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LAW ON EVIDENCE TSN

From the lectures of Atty. Jess Zachael B. Espejo


Ateneo de Davao College of Law | Tres Manresa SY 2015 2016

June 17, 2015 (ELG)


RULE 128

GENERAL PROVISIONS
What is law? Law is a rule of the human conduct just and
obligatory promulgated by legislative or legitimate authority for
common benefit and service.
What are the branches of law?
1.

2.

Substantive law is that branch of law which creates,


defines and regulates rights, so when you talk about the
civil code, the civil law, criminal law, commercial law
theyre all part and parcel of substantive law. For
example youre a prospective buyers, theres a
prospective seller, it put therefore be the law that would
create, define, and regulate the rights as such being
privy to a contract, is it not that under Article 1458 of
the civil code by contract of sale one of the contracting
parties binds himself to transfer the ownership of and to
deliver a determinate thing to another called the buyer
is also obligated to pay therefore a price certain in
money or its equivalent. In a substantive law it actually
tells you as seller what can I do or what is my obligation
as seller? Transfer the ownership of or deliver a
determinate thing. As buyer what will your obligations
be? It would be to pay price certain in money.
Now assuming that parties know their rights and
obligations how to they enforce them? That is when
Remedial, Procedural or Adjective law would come
in, because according to the classic definition, the SC in
the case of Bustos vs. Lucero 81 Phil. 640, it is
remedial law it provides for the method for enforcing
rights and obtain address for their violation.
So, in substantive law it tells you what your rights are,
what your obligation are but its remedial law that
actually tells you how you can go on.

What are the aspects of Philippine remedial law?


1.

Public aspect of remedial law deals with remedies


available upon the state by a public individual or upon a
public individual by the state. Remedy kontra sa

gobyerno sa usa ka common nga tao ug remediya pud


sa usa ka common nga tao kontra saiyahang gobyerno.
For example what is an example of a remedial law that
regulates the remedies of the government against a
private individual?Criminal prosecution and in criminal
prosecution of course that is governed by the rules on
criminal procedure.
What about a remedy available for a private individual
that he can actually use against the state? Assume that
he has been deprived of his liberty without proper just
cause, what remedy do you have? You can file a writ of
habeas corpus to secure your liberty, you can file or
post bail to secure your provisional liberty in the
meantime or if your right have been violated lets say
for example a family members disappearance have been
imposed or probably he is a victim of a state enforced
disappearance, you can file under your civil procedure
for a writ of amparo. Amparo literally means protection,
so that is a remedy of an individual against the state.
Mao na sya karon ang public aspect sa remedial law.
2.

Private aspect of remedial law and that would now


govern remedies available to a private individual against
another private individual, civil litigations, civil lawsuits
and for that we have already discussed civil procedure.
Mao ni sya ang mga different aspect of civil law.

What are the branches of Philippine remedial law? Ang


buhaton nimo ana noh mutan-aw kalang ug codal sa rules of
court because there you can point out the specific branches of
remedial law.
Beginning with rules 1-56 of the rules of court governing civil
procedure which of course define and regulates the remedies in
private civil lawsuits.
Then you have as part and parcel of civil procedures rule 57-71
that shall govern provisional remedies and special civil
actions which deals with the remedies available to litigants to
maintain the status quo until the finality of litigation.
What follows next would be rule 72-109 which deals with
special proceedings or proceedings which aim to establish a
status, a right or a particular fact. An example is when you file
for the declaration of the nullity of marriage. What do you seek
to establish in an action for the declaration of nullity of marriage?
That marriage is null and void from the very beginning. Whats
the ground under article 36 of the family code? Its for
psychological incapacity to comply with the essential marital
obligations of marriage. So whats the effect if you are
successful? You gain a status, you establish a status or the very
least you will know for a fact that you have never been married
and therefore rather than the civil status being married, your
actually now single. Thats the purpose of special proceedings.
Then from rule 110-127 you have the rules on criminal
procedure which provides for the remedies available to the
state on a claim that a private individual or somebody else has
violated criminal statutes.
And my most favourite among all of them is our subject,
beginning from rule 128-134 although rule 134 technically
speaking does not exist anymore because it has been transferred
to civil procedure under modes of discovery we have the topic of
evidence, which is defined under as:
Rule 128. Section 1. Evidence defined. Evidence is the
means, sanctioned by these rules, of ascertaining in a judicial
proceeding the truth respecting a matter of fact.
What a beautiful definition, the truth respecting a matter of fact,
truth, really? We are law students here and we are talking about
the truth, having been a lawyer for the past 12 years, I can tell
you that in a court of law sometimes the truth is immaterial.
Although that is the aim of every litigation, to ascertain the truth.
I will tell you right now that in a court of law the truth is not a
product of morality, but the truth ultimately will be the product of
what you can prove and what you cannot prove in a court.
Lets go back in constitutional law. Somebody was already
making a phone call and that somebody said hello Garci you
know the hello Garci scandal, a lot of people heard and know
about it, nobody is fooled about it,so we know the truth, but
after that monumental I am sorry made on national television,
the SC in an en banc decision in the case of Garcilliano vs. House
of Representatives because of some technicality that you will
learn when you read the case later on, this allowed further
investigation into the Hello Garci scandal, we know the truth
but because of some technical evidentiary rule, the truth doesnt
matter. One judge once told me that the truth is sacred but you
need to surround it with a bodyguard of lies.
Name another document in all of your study in law which
mentions truth, where else? In the preamble of the 1987
constitution. Regime of truth, justice, freedom, love, equality and
peace, do ordain and promulgate this constitution. (Sir talks
about love)

[Page 1 of 35]
Ad Majorem Dei Gloriam

LAW ON EVIDENCE TSN


From the lectures of Atty. Jess Zachael B. Espejo
Ateneo de Davao College of Law | Tres Manresa SY 2015 2016

Now, SC makes a lot of mistakes, why? Because our very own


rules is flawed, erroneous by way of premise. Ngano nag ingon
ko na erroneous ang premise sa Phil. Law? The Phil. Procedural
law is almost an exact copycat of the federal rules of procedure.

But with respect to moral, nominal, temperate,


exemplary and liquidated damages, Art. 2216 provides
that we are not supposed to present proof of pecuniary
loss for you to be entitled for those type of damages.
Thats the evidentiary rule. Because it tells you that you
cannot prove your entitlement to these forms of
damages by way of receipts, they are not susceptible to
that kind of proof. To be entitled to liquidated damages
on the other hand, you also dont have to prove any
specific loss, injury or damage in your part. The only
thing you have to prove in that situation will be that
certain provisions in the contract where liquidated
damages were agreed upon by the parties have been
violated. Do not prove your injury; prove that a contract
has been breached.

Now what are the similarities of the Phil. and the US in terms of
rules of procedure? For one both legal jurisdiction prescribes an
adversarial form of litigation, plaintiff-defendant, petitionerrespondent. But what our lawmakers our SC with their rulemaking power under Art. VIII, Section 5(5) of the 1987
constitution did not take into consideration is the fact that in the
USA cases are decided by way of jury system while in the Phil.
we dont employ a jury system. You will soon realize that the
failure to take that into account is the basic flaw of the rules of
evidence and I will point that out to you one by one.
In the US there is a big difference between a question of fact
and a question of law, if it is a question of fact who will
determine the version of story to believe? It is the jury. But if it is
a question of law, the jury has no business in deciding the
interpretation of law. In the Phil. it wont matter because
eventually it will still be decided by the judge whether it is a
question of fact, law or a mix question of fact or law as
enunciated by the SC in the case of Cano vs. Philippine
National Police.

Also brings me to the case of Republic vs. Luzon


Stevedoring pertaining to an accident between a
vessel and a bridge/wharf, who was negligent based on
those facts? Res ipsa loquitor, it cannot be the bridge
because it is a stationary object. Therefore, it was the
vessel that as negligent because you cannot deem as
negligent a stationary object. That is an evidentiary
principle.

In the Phil. the only time when the distinctions between a


question of fact or a question of law become important is to
decide which court you are supposed to lay your remedy. If pure
question of law you can make your appeal directly to the SC but
if it is a question of fact or mix question of fact or law you lay
your appeal before the CA or any other lower appellate court.
The SC is not a trier of facts.
Is truth synonymous with evidence?
Sometimes dili, whatever you are not able to prove or whatever
you are able to prove will amount to the truth. In other words
the aim really of evidence is not to establish the truth but merely
to establish not the truth but merely a basis of conclusion. Thats
the rule of evidence.

It brings me also to one of my favorite principles in law,


the principle of res ipsa loquitor, the thing speaks for
itself. This is a common-law doctrine which tells you
that in a particular situation which leads to no other
conclusion than that the damage was definitely caused
by a particular actor, thenhe should be held liable for his
negligence. That would lead to a disputable
presumption that he was negligent.

What is the effect of a presumption? It throws


upon the other party a burden of proof. In that case, it
was the burden of the vessel to prove that it was not
negligent.

A legally, defensible conclusion is not necessarily truthful. It will


depend on the quantum of proof required in a particular case.

Another is the constitutional presumption of innocence;


the requirement that the guilt must be proved beyond
reasonable doubt.

x x x in a judicial proceeding x x x
In a criminal case it requires proof beyond reasonable doubt.
In civil case its mere preponderance of evidence. In an
administrative case, its mere substantial evidence. In certain
cases, clear and convincing evidence. There is a fifth
quantum, it is the least limitable quantum. It is the quantum
of conscience. What is an example of a case that is decided by
mere quantum of conscience? Impeachment cases (sir talks
about the impeachment of Justice Corona), rules of evidence
does not apply when the quantum required is merely that of
conscience.
June 19, 2015 (DJG)
x x x sanctioned by these rules x x x
What is meant by sanctioned by the rules? Evidence must be
allowed by the Rules of Court.
However, the Rules are not the main repositories relating to
evidence. There are the several provisions that may be
considered as evidentiary rules. Examples:

Art 1403 NCC statutes of frauds requirement ( in


writing)

Art. 2199, in torts, in actual damages that needs to be


proven actual pecuniary loss in relation to Art 2216 in
MENTL damages no proof of pecuniary loss is needed.

