admissibility by third party

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

The act, declaration or omission of another is
generally irrelevant, and that in justice a person
should not be bound by the acts of mere
unauthorized strangers.

The rule is well-settled that a party is not bound
by any agreement of which he has no knowledge
and to which he has not given his consent and
that his rights cannot be prejudiced by the
declaration, act or omission of another, except by
virtue of a particular relation between them.

This section refers to the first branch of the rule of
RES INTER ALIOS ACTA ALTERI NOCERE NON
DEBET . It is corollary known as the second branch
of the rule, is found in Section 34 of Rule 130.

EXCEPTIONS TO THIS RULE:
1. those instances where the third person is a
partner, agent, joint owner, joint debtor or
has a joint interest with the party (Section
29);
2. or is a con-conspirator (Section 30) ;
3. or a privy of the party (Section 31).

Basis of the Exceptions
A third party may be so united in interest with the
party-opponent that the other persons admissions
may be receivable against the party himself. The
term privy is the orthodox catchword for the relation.

Section 29. Admission by co-partner or agent

The admission of one partner is received against
another on the ground that they are identified in
interest , and that each is agent for the other and that
the acts or declarations of one during the existence of
the partnership, while transacting its business and
within the scope of the business, are evidence
against the others.

REQUISITES:
1. That the partnership, agency, or joint interest
is established by evidence other than the act
or declaration partnership relation must be
shown
2. the act or declaration is within the scope of
the partnership, agency or joint interest the
fact that each has individually made a
substantially similar admission does not
render the aggregate admission competent
against the firm, this is with regard to a non-
partnership affair.
3. Such act or declaration must have been
made during the existence of the partnership,
agency or joint interest.

The declaration of one partner, not made in the
presence of his co-partner, are not competent to
prove the existence of a partnership between
them as against such other partner. The existence
of a partnership is cannot be established by general
reputation, humor or hearsay.

Even where one partner is shown to be hostile to
another, the admissions of such first partner may be
received, although, of course, such hostility may
affect the question of weight of the evidence. The
declarations of a deceased partner, relating to the
partnership business, are admissible against his
survivors.

Declarations or admissions made by a partner after
the dissolution of the partnership are not competent
against the other partners in the absence of prior
authority or subsequent ratification, even though such
declarations relate to matters pending at the time of
dissolution.

With respect to the relevant substantive provisions on
these matters, refer to the Civil Code provisions on
partners, agents, co-owners and solidary debtors

NOTE: As a rule, statements made after a
partnership has been dissolved do not fall within this
exception, but where the admissions are made in
connection with the winding up of the partnership
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affairs, said admissions are still admissible as the
partner is acting as an agent of his co-partners in
said winding up.

What is done by an agent is done by the principal
through him, as through a mere instrument.

The admission or declaration of an agent subsequent
to a transaction in controversy, or after this agency
has terminated are not binding upon, or evidence
against his principal. But when the admission or
declaration is made at the time of the transaction, or
during his employment, when it pertains to the matter
in hand, as agent, which is within the cope of his
employment, his admissions and declarations are
competent, though not conclusive against his
principal.

When a party to any proceeding expressly refers to
any other person for an answer on a particular
subject in dispute, such answer, if restricted to the
subject matter in relation to which the reference is
made, is in general, evidence against said party, for
the reason that he makes such third person his
accredited agent for the purpose of giving such
answer.

The admissions of a third person are receivable in
evidence against the party who has expressly
referred another to him for information in regard to an
uncertain or disputed matter.

But such a reference does not make the person
referred to an agent for the purpose of making
general admissions, the declarations are not
evidence unless strictly within the subject matter in
relation to which reference is made.

When the reference was not made to any particular
person but in general, the rule above-stated is not
applicable.

Admissions by counsel are admissible against the
client as the former acts in representation and as an
agent of the client, subject to the limitation that the
same should not amount to a compromise or
confession of judgment

The phrase joint debtor does not refer to mere
community of interest but should be understood
according to its meaning in the common law system
from which the provision was taken, that is, in
solidum, and not mancomunada.

The quantum of interest of the declarant does not
affect the application of the rule. It is the fact of joint
interest, not the size of the fractional part, which
governs. If he is liable to the plaintiff in the same
manner that his co-defendants are liable, the extent
to which they are bound by his admission cannot be
measured or graduated by the quantity of his interest
in the contract.

Section 30. Admission by conspirator

Under the Revised Penal Code, a conspiracy exists
when two or more persons come to an agreement
concerning the commission of a felony and decide to
commit it.

How Conspiracies are Proved
Conspiracies are generally proved by a number of
indefinite acts, conditions, and circumstances which
vary according to the purposes to be accomplished. If
it be proved that the defendants pursued by their acts
the same object, one performing one part and
another performing part of the same, so as to
complete it, with a view to the attainment of the same
object, one will be justified in the conclusion that they
were engaged in the conspiracy to effect that object.

NOTE: This rule applies only to extrajudicial acts or
statements and not to testimony given on the witness
stand at the trial where the party adversely affected
thereby has the opportunity to cross-examine the
declarant. Hence, the requirement that the
conspiracy must preliminary be proved by evidence
other than the conspirators admission applies only to
extrajudicial, but not to judicial, admissions.

REQUISITES:
1. such conspiracy is shown by evidence
aliunde conspiracy must be established by
prima facie proof in the judgment of the court.
2. the admission was made during the
existence of the conspiracy after, the
termination of a conspiracy, the statements
of one conspirator may not be accepted as
evidence against any of the other
conspirators.
3. the admission related to the conspiracy itself-
should relate to the common object

These are not required in admissions during
the trial as the co-accused can cross-examine the
declarant and besides these are admissions after the
conspiracy has ended.

Direct proof is not essential to prove conspiracy.

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The conspiracy may be inferred from the acts of the
accused or from the confessions of the accused or by
prima facie proof thereof.

The concurrence of minds essential to conspiracy
may be inferred where the parties are apparently
pursuing the same object whether acting separately
or together by common or different means leading to
the same lawful result, and a common purpose is
inferable from concerted action converging to a
definite objective and whether or not the parties
meet, or confer and formulate their plans.

Conspiracy must be shown to exist as clearly and
convincingly as the commission of the offense itself.

A person charged with conspiracy is presumed to be
innocent, and the burden is on the prosecution to
establish his guilt.

The rule of evidence with regard to conspiracy is
founded on the principle which apply to agencies and
partnerships, the association should be bound by the
acts of one of its members in carrying out the design.

Where there is no independent evidence of the
alleged conspiracy, the extrajudicial confession of an
accused cannot be used against his co-accused as
the res inter alios rule applies to both extrajudicial
confessions and admissions.

GENERAL RULE: Extra judicial admissions made by
a conspirator after the conspiracy has terminated and
even before trial are also not admissible against the
co-conspirator

EXCEPTIONS:
1. made in the presence of the latter who
expressly or impliedly agreed therein, as
there would be a tacit admission under
Section 32
2. Where the facts stated in said admission are
confirmed in the individual extrajudicial
confessions made by the co-conspirators
after their apprehension (interlocking
confessions)
3. as a circumstance to determine the credibility
of a witness
4. as circumstantial evidence to show the
probability of the latters participation in the
offense.

If made after the act designed is fully accomplished
and after the object of the conspiracy has been either
attained of finally defeated, the declaration will be
admissible only against the person who made it.

In order that the extrajudicial statements of a co-
accused may be taken into consideration in judging
the testimony of a witness, it is necessary that the
statements are made by several accused, the same
are in all material respects identical, and there could
have been no collusion among said co-accused in
making such statements.

If this testimony is introduced to prove the truth of Bs
statement, it will be hearsay, but it will fall within the
co-conspirator exception to hearsay rule. This is
because the statement was:
1. made by a co-conspirator
2. made during the course of the conspiracy
3. made in furtherance of the objectives of the
conspiracy

Section 31. Admission by privies

PRIVITY - mutual succession of relationship to the
same rights of property.

PRIVIES - those who have mutual or successive
relationship to the same right of property or subject
matter, such as personal representatives, heirs,
devisees, legatees, assigns, voluntary grantee or
judgment creditors or purchasers from them without
notices to the fact.

REQUISITES:
1. there must be a relation of privity between
the party and the declarant
2. The admission was made by the declarant,
as predecessor in interest, while holding the
title to the property.
3. The admission is in relation to said property.

The privity in estate may have arisen by succession
by acts mortis cause or by acts inter vivos.

Basis
It is an established rule in evidence that the
declaration of a person under whom the title is
claimed are receivable against the successor so
claiming, on the theory that there is sufficient identity
of interest to render the statements of the former
equally receivable with the admissions of the present
owner, and that the rights of the latter are those of
the former.

The principle on which such evidence is
received is that the declarant was so situated that he
probably knew the truth, and his interest were such
that he would not have made the admissions to the
prejudice of his title or possession, unless they were
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true. The regard which one so situated would have to
his interest is considered sufficient security against
falsehood.

In order to render an admission of a former owner of
property competent against his successor in title, it
must have been made at a time when the title was in
the declarant.

GENERAL RULE: Declarations of the transferor,
made subsequent to the transfer, are inadmissible

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

Section 32. Admission by silence

The rule that the silence of the party against whom a
claim or a right is asserted may be construed as an
admission of the truth of the assertion rests on that
instinct of our nature, which leads us to resist an
unfounded demand.

When Applicable
This rule applies in both criminal as well as in civil
cases.

REQUISITES:
1. He must have heard or observed the act or
declaration of the other person;
2. He must have had the opportunity to deny it
3. He must have understood the statement;
4. He must have an interest to object, such that
he would naturally have done so, as if the
statement was not true;
5. The facts are within his knowledge;
6. The fact admitted or the inference to be
drawn from his silence is material to the
issue.

The rule on admission by silence applies where a
person was surprised in the act or even if he is
already in the custody of the police.

Voluntary participation in a reenactment of the crime
conducted by the police is considered a tacit
admission of complicity.