What does it mean? It means that the Rules of Evidence is


actually applicable to judicial proceedings only, in a strict sense.
Because there exists non-judicial proceedings (administrative,
quasi-judicial) and so, how does the law treat of evidence
presented in non-judicial proceedings?
General Rule: When the proceedings are administrative or
quasi-judicial, the rules on evidence are not strictly applicable.
In fact in the case of Samar Electric Cooperative v. NLRC,
March 21, 1997, where SC ruled that technical rules of
evidence are not strictly followed in labor relations. Art 221 of the
Labor Code affirms this liberality, that the rules of evidence
prevailing in courts of law and equity shall not be controlling and
it is the spirit and contention of the Labor Code that prevails.
Hence, the technical rules of evidence will not be binding.
So how does a hearing officer in a labor case ascertain facts? In
Morales v. NLRC, the SC held that the hearing officer may avail
of all reasonable means to ascertain facts. Meaning, not too
formal, not too strict, it tells you that its not supposed to be a
trial-type hearing.
But, such liberality in the application of the rules of evidence
does not mean that the hearing officer himself can also disregard
the rules. As decided in the case of Kanlaon Construction v.
NLRC, despite the summary nature of the admin and quasi-

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Ad Majorem Dei Gloriam

LAW ON EVIDENCE TSN


From the lectures of Atty. Jess Zachael B. Espejo
Ateneo de Davao College of Law | Tres Manresa SY 2015 2016

judicial proceedings, the hearing officer cannot disregard basic


requirements of due process which can be satisfied, at the very
least, by means of submissions of position papers (which content
are all admitted but does not mean that is believed by the court
since admissibility is different from credibility).

evidence, it exercises its sense of sight, touch, hearing,


taste and smell.

Baguio Country Club v. NLRC is a unique case because it tells


you the object of evidence, the purpose of evidence: to establish
the truth by the use of perceptive and reasoning faculties.

For example, color of this class card exercising sense of


sight, relating to physical characteristic then object
evidence but if it relates now to the contents of the
class card then it becomes documentary evidence.

x x x the truth respecting a matter of fact.


What are the different types of facts?
1. Ultimate Facts (Factum Probandum) are
principal, determinate and constituted facts upon which
the existence of the plaintiffs cause of action or
defendants defense rests; factum probandum are
simply propositions; and
2. Evidentiary Facts (Factum Probans) these are
facts necessary for the determination of the ultimate
facts. As in the law of pleadings, evidentiary facts are
not supposed to be included.
Their distinction: Ultimate facts represent propositions to be
established and hence hypothetical whereas evidentiary facts
would constitute the material in evidencing the proposition and
hence existent. No ultimate fact will prove itself, evidentiary fact
is required.

It is not prohibited although not specifically mentioned


in the rules of court. What matters would be the
intelligence used by the court, from which the court can
draw conclusions and make inferences from the object
so presented.

What is the difference between a question of fact and a question


of law? Cano v Chief of PNP, November 21, 2002:

Question of fact - when doubt or difference arises as


to the truth or falsehood of the alleged fact (Example:
W/N the accused is responsible for the murder)

Question of law - when the doubt or difference arises


as to what the law is on a certain set of facts (Example:
W/N the following set of facts lead to the application of
the law)

Testimonial/Oral Evidence these are oral or


written assertion offered in a court as a proof of the
truth of what is being stated for as long the witness
whose testimony is offered can perceive, and if
perceiving, can make known his perception to us; there
is requirement of recollection and communication: the
capacity to remember and capacity to communicate.
Otherwise, not a credible witness.
Types of Testimonial evidence in People vs Balleno:
1. Oral made in open court before the judge; and
2. Written affidavits, depositions.
If there is conflict between the two above, it is the oral
testimony which prevails since usually affidavits are
really the products of the lawyers. Thats why these are
required to be in the language the witness is speaking
to ensure that he is really the one who made the same.

In the US, if it is a question of fact, a jury can make the factual


determination. Therefore if it is a pure question of law, since
none of the members of the jury are lawyers, they do not know
the law, the question is referred to trial by judge.

Example is an affidavit in Ilonggo, allegedly made by a


person who lives in Isabela (Ilocano language). Clearly,
it was not him who made the affidavit. Thats the
reason why affidavits are not reliable.
What is the most reliable among the 3? (Sir did not
mention/include Demonstrative)
In the case of People vs Lavapie, the SC held that greater
credence is given to physical evidence as evidence of the highest
order because it speaks more eloquently than a hundred
witnesses. This is because object evidence is self-evident.

DIFFERENT CLASSES
OF EVIDENCE
AS TO TYPES

Demonstrative Evidence - may still be in the form of


objects such as maps, scale models, symbol, diagrams
or objects that has, by themselves, no probative value
but is used to illustrate and clarify a factual matter in
issue or aid a testimony; court still exercises

intelligence.

In legal contemplation when you say matter of fact you are


actually also saying Question of Fact.

The more important distinction is with respect to the law that


you are going to apply. If it is a factual question, you apply the
rules of evidence. You use the rules on evidence to ascertain the
truth respecting that matter or question of fact. But if it is a
question of law, you apply the law involved, the law from which
the question arose (Ex. WON certain law is unconstitutional)

Documentary Evidence Documents as evidence


consists of writings or any material containing letters,
words, numbers, figures, symbols or other modes of
written expressions offered as proof of their contents
(Rule 130 Sec 2); the court exercises intelligence.

Object/Real Evidence those addressed to the


senses of the court, those exhibited to, examined and
viewed by the Court (Rule 130 Sec 1).
This evidence consists in tangible evidence, that which
can be appreciated by the exercise of your senses. For
example, a murder weapon, an injury (scar), other
matters relating to the physical appearance of an
object. Therefore, when a court appreciates object

GSIS vs CA, the SC held that testimonial evidence is easy of


fabrication and there is very little room for choice between
testimonial evidence and documentary evidence. Generally,
therefore, documentary evidence prevails over testimonial
evidence.
The HIERARCHY is, thus:
1. Object (self-evident)
2. Documentary (at least it has been reduced into writing)
3. Testimonial (the most prone to fabrication)
[Bring Me Game] Ten-peso coin as evidence of physical injury,
mutilation case; Blue Ballpen as evidence of attempted homicide;

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Ad Majorem Dei Gloriam

LAW ON EVIDENCE TSN


From the lectures of Atty. Jess Zachael B. Espejo
Ateneo de Davao College of Law | Tres Manresa SY 2015 2016

Class Card as evidence (contents). Sir proceeds to interrogate


them. Concludes that they are all objects cannot answer and
may therefore be not self-evident at all.

that rings of truth on one hand, and a bare denial on


the other, the former is generally held to prevail.
So positive prevails over negative.

Thus in order to be appreciated by the court, there has to be


somebody who will identify, authenticate or give legal
significance to them in relation to the fact in issue.
Therefore, even if they ran very high in the hierarchy of
evidence, these objects cannot present themselves without the
witness and thus the testimonial evidence, even if so unreliable,
is the only way by which the object and documentary evidence
can be presented. THUS, despite the hierarchy, testimonial
seems to be the most important one.

AS TO MATERIALITY
1.

How do you determine the fact in issue in the case? By


examining the pleadings (joinder of issues) Example:
Loan evidenced by promissory note. Allegation was nonpayment. ISSUE: W/N there was already payment. For
the plaintiff, material evidence is the promissory note.
For defendant, material evidence is the receipt.

AS TO WHETHER IT AFFIRMS OR NEGATES


1.

Positive evidence when a witness affirms that a fact


occurred or did not occur (yes or no); and

2.

Negative evidence when the witness avers that he


did not see or know the occurrence of fact (did not
know or see). Example: alibi (neither confirming nor
denying)
Pregnant Denial/ Negative Pregnant Is a form of
negative expression which carries with it an affirmation
or an implication of some kind favorable to the adverse
party. It is a denial pregnant with an admission of the
substantial facts alleged in the pleading. Where a fact is
alleged with qualifying or modifying language, and the
words of the allegation that are so qualified or modified
are literally denied, it has been held that the qualified
circumstance alone are denied when the fact itself is
admitted.

Sir Espejo: This is a denial which implies the exact


opposite, the affirmative opposite: by only denying the
qualification of the allegation, not the allegation itself.
Ex. Accused was charged with falsification of Board
Resolution, the allegation was according to them they
met on two separate days (January14 and 15) but
actually no meeting was made on the other day when
the subject Board resolution was issued.

2.

1.

Competent evidence Offered evidence is not


excluded by some rule of evidence; hence, admissible.
When you talk about incompetent evidence, it has a
different meaning. You say that when a witness is not
qualified, therefore incompetent to give evidence. When
you say competent evidence (used to describe objects),
it is not excluded by the Rules of Court, it means that
the evidence is admissible.

2.

Inadmissible evidence - Offered evidence is excluded


by some rule of evidence.

Examples of rules not provided by the Rules that provide for


competent evidence:

Bill of Rights Article III. Section 2. The right of the


people to be secure in their persons, houses, papers,
and effects against unreasonable searches and seizures
of whatever nature and for any purpose shall be
inviolable, and no search warrant or warrant of arrest
shall issue except upon probable cause to be
determined personally by the judge after examination
under oath or affirmation of the complainant and the
witnesses he may produce, and particularly describing
the place to be searched and the persons or things to
be seized.

Bill of Rights Article III. Section 3. (1) The privacy of


communication and correspondence shall be inviolable
except upon lawful order of the court, or when public
safety or order requires otherwise, as prescribed by law.
(2) Any evidence obtained in violation of this or the
preceding section shall be inadmissible for any purpose
in any proceeding.

Rule 26. Admission of parties. Sec. 5. Effect of failure to


file and serve request for admission. Unless otherwise

Answer (witness): The Board did not have a meeting


on January 14.

Effect of negative pregnant denial in civil procedure is


ADMISSION.
As decided in the case of People vs Macalaba, SC
ruled that negative evidence cannot prevail over the
positive testimony, ruling We have time and again
ruled that mere denial cannot prevail over the positive
testimony of a witness. A mere denial, just like alibi, is a
self-serving negative evidence which cannot be
accorded greater evidentiary weight than the
declaration of credible witnesses who testify on
affirmative matters. As between a categorical testimony

Immaterial evidence the offered evidential fact is


directed to prove some probandum which is not proper
in issue. The rules of substantive law and of pleading
are what determine immateriality.

AS TO ADMISSIBILITY

Question: Did the Board of Directorshad the meetings?

It was a denial but the denial was pregnant with


something else because only denied not having the
meeting on January 14 only. Thus, by not commenting
on the qualification (January 15 meeting), the witness is
implying the exact opposite of what he is saying:
affirmation that there was a meeting on January 15.

Material evidence when it tends to prove or


disprove the fact in issue in a case;

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Ad Majorem Dei Gloriam

allowed by the court for good cause shown and to


prevent a failure of justice, a party who fails to file and
serve a request for admission on the adverse party of
material and relevant facts at issue which are, or ought
to be, within the personal knowledge of the latter, shall
not be permitted to present evidence on such facts.

LAW ON EVIDENCE TSN


From the lectures of Atty. Jess Zachael B. Espejo
Ateneo de Davao College of Law | Tres Manresa SY 2015 2016

AS TO RELEVANCY
1.

Relevant evidence evidence which has a tendency


in reason to establish a probability or improbability of
thefact in issue. Relevant evidence is tending toprove or
disproves a material fact. Evidencehaving a tendency to
make the existence of any fact that is of consequence to
thedetermination of any action more or lessprobable
than it would be without the evidence.

We already discussed materiality and relevancy right? Now lets


discuss another type of classification of evidence and that is as to
admissibility. We got there last time. Competent evidence means
evidence not excluded by the law or these rules. It means the
evidence is admissible. Inadmissible evidence on the other hand
is evidence which is deemed inadmissible because it is excluded
by the law or rules. Direct circumstantial evidence we already
discussed.

AS TO ORIGINALITY
Example of Dean Inigo: So there was a shooting of a
person. He was shot right between the eyes from a far
distance. A was the suspect. During the trial of A,
prosecution presented evidence tending to prove that A
was a former Olympic gold medalist in shooting. Is the
evidence material? Does it tend to prove that A killed
the victim? It does not. But even if it is not material, is it
relevant? It may be relevant, why? Because his ability
as a sharp shooter. It may not be MATERIAL but it is
RELEVANT. So that evidence in all probability will be
admitted.
2.

As to originality, evidence can either be primary/best evidence or


it can either be secondary evidence.
1.

Primary evidence is the evidence which the law


regards as affecting the greatest certainty of the fact in
question. For example, in a crime of murder. What
would be primary evidence? Perhaps an eyewitness
account that A shot B or it can be photographic
evidence clearly showing A shooting B.

2.

Secondary evidence is evidence of inferior or


substitutionary nature. Its not the best one. Its not
the genuine original. It is only a copy of the original. It
merely indicates an existence of a more original source
of information. For example you have photocopy of a
contract you present in court. What does it mean? It
means there is an original of the photocopy making it
merely secondary or substitutionary. Now we will learn
later on under rule 130 sec 3, we have there the best
evidence rule which provides that when the subject of
inquiry is the contents of a document, no evidence shall
be admissible other than the original document itself.
It tells you it has to be the original but sec 3 also tells
you of exceptions to the rule.

Irrelevant or unrelated evidence it is the


opposite; not related therefore objectionable and can
properly be ruled to be excluded by the court

What is the distinction between materiality and


relevancy? As to materiality, evidence is offered to prove or
disprove a specific fact in issue. Relevancy, on the other hand,
evidence has the tendency in reason to establish the probability
or the improbability of the fact claimed. Materiality is a direct
proof; in relevancy, evidence may either be direct or
circumstantial.Material, self-evident; relevancy, may require
reasoning and inference.Material evidence is always relevant but

relevant evidence is not always material.

AS TO THE NEED TO INFER OR PRESUME


1.

2.

AS TO SUPPORTING EVIDENCE

Direct Evidence. It is proof that if belief establishes


the truth or falsity of the fact in issue and therefore
does not arise from mere presumption; is that which
proves a fact in dispute, directly, without an inference
or presumption, and which in itself, if true, conclusively
establishes that fact. Example, direct testimony that the
victim was shot.
Circumstantial Evidence. It is evidence not bearing
directly on the fact in dispute but on various attendant
circumstances from which the judge might infer the
occurrence of the fact in dispute; merely collaterally
relevant to the fact in issue. Example, witnessing the
running of the accused away from the crime scene.
In the case of People vs Ramos, the SC held that the
evidence is either direct or circumstantial. Direct
evidence is that evidence which proves a fact in issue
directly without any reasoning or inferences being
drawn on the part of the factfinder. Circumstantial
evidence is that evidence which indirectly proves a fact
in issue. The factfinder must draw an inference or
reason from circumstantial evidence. Under our Rules of
Court, conviction based on circumstantial evidence is
sufficient if: (a) there is more than one circumstance;
(b) the facts from which the inferences are derived are
proven; (c) the combination of all the circumstances is
such as to produce a conviction beyond reasonable
doubt.

June 24, 2015 (DM)

It can either be cumulative or corroborative evidence.


1.

Cumulative evidence is additional evidence of the


same kind and character as that already given and
tends to prove the same proposition. Lets say youre
trying to prove that A shot B, that is your factum
probandum (proposition) and your facti probans
(evidentiary facts ) would be C testifying A shot B, D
testifying that A shot B, E testifying that A shot B. That
is merely cumulative evidence. It is the same kind and
tending to prove the same kind.

2.

Corroborative evidence is additional evidence of a


different kind and character tending to prove the same
point but different types of evidence.
For example,
your testimonial evidence tending to prove A shot B,
you also have object evidence in the form of
photograph showing A shot B. You also have an
affidavit of the confession of A saying he shot B. Those
are different types of evidence proving that A shot B.
Corroborative evidence is only necessary when there are
reasons to suspect that the witness did not tell the truth
or that his observation had been inaccurate. Because
normally the testimony of a lone witness is sufficient.

The question therefore, would it matter kung gamay ra imong


evidence? How many evidences are needed? A lot or a few?
Time and again the SC said that evidence is assessed in terms of
quality and not quantity.
Now let us relate that to the different quantum of proof required
in several cases.
Let us go the lowest.
SUBSTANTIAL

[Page 5 of 35]
Ad Majorem Dei Gloriam

LAW ON EVIDENCE TSN


From the lectures of Atty. Jess Zachael B. Espejo
Ateneo de Davao College of Law | Tres Manresa SY 2015 2016

EVIDENCE, evidence which a reasonable mind might support the


conclusion.
In administrative cases, what is required is
substantial evidence. The conclusion in an administrative case
tells you that even if you have 1 proof as long as it is substantial
to support the conclusion. How about the highest? PROOF
BEYOND REASONABLE DOUBT. Is it possible to produce a
conviction with only the testimony of 1 witness? Yes, even if only
1 testimony of a witness, it can result to conviction of the
accused. Now how about in civil cases? PROPENDERANCE OF
EVIDENCE.

remains with you since Juyo was not able to present a prima
facie case.

AS TO CONTROVERSION
You have prima facie evidence and conclusive evidence.
1.

PRIMA FACIE. Sufficient if not rebutted.


Another
example, BP22 cases there is prima facie evidence of
knowledge of insufficiency of funds. If prima facie
evidence, it can still be refuted.

2.

CONCLUSIVE EVIDENCE. It is no longer susceptible


of contrary proof. It is a legal proposition which no
controversion or contestation is allowed.
Example
under the law, RPC, crime committed by person who is
minor (18 below), there are classes of minors exempt
from criminal liability like below 9, does it matter if he
has discernment? No because the law provides or
presumes that a child below 9, child is exempt from
criminal liability and conclusively presumes that child
below 9 is incapable of discernment. In the case of
jarco marketing, in torts cases a child below 9 yrs of
age is conclusively held to be incapable of contributory
negligence.

RULE 133. Section 1.


Preponderance of evidence, how
determined. In civil cases, the party having burden of proof
must establish his case by a preponderance of evidence. In
determining where the preponderance or superior weight of
evidence on the issues involved lies, the court may consider all
the facts and circumstances of the case, the witnesses' manner
of testifying, their intelligence, their means and opportunity of
knowing the facts to which there are testifying, the nature of
the facts to which they testify, the probability or improbability
of their testimony, their interest or want of interest, and also
their personal credibility so far as the same may legitimately
appear upon the trial. The court may also consider the number
of witnesses, though the preponderance is not necessarily with
the greater number.
See the court may consider the number of witness though the
preponderance is not necessarily with the greater number. What
Im trying to point out that fact that the number of evidences are
not the determining factor in arriving to the conclusion of the
court. Can you win a case without introduction of evidence? Yes
under Rule 9 when you are declared in default, the court can
decide the case based on the prayer of the complaint. What
about in a criminal case? A rape case. Yes, if there is no prima
facie evidence against the accused.
What is prima facie evidence? It is evidence sufficient to
establish a fact and if not rebutted becomes conclusive of a fact.
Example, in cases of bribery, the acceptance of a gift of a public
officer is deemed prima facie evidence of bribery. To illustrate:
What is burden of proof? It is your duty as a party litigant to
come forward of evidence to prove you cause of action but if you
do not have your burden of proof and you fail to adduce
evidence to discharge the burden. The opposite of the term is
benefit of assumption.
Let us apply this to a criminal case. Example in People vs Lao.
It is the burden of the prosecution to prove that Lao is guilty of
acts of lasciviousness. So it has to present evidence why? In
the meantime Lao is entitled to the benefit of the assumption,
why? Remember in the 1987 Consti, you are still innocent until
the contrary is proved. What if the prosecution was able to
present evidence, it means that the it was able to establish what
is known as prima facie evidence. So now it shifted, it is the
duty of Lao to defeat the prima facie evidence.
What about in a civil case? Juyo vs Lao. Collection for sum of
money. There is evidence of a promissory note. What would be
the effect of burden of proof and benefit of assumption in a civil
case? Who has the burden of proving and who has the benefit
of assumption? The law in evidence is that whoever alleges has
the burden of proof. So its Juyo who has the burden of proof to
establish a prima facie case.

What do you present? The childs birth certificate.


Theres a third one here.
3.

REBUTTAL EVIDENCE. Is simply the evidence that


you present to combat the effects of a prima facie case
established against you.