However, for a reenactment to be given any
evidentiary weight, the validity and efficacy of the
confession must first be shown. The implication of
guilt is not derived from mere silence but from
appellants silent acquiescence in participating in the
reenactment of the crime.

The rule DOES NOT apply if the statements adverse
to the party were made in the course of an official
investigation, as where he was pointed out in the
course of a custodial investigation and was neither
asked to reply nor comment on such imputations or
where the party had a justifiable reason to remain
silent, as where he was acting on advice of counsel,
otherwise his right to silence would be illusory.

No admission can be implied from silence where the
failure to answer was caused by constraint, or the
party was not aware at the time that he had an
interest, or believed that he had no interest, or was
only indirectly affected, or where as the matter was
presented, he had no interest to object, for example,
where the statement was not addressed to him or
was in his favor.

The same absence of relevancy occurs where an
answer would be unseemly interruption of orderly
proceedings then in progress, such as the delivery of
a sermon, the taking of the deposition or of testimony
in open court or the discharge by a judge, magistrate,
counsel, or other person of his proper function in
court proceedings.

A person under investigation for the commission of
an offense has the right to remain silent and to be
informed of that right.

The rule applies to adverse statements in writing if
the party was carrying on a mutual correspondence
with the declarant. However, if there was no such
mutual correspondence, the rule is relaxed on the
theory that while the party would have immediately
reacted by a denial of the statement were orally
made in his presence, such prompt response can
generally not be expected if the party still has to
resort to a written reply.

Section 33. Confession

CONFESSION - categorical acknowledgement of
guilt made by an accused in a criminal case, without
any exculpatory statement or explanation. If the
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accused admits having committed the act in question
but alleges a justification therefore, the same is
merely an admission.

There can also be a confession of judgment in a civil
case where the party expressly admits his liability.

Confession may either be oral or in writing and if in
writing, it need not be under oath.

The fact that the extrajudicial confession was made
while the accused was under arrest does not render it
inadmissible where the same was made and
admitted prior to the 1973 Constitution.

A confession may either be judicial or extrajudicial.

JUDICIAL CONFESSION - one made before a court
in which the case is pending and in the course of
legal proceedings therein and, by itself, can sustain a
conviction even in capital offenses.

EXTRAJUDICIAL CONFESSION - one made in any
other place or occasion and cannot sustain a
conviction unless corroborated by evidence of the
corpus delicti. This section refers to extrajudicial
confessions.

REQUISITES:
1. The confession must involve an express and
categorical acknowledgment of guilt.
2. The facts admitted must be constitutive of a
criminal offense
3. The confession must have been given
voluntarily
4. the confession must have been intelligently
made, the accused realizing the importance
or legal significance of this act.
5. There must have been no violation of Section
12, Art. III of the 1987 Constitution.

Confessions are presumed to be voluntary and the
onus is on the defense to prove that it was
involuntary for having been obtained by violence,
intimidation, threat or promise of reward or leniency.

The following circumstances have been held to
be indicia of the voluntariness of a confession:
The confession contains details which the
police could not have supplied or invented.
The confession contains details which could
have been known only to the accused
The confession contains statements which
are exculpatory in nature
The confession contains corrections made by
the accused in his handwriting or with his
initials and which corrected facts are best
known to the accused.
The accused is sufficiently educated and
aware of the consequences of his act.
It was made in the presence of impartial
witnesses with the accused acting normally
on that occasion
There is lack of motive on the part of the
investigators to extract a confession, with
improbabilities and inconsistencies in the
attempt of the accused to repudiate his
confession.
The accused questioned the voluntariness of
the confession only for the first time at the
trial of the case.
The contents of the confession were affirmed
by the accused in his voluntary participation
in the reenactment of the crime, as shown by
his silent acquiescence thereto.
The facts contained in the confession were
confirmed by other subsequent facts
After his confession, the accused was
subjected to physical examination and there
were no signs of maltreatment or the
accused never complained thereof, but not
where he failed to complain to the judge on a
reasonable apprehension of further
maltreatment as he was still in the custody of
his torturers

If the extrajudicial confession was obtained before
the effectivity of the 1973 Constitution on J anuary 17,
1973, the same is admissible in evidence even if the
confessant was not informed of his right to silence
and to counsel as this constitutional mandate should
be given a prospective, and not a retrospective
effective and this doctrine applies even if the
confession was made while the accused was under
arrest.

Under the current rule, the confession is inadmissible
if there is a violation of the accuseds right to counsel
and to silence.

Where, before the statement containing the
extrajudicial confession of guilt was taken, the
accused was asked whether he was familiar with the
provisions of then Section 20, Art. IV of the 1973
Constitution and he answered in the affirmative, and
the statement which he signed states that he had
been apprised of his constitutional rights with the
warning that anything he would say might be used for
or against him in court, such extrajudicial confession
is admissible in evidence, especially where he
thereafter failed to impugn the same by not taking the
witness stand although assisted by counsel.
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Where the verbal extrajudicial confession was made
without counsel, but it was spontaneously made by
the accused immediately after the assault, the same
is admissible not under the confession rule but as
part of the res gestae, aside from the consideration
that no custodial investigation was involved.

Where the accused was merely told of his
constitutional rights and asked if he understood what
he was told, but he was never asked whether he
wanted to exercise or avail himself of such rights, his
extrajudicial confession is inadmissible.

Where the extrajudicial confession of the accused
while under custodial investigation was merely
prefaced by the investigator with a statement of his
constitutional rights, to which he answered that he
was going to tell the truth, the same is inadmissible
as his answer does not constitute a waiver of his right
to counsel and he was not assisted by one when he
signed the confession. His short answer does not
show that he knew the legal significance of what
were asked of him, especially where the accused is
illiterate and it was not shown how his constitutional
rights were explained by the investigator.

The waiver of the right to counsel during custodial
investigation must be made with the assistance of
counsel. Counsel must be independent and
competent.

Where a confession was illegally obtained from two
of the accused and, consequently, are not admissible
against them, with much more reason should the
same be inadmissible against third accused who had
no participation therein.

Any form of coercion, whether physical, mental or
emotional, renders the extrajudicial confession
inadmissible.

A promise of immunity or leniency vitiates a
confession if given by the offended party or by the
fiscal, but not if given by a person whom the accused
could not have reasonably expected to be able to
comply with such promise, such as an investigator
who is not a prosecuting or could not bind the
offended party which was a corporation

Where the accused voluntarily made a second
extrajudicial confession after he had been maltreated
in order to extort the first confession, such second
confession is admissible only if it can be proved that
he was already relieved of the fear generated by the
previous maltreatment.

The entire confession should be admitted in evidence
but the court may, in appreciating the same, reject
such portions as are incredible.

Where the extrajudicial confession was obtained by
maltreatment, the judgment based solely thereon is
null and void and the accused may obtain his release
on a writ of habeas corpus.

GENERAL RULE: The extrajudicial confession of an
accused is binding only upon himself and is not
admissible against his co-accused

EXCEPTIONS:
1. if the latter impliedly acquiesced in or
adopted said confession by not questioning
its truthfulness, as where it was made in his
presence and he did not remonstrate against
his being implicated therein
2. If the accused persons voluntarily and
independently executed identical confessions
without conclusion, commonly known as
interlocking confessions which confessions
are corroborated by other evidence and
without contradiction by the co-accused who
was present.
3. If the accused persons voluntarily and
independently executed identical confessions
without conclusion, commonly known as
interlocking confessions, which confessions
are corroborated by other evidence, and
without contradiction but the co-accused who
was present.
4. Where the accused admitted the facts stated
by the confessant after being apprised of
such confession
5. If they are charged as co-conspirators of the
crime which was confessed by one of the
accused and said confession is used only as
a corroborating evidence.
6. If they are charged as co-conspirators of the
crime which was confessed by one of the
accused and said confession is used only as
a corroborating evidence.
7. Where the confession is used as
circumstantial evidence to show the
probability of participation by the co-
conspirator.
8. where the confessant testified for his co-
defendant or
9. where the co-conspirators extra judicial
confession is corroborated by other evidence
of record.

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This section, as now amended, declares as
admissible the confession of the accused not only
with respect to the offense charged but also any
offense necessarily included therein. On the other
hand, the 1987 Constitution specifically provides that,
illegal confessions and admissions are inadmissible
against the confessant or the admitter, hence they
are admissible against the persons who violated the
constitutional prohibition against obtaining illegal
confessions or admissions.

Section 34. Similar acts as evidence

GENERAL RULE: Evidence that one did or did not
do a certain thing at one time is not admissible to
prove that he did or did not do the same or a similar
thing at another time

EXCEPTIONS:
Where the evidence or similar acts may prove:
1. a specific intent or knowledge;
2. identity;
3. a plan, system or scheme;
4. a specific habit;
5. stablished customs, usages and the like

Reason for the Rule
To compel the defendant to meet charges of which
the indictment gives him no information, confuses
him in his defense, raises a variety of issue, and thus
diverts the attention of the court from the charge
immediately before it. It is an application of the
principle that the evidence must be confined to the
point in issue in the case on trial. In other words,
evidence of collateral offenses must not be received
as substantive evidence of the offense on trial.

SEC. 34 IS THE SECOND BRANCH OF THE RULE
OF RES INTER ALIOS ACTA AND APPLIES TO
BOTH CIVIL AND CRIMINAL CASES. This section
just like the first branch of the res inter alias acta rule
provided for in Sec. 28, Rule 130, is strictly enforced
in all cases where it is applicable.

Evidence of similar offenses involving the making of
other false representations, is admissible against the
prisoner to show that he is aware of the falsity of the
statements made by him in the present case and that
knowing them to be false, he made them with intent
to deceive.

Evidence of a number of crimes is admissible in a
prosecution for robbery where it has the tendency to
identify the accused or show his presence at the
scene of the crime but not where the evidence is to
prove that the accused committed another crime
wholly independent of that for which he is on trial.