Now mas importante ang prima facie evidence. Once there is a


prima facie evidence, burden of proof is shifted. The benefit of
assumption is transferred from one party to another. Prima facie
evidence if established and unrebutted would be sufficient to
produce a conviction.
Now in practice, is there a way where you can determine before
you present any evidence if a prima facie evidence has been
established? Now what is Rule 33 in civil procedure? You file a
demurrer to evidence. What is the nature? Is a motion to
dismiss except that it is not a motion to dismiss under Rule 16
but under Rule 33. And what it your only ground? That the
evidence presented is that the plaintiff is not entitled to relief.
That is like saying that there is no establish prima facie evidence.
Diba a demurrer of evidence you file it after the presentation of
evidence in chief. If the court grants your demurrer, you win. If
the court does not grant it, the plaintiff was able to establish a
prima facie case. Remember that demurrer can be in civil or
criminal cases. Remember also the difference of demurrer in civil
or criminal. (Always asked in the bar)

AS TO THE TENOR OF THE TESTIMONY


We are talking here of testimonial evidence.

What if Juyo was able to present a prima facie case? So she wins
the case.

The law requires that the testimony of the witness should be


based on his personal knowledge, derived from his own
perception. What he saw, smelled, touched. That would be
ORDINARY TESTIMONIAL EVIDENCE. Any testimony that is
not derived from your personal knowledge is hearsay. (Asks a
student her age)

What if she was not able to present a prima facie case? Will Lao
have to present evidence?
No, because the benefit of
assumption that was with you at the beginning of the case

The requirement for ordinary testimonial evidence is perception,


recollection and communication. You experienced, perceived it.
You remember it.

[Page 6 of 35]
Ad Majorem Dei Gloriam

LAW ON EVIDENCE TSN


From the lectures of Atty. Jess Zachael B. Espejo
Ateneo de Davao College of Law | Tres Manresa SY 2015 2016

After ordinary evidence, you have OPINION EVIDENCE. This is


what you think of the particular matter. (Calls a student
regarding the annoying Kris Aquino)

that it is a contract of sale. Example of the rule that


applies is under:
130. Section 9. Evidence of written
agreements. When the terms of an agreement have

Rule
An opinion as testimonial evidence is one which is not based on
your perception but based on your beliefs and prejudices. Is
opinion as testimonial evidence allowed in court? As a general
rule, it is not allowed. Why? Because every fact in issue will
simply not be a fact finding effort but becomes a mere survey or
popularity. (Talks about Jobert Sucaldito)
But there would be certain opinions that are admissible like the
expert opinion and ordinary opinion.
Expert opinion, for example you present the medico legal
officer who conducted the autopsy of the victim. That would be
admissible. It is presented in court which is beyond the
knowledge of the court. Question: Can you think under the law
which would require an expert to prove a matter of fact?
Psychological incapacity under Art. 36 of the Family Code.
Remember psychological incapacity has to be proven as laid
down in the case of Molina.
Ordinary opinion, when it would be admissible? For example in
a case you are the witness of a hit and run. Then you are
examined in court. That is a valid opinion because you testifying
on your perception to the facts what you saw in the accident.
That is ordinary opinion.
Now finally under testimonial evidence, we have CHARACTER
or REPUTATION EVIDENCE. Generally it is not acceptable in
court. Why? For example there is this guy who is accused of
estafa. Then a former classmate testifies, that when they were
younger, he used to steal baon from you. Is that admissible in
court? Is not admissible because of the 2 reasons: It is
immaterial and it is irrelevant.
Why immaterial? Would that character evidence prove that he
really stole from the employer- the fact in issue? In fact you are
violating another rule called the res inter alius acta the rule
provides evidence of one did or did not do nothing at a particular
time is not evidence that he did another thing at a different
time. Simply put, A rape B, A rape C therefore A rape D? You
cannot conclude that. You have to prove each particular
instance. That is immaterial and irrelevant. When we are talking
relevant, there is logical reasoning. Like A is a man, dog is a
mammal. (Ano raw? Lol) you have to come up with a conclusion.
A copied from B when he was in elementary, A stole the baon
from B, therefore A stole from his employer. Now you can see it
is not relevant based on your premises. We are not talking
proofs here, we are only talking of probabilities. So character
evidence is evidence attesting to ones character and moral
standing in the community. Generally a character of a party is
regarded as legally irrelevant in determining a controversy.
When allowed the character evidence shall be limited to traits
and characteristics s involved in type of defense.

AS TO THE SOURCE OF EVIDENCE


You have either intrinsic/ parol evidence or extrinsic evidence/
evidence aliunde.
1.

Intrinsic or parol evidence. It is information


necessary for the determination of an issue that is
gleamed from the provisions of the document itself.
Lets say A and B entered into a contract of sale which
reduced to writing. Is B allowed to say that it is a lease
contract? No, because based on the intrinsic evidence
which is the provisions of the contract it can be gleamed

been reduced to writing, it is considered as containing


all the terms agreed upon and there can be, between
the parties and their successors in interest, no
evidence of such terms other than the contents of the
written agreement.
2.

Extrinsic evidence or evidence alluinde. Its a


source outside the subject document itself. If you are
trying to prove something that is outside the document,
that is not allowed. What do you mean by evidence
aliunde? It means evidence from other sources other
than the document itself.

Now lets go to Section 2 relating to scope.


Rule 128. Section 2. Scope. The rules of evidence shall be
the same in all courts and in all trials and hearings, except as
otherwise provided by law or these rules.
When you say all trials and hearings, it is applicable to all civil
and criminal cases.
When you say except otherwise provided by law or these rules,
what does it mean? Are there types of cases that would be
govern by other rules not rules on evidence?
Example 1: When you talk about the examination of child
witness. Before that, I want you to be acquainted with the
concept of leading question. A leading question is a question
that is suggesting the answer to the witness which the proponent
wants to hear. A non-leading question begins with who, what,
where, why, how. It requires a specific answer. In usual direct
examination, it should be who, what, where, why, how. Leading
questions are objectionable.
Now that rule against leading questions does not apply to rule in
examining child witness. According to the SC, in People vs.
Santos, children have problems in providing accounts of events
because they dont understand everything they experience. They
have limited vocabulary, limited comprehension that they have
been sexually abused. Most of the times they dont know what
happen to them.
Example 2: The rules on summary procedure where affidavits
take the place of actual testimonies.
Example 3: The rules on small claims-procedure. In these cases,
there is no direct examination, cross examination or redirect. In
fact you dont submit any affidavits. You simply fill up forms
there. It is recognizable in the courts of justice but it does not
follow the rules on evidence.
Example 4: What else? Now there is this JA (judicial affidavit)
which has already been accepted. The usual interrogatories are
reduced into writing prior to the introduction of the witnesses.
July 1, 2015 (JJA)
[Sharing about his Masteral experience and why his wife Atty. Yang-yang does not
want to take masteral]

Sir: Tell me why is there a departure from the customary rules of


evidence in the case of child witnesses?
A: Because the child has no discernment. He does not know what
is right or wrong.

[Page 7 of 35]
Ad Majorem Dei Gloriam

LAW ON EVIDENCE TSN


From the lectures of Atty. Jess Zachael B. Espejo
Ateneo de Davao College of Law | Tres Manresa SY 2015 2016

Sir: What about the ability of the child to communicate?


A: Since the child is unable to understand what is going on, then
a different rule is used.
Sir: Example?
A: Leading questions is allowed to be asked to a child witness
unlike in ordinary rules.

Can you tell me of laws that would affect the competency of


evidence during the trial?
RA 4200 (anti wire tapping law) is an example. It is
grounded upon privacy of persons protected under the
constitutional.
Any exceptions to non-admissibility of wire-tapped conversation?

JZE: At least you are able to listen. [another student] Tell me


another example where rules of evidence is not used or cases
that follows different evidentiary rules.
1)
2)
3)

Section 4. Relevancy; collateral matters. Evidence must have


such a relation to the fact in issue as to induce belief in its
existence or non-existence. Evidence on collateral matters shall
not be allowed, except when it tends in any reasonable degree to
establish the probability or improbability of the fact in issue.

2)

It is not private.
Even without consent is not covered by the anti-wiretapping
law because there is no reservation of expectation of my
privacy. Example, I shouted that I will kill Mateo... you can
use that against me because I did not reserve an
expectation to privacy.

Remember that materiality is different from relevancy.


Materiality is the ability of evidence to point the fact in issue in
the case. Relevancy is that evidence must have such a relation
to the fact in issue as to induce belief in its existence or nonexistence. We are not talking here of certainly but merely
probability or improbability based on the shirt, gun or ID.

THE TWO REQUISITES FOR


THE ADMISSIBILITY OF EVIDENCE
RELEVANCY
Section 4:
Those with direct relation to the fact in issue which
may induce belief in its existence or non-existence
and
Those collateral matters which tends to establish
probability or improbability of fact in issue
2.

When there is consent by two parties.


Salcedo case: Involves declaration of nullity of marriage.
The husband instructed military operatives to wiretap
conversation of his wife. The issue here is WON the wiretap
conversation may be used as evidence to declare the
marriage a nullity. SC declared that the wiretap was not
admissible.

Rule on Examination of child witnesses


Small claims
Summary procedure (uses judicial affidavits)

Rule 128. Section 3. Admissibility of evidence. Evidence is


admissible when it is relevant to the issue and is not excluded by
the law of these rules.

1.

1)

COMPETENCY
Section 3: Not excluded by law or any of these Rules

Let us suppose this eraser is an object evidence. Five senses may


be used to appreciate this evidence. In relevancy, what is used
is common sense. e.g. In a murder case, you need to prove
your factum probandum otherwise you will lose your case. At the
crime scene, possible evidence would be a gun, cigarette, blood
stained clothes. An ID is not directly answering the question on
murder but may be relevant also.
Now how do we ensure that the things will establish murder. For
example the gun? An expert witness may be used. Or an autopsy
may be made to link the gun and the bullet.
Each of the evidence must be proved (factum probans).
Everything here would place the accused in the scene of the
crime. All these evidence are relevant evidence.
This is what we call as evidence on collateral matters. They do
not directly prove the fact in issue. But because they tend to
advance the inquiry into the factum probandum, what is the
treatment under the rules is that they are made admissible.
Not directly material but since it forwards an inquiry into the
factum probandum to establish of probability or improbability of
the fact in issue, they are made admissible.
What about competency? It is when the evidence is not
excluded by the law or the rules.

John Henry Wigmore advances two requirement for


admission of evidence:
1. Axiom of Relevancy
2. Axiom of Competency
Thus, only those facts which have rational probative value are
admissible. When you say rational probative value, you are
talking about whether it advances the inquiry or not. If it does,
then it is relevant.
Probative value means the tendency of evidence to make a
fact of consequence more or less probable than it would be
without evidence. It has probative worth whether affirmative or
negative. If it makes you believe or not believe, it still has
probative worth. In laymans terms, it refers to the believability.
Or in a court of law, it refers to credibility, katuohan ba siya
whether you are in the negative or affirmative side of the issue.
Now, the provisions of the constitution that would affect
competency of evidence are the following:
1) Section 2 Article III (unlawful search and seizure).
Talks about the fruit of the poisonous tree (may refer to
documentary or object evidence).
2) Section 3 Article III (privacy of communication)
3) Section 12 Article III (Miranda doctrine). Talks about
testimonial evidence.
4) Section 17 Article III (right against self incrimination).
Talks about testimonial evidence.
Another exception is RA 9372 (Anti Terrorism Law).
RA 9372. Section 7. A police or law enforcement official and
the members of his team may, upon a written order of the
Court of Appeals, listen to, intercept and record, with the use of
any mode, form, kind or type of electronic or other surveillance
equipment or intercepting and tracking devices, or with the use
of any other suitable ways and means for that purpose, any
communication, message, conversation, discussion, or spoken
or written words between members of a judicially declared and

[Page 8 of 35]
Ad Majorem Dei Gloriam

LAW ON EVIDENCE TSN


From the lectures of Atty. Jess Zachael B. Espejo
Ateneo de Davao College of Law | Tres Manresa SY 2015 2016

outlawed terrorist organization, association, or group of persons


or of any person charged with or suspected of the crime of
terrorism or conspiracy to commit terrorism.
You ask me, this is a very, very weak law. Why? Because it does
not really specifically define what terrorism is all about. It cites
or lists down provisions of RPC and uses them as terrorism acts.
RA 9372. Section 3. Terrorism. Any person who commits an
act punishable under any of the following provisions of the
Revised Penal Code:
a.
b.
c.
d.
e.
f.

Article 122 (Piracy in General and Mutiny in the High


Seas or in the Philippine Waters);
Article 134 (Rebellion or Insurrection);
Article 134-a (Coup d' Etat), including acts committed
by private persons;
Article 248 (Murder);
Article 267 (Kidnapping and Serious Illegal Detention);
Article 324 (Crimes Involving Destruction),
or under

g.
h.
i.
j.
k.
l.

Presidential Decree No. 1613 (The Law on Arson);


Republic Act No. 6969 (Toxic Substances and
Hazardous and Nuclear Waste Control Act of 1990);
Republic Act No. 5207, (Atomic Energy Regulatory and
Liability Act of 1968);
Republic Act No. 6235 (Anti-Hijacking Law);
Presidential Decree No. 532 (Anti-Piracy and AntiHighway Robbery Law of 1974); and,
Presidential Decree No. 1866, as amended (Decree
Codifying the Laws on Illegal and Unlawful Possession,
Manufacture, Dealing in, Acquisition or Disposition of
Firearms, Ammunitions or Explosives);

Thereby sowing and creating a condition of widespread and


extraordinary fear and panic among the populace, in order to
coerce the government to give in to an unlawful demand shall
be guilty of the crime of terrorism and shall suffer the penalty
of 40 years of imprisonment, without the benefit of parole as
provided for under Act No. 4103, otherwise known as the
Indeterminate Sentence Law, as amended.

Nobody is allowed to inquire into your bank deposits because no


person is compelled to disclose information about his wealth
EXCEPT:
1) You do it every year when you pay taxes so that the
government would know whether you pay the right
amount of taxes
2) When you enter public service through SALN.
[Yawyaw again about impeached CJ Corona.]

Again under RA 9327, the court of appeals may order you to


open your accounts. Anti-money laundering council may also
order you to open your accounts.
Right now, slowly but surely, there are no more safeguards to
violations of the constitution.
Another law is RA 9165 (Dangerous Drugs Act of 72):
RA 9165. Section 21. Custody and Disposition of Confiscated,

Seized, and/or Surrendered Dangerous Drugs, Plant Sources of


Dangerous Drugs, Controlled Precursors and Essential
Chemicals, Instruments/Paraphernalia and/or Laboratory
Equipment. The PDEA shall take charge and have custody of
all dangerous drugs, plant sources of dangerous drugs,
controlled precursors and essential chemicals, as well as
instruments/paraphernalia and/or laboratory equipment so
confiscated, seized and/or surrendered, for proper disposition in
the following manner:
(1) The apprehending team having initial custody and
control of the drugs shall, immediately after seizure
and confiscation, physically inventory and
photograph the same in the presence of the
accused or the person/s from whom such items
were confiscated and/or seized, or his/her
representative or counsel, a representative
from the media and the Department of Justice
(DOJ), and any elected public official who shall
be required to sign the copies of the inventory
and be given a copy thereof;

[Yawyaw galore si Atty. Espejo about the weakness of the law]

Another is RA 1405 (Bank Secrecy Law) in relation to:


RA 9372. Section 27. Judicial Authorization Required to
Examine Bank Deposits, Accounts, and Records. The
provisions of Republic Act No. 1405 as amended, to the
contrary notwithstanding, the justices of the Court of Appeals
designated as a special court to handle anti-terrorism cases
after satisfying themselves of the existence of probable cause in
a hearing called for that purpose that: (1) a person charged
with or suspected of the crime of terrorism or, conspiracy to
commit terrorism, (2) of a judicially declared and outlawed
terrorist organization, association, or group of persons; and (3)
of a member of such judicially declared and outlawed
organization, association, or group of persons, may authorize in
writing any police or law enforcement officer and the members
of his/her team duly authorized in writing by the anti-terrorism
council to: (a) examine, or cause the examination of, the
deposits, placements, trust accounts, assets and records in a
bank or financial institution; and (b) gather or cause the
gathering of any relevant information about such deposits,
placements, trust accounts, assets, and records from a bank or
financial institution. The bank or financial institution concerned,
shall not refuse to allow such examination or to provide the
desired information, when so, ordered by and served with the
written order of the Court of Appeals.

[Page 9 of 35]
Ad Majorem Dei Gloriam

(2) Within 24 hours upon confiscation/seizure of


dangerous drugs, plant sources of dangerous drugs,
controlled precursors and essential chemicals, as well
as instruments/paraphernalia and/or laboratory
equipment, the same shall be submitted to the
PDEA Forensic Laboratory for a qualitative and
quantitative examination;
(3) A certification of the forensic laboratory
examination results, which shall be done under
oath by the forensic laboratory examiner, shall be
issued within 24 hours after the receipt of the subject
item/s:
Provided, That when the volume of the dangerous
drugs, plant sources of dangerous drugs, and
controlled precursors and essential chemicals does not
allow the completion of testing within the time frame,
a partial laboratory examination report shall be
provisionally issued stating therein the quantities of
dangerous drugs still to be examined by the forensic
laboratory:
Provided, however, That a final certification shall be
issued on the completed forensic laboratory
examination on the same within the next 24hours;
(4) After the filing of the criminal case, the Court
shall, within 72 hours, conduct an ocular inspection
of the confiscated, seized and/or surrendered
dangerous drugs, plant sources of dangerous drugs,
and controlled precursors and essential chemicals,
including the instruments/paraphernalia and/or
laboratory equipment, and through the PDEA shall

LAW ON EVIDENCE TSN


From the lectures of Atty. Jess Zachael B. Espejo
Ateneo de Davao College of Law | Tres Manresa SY 2015 2016

within 24 hours thereafter proceed with the


destruction or burning of the same, in the
presence of the accused or the person/s from
whom such items were confiscated and/or
seized, or his/her representative or counsel, a
representative from the media and the DOJ,
civil society groups and any elected public
official.
The Board shall draw up the guidelines on the manner
of proper disposition and destruction of such item/s
which shall be borne by the offender:
Provided, That those item/s of lawful commerce, as
determined by the Board, shall be donated, used or
recycled for legitimate purposes:
Provided, further, That a representative sample, duly
weighed and recorded is retained;
(5) The Board shall then issue a sworn certification
as to the fact of destruction or burning of the
subject
item/s
which,
together
with
the
representative sample/s in the custody of the
PDEA, shall be submitted to the court having
jurisdiction over the case. In all instances, the
representative sample/s shall be kept to a minimum
quantity as determined by the Board;
(6) The alleged offender or his/her representative or
counsel shall be allowed to personally observe all of
the above proceedings and his/her presence shall NOT
CONSTITUTE ADMISSION OF GUILT. In case the said
offender or accused refuses or fails to appoint a
representative after due notice in writing to the
accused or his/her counsel within 72 hours before the
actual burning or destruction of the evidence in
question, the Secretary of Justice shall appoint a
member of the public attorney's office to represent the
former;
(7) After the promulgation and judgment in the
criminal case wherein the representative sample/s
was presented as evidence in court, the trial
prosecutor shall inform the Board of the final
termination of the case and, in turn, shall request
the court for leave to turn over the said
representative sample/s to the PDEA for proper
disposition and destruction within 24 hours from
receipt of the same; and
(8) Transitory Provision: x x x
Why is chain of custody is important? The chain of custody
is to preserve the evidence without any tampering.
Why preserve the evidence? Because the penalty is based on
the weight of drugs recovered.
What did the Supreme Court say with the non-compliance of RA
9165 in the case of People vs. Eugenio? Failing to comply
with the provision of Section 2 of R.A. No. 9165 does not
necessarily doom the case for the prosecution.
People vs. Pringas enlightens: Non-compliance by the
apprehending/buy-bust team with Section 21 is not fatal
as long as there is justifiable ground therefor, and as
long as the integrity and the evidentiary value of the
confiscated/seized items, are properly preserved by the
apprehending officer/team. Its non-compliance will not
render an accused's arrest illegal or the items seized/confiscated
from him inadmissible. What is of utmost importance is the
preservation of the integrity and the evidentiary value of the
seized items, as the same would be utilized in the determination
of the guilt or innocence of the accused.