Previous acts of negligence, that is, selling barium
chlorate instead of potassium chlorate, is admissible
to show knowledge or intent.

In civil cases the rule as to proof of commission of an
act by showing the commission of similar acts by the
same person at other times and under other
circumstances is the same as in a criminal
prosecution.

Section 35. Unaccepted offer

This section complements the rule on tender of
payment (Art. 1256, Civil Code) by providing that said
offer of payment must be made in writing. Such
tender of payment must, however, be followed by
consignation of the amount in court in order to
produce the effects of valid payment.

The rule covers:
1. payment of sum of money - if the amount is
short of the amount of liability or not in the
currency which is the legal tender here in the
Philippines, the creditor has a reason not to
accept the tender. Or even if the legal tender
is not that one to which the parties agreed
2. delivery of document if not that agreed
document, creditor may refused acceptance;
3. delivery of personal property creditor may
refuse and it does not amount to a tender if
the personal property is not that one agreed
upon

Delivery or unaccepted offer does not release the
debtor from obligation but it can excuse the debtor
from delivery.

Upon a valid unaccepted offer, the creditor shall
absorb all the circumstantial damages to the
property. However, the debtor must prove that there
is no negligent on his part.

The court has to resolve the issue on whether there
is a just cause in the refusal if the creditor denied the
consignation of the debtor in the basis that there is no
just cause.

The requirement that the tender of payment must
have been refused without just cause by the creditor
does not imply that for the judicial authority to accept
consignation it has to examine whether or not the
creditor had a just reason for refusing the tender. In
order that the consignation of an amount or thing may
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be made the refusal of the creditor of the tender of
payment is enough, without regard to the reason for
his refusal, which will only be taken into account to
resolve definitely whether the consignation made will
be efficacious against his opposition.

Section 36. Testimony generally confined to
personal knowledge; hearsay excluded

HEARSAY RULE
Any evidence, whether oral or documentary is
hearsay if its probative value is not based on the
personal knowledge of the witness but on the
knowledge of some other person not on the witness
stand.

Reason for Exclusion of Hearsay Evidence
It is excluded because the party against whom it is
presented is deprived of his right and opportunity to
cross examine the person to whom the statements or
writings are attributed.

Hearsay evidence not objected to may be admissible
but whether objected to or not, has no probative
value, and as opposed to direct primary evidence,
the latter always prevails.

GENERAL RULE: Hearsay Evidence is inadmissible

EXCEPTIONS:
1. Dying Declaration
2. Declaration Against Interest
3. Act Or Declaration Against Pedigree
4. Family Reputation Or Tradition Against
Pedigree
5. Common Reputation
6. Res Gestae
7. Entries In The Ordinary Course of Business
8. Entries In Official Records
9. Commercial Lists
10. Learned Treatises
11. Testimony Or Deposition At A Former
Proceeding

Reason for the Exceptions
The exceptions are admissible for reasons of
NECESSITY and TRUSTWORTHINESS.

DOCTRINE OF INDEPENDENTLY RELEVANT
STATEMENTS
The witness may testify to the statements made by a
person, if for instance, the fact that such statements
were made by the latter would indicate the latters
mental state and physical condition.

Independent of whether the facts stated are true or
not, they are relevant since they are the facts in issue
or are circumstantial evidence of the facts in issue.

TWO CLASSES OF INDEPENDENTLY RELEVANT
STATEMENTS
1. Those statement s which are the very fact in
issue;
2. Those statements which are circumstantial
evidence of the fact in issue. It includes the
following:
a. Statement of a person showing his
state of mind that is, his mental
condition, knowledge, belief,
intention, ill-will, and other emotions;
b. Statements of persons which shows
his physical condition as illness and
the like;
c. Statements of a person from which
an inference may be made as to the
state of mind of another, that is,
knowledge, belief, motive, good/bad
faith of the latter;
d. Statements which may identify the
date, place, person in question;
e. Statements showing the lack of
credibility of a witness

Section 37. Dying declaration.

DYING DECLARATION - The ante mortem
statements made by a person after the mortal wound
has been inflicted under the belief that the death is
certain, stating the fact concerning the cause of and
the circumstances surrounding the attack.

When Applicable
It applies to any case where the death of the
declarant is the subject of the inquiry.

REQUISITES:
1. That the death is imminent and the declarant
is conscious of such fact
2. That the declaration refers to the cause and
the surrounding circumstances of such
death
3. That the declaration refers to the facts which
the victim is competent to testify to
4. That the declaration is offered in a case
wherein the declarants death is subject of
the inquiry (the victim necessarily must have
died)
5. That the statement must be complete in
itself. (People v. De Joya, 203 SCRA 343).

Reason for its admission
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1. Necessity because the declarants death
renders impossible his taking the witness
stand
2. Trustworthiness at the point of death, every
motive for falsehood is silenced. The mind is
induced by the most powerful consideration
to speak the truth.

Determination of consciousness of impending
death:
1. utterances
2. circumstances that at the time of the
making of the declaration, the declarant did
not expect to survive the injury from which he
actually died
3. actual character and seriousness of his
wounds
4. by his conduct.

A dying declaration may be oral or written or made by
signs which could be interpreted and testified to by a
witness thereto.

There must be settled, hopeless expectation that
death is at hand. It is sufficient that he believed
himself in imminent danger of death at the time of
such declaration.

Dying declarations favorable to the accused are
admissible.

Dying declarations may also be regarded as part of
the res gestae as they were made soon after the
startling occurrence without the opportunity for
fabrication or concoction.

Dying declaration is NOT considered as a
confidential communication between the spouses.

A dying declaration may be attacked on the ground
that any of the requisites for its admissibility are not
present and the same may be impeached in the
same manner as the testimony of any of the witness
on the stand.

Section 38. Declaration against interest.

REQUISITES:
1. That the declarant is dead and unable to
testify.
2. That it relates to facts against the interest of
the declarant.
3. That at the time he made the said declaration
the declarant was aware that the same was
contrary to his aforesaid interest; and
4. That the declarant had no motive to falsify
and he believed such actual declarant to be
true.

Reasons for such admission
1. Necessity such declarations are the only
mode of proof available
2. Trustworthiness persons do not make
statements that are disadvantageous to
themselves without substantial reason to
believe that the statements are true. Self-
interest induces men to be cautious in saying
anything against themselves. In other words,
we can safely trust a man when he speaks
against his interest.

Interest covered:
1. proprietary interest
2. penal interest
3. pecuniary interest

The declarant must realize at the very time of making
the declaration that his declaration is against his
interest, that a reasonable man in his position would
not have made the declaration unless he believed it
to be true.

It is essential that at the time of the statement, the
declarants interest affected thereby should be
actual/real/apparent not merely contingent, future or
unconditional, otherwise, the declaration would not in
reality be against interest.

Section 39. Act or declaration about pedigree.

Section 40. Family reputation or tradition.

Section 39 Section 40
Act or declaration
against pedigree
Family reputation or
tradition regarding
pedigree
Witness need not be a
member of the family
Witness is a member
of the family
Testimony is about
what declarant, who is
dead or unable to
testify, he said
concerning the
pedigree of the
declarants family
Testimony is about
family reputation or
tradition covering
matters of pedigree.

PEDIGREE includes relationship, family genealogy,
birth, marriage, death, the dates when, and the placer
where these facts occurred and the names of their
relatives. It embraces also facts of family history
intimately connected with pedigree.
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Section 41. Common reputation.

THE FOLLOWING MAY BE ESTABLISHED BY
COMMON REPUTATION:
1. matters of public interest more than 30 years
old;
2. matters of general interest more than 30
years old;
3. matters respecting marriage or moral
character and related facts;
4. Individual moral character.

COMMON REPUTATION is the definite opinion of
the community in which the fact to be proved is
known or exists. It means the general or
substantially undivided reputation, as distinguished
from a partial or qualified one, although it need not be
unanimous.

As a general rule, the reputation of a person should
be that existing in the place of his residence; it may
also be that existing in the place where he is best
known.

EVIDENCE OF NEGATIVE GOOD REPUTE
Where the foundation proof shows that the witness
was in such position that he would have heard
reports derogatory to ones character, the reputation
testimony may be predicated on the absence of
reports of bad reputation or on the fact that the
witness heard nothing against the person.

Section 42. Part of res gestae

RES GESTAE literally means things done; it
includes circumstances, facts, and declarations
incidental to the main facts or transaction necessary
to illustrate its character and also includes acts,
words, or declarations which are closely connected
therewith as to constitute part of the transaction.

TWO TYPES OF RES GESTAE
SPONTANEOUS
STATEMENTS
VERBAL ACTS
spontaneous statements
in connection with a
startling occurrence
relating to that fact and
in effect forming part
thereof;

statements
accompanied by AN
EQUIVOCAL ACT
MATERIAL TO THE
ISSUE AND giving it a
legal significance

REQUISITES
1. there must be a
startling occurrence;
2. the statement must
1. the act or occurrence
characterized must be
equivocal;
relate to the
circumstances of the
startling occurrence;
and
3. The statement must
be spontaneous.

2. verbal acts must
characterize or
explain the equivocal
act;
3. equivocal act must be
relevant to the issue;
and
4. Verbal act must be
contemporaneous
with the equivocal act.

Grounds for admissibility
1. Necessity natural
and spontaneous
utterances are more
convincing than the
testimony of the same
person on the stand.
2. Trustworthiness the
statement is made
indistinctively. The
facts speaking thru the
party not the party
talking about the facts.

It is essential that spontaneous statements should
have been caused by something startling enough to
produce nervous excitement. The declarant must be
a witness to the event to which the utterance relates.
He must have personally observed the fact. What
the law distrusts is not the after speech but the after
thought.