So if you dont follow Section 21, it does not automatically render


the arrest illegal or the items seized inadmissible. So you dont
follow Section 21, the items may not automatically be rejected as
evidence.
What about in the case of People vs. Almorfe, did the SC come
up with the same ruling as in the case of Eugenio? NO (according
to Sir). The accused in Almorfe was acquitted because SC didnt
appreciate the evidence presented by the prosecution.
Considering the Eugenio ruling, why did the SC rule differently in
Almorfe and acquitted the accused.
The Supreme Court said: While a perfect chain of custody is
almost always impossible to achieve, an unbroken chain becomes
indispensable and essential in the prosecution of drug cases
owing to its susceptibility to alteration, tampering, contamination
and even substitution and exchange. Hence, every link must be
accounted for.
In fine, the prosecution failed to account for every link of the
chain starting from its turn over by Janet to the investigator, and
from the latter to the chemist.
In the case of Almorfe, the SC did not exclude the items as
evidence. It only declared that the integrity of evidence
(credibility) is questionable such that the chain of custody was
not followed. That is what the SC was saying.
The State argued that there was presumption of regularity. But
the SC said there were two presumption involve in this case. The
presumption of regularity and the other one is the presumption
of innocence. When there are two presumption involve, the
weaker presumption yields to the stronger presumption. In this
case, the presumption of innocence prevails over the
presumption of regularity.

Wala man conflict anang Eugenio and Almorfe cases.


We are done with Section 4. Now let us discuss a few more
concepts.

TYPES OF ADMISSIBILITY
A.

Multiple Admissibility

This refers to a situation where a fact is offered for one


purpose and is admissible in so far as it satisfies all rules
applicable to it if offered for such purpose and is able to
satisfy the rules applicable to it if offered for another
purpose.
For example: evidence may be offered to prove many
things.
Birth certificate required in bar examinations. It proves the
age. But it proves something else like place of birth, parents.
That is multiple admissibility.
Another principle is that in M.A., an admissible evidence
for one purpose and may not be admissible for
another purpose.
For example, hearsay evidence. Hearsay evidence is not
admissible because testimonial evidence must come from a
witness who personally witnessed something (personal
knowledge dapat). But is it admissible for some other
purpose. It is admissible to prove that it was spoken. OK?
Why would it be admissible? Because it would be the very
fact in issue in the case or it is circumstantial evidence of the

[Page 10 of 35]
Ad Majorem Dei Gloriam

LAW ON EVIDENCE TSN


From the lectures of Atty. Jess Zachael B. Espejo
Ateneo de Davao College of Law | Tres Manresa SY 2015 2016

fact in issue in the case. Medyo lisod pa ni siya ha. Basta the
evidence may not be admissible for one purpose but may be
admissible in another purpose.

admitted under the principle of curative admissibility to avoid


manifest injustice.
July 8, 2015 (AJU)

For example: Bagundang, buang ka buang ka buang ka. And


Marlie heard it.
It is inadmissible that Marlie heard Atty. Espejo was saying
that Bagundang is buang because she is testifying what
other person was saying, because it is hearsay. You cannot
present what you heard from me.
But if the fact in issue in the case is that I said buang
buang buang the testimony of Marlie is admissible that in
fact Atty. Espejo said that Bagundang is buang.
It doesnt matter if she is buang or not. What matters is that
I said that she is buang. OK? That is Multiple Admissibility.
BQ: May a private document be offered and admitted as
documentary evidence and object evidence?
Answer: YES!!! for the simple reason that for example that if
my evidence is this classcard and the fact in issue is what is
stated in the class card then yes it is admissible as
documentary evident in the absence of other documents.
However, if the fact in issue is the shape or color of the
classcard, then the rectangular shape and green color is
object evidence and also admissible.
Just to round out the types of admissibility of evidence.
B.

Conditional Admissibility

Evidence is admissible only depending on other facts. It is


received on expressed assurance of the counsel when
objection is manifested that other facts will be truly
presented at a suitable opportunity before the case is closed.
In other words, the evidence may not be apparent by mere
presentation but later on the party will supply the relation.
So it is conditionally admitted.
Ex: Cigarette during the murder of gerard by matteo. Is it
admissible per se? It is not. What is the relation. Even if you
prove that the cigarette belongs to the killer. You only prove
that he smoked. Right now it may not be admitted because
it has no relation but when you prove the connection that
Matteo actually used that cigarette later then the evidence
may be admitted. You must make the connection between
your factum probans and your factum probandum. Then that
is conditional admissibility.
C.

Curative Admissibility

A party is allowed to introduce evidence on his behalf where


the court has admitted the same evidence adduced by other
party to avoid manifest injustice.
Under summary rules, if you failed to submit affidavit, your
witness is not allowed to testify. Only when you previously
submit affidavit then you are allowed to testify.
Under Judicial affidavit rule, ana pud ang rule.
But going back, I presented object evidence under summary
rules which I didnt previously mark. Bawal na sa summary
rules or sa pre-trial. If there is an objection, the court must
sustain it. But I pushed my luck. The court allowed it. Later
on if my adverse counsel will present evidence which is not
also admissible to counteract the effects of the inadmissible
evidence I presented, I cannot object because that would be

I think were done with Rule 128 so lets now proceed to Rule
129 under the heading, what need not be proved. Now, it kind
of runs counter with our previous discussion on evidence as the
means sanctioned by these rules, in ascertaining in a judicial
proceeding, the truth respecting a matter of fact. Also discussed
on ultimate facts and evidentiary facts; ultimate facts being the
main proposition behind the hypothetical conclusion, using what
commodity? By the use of factum probans or evidentiary facts.
And so there cannot be, as a general rule in evidence, a matter
of fact which is self-evident or self-proving. You really need to
advance something: whether it is documentary, object or
testimonial evidence to prove a matter of fact. But Rule 129 says
that there are things or what are the instances when proof can
be dispensed with. Unsa ning mga butang na dili kinahanglan

iprove?
RULE 129

WHAT NEED NOT BE PROVEN


I.

PRESUMPTIONS

Lets go first to something not found on Rule 129 and that is


presumptions. Presumptions are found in Rule 131, which I think
has the weirdest provisions. Now, what kind of a rule is that?
One section in Rule 131 reaches how many pages? Take a look.
That will the longest provision you will find in all of law: Section
3 of Rule 131 relating to disputable presumptions.
Why is it that presumptions need not be proved? It is because
precisely that the effect of a presumption a prima facie fact or a
prima facie case is established. Perfect example there would be
quasi-delict which we would be discussing in Torts in second
semester. The cornerstone of liability for quasi-delicts would be
the proving of negligence. The defendant cannot be made liable
without the plaintiff proving first or discharging first that the
defendant was negligent. Without any negligence there could be
no liability. If the plaintiff already establishes prima facie
evidence of the defendants negligence, thereby discharging the
plaintiffs burden of proof appurtenant to such case, and it is now
the defendants turn to present evidence to disprove the
negligence the law or the evidence establishes.
But the law sometimes, such as in quasi-delicts, dispenses with
the plaintiffs burden to prove negligence, because the law now
provides for the presumption.
Remember what I told you about, the doctrine of res ipsa
loquitor or the thing speaks for itself. Daghang mga kaso na ingana. For example, Africa versus Caltex and my 11avour11ls
case in the whole wide world: Republic versus Luzon
Stevedoring. It simply says that the negligence of the alleged
wrongdoer may be inferred; there is no need to present evidence
to prove negligence. The accident happened and it may inferred
that such accident would not have occurred had there been no
negligence and the thing that caused the injury is shown to be
under the exclusive control of the defendant.
For example, in Africa case, theres a fire in a gasoline station.
Would there be a fire in the gasoline station caused by a factor
outside the people within the gasoline station? Kinsa bay nay
control sa instrumentality that caused the fire? It is the gasoline
station.
Or for example, there was 11avour11l as in the case of Luzon
Stevedoring. The difference between 11avour11l and collision:
Collision means two moving objects while 11avour11l means one
moving object and one stationary. Who is at fault in 11avour11l?

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From the lectures of Atty. Jess Zachael B. Espejo
Ateneo de Davao College of Law | Tres Manresa SY 2015 2016

Of course the one that is moving and therefore the thing speaks
for itself, there is negligence. It is not anymore the burden of the
plaintiff to prove that there is negligence and that is the effect of
the presumption. So when a presumption is applied in case, it
creates the burden of disproving. For example, when the doctrine
of res ipsa loquitor applies, the defendant now has the burden of
proving that there was no negligence.
There are two types of presumption under Rule 131:

II.

Conclusive presumption. It is that which the law


does not allow to be controverted. For example, the
tenant cannot dispute the title of the land lord
because 12avour12ls applies. The land lord
therefore would already have in his 12avour the
presumption that he has good title to the property
he is leasing out. Another conclusive presumption is
one we have learned in Jarco Marketing versus
Court of Appeals, where the Supreme Court said
that a child below 9 years of age is conclusively
presumed to be incapable of contributory
negligence, in the same vein, the Revised Penal
Code also provides that a child below 9 years old is
incapable of discernment.
Disputable presumption.

Another witness for example: I saw A push B from the 100th


story of the building. And then what happened? Unsa pa man
diay mahitabo ana? Nahulog, sya splat, patay. You can of course,
take judicial notice that if you are pushed from the top of a 100
story building that the law of gravity will take place. That is the
law of nature. You do not need ocular inspection. You do not say
Okay judge. I will push you, lets see if you will fall. Diba? It
will lead to absurd result if you do not take mandatory judicial
notice.
There are a lot of cases here which will be taking in due time.
One such case is Pigao versus Rabanillo, where the Supreme
Court had the occasion to lay down the material requisites of
judicial notice.
REQUISITES FOR JUDICIAL NOTICE
(1) The matter must be one of common and general
knowledge;
(2) It must be well and authoritatively settled and
not doubtful or uncertain; and
(3) It must be known to be within the limits of
jurisdiction of the court.

JUDICIAL ADMISSIONS

Why is admission conclusive? It is because an admission is


greater than all proof. Why do you need to prove or disprove
something when there is already an admission? If you are the
prosecutor for example, you burden is to prove that the accused
is the one who committed the crime. That is your burden. Do you
need to prove with evidence when there is an admission of
confession that the accused committed the crime? No need. That
is judicial admission. (For more discussion re: Judicial Admissions
please go to July 22 TSN)
III.

Where is this North America? Wouldnt that eb absurd. And that


is why judicial notice is mandated for existence and territorial
extent of states as well of the geographical divisions.