Distinctions between Res Gestae in connection
with a homicidal act and dying declaration
RES GESTAE IN
CONNECTION WITH
A HOMICIDAL ACT
DYING
DECLARATIONS
May be made by the
killer himself after or
during the killing OR
that of a 3rd person.
Can be made only by
the victim.
May precede or be
made after the
homicidal attack was
committed.
Made only after the
homicidal attack has
been committed.
J ustification in the
spontaneity of the
statement.
Trustworthiness based
upon in its being given
in awareness of
impending death.

Distinctions between verbal acts and
spontaneous statements
VERBAL ACTS SPONTANEOUS
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STATEMENTS
The res gestae is the
equivocal act.
The res gestae is the
startling occurrence
Verbal act must be
contemporaneous with
or accompany the
equivocal act.
Statements may be
made prior, or
immediately after the
startling occurrence.

Section 43. Entries in the course of business

REQUISITES:
1. That the entrant made the entry in his
professional capacity or in the performance
of a duty;
2. The entry was made in the ordinary course of
business or entry;
3. The entries must have been made at or near
the time of the transaction to which they
relate;
4. The entrant must have been in a position to
know the facts stated in the entries;
5. The entrant must be deceased or unable to
testify.

The law does not fix any precise moment when the
entry should be made. It is sufficient that the entry
was made within a reasonable period of time so that
it may appear to have taken place while the memory
of the facts was unimpaired.

How regularity of the entries proved
It may be proved by the form in which they appear in
the corresponding book.

Section 44. Entries in official records

REQUISITES:
1. that it was made by a public officer or by
another person specially enjoined by the law
to do so; and
2. that it was made any a public officer in the
performance of his duty specially enjoined by
law; and
3. The public officer or the other person has
sufficient knowledge of the facts by him
stated, which must have been acquired by
him personally or through official information.

Reasons for admission
1. Necessity practical impossibility of requiring
the officials attendance as a witness to
testify to the innumerable transactions
occurring in the course of his duty.
2. Trustworthiness there is a presumption of
regularity in the performance of official duty.

Probative value: only prima facie evidence of the
facts stated therein.

It is not essential for the officer making the official
statement to have a personal knowledge of the facts
stated by him, it being sufficient that the official
information was acquired by officers who prepared
the report from persons who not only have personal
knowledge of the facts stated but must have the duty
to give such statements for the record.

People v. Cabrera Jr., G.R. No. 138266, April 30,
2003
It is well settled that entries in the police blotter
should not be given due significance or probative
value as they are not conclusive evidence of the truth
of their contents but merely of the fact that they were
recorded. Hence, they do not constitute conclusive
proof.

Section 45. Commercial list and the like
REQUISITES:
1. Statements of matters of interest to persons
engaged in an occupation;
2. The statements must be contained in a list,
register, periodical or other published
compilation;
3. The compilation was published for use by
persons engaged in that occupation; and
4. Is generally relied upon by them.

Reasons for admission:
1. Necessity because of the unusual
accessibility of the persons responsible for
the compilation of matters contained in a list,
register, periodical or other published
compilation and tremendous inconvenience it
would cause to the court if it would issue
summons to these numerous individuals.
2. Trustworthiness they have no motive to
deceive and they further realize that unless
the list, register, periodical or other published
compilation are prepared with care and
accuracy, their work will have no commercial
and probative value.

Section 46. Learned Treatises

In order that a published treatise, periodical, or
pamphlet on a subject of law, history, science, or art
may be admissible, it is necessary either:
1. That the court can take judicial notice of it; or
2. A witness expert on the subject testifies that
the writer of the statement in the treatise,
periodical, or pamphlet is recognized in his
profession or calling as expert in the subject.
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Reasons for admission
1. Necessity even if such person is legally
procurable, the expense is frequently
disproportionate.
2. Trustworthiness learned writers have no
motive to misrepresent. He is aware that his
work will be carefully scrutinized by the
learned members of his profession and that
he may be subject to criticisms and ultimately
rejected as an authority of the subject matter
if his conclusions are found to be invalid.

Section 47. Testimony or deposition at a former
proceeding

REQUISITES:
1. The testimony or depositions of a witness
deceased or unable to testify;
2. The testimony was given in a former case or
proceeding, judicial or administrative;
3. Involving the same parties;
4. Relating to the subject matter;
5. The adverse party having had an opportunity
to cross-examine him.

OPINION RULE

OPINION an inference or conclusion drawn from
facts observed.

Section 48. General Rule

GENERAL RULE: Witnesses must give the facts and
not their inference, conclusions, or opinions

EXCEPTIONS:
1. On a matter requiring SPECIAL knowledge,
skill, experience or training which he is
shown to possess (Section 49);
2. The identity of a person about whom he ahs
adequate knowledge (Section 50[a]);
3. A handwriting with which he has sufficient
familiarity (Section 50 [b]);
4. The mental sanity of a person with whom he
is sufficiently acquainted (Section 50[c])
5. The witness impressions of the emotion,
behavior, condition, or appearance of a
person (Section 50[d])

Section 49. Opinion of expert witnesses

EXPERT WITNESS one who belongs to the
profession or calling to which the subject matter of
the inquiry relates to and who possesses special
knowledge on questions on which he proposes to
express an opinion.

There is no definite standard of determining the
degree of skill or knowledge that a witness must
possess in order to testify as an expert.

It is sufficient that the following factors are
present:
1. training and education
2. particular, first hand familiarity with the facts
of the case
3. presentation of authorities or standards upon
which his opinion is based.

An expert witness may base his opinion either on the
first-hand knowledge of the facts or on the basis of
hypothetical questions where the facts are presented
to him and on the assumption that they are true,
formulates his opinion on the hypothesis.

Expert evidence is admissible only if:
1. the matter to be testified requires expertise;
and
2. The witness has been qualified as an expert.

How to present an expert witness
1. Introduce and qualify the witness;
2. Let him give his factual testimony, if he has
knowledge of the facts;
3. Begin the hypothetical question by asking
him to assume certain facts as true;
4. Conclude the question, by first asking the
expert if he has an opinion on a certain point
assuming that these facts are true and
secondly, asking him, after he has answered
affirmatively, to give his opinion on the point;
5. After he has stated his opinion, ask him to
give his reasons.

Hypothetical questions may be asked on an expert to
elicit his opinion. Courts, however, are NOT
necessarily bound by the experts findings.

Section 50. Opinion of ordinary witness

ORDINARY OPINION EVIDENCE that which is
given by a witness who is of ordinary capacity and
who has by opportunity acquired a particular
knowledge which is outside the limits of common
observation and which may be of value in elucidating
a matter under consideration.

CHARACTER AS EVIDENCE
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Section 51. Character evidence not generally
admissible

CHARACTER the aggregate of the moral qualities
which belong to and distinguish an individual person.

GENERAL RULE: character evidence is not
admissible in evidence

EXCEPTIONS:

CRIMINAL CASES
1. Accused may prove his good moral character
which is pertinent to the moral trait involved
in the offense charge;
2. The prosecution may not prove bad moral
character of the accused unless in rebuttal
when the latter opens the issue by
introducing evidence of his good moral
character;
3. As to the offended party, his good or bad
moral character may be proved as long as it
tends to establish the probability or
improbability of the offense charged.

Exceptions to this exception:

1. proof of the bad character of the victim
in a murder case is not admissible if
the crime was committed through
treachery and evident premeditation;
and
2. In prosecution for rape, evidence of
complainants past sexual conduct,
opinion thereof or of his/her reputation
shall not be admitted unless, and only
to the extent that the court finds that
such evidence is material and relevant
to the case. (Rape Shield, RA 8505
Section 6)

CIVIL CASES
The moral character of either party thereto CANNOT
be proved UNLESS it is pertinent to the issue of
character involved in the case.

AS TO WITNESSES
Both criminal and civil, the bad moral character of a
witness may always be proved by either party
(Section 11, Rule 132) but not of his good moral
character, unless such character has been
impeached. (Section 14)

RULE 131
BURDEN OF PROOF AND PRESUMPTIONS

Section 1. Burden of proof

BURDEN OF PROOF/RISK OF NON-PERSUASION
- the duty of a party to present evidence on the facts
in issue necessary to establish his claim or defense
by the amount of evidence required by law.

PROOF the establishment of a requisite degree of
belief in the mind of the trier of fact as to the fact in
issue.

Two separate burdens in burden of proof:
1. burden of going forward that of producing
evidence
2. Burden of persuasion the burden of
persuading the trier of fact that the burdened
party is entitled to prevail.

UPON WHOM BURDEN OF PROOF RESTS:

A. Civil Cases
1. the plaintiff has the burden of proof to show
the truth of his allegations if the defendant
raises a negative defense;
2. The defendant has the burden of proof if he
raises an affirmative defense on the
complaint of the plaintiff.

NOTE: In a civil case, the plaintiff is always
compelled to allege affirmative assertions in his
complaint. When he alleges a cause of action, he will
be forced to allege that he has a right and that such
right was violated by the other party. Thus he has
the duty to prove the existence of this affirmative
allegation.

When the defendant files his answer and sets up
purely a negative defense and no evidence is
presented by both sides, it is the defendant who
would win the case since the plaintiff has not
presented the quantum evidence required by law.
On the other hand, when the defendant in his answer
sets up an affirmative defense, if there is no evidence
presented by both sides, it is the defendant who will
lose the case.

B. Criminal Cases
The burden of proof is on the prosecution by reason
of presumption of innocence.

The burden of proof as to the guilt of the accused
must be borne by the prosecution. It is required that
courts determine first if the evidence of the
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prosecution has at least shown a prima facie case
before considering the evidence of the defense. If
the prosecution does not have a prima facie case, it
is futile to waste time in considering the evidence
presented by the defense. Should the prosecution
succeed in establishing a prima facie case against
the accused, the burden is shifted upon the accused
to prove otherwise.

Under the Speedy Trial Act, if the accused was NOT
brought to trial within the time required, the
information shall be dismissed on the motion of the
accused. In this case, THE BURDEN OF PROOF of
supporting such motion is with the accused (Section
13, Republic Act 8493).

DEGREE OF PROOF THAT SATISFIES THE
BURDEN OF PROOF

A. Civil Cases Preponderance of evidence

B. Criminal Cases
To sustain conviction Evidence of guilt beyond
reasonable doubt.

Preliminary investigation Engenders a well founded
belief of the fact of the commission of a crime.

Issuance of warrant of arrest Probable cause, i.e.
that there is reasonable ground to believe that the
accused that committed an offense.

C. Administrative Cases Substantial evidence.

HIERARCHY OF EVIDENCE
1. proof beyond reasonable doubt
2. clear and convincing evidence
3. preponderance of evidence
4. substantial evidence

BURDEN OF EVIDENCE - logical necessity on a
party during a particular time of the trail to create a
prima facie case in his favor or to destroy that
created against him by presenting evidence.

In both civil and criminal cases, the burden of
evidence lies on the party who asserts an affirmative
allegation.

Distinctions Between Burden of Proof and
Burden of Evidence
BURDEN OF PROOF BURDEN OF EVIDENCE
Does not shift and
remains throughout
the entire case exactly
where the original
Shifts from party to party
depending upon the
exigencies of the case in
the course of the trial
pleadings placed it.
Generally determined
by the pleadings filed
by the party.
Generally determined by
the developments of the
trial, or by the provisions of
substantive law or
procedural rules which
may relieve the party from
presenting evidence on
the facts alleged.

UPON WHOM BURDEN OF EVIDENCE RESTS

A. Civil Cases:
The plaintiff is to prove his affirmative
allegations in his counter claim and his affirmative
defenses.

B. Criminal Cases:
The PROSECUTION has to prove its
affirmative allegations in the information regarding
the elements of the crime as well as the attendant
circumstances; while the DEFENSE has to prove its
affirmative allegations regarding the existence of
justifying or exempting circumstances, absolutory
causes or mitigating circumstances.

PRINCIPLE OF NEGATIVE AVERMENTS

GENERAL RULE: Negative allegations need not be
proved, whether in a civil or criminal action.

EXCEPTION: When such negative allegations are
essential parts of the cause of action or defense in a
civil case, or are essential ingredients of the offense
in a criminal case or defenses thereto.

HOWEVER, in CIVIL CASES, even if the
negative allegation is an essential part of the
cause of action or defense, such negative
allegation does not have to be proved if it is
only for the purpose of denying the existence
of a document which should properly be in
the custody of the adverse party.

In a CRIMINAL CASE, the rule if the subject
of a negative averment inheres in the offense
as an essential ingredient thereof, the
prosecution has the burden of proving the
same. In view however, of the difficult office
of proving a negative allegation, the
prosecution, under such circumstance, need
to do no more than make a prima facie case
from the best evidence obtainable. (People
v. Cabral, 68 Phil. 564)

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PRESUMPTION - An inference as to the existence or
non-existence of a fact which courts are permitted to
draw from the proof of other facts.

A presumption shifts the burden of going forward with
the evidence. It imposes on the party against whom
it is directed the burden of going forward with
evidence to meet or rebut the presumption.

CLASSIFICATION OF PRESUMPTIONS
1. PRESUMPTION JURIS OR OF LAW is a
deduction which the law expressly directs to
be made from particular facts.
2. PRESUMPTION HOMINIS OR OF FACT is
a deduction which reason draws from facts
proved without an express direction from the
law to that effect

PRESUMPTIONS OF
LAW
PRESUMPTIONS OF
FACT
Certain inference must
be made whenever the
facts appear which
furnish the basis of the
inference.
Discretion is vested in
the tribunal as to
drawing the inference.
Reduced to fixed rules
and form a part of the
system of
jurisprudence.
Derived wholly and
directly from the
circumstances of the
particular case by
means of the common
experience of
mankind.

PRESUMPTION JURIS may be divided into:
1. CONCLUSIVE PRESUMPTION (juris et de
jure) which is a presumption of law that is
not permitted to be overcome by any proof to
the contrary; and
2. DISPUTABLE PRESUMPTIONS (juris
tantum) - is that which the law permits to be
overcome or contradicted by proofs to the
contrary; otherwise the same remains
satisfactory.

Section 2. Conslusive Presumptions

CLASSES OF CONCLUSIVE PRESUMPTIONS
1. ESTOPPEL IN PAIS (Rule 131, Sec. 2(a))
whenever a party has, by his own
declaration, act, or omission, intentionally
and deliberately lead another to believe a
particular thing to be true and act upon such
belief, he cannot, in any litigation arising out
of such declaration, act or omission, be
permitted to falsify it.
2. ESTOPPEL BY DEED (Rule 131, Sec. 2 (b))
the tenant is not permitted to deny title of
his landlord at the time of the
commencement of the land-lord tenant
relationship. If the title asserted is one that is
alleged to have been acquired subsequent to
the commencement of that relation, the
presumption will not apply.

Section 3. Disputable presumptions

CLASSES OF DISPUTABLE PRESUMPTIONS

1. Presumption of Innocence - Applies to both
civil and criminal cases

This presumption accompanies the accused
throughout the trial down to the moment of
conviction. This presumption disappears after
conviction and the appellate court then will
presume the accused guilty.

By reason of this presumption, an accused is
not called upon to offer evidence on his
behalf for his freedom is forfeited only if the
requisite quantum of proof necessary for
conviction be in existence.

BASIS: founded on the principles of justice
and is intended not to protect the guilty but to
prevent the conviction of an innocent
persons.

Equipose Rule: Where the evidence gives
rise to two probabilities, one consistent with
defendants innocence, and another
indicative of his guilt, that which is favorable
to the accused should be considered.

2. Presumption that a person takes ordinary
care of his concerns: (Vales v. Villa, 35
PHIL 769)

All men are presumed to be sane and normal
and subject to be moved by substantially the
same motives.

When of age and sane, they must take care
of themselves. Courts operate not because
one person has been defeated or overcome
by another but because he has been
defeated or overcome illegally. There must
be a violation of law, the commission of what
the law known as an actionable wrong before
the courts is authorized to lay hold of the
situation and remedy it.
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3. Presumption from possession of stolen
goods:

This is not in conflict with the presumption of
innocence. At the start of the criminal case,
the court will apply the presumption of
innocence. But once the prosecution is able
to prove that a certain object has been
unlawfully taken, that there is a crime of theft
committed and that the prosecution has also
proven that the accused is in possession of
this object unlawfully taken, and then the
presumption of innocence disappears. The
new presumption of guilt takes place.

4. Presumption that a person in a public
office was regularly appointed or elected
to it:

REASON: It would cause great
inconvenience if in the first instance strict
proof were required of appointment or
election to office in all cases where it might
be collaterally in issue.

The burden of proof is on the adverse party
to show that he was not appointed or
designated.

5. Presumption that an official duty has
been regularly performed

Reasons:
1. innocence and not the wrongdoing is
to be presumed
2. an official oath will not be violated
3. a republican form of government
cannot survive un less a limit is placed
upon controversies and certain trust
and confidence reposed in each
government, department, or agent at
least to the extent of such
presumption.

The presumption of regularity and legality of
official acts is applicable to criminal as well
as civil cases.

This presumption of authority is not confined
to official appointees. It has been extended
to persons who have been appointed
pursuant to a local or special statute to act in
quasi-public or quasi-official capacities and to
professional men like surgeons and lawyers.

6. Omnia praesumuntur rite et solemniter
esse acta donec probetur in contrarium
all things are presumed to have been done
regularly and with due formality until the
contrary is proved.

While ordinarily, irregularity will not be presumed,
an adverse assumption may arise when the
official act in question appears to be irregular
upon its face.

7. Presumptions of regularity of judicial
proceedings, that a court, or judge acting
as such, whether in the Philippines or
elsewhere, was acting in a lawful exercise
jurisdiction.

The copurt rendering the judgement is
presumed to have jurisdiction over the
subject matter and the poarties and to have
rendered a judgement valid in every respect.

J urisdiction is presumed in all cases, be it
superior or inferior court.

However, jurisdiction to render a judgement
in a particular case or against a particular
case, or against persons may not be
presumed when the record itself shows that
jurisdiction has not been acquired or there
was something on the record showing the
absence of jurisdiction.

8. Presumption that private transactions
have been done fair and regular: An
individual intends to do right rather than
wrong and intends to only whet he has the
right to do.

In the absence of proof to the contrary, there
is a presumption that all men act fairly
honestly, and in good faith.

9. Presumption that an ordinary course of
business has been followed: Those who
were engaged in a given trade or business
are presumed to be acquainted with the
general customs and usages of the
occupation and with such other facts as are
necessarily incident to the proper conduct of
the business.

RULE 132
PRESENTATION OF EVIDENCE
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EXAMINATION OF WITNESSES

Section 1. Examination to be done in open court.

How oral evidence is given
It is usually given orally in open court. Therefore,
generally, the testimonies of witnesses cannot be
presented in affidavits.

One instance when the testimonies of witnesses may
be given in affidavits is under the Rules of Summary
Procedure.

Purpose: to enable the court to judge the credibility
of the witness by the witness manner of testifying,
their intelligence, and appearance.

GENERAL RULE: Testimony of witnesses shall be
given under oath or affirmation.

Two fold object in requiring a witness to be
sworn:
1. by affecting the conscience of the witness to
compel him to speak the truth;
2. if he willfully falsifies that truth, that he may
be punished by perjury.

The right to have the witness sworn may be waived, if
a party fails to object to the taking of the testimony of
a witness without the administration of an oath, he
will be deemed to have waived his objection.

Questions propounded to a witness must:
1. not be indefinite or uncertain;
2. be relevant;
3. not be argumentative;
4. not for conclusion of law;
5. not call for opinion or hearsay evidence;
6. not call for illegal answer;
7. not call for self-incriminating testimony;
8. not be leading;
9. not be misleading;
10. not to tend reputation of witness;
11. not to be repetitions;
12. not call for a narration.