MATTERS WHICH FALL WITHIN THE REALM OF


JUDICIAL NOTICE

But of course the topic of the hour is judicial notice. Judicial


notice is the cognizance of certain facts which judges
may properly take and act on without proof because they
are already proven. It is a rule in the law of evidence that
allows a fact to be introduced into evidence if the truth of the
fact is so obvious or notorious or well-known that it cannot be
refuted. It is the cognizance of certain facts by the court without
proof because they are facts which by common experience are of
universal knowledge among intelligent persons within a country
or locality.
The latin maxim that would be applicable is manifesta
probatione non indigent or manifest things require no proof. I
think that is clear already on what judicial notice is.
The question is what is the rationale behind judicial notice? Why
is it that judges are allowed to take judicial notice or to not
require proof of certain facts? What is the essence of the law? It
is because of two things: convenience and expediency. It will be
superfluous to require proof; it would be inconvenient and
expensive for both parties and the court to require proof in the
ordinary way of facts which are already known to courts.
Insistence on not taking judicial notice will lead to absurdity.
For example, there is an American who is a witness in court. Of
course, he starts out by saying his name and personal
circumstances for the record. My name is lets say, Gerald
Anderson, originally from Detroit, Michigan. Can the court say
What is that Detroit, Michigan? Of course, it is in the United
States. Where is this United States? It is in North America.

The power of taking judicial notice is to be exercised by courts


with caution. Care must be taken that the requisite notoriety
exists and every reasonable doubt on the subject should be
promptly resolved in the negative. And therefore what this case
is saying, aside from laying down the material requisites, is that
taking judicial notice is the exception rather than the general
rule. The general rule, of course, is proof is required and one
exception is judicial notice.
Heres one that I always tell my students, found in the case of
Saludo versus American Express International. I asked this
in an exam two years ago and the question was this. What does
common knowledge mean? This one you need to remember. The
concept of facts of common knowledge in the context of judicial
notice has been explained as those facts that are so
commonly known in the community as to make it
unprofitable to require proof, and so certainly known to
as to make it indisputable among reasonable men. (VIP.
Memorize this phrase). The word that I want to emphasize
there is unprofitable. Requiring proof for facts which are of
general knowledge would lead to futile results because such
would be superfluous. No need to present proof diba? If you say
that in the bar unprofitable to require proof, you will be given
full point. Allow me to be a Judge Canete to you, because Judge
Canete would sometimes say This is the only way youre
supposed to answer this particular question. So remember na
ninyo ha? Unprofitable to require proof. If I ask this in the exam
and you do not put there unprofitable to require proof, then I
will not give you points. I will give you zero if you do not write
this phrase.
TYPES OF JUDICIAL NOTICE
(1) Mandatory Judicial Notice, which you have
memorized in Section 1
(2) Discretionary Judicial Notice and
(3) Judicial Notice when hearing necessary.
When you talk about the first one, the court does not have any
choice. What about discretionary? It is the type of judicial notice
where the judge has an option, whether to take judicial notice of
a particular fact or allow the parties to present their respective
claims. The third one, judicial notice when hearing necessary, is
not actually judicial notice. Why do I say that judicial notice when
hearing necessary, is not actually judicial notice? It is the

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Ad Majorem Dei Gloriam

LAW ON EVIDENCE TSN


From the lectures of Atty. Jess Zachael B. Espejo
Ateneo de Davao College of Law | Tres Manresa SY 2015 2016

essence of judicial notice to not require hearing; to not require


the parties to submit evidence. What happens when there is a
hearing? Under Civil Procedure, you have to be ready with you
supporting affidavits and evidence when necessary. So to my
mind under Section 3, that is actually not judicial notice; it is
repugnant to the essence of judicial notice.
MANDATORY
JUDICIAL NOTICE
Rule 129. Section 1. Judicial notice, when mandatory. A
court shall take judicial notice, without the introduction of
evidence, of the existence and territorial extent of states, their
political history, forms of government and symbols of
nationality, the law of nations, the admiralty and maritime
courts of the world and their seals, the political constitution and
history of the Philippines, the official acts of legislative,
executive and judicial departments of the Philippines, the laws
of nature, the measure of time, and the geographical divisions.
Quite a mouthful noh? But for me, at least, this is complete. It
already enumerates the subject matter and topics that are
objects of mandatory judicial notice and therefore if it is not
found in Section 1 then that matter is not a matter of mandatory
judicial notice. Although, we will find later, that there is judicial
notice on certain matters beyond Section 1. Lets go over the
objects one-by-one:
(1) The existence and territorial extent of states, their
political history, forms of government and symbols of
nationality: Again, the purpose here would be expediency. It
would be absurd to require evidence on these matters. Besides,
judges should not be more ignorant than the rest of the people.
Where is this China? Prove to me where China is.

Dilinanakinahanglan.
(2) Law of Nations: Do you know what the law of nations is?
This refers to international law. But my next question is do you
know all these treaties?
For example, CEDAW or Convention on the Elimination of All
Forms of Discrimination Against Women as explained by the
Supreme Court in the case of Halaguena versus Philippine
Airlines, which is a Civil Procedure case. Okay for example
CEDAW, do you know its provisions? Have you even heard of
CEDAW? Im willing to bet 50% of you have not even heard
about it. Oh sige lets not go into specifics, ing.ani nalang: How
does international law become part of the law of the land, or
how does it become part of domestic law or national law? Can
you recall a Constitutional provisions on this matter? Diba, The
Philippines renounces war as an instrument of national policy,
adopts the generally accepted principles of international law as
part of the law of the land and adheres to the policy of peace,
equality, justice, freedom, cooperation, and amity with all
nations. That is Article II, Section 2 of the 1987 Constitution. By
virtue of that clause, for example, the CEDAW becomes a part of
the national law because it adheres to the generally accepted
principles. This is by virtue of the incorporation clause in the
Philippine Constitution, which other countries also have a similar
clause. International law is given an equal but not superior
standing than domestic laws.

Lahi pud ning atong ginatawag na transformation, where


international law becomes part of the law of the land when we
transform a convention or a treaty into a domestic law; we make
our own version. Example, Anti-Terrorism Act and Crimes against
International Humanitarian Act. We have our own laws for those.
We transform that into domestic law.
Now what about generally accepted principles of international
law that are not found in conventions, how do they form part of
the law of the land. In Public International Law, what are these

two elements, can you recall? First is widespread sate practice


and second is opinio juris which means you follow this act
because you believe it is right; that is the psychological aspect of
international law.
How about the law of another state, United States for example.
Are courts required to take judicial notice of that? Answer is no.
That is not part of mandatory judicial notice. We will go to that
later on how judicial notice of foreign laws is taken; on what
happens when there is a mention of the foreign law but there is
no attempt to prove the law as a fact. There is a presumption
that actually applies which is processual presumption, where the
presumption is our law is same as ours. How about on same-sex
marriage? I dont know its legal implications yet.
(3) Matters of history of other states: If we cannot take
judicial notice of the law of the United States, can we take notice
of matters of history? It depends. We can if that part of history is
a matter of international interest. If it is purely local interest of
the foreign state, we cannot take judicial notice. For example,
the assassination of John F. Kennedy that is a matter of
international interest. Judges are expected to know that, thus, a
judge is wrong if he requires evidence to prove the death of John
F. Kennedy.
(4) Political Constitution and History of the Philippines:
As a rule, the political constitution and history of the Philippines
is subject to mandatory judicial notice. The requirement here is
mere notoriety; the judge should know them. In other words, it
must be a matter that is known to the whole country and not
limited to a single town or province. Therefore, you do not need
a historian or a history book to prove matters known to the
nation. The case there would be Municipal Board of Manila
versus Segundo Agustin. Its a very old case but it is still
applicable until today. But the question now, is history really
accurate? (Thats a different story.)
(5) Official acts of the legislative department: When you
talk about legislative acts of Congress, what does this refer to? It
refers to laws. Every judge must take judicial notice of every
statute. So if it is a national law, every judge in the country must
know such law. No litigant should have the present proof as to
whether a Republic Act exists or does not exist, the judge is
presumed to know that already, including the status of the law of
whether or not it is a good law or it has been repealed or has it
been amended and so on and so forth.
Its a different story when you talk about municipal law, although
I think it is already of public knowledge and unprofitable to
require proof that Davao City has a non-smoking ordinance.
Everybody in the country knows that; all judges should know
that. But lets say for example, do we know that theres an
ordinance somewhere in the Visayas region requiring its
constituents to render community service? Or that a particular
place you are allowed to jaywalk at certain times at particular
times? We do not know that. Judges are not expected to know
that. The rule is that if you are a judge of a Municipal Trial Court,
then you are expected to know the laws and ordinances within
that particular municipality or city within you sit. Remember that
there can be a Municipal Trial Court within a city. An RTC, on the
other hand, must take judicial notice:
1.) When required to do so by statute
2.) In a case on appeal before them where the inferior
court took judicial notice of an ordinance involving the
same case
3.) When capable of unquestionable demonstration.
Other than laws, what other official of congress must the courts
take mandatory judicial notice of? In the case of Chavez versus
Public Estates Authority, reports or minutes of investigations
and public hearings conducted by Senate Committees are subject
of mandatory judicial notice because they are considered official