Section 2. Proceedings to be recorded

Section 3. Rights and obligations of a witness

RIGHTS OF A WITNESS
1. To be protected from irrelevant , improper, or
insulting questions, and from harsh or
insulting demeanor;
2. Not to be detained loinger than the interest of
justice require;
3. Not to be examined except only as to matters
pertinent to the issue;
4. Not to give an answer which will tend to
subject him to a penalty for an offense unless
otherwise provided by law;
5. Not to give an answer which will tend to
degrade his reputation, unless it be to the
very fact at issue or to a fact from which the
fact at issue would be presumed. But a
witness must answeer to the fact of his
previous final conviction for an offense.

Right of a witness to be free from personal
violence
The act of the judge in seizing the witness by the
shoulder and turning him about was unwarrante4d
and an interference with that freedom from unlawful
personal violence to which every witness is entitled
while giving the testimony in court, which his attorney
had the right to protest and demand that the incident
be made of record.

Scope of the right against self-incrimination
1. No person should be compelled to be a
witness against himself;
2. The rule may be invoked in any court or
proceedings;
3. The rule covers only testimonial compulsion
and production by him of incriminating
documents and articles.

Rationale against testimonial compulsion
The court may not extract from the defendants own
lips and against his will an admission of his guilt.

When is an act testimonial?
If it explicitly or implicitly relate a factual assertion or
discloses information.

When is there compulsion?
It is present only when a witness has asserted a right
to refuse to disclose self-incriminating information
and this refusal has been overridden.

Forced Reenactment comes within the ban since
prohibition against testimonial compulsion extends to
those communicative in nature.

Rights of a defendant
He has the right to be exempt from being a witness
against himself, cannot be compelled be compelled
to testify or produce evidence in the criminal case in
which he is the accused or one of the accused, he
cannot be compelled to do so even by subpoena or
other process or order of the court. He cannot be
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required wither for the prosecution, for co-accused, or
even for himself.

An ordinary witness of a party in a civil action
An ordinary witness may be compelled to testify by
subpoena having only the right to refuse to answer a
particular incriminating question at the time it is put to
him.

Limitation if a witness is a party in a civil action
Before the plaintiff can compel the defendant to be a
witness, the plaintiff must first prove that he has
submitted written interrogatories of the defendant.

The exception under no. 4 refers to IMMUNITY
STATUTES wherein the witness is granted immunity
from criminal prosecution for offenses admitted in his
testimony, e.g. under Sec. 8, R.A. 1379, the law
providing for the forfeiture of unlawfully acquired
property; and under PD 749, in prosecutions for
bribery and graft.

CLASSIFICATION OF IMMUNITY STATUTES
1. Use Immunity Only prohibits the unse of
witness compelled testimony and its fruits in
any manner in connection with the criminial
prosecution of the witness. It does not
render a witness immune from prosecution.
2. Transactional Immunity grants immunity
to the witness from prosecution for an
offense to which his compelled testimony
relates.

NOTE: For purposes of evidence, right against self-
incrimination refers only to testimonial compulsion.

NOTE: Right against self-incrimination is granted
only in favor of individuals.

Right against self-incrimination extends to
administrative proceedings with a criminal or penal
aspect.

When leading questions allowed
a. On cross-examination
b. On preliminary matters
c. Difficulty in getting direct and intelligible
answers
d. Unwilling or hostile witness
e. Adverse party or an officer, director or a
corporation or partnership which is an
adverse party

A misleading question, though not objected to, will
not be evidence of the fact assumed by the improper
question.

GENERAL RULE: One who voluntarily offers a
witness testimony is bound by such (i.e. cannot
impeach or contradict),

EXCEPTIONS:
i. Hostile witness
ii. Adverse party or rep. of adverse party
iii. Not voluntarily offered but required by law
(e.g., subscribing witnesses to a will)

People v. Givera 349 SCRA 573 (2001)
Facts: A was charged with murder. The prosecution
formally offered the testimony of the medico-legal
officer taken in the first case involving 3 other
accused for the death of the same victim.
Issue: Whether the said testimony is admissible.
Held: No. The defense did not have the opportunity
to cross-examine the medico-legal officer so his
testimony cannot be used in evidence against the
accused.
Impeaching witness of adverse party
a. Contradictory evidence from testimony in same
case
b. Evidence of prior inconsistent statement
c. Evidence of bias, interest, prejudice or
incompetence
d. Evidence of mental, sensory derangement or
defect
e. Evidence of conviction of an offense which affects
credibility of witness

People v. Peralta 350 SCRA 198 (2001)
Facts: A was found guilty of murder. A attempted to
impeach the credibility of 3 prosecution witnesses,
especially witness W. A pointed out that W testified
that as the victims fraternity brother, he would do
anything and everything for the victim.
Issue: Whether A was able to properly impeach the
witnesses on account of bias.
Held: No. A witness may be said to biased when
his relation to the cause or to the parties is such that
he has an incentive to exaggerate or give false color
or pervert the truth, or to state what is false. To
impeach a biased witness, the counsel must lay the
proper foundation of the bias by asking the witness
facts constituting the bias. In this case, there was no
proper impeachment by bias of the 3 prosecution
witnesses. Ws testimony that he would do anything
for his fellow brothers was too broad and general so
as to constitute a motive to lie before the court.

People v. Macandog et. al. 358 SCRA 462 (2001)
Facts: A was accused of the murder of V. E, a
witness of the prosecution, testified that A was
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among those present at the crime scene. A argued
that Es testimony should not have been given
credence because she was biased, as she was the
sister of the deceased.
Issue: Whether E is a biased witness.
Held: No. The fact that E is the sister of deceased
does not per se make her a biased witness. Mere
relationship of the victim to a witness does not
automatically impair her credibility and render her
testimony less worthy of credence where no improper
motive can be ascribed. Such relationship lends more
credence to the testimony considering her natural
interest to see the guilty punished. It would be
unnatural for a relative who is interested in
vindicating the crime to accuse anyone other than the
real culprit.

IMPEACHING OWN WITNESS

GENERAL RULE:
A party is not allowed to impeach his own witness

EXCEPTIONS:
a. Unwilling or adverse witness so declared by
the court
b. Witness who is also an adverse party
c. Witnesses required by law (e.g., subscribing
witnesses to a will)
May be impeached in all respects as if called by
other party, EXCEPT by evidence of bad moral
character.

When a witness who is partly cross-examined dies,
his direct examination cannot be expunged. In
People v. Seeris (99 SCRA 92), the direct
testimony of a witness who dies before conclusion of
the cross can be stricken only insofar as not covered
by the cross. However, Professor Bautista does not
like this decision because although the cross was
substantially complete, still, the court ordered the
direct examination to be stricken out.

REQUISITES OF REVIVAL OF PRESENT
MEMORY:
a. Memorandum has been written by him or
under his direction; and
b. Written by him:
i. When the fact occurred or immediately
thereafter; or
ii. At any other time when the fact was fresh
in his memory and he knew that the
same was correctly recorded

REQUISITES OF REVIVAL OF PAST
RECOLLECTION:
a. Witness retains no recollection of the
particular facts;
b. But he his able to swear that the record or
writing correctly stated the transaction when
made

Revival of present memory v. Revival of past
recollection
PRESENT
RECOLLECTION
REVIVED
PAST RECOLLECTION
RECORDED
Applies if the witness
remembers the facts
regarding his entries
Applies where the
witness does not recall
the facts involved
Entitled to greater weight Entitled to lesser weight
Evidence is the testimony Evidence is the writing or
record
Rule of evidence affected
is competency of
witness, examination of
witness (laying the
predicate)
Rule of evidence affected
is the best evidence rule

Additional modes of authenticating a private
writing:
a. Doctrine of self-authentication
Where the facts in the writing could only have
been known by the writer

b. Rule of authentication by the adverse party
Where reply of the adverse party refers to
and affirms the sending and his receipt of the
letter in question, a copy of which the
proponent is offering as evidence.

People v. Banzales 336 SCRA 64 (2000)
Facts: A was charged with illegal recruitment. The
POEA issued a certificate stating that A was an
unlicensed illegal recruiter. A argued that the
prosecution filed to establish 1 element of the offense
considering that no representative of the POEA was
presented in court to testify as to the authenticity of the
certificate.
Issue: Whether authenticity of the certificate needs to
be proved.
Held: No. A POEA certification is a public document
issued by a public officer in the performance of an
official duty; hence it is prima facie evidence of the facts
therein stated (Rule 132 23). Public documents are
entitled to a presumption of regularity; consequently, the
burden of proof rests upon him who alleges the
contrary.

Estrada v. Aniano Desierto 356 SCRA 108 (2001)
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Facts: The Court, in a previous decision, relied not
upon the original but only a copy of the Angara Diary
as published in the Philippine Daily Inquirer.
Issue: Does the use of the AD violate the rule on
authentication of private writings and best evidence?
Held: No.
1. The Supreme Court, citing Wigmore, stated that:
Production of the original may be dispensed with, in
the trial courts discretion, whenever in the case in
hand the opponent does not bona fide dispute the
contents of the document and no other useful
purpose will be served by requiring publication.
2. Estrada had an opportunity to object to the
admissibility of the AD when he filed his
Memorandum, Supplemental Memorandum and
Second Supplemental Memorandum, but he did not
object to its admissibility. He was not therefore
denied due process.

AUTHENTICATION NOT REQUIRED FOR:
a. Ancient document
i. More than 30 years old
ii. Contains no alterations or circumstances
of suspicion
iii. Produced from a custody in which it
would naturally be found if genuine
b. Public document or record
c. Notarial document acknowledged, proved or
certified
d. Authenticity and due execution has been
expressly or impliedly admitted (e.g.,
actionable documents, failure to deny under
oath)

Computer printouts are inadmissible unless properly
authenticated by a witness attesting that they came
from the computer system or that the data stored in
the system were not and could not have been
tampered with before the same were printed out.

EVIDENCE OF GENUINENESS OF
HANDWRITING:
a. Witness actually saw person writing the
instrument
b. Familiar with handwriting and witness can
give opinion
c. Comparison of questioned handwriting and
admitted genuine specimens
d. Expert evidence

OFFER AND OBJECTION

GENERAL RULE:
The court shall consider no evidence which has not
been formally offered. The purpose for which the
evidence is offered must be specified.

EXCEPTION:
If there was repeated reference thereto in the course
of the trial by adverse partys counsel and of the
court, indicating that the documents were part of the
prosecutions evidence.

Two requisites must concur (People v. Napta)
a. The document must have been duly
identified by testimony duly recorded.
b. The document must have been incorporated
to the records of the case.

A party who has introduced evidence is not entitled
as matter of right to withdraw it in finding that it does
not answer his purpose; BUT he may withdraw an
offer of an exhibit any time before the court has
passed on its admissibility.
Evidence offered is presumed to be admissible or
competent until the contrary has been established.

Thus, the opposing party must OBJ ECT to its
introduction.

WHEN TO OBJECT
Offer Time to Object
Offered orally Made immediately after
the offer is made
Question propounded in
the course of the oral
examination of a witness
Shall be made as soon
as the grounds thereof
shall become reasonably
apparent
Offer of evidence in
writing
Shall be objected to
within 3 days after notice
of the offer unless a
different period is allowed
by the court.

WHEN A MOTION TO STRIKE OUT ANSWER IS
PROPER
a. When the witness answered the question
before the counsel has a chance to object
a. Where a question which is not objectionable
may be followed by an objectionable
unresponsive answer
b. Where a witness has volunteered statements
in such a way that the party has not been
able to object thereto
c. Where a witness testifies without a question
being addressed to him
d. Where a witness testifies beyond the ruling of
the court prescribing the limits within which
he may answer
e. When a witness dies or becomes
incapacitated to testify and the other party
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has not been given the opportunity to cross-
examine the witness.
There must be an objection first before a
motion to strike. If the party slept on his
right to object, he cannot later on avail a
motion to strike to exclude the evidence.

WHEN A MOTION TO STRIKE OUT IS IMPROPER
a. A party cannot insist that competent and
relevant evidence be stricken out for reasons
going to his weight, sufficiency or credibility
b. One cannot move to strike it out because it
proves unfavorable to him

If court improperly excludes otherwise admissible
evidence, remedy is to tender the excluded evidence,
also known as OFFER OF PROOF:
a. Documentary by attaching the document
or making it part of the record
b. Testimonial by stating the personal
circumstances of witness and the substance
of proposed testimony

RULE 133
WEIGHT AND SUFFICIENCY OF EVIDENCE

1. PROOF BEYOND REASONABLE DOUBT
Does not mean such degree of proof as,
excluding possibility of error, produces
absolute certainty
Moral certainty only is required, or that
degree of proof which produces conviction in
an unprejudiced mind

2. Circumstantial evidence to sustain conviction:
a. More than one circumstance
b. Facts from which inferences are derived are
proven
c. Combination of all circumstances such as to
produce conviction beyond reasonable doubt
3. SUBSTANTIAL EVIDENCE
That amount of relevant evidence which a
reasonable mind might accept as adequate
to justify a conclusion.

People v. Pedigero 337 SCRA 274 (2000)
Facts: A was convicted of robbery with homicide. A
claimed that the court erred in holding that the
circumstantial evidence presented by the prosecution
sufficiently established his guilt.
Issue: When is circumstantial evidence sufficient to
convict?
Held: Rule 133 4 enumerates the 3 elements that
should be present in order for circumstantial evidence
to be sufficient for conviction. A judgment of
conviction based on circumstantial evidence can be
sustained only when the circumstances proved form
an unbroken chain that leads to a fair and reasonable
conclusion pointing to the accused, to the exclusion
of all others, as the culprit. The circumstances proved
must be consistent with each other, consistent with
the hypothesis that the accused is guilty, and at the
same time inconsistent with any other hypothesis
except that of guilt.

People v. Rayos 351 SCRA 336 (2001)
Facts: A was charged and convicted of the rape-
slay of a 9-year old mental retardate. He argued that
the circumstantial evidence presented by the
prosecution was not sufficient to establish his guilt
beyond reasonable doubt.
Issue: When is circumstantial evidence sufficient to
convict?
Held: When there are no eyewitnesses to a crime,
resort to circumstantial evidence becomes almost
certainly unavoidable. In rape with homicide, the
evidence against the accused is basically
circumstantial because of the nature of the crime.
The circumstances must be consistent with each
other from which the only rational hypothesis that can
be drawn therefrom would be that the accused is
guilty. The circumstances must create a solid chain of
events, coherent and intrinsically believable, that
pinpoints the accused, to the exclusion of others, as
being the perpetrator of the crime and thereby
sufficiently overcome the presumption of innocence
in his favor. The circumstantial pieces of evidence in
this case, taken in their entirety, unmistakably point to
the guilt of A.

Mollaneda v. Umacob 358 SCRA 537 (2001)
Facts: A, the Schools Division Superintendent, was
criminally charged before the court. A was acquitted.
Complainants filed an administrative case against A
to dismiss him from the service. A argued that the
dismissal of the criminal case against him meant that
the administrative case cannot prosper.
Issue: Whether A is correct.
Held: No. The dismissal of a criminal case on the
ground of insufficiency of evidence against an
accused who is a respondent in an administrative
case does not foreclose the administrative
proceeding against him or give him a clean bill of
health in all respects. In dismissing the case, the
court is simply saying that the prosecution was
unable to prove the guilt of the respondent beyond
reasonable doubt. In administrative proceedings, the
quantum of proof required is only substantial
evidence. As culpability has been proven by
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substantial evidence. The dismissal of the criminal
case cannot bind this Court in the disposition of the
instant administrative case. There was justifiable
ground for As dismissal from the service.

Pertinent Provisions of the
Implementing Rules of the E-Commerce Act:

CHAPTER II
LEGAL RECOGNITION OF ELECTRONIC DATA MESSAGES
AND
ELECTRONIC DOCUMENTS

Section 7. Legal Recognition of Electronic Data
Messages and Electronic Documents

Information shall not be denied validity or
enforceability solely on the ground that it is in the
form of an electronic data message or electronic
document, purporting to give rise to such legal effect.
Electronic data messages or electronic documents
shall have the legal effect, validity or enforceability as
any other document or legal writing. In particular,
subject to the provisions of the Act and these Rules:
a. A requirement under law that information is in
writing is satisfied if the information is in the
form of an electronic data message or
electronic document.
b. A requirement under law for a person to
provide information in writing to another
person is satisfied by the provision of the
information in an electronic data message or
electronic document.
c. A requirement under law for a person to
provide information to another person in a
specified non-electronic form is satisfied by
the provision of the information in an
electronic data message or electronic
document if the information is provided in the
same or substantially the same form.
d. Nothing limits the operation of any
requirement under law for information to be
posted or displayed in specified manner, time
or location; or for any information or
document to be communicated by a specified
method unless and until a functional
equivalent shall have been developed,
installed, and implemented.

Section 8. Incorporation by Reference

Information shall not be denied validity or
enforceability solely on the ground that it is not
contained in an electronic data message or electronic
document but is merely incorporated by reference
therein.

Section 9. Use Not Mandatory

Without prejudice to the application of Section 27 of
the Act and Section 37 of these Rules, nothing in the
Act or these Rules requires a person to use or accept
information contained in electronic data messages,
electronic documents, or electronic signatures, but a
person's consent to do so may be inferred from the
person's conduct.

Section 10. Writing

Where the law requires a document to be in writing,
or obliges the parties to conform to a writing, or
provides consequences in the event information is
not presented or retained in its original form, an
electronic document or electronic data message will
be sufficient if the latter:
a. Maintains its integrity and reliability; and
b. Can be authenticated so as to be usable for
subsequent reference, in that:
a. It has remained complete and unaltered,
apart from the addition of any endorsement
and any authorized change, or any change
which arises in the normal course of
communication, storage and display; and
b. It is reliable in the light of the purpose for
which it was generated and in the light of all
relevant circumstances.

Section 11. Original

Where the law requires that a document be
presented or retained in its original form, that
requirement is met by an electronic document or
electronic data message if
a. There exists a reliable assurance as to the
integrity of the electronic document or electronic data
message from the time when it was first generated in
its final form and such integrity is shown by evidence
aliunde (that is, evidence other than the electronic
data message itself) or otherwise; and
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b. The electronic document or electronic data
message is capable of being displayed to the person
to whom it is to be presented.
c. For the purposes of paragraph (a) above:
i. The criteria for assessing integrity shall be
whether the information has remained complete and
unaltered, apart from the addition of any
endorsement and any change which arises in the
normal course of communication, storage and
display; and
ii. The standard of reliability required shall be
assessed in the light of the purpose for which the
information was generated and in the light of all
relevant circumstances.
An electronic data message or electronic document
meeting and complying with the requirements of
Sections 6 or 7 of the Act shall be the best evidence
of the agreement and transaction contained therein.

Section 12. Solemn Contracts

No provision of the Act shall apply to vary any and all
requirements of existing laws and relevant judicial
pronouncements respecting formalities required in
the execution of documents for their validity. Hence,
when the law requires that a contract be in some
form in order that it may be valid or enforceable, or
that a contract is proved in a certain way, that
requirement is absolute and indispensable.

LEGAL RECOGNITION OF ELECTRONIC SIGNATURES

Section 13. Legal Recognition of Electronic
Signatures

An electronic signature relating to an electronic
document or electronic data message shall be
equivalent to the signature of a person on a written
document if the signature:
a. Is an electronic signature as defined in
Section 6(g) of these Rules; and
b. Is proved by showing that a prescribed
procedure, not alterable by the parties
interested in the electronic document or
electronic data message, existed under
which:
i. A method is used to identify the party
sought to be bound and to indicate
said partys access to the electronic
document or electronic data
message necessary for his consent
or approval through the electronic
signature;
ii. Said method is reliable and
appropriate for the purpose for which
the electronic document or electronic
data message was generated or
communicated, in the light of all
circumstances, including any
relevant agreement;
iii. It is necessary for the party sought to
be bound, in order to proceed further
with the transaction, to have
executed or provided the electronic
signature; and,
iv. The other party is authorized and
enabled to verify the electronic
signature and to make the decision
to proceed with the transaction
authenticated by the same.
v. The parties may agree to adopt
supplementary or alternative
procedures provided that the
requirements of paragraph (b) are
complied with.
For purposes of subparagraphs (i) and (ii) of
paragraph (b), the factors referred to in Annex 2
may be taken into account.

Section 14. Presumption Relating to Electronic
Signatures

In any proceeding involving an electronic signature,
the proof of the electronic signature shall give rise to
the rebuttable presumption that:
a. The electronic signature is the signature of
the person to whom it correlates; and
b. The electronic signature was affixed by that
person with the intention of signing or
approving the electronic data message or
electronic document unless the person
relying on the electronically signed electronic
data message or electronic document knows
or has notice of defects in or unreliability of
the signature or reliance on the electronic
signature is not reasonable under the
circumstances.

MODES OF AUTHENTICATION

Section 15. Method of Authenticating Electronic
Documents, Electronic Data Messages, and
Electronic Signatures

Electronic documents, electronic data messages and
electronic signatures, shall be authenticated by
demonstrating, substantiating and validating a
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claimed identity of a user, device, or another entity in
an information or communication system.
Until the Supreme Court, by appropriate
rules, shall have so provided, electronic documents,
electronic data messages and electronic signatures,
shall be authenticated, among other ways, in the
following manner:
a. The electronic signature shall be
authenticated by proof that a letter,
character, number or other symbol in
electronic form representing the persons
named in and attached to or logically
associated with an electronic data message,
electronic document, or that the appropriate
methodology or security procedures, when
applicable, were employed or adopted by a
person and executed or adopted by such
person, with the intention of authenticating or
approving an electronic data message or
electronic document;
b. The electronic data message or electronic
document shall be authenticated by proof
that an appropriate security procedure, when
applicable was adopted and employed for the
purpose of verifying the originator of an
electronic data message or electronic
document, or detecting error or alteration in
the communication, content or storage of an
electronic document or electronic data
message from a specific point, which, using
algorithm or codes, identifying words or
numbers, encryptions, answers back or
acknowledgement procedures, or similar
security devices.

Section 16. Burden of Authenticating Electronic
Documents or Electronic Data Messages
The person seeking to introduce an electronic
document or electronic data message in any legal
proceeding has the burden of proving its authenticity
by evidence capable of supporting a finding that the
electronic data message or electronic document is
what the person claims it to be.

MODES FOR ESTABLISHING INTEGRITY

Section 17. Method of Establishing the Integrity
of an Electronic Document or Electronic Data
Message

In the absence of evidence to the contrary, the
integrity of the information and communication
system in which an electronic data message or
electronic document is recorded or stored may be
established in any legal proceeding, among other
methods
a. By evidence that at all material times the
information and communication system or
other similar device was operating in a
manner that did not affect the integrity of the
electronic document or electronic data
message, and there are no other reasonable
grounds to doubt the integrity of the
information and communication system;
b. By showing that the electronic document or
electronic data message was recorded or
stored by a party to the proceedings who is
adverse in interest to the party using it; or
c. By showing that the electronic document or
electronic data message was recorded or
stored in the usual and ordinary course of
business by a person who is not a party to
the proceedings and who did not act under
the control of the party using the record.

ADMISSIBILITY AND EVIDENTIAL WEIGHT

Section 18. Admissibility and Evidential Weight of
Electronic Data Messages and Electronic
Documents
For evidentiary purposes, an electronic document or
electronic data message shall be the functional
equivalent of a written document under existing laws.
In any legal proceeding, nothing in the application of
the rules on evidence shall deny the admissibility of
an electronic data message or electronic document in
evidence:
a. On the sole ground that it is in electronic
form; or
b. On the ground that it is not in the standard
written form.
The Act does not modify any statutory rule
relating to the admissibility of electronic data
messages or electronic documents, except the rules
relating to authentication and best evidence.
In assessing the evidential weight of an
electronic data message or electronic document, the
reliability of the manner in which it was generated,
stored or communicated, the reliability of the manner
in which its originator was identified, and other
relevant factors shall be given due regard.

Section 19. Proof by Affidavit and Cross-
Examination
The matters referred to in Section 12 of the Act on
admissibility and evidentiary weight, and Section 9 of
the Act on the presumption of integrity of electronic
signatures, may be presumed to have been
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established by an affidavit given to the best of the
deponents or affiants personal knowledge subject to
the rights of parties in interest to cross-examine such
deponent or affiant as a matter of right. Such right of
cross-examination may likewise be enjoyed by a
party to the proceedings who is adverse in interest to
the party who has introduced the affidavit or has
caused the affidavit to be introduced.
Any party to the proceedings has the right to
cross-examine a person referred to in Section 11,
paragraph 4, and sub-paragraph (c) of the Act.

RETENTION OF ELECTRONIC DATA MESSAGE AND
ELECTRONIC DOCUMENT

Section 20. Retention of Electronic Data Message
and Electronic Document

Notwithstanding any provision of law, rule or
regulation to the contrary:
a. The requirement in any provision of law that
certain documents be retained in their
original form is satisfied by retaining them in
the form of an electronic data message or
electronic document which:
i. Remains accessible so as to be
usable for subsequent reference;
ii. Is retained in the format in which it
was generated, sent or received, or
in a format which can be
demonstrated to accurately
represent the electronic data
message or electronic document
generated, sent or received; and,
iii. Where applicable, enables the
identification of its originator and
addressee, as well as the
determination of the date and the
time it was sent or received.
b. The requirement referred to in paragraph (a)
is satisfied by using the services of a third
party, provided that the conditions set forth in
subparagraphs (i), (ii) and (iii) of paragraph
(a) are met.
c. Relevant government agencies tasked with
enforcing or implementing applicable laws
relating to the retention of certain documents
may, by appropriate issuances, impose
regulations to ensure the integrity, reliability
of such documents and the proper
implementation of Section 13 of the Act.

Proof of Previous Conviction

People v. Ubongan 357SCRA 142 (2001)
Facts: A was charged with kidnapping and serious
illegal detention. In the course of the trial, the
prosecution attempted to bring out As former
conviction of another crime.
Issue: Can the proof of As past conviction be used
to prove his guilt of the crime charged?
Held: No. A previous decision or judgment, while
admissible in evidence, may only prove that an
accused was previously convicted of a crime. It may
not be used to prove that the accused is guilty of a
crime charged in a subsequent case.

Recantation

People v. Nardo 353 SCRA 339 (2001)
Facts: A was charged with rape by his 14-year old
daughter. He was convicted by the TC and
sentenced to death. A raised the defense that the
victim desisted in pursuing the case against her
father by showing two letters. However, these were
not subscribed and sworn to by the victim.
Issue: Should the letters be admitted in order to
acquit the accused?
Held: No. A recantation of a testimony is
exceedingly unreliable for there is always the
probability that such recantation may later on be itself
repudiated. Courts look with disfavor upon retractions
because they can easily be obtained from witnesses
through intimidation or for monetary consideration. A
retraction does not necessarily negate an earlier
declaration. Especially, recantations made after the
conviction of the accused deserve only scant
consideration. Even if sworn to, the victims
recantation could hardly suffice to overturn the finding
of guilt by the TC which was based on her own clear
and convincing testimony given during a full-blown
trial. An affidavit of recantation, being usually taken
ex parte, would be considered inferior to the
testimony given in open court.
Credibility

People v. Buenaflor 359 SCRA 783 (2001)
Facts: RTC found A guilty for raping 14-yr. old V
who was asleep at the time of the commission of the
crime. During the initial reception of evidence for the
prosecution, V said she did not know A because it
was her first time to see his face at the time the
incident took place, but later on cross-examination,
she admitted that what she said was false because
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actually A is their neighbor. The TC thought that
considering that the offended party is a very young
girl of 15 years, it is not uncommon for the young girl
to conceal the assaults because of the rapist's
threats on her life.
Issue: Whether V is a credible witness.
Held: No. In a prosecution for rape, the
complainant's credibility becomes the single most
important issue. In this case, the testimony of the
complainant is not credible because it is replete with
inconsistencies, and narrations that are contrary to
common experience, human nature and the natural
course of things.
Alibi

People v. Abendan et. al. 360 SCRA 106 (2001)
Facts: RTC found Abendan et. al. guilty of murder.
The trial court gave credence to the testimonies of
the prosecution witnesses that there was treachery
and conspiracy in the killing of the victim, who was
asleep when he was fatally shot. A argued that the
trial court erred in ignoring his alibi.
Issue: Whether the trial court was correct in not
giving weight to As alibi.
Held: Yes. Positive identification, where
categorical and consistent and without any showing
of ill motive on the part of the eyewitness testifying on
the matter, prevails over alibi and denial which, if not
substantiated by clear and convincing evidence, are
negative and self-serving evidence undeserving of
weight in law. Alibi becomes unworthy of credit when
it is established mainly by the accused himself and
his relative, and not by credible persons.
Medical/Chemical Evidence

People v. Nubla 358 SCRA 735 (2001)
Facts: A was convicted for the rape of V, committed
by means of force and intimidation; in particular, by
inducing V to drink iced tea laced with drugs causing
the latter to lose consciousness. A denied that V was
drugged and pointed to the absence of any medical
or chemical evidence to support her claim.
Issue: Whether the fact that V was drugged was
sufficiently proven.
Held: Yes. While no chemical analysis was
conducted on the blood of the complainant
immediately after the incident, the physical
manifestations (dizziness, bodily weakness, strong
desire to sleep) were proved during the trial.

Evidence: A C B O 2007 Remedial Law

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