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From the lectures of Atty. Jess Zachael B. Espejo
Ateneo de Davao College of Law | Tres Manresa SY 2015 2016

acts of the legislature. So therefore, also, congressional debates


and other records that predicate a passage of a law are official
acts of the legislature which the court must take judicial notice
of.
Again, as a general rule, foreign laws present a question of fact,
they have to be proven in court in the manner provided in Rule
132 Section 24 and 25. But there are certain principles that we
have to be aware of. Foreign laws need not be proven if the
other party already admits them. That will be considered as a
judicial admission not requiring proof. Also we have the principle
of processual presumption: in the absence of proof or judicial
admission, the laws of the foreign state is presumed to be similar
to our laws.
Here is an interesting case: Teodora Sobejana-Condon
versus Comelec (2012). Here, the petitioner is the winning vice
mayoralty candidate of Caba, La Union. A petition for quo
warrantowas filed against her stating that she as a dual citizen,
under RA 9225, must execute a sworn renunciation of her
Australian citizenship. So the petitioner answered when she
execute a renunciation of her Australian citizenship in Australia,
she is deemed to have renounced her foreign citizenship. And
she wanted the court to take judicial notice of the laws of
Australia, which says that renunciation of her citizen under the
laws of Australia is binding to the whole world. She also
contended that her mere act of running for public office is a clear
abandonment of her foreign citizenship. According to the
Supreme Court, we do not take judicial notice of a foreign law
such as the Australian Citizenship Act. A sworn renunciation is
required under 9225, which requires the sworn renunciation of
foreign citizenship.
(6) Official acts of the executive department: what do they
consist of? Presidential decrees, presidential declarations,
Executive orders and so on and so forth. Cabinet secretaries
being the alter egos of the President, their acts are also
considered official acts of the executive department. So when
there is a department circular, administrative order,
administrative circular, courts should take judicial notice of it.
Now, one such matter which the president can exercise as an
official act of executive department is executive clemency.
Amnesty and pardon also falls under the acts of the executive
but how do you distinguish them.
In the case of People versus William O. Casido, pardon is
granted by the Chief Executive and as such it is a private act
which must be pleaded and proved by the person pardoned,
because the courts take no notice thereof; while amnesty by
Proclamation of the Chief Executive with the concurrence of
Congress, and it is a public act of which the courts should take
judicial notice. So if its a pardon, you have to prove the pardon,
id that is relevant to your case. But if it is an amnesty, which is
not only an official act of the President but with the concurrence
of the Congress, it is a public act which the courts are required to
take judicial notice.
(7) Official acts of the judicial department: Of course,
these refer to cases decided by the Supreme Court of
jurisprudence. So judges must not rely on the codal provisions
but be updated in the jurisprudence as well. Judges are also
supposed to take judicial notice of Rules of Court. Judges who
wouldnt follow the Rules of Court is something Dean Inigo,
during his lifetime, could not stand.
What else? Issuances by the Supreme Court such as Rules on
Electronic Evidence issued by the Supreme Court or Rules on the
procedure of environmental cases issued by the Supreme Court.
Courts must take judicial notice of these matters. The decisions
that pertain to mandatory judicial notice are only decisions of the
Supreme Court. How do you prove a decision of the Court of
Appeals or the lower courts? You have to give the court a copy, if

they do not have a copy yet of the record or order of the lower
court.
Ok, Question 1: Can the court take judicial notice of matters
pending in another case? Question 2: Can a court be allowed to
take judicial notice of records in different courts for a purpose of
a particular case? Can the judge say, You dont need to present
evidence on that fact; that is already established in a case that I
tried a year ago and I will take judicial notice that the owner of
the gun is X. Can the court do that?
The general rule is no, the court cannot take judicial notice of the
decisions of the coordinate courts not even the decision or the
facts of a similar case tried by the same court. Even if the judge
has personal knowledge, the court does not have personal
knowledge thus the court cannot take judicial notice. It
emphasizes the difference of a court and a judge. Diba sa Civil
Procedure, you learned the difference of a court and a judge. So
whatever is within the personal knowledge of the judge, being an
officer of the court, does not equate to judicial notice. There is a
dichotomy between the judge and the court. There is a lot of
cases here you have to read: Judge Dolores Espaol versus
Atty. Formoso. The court here was questioned for taking
judicial notice of another case. The Supreme Court said: Courts
are not authorized to take judicial notice of the contents of
records of other cases even when such cases have been tried or
pending in the same court.
However, there are instances when the court may take judicial
notice. In Republic versus Court of Appeals (August 18,
1997), the Supreme Court said: A court will take judicial notice of
its own acts and records in the same case, of facts established in
prior proceedings in the same case, of the authenticity of its own
records of another case between the same parties, of the files of
related cases in the same court, and of public records on file in
the same court.
However, there is a qualification provided for by an earlier case
Occidental Land Transportation versus Court of Appeals
(1993): That there should be an absence of objection, meaning
both parties agree, as a matter of convenience between two
parties to treat the records of another case as read into the
records. Those are the two requisites you need to remember: the
absence of objection and the consent of the parties. Remember
these cases as well as the general rule and the exceptions.
(8) Laws of Nature: The most celebrated use of the laws of
nature in judicial notice is in a very old case in 1800s involving
Abraham Lincoln. There is a brawl during one night and there is
an eyewitness from afar of the assailant from a distance of 150
feet. You have to remember that during this time there was still
no light posts or wide spread used of electricity. Therefore,
because of the poor visibility it makes the identification of the
assailant from afar questionable. One witness said that he was
able to see the assailant because of the light of the moon. What
Abraham Lincoln did was take a farmer almanac and prove that
the moon has already set during that night and therefore
visibility of the assailant would have been impossible. And the
assailant was indeed acquitted.
Here is another case, this time in the Philippines, People versus
Meneses (1998), where the Supreme Court took judicial notice
that at around three in the morning during the Christmas season,
it is still quite dark and that daylight comes rather late in this
time of year. That is taking judicial notice of the laws of nature.
At three oclock in the morning, ngitngit pa jud na sya.
Heres another case: Gabriel versus Court of Appeals
(October 6, 2004). The testimony of the star witness was like
this: I stepped out to see what was going on. And then I heard
the sound of two vehicles colliding with one another.and then I
saw the vehicles colliding with one another. In other words, the

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From the lectures of Atty. Jess Zachael B. Espejo
Ateneo de Davao College of Law | Tres Manresa SY 2015 2016

sound came before the actual collision. What is correct? The


sound occurs immediately after the collision. The Supreme Court
said that we have to take judicial notice of the laws of nature. If
true, the Supreme Court said: If true, this would rate as one of
the greatest scientific revelations of all time. But since courts are
obliged to take judicial notice of the laws of nature, this Court
prefers to side with prudence. So the Supreme Court can be
sarcastic at times.

that you can actually compel a judge by mandamus to do


something.

(9) Geographical divisions: In the case of People of the


Philippines versus Sevilleno (1999), the Supreme Court said
that the geographical divisions of barangays and cities, that is
something that the Supreme Court should take judicial notice of.

Geographical divisions na sya.

Not only that but also the characteristics of these municipalities


and cities, like for example, that the court properly took judicial
notice that Talamban, Cebu City is an urban area, that was in the
case of Doris Chongbian-Oliva versus Republic.

In Banatao versus Dabbay (1918), the court can also take


judicial notice of rivers and whether they are navigable or not.
In People versus Pacabes, the Supreme Court also said: The
failure of a witness to report at once to the police authorities the
crime they had witnessed should not be taken against them. It is
not uncommon for a witness to a crime to show some reluctance
about getting involved in a criminal case. The natural reticence of
most people to get involved in a criminal case is of judicial
notice. That is natural, when there is a case being filed, we do
not want to be a witness, we do not want to be damay, dili ta

gusto mu.apil apil although pag.kahitabo sa crime kusog kaayo


ta maki.chismis. Ing.ana kausisero ang pinoy. Ing.ana atong
mentality. When you become lawyers, you will also encounter
that problem.
July 15, 2015 (JRL)
DISCRETIONARY
JUDICIAL NOTICE
Rule 129. Section 2.Judicial notice, when discretionary. A
court may take judicial notice of matters which are of public
knowledge, or are capable of unquestionable demonstration, or
ought to be known to judges because of their judicial functions.
What are the matters which do not actually require proof in
court? Section 1, relates mandatory judicial notice. By the term
mandatory, the court has no discretion on whether or not to
require proof. If a court requires proof within the realm of
mandatory judicial notice, that court is ignorant of the law.
Therefore, that court can be subjected to administrative
disciplinary action. But in contrast with Section 2, which is
discretionary judicial notice, the court has the choice.
In mandatory, court has no choice. Section 2, court has
absolute choice.
So a court may take judicial notice of matters which are of public
knowledge, or are capable of unquestionable demonstration, or
ought to be known to judges because of their judicial functions.
This is termed discretionary under Sec 2 because of its very
nature, it depends wholly on the judgment of the court unless
the matter falls within section 1 of the Rule 129. No party can
compel a judge to take judicial notice of the same.
Can you therefore file an action for mandamus to compel the
Judge to take judicial notice of a matter? NO.
Mandamus does not lie to compel the performance of a nonministerial or discretionary act; only when it is purely ministerial

SALUDO VS. AMERICAN EXPRESS INTERNATIONAL


April 19, 2006 * digested by JRL *

Aniceto G. Saludo, Jr. filed a complaint for damages against


the American Express International, Inc. (AMEX) and/or its
officers with the RTC.
The complaint alleged, inter alia, that plaintiff (herein
petitioner Saludo) "is a Filipino citizen, of legal age, and a
member of the House of Representatives and a resident
of Ichon, Macrohon, Southern Leyte, Philippines."
The complaint's cause of action stemmed from the alleged
wrongful dishonor of petitioner Saludo's AMEX credit card
and the supplementary card issued to his daughter.
Respondents raised the affirmative defenses of lack of
cause of action and improper venue.
respondents averred that petitioner Saludo was not
allegedly a resident thereof as evidenced by the fact that
his community tax certificate.

Issue: W/N the court may take judicial notice of Saludos


residence. YES
Held:

There is no dispute that petitioner Saludo was the


congressman or the representative of the lone district of
Southern Leyte at the time of filing of his complaint with
the court a quo. Even the appellate court admits this fact
as it states that "it may be conceded that private
respondent ever so often travels to Maasin City, Southern
Leyte, because he is its representative in the lower house."

As a member of the House of Representatives, petitioner


Saludo was correctly deemed by the court a quo as
possessing the requirements for the said position, including
that he was then a resident of the district which he was
representing, i.e., Southern Leyte.

The concept of "facts of common knowledge" in the


context of judicial notice has been explained as
those facts that are "so commonly known in the
community as to make it unprofitable to require
proof, and so certainly known to as to make it
indisputable among reasonable men." Moreover,
"though usually facts of 'common knowledge' will
be generally known throughout the country, it is
sufficient as a basis for judicial notice that they be
known in the local community where the trial court
sits." Certainly, the fact of petitioner Saludo being
the duly elected representative of Southern Leyte at
the time could be properly taken judicial notice of
by the court a quo, the same being a matter of
common knowledge in the community where it sits.

Further, petitioner Saludo's residence in Southern Leyte


could likewise be properly taken judicial notice of by the
court a quo. It is bound to know that, under the
Constitution, one of the qualifications of a congressman or
representative to the House of Representatives is having a
residence in the district in which he shall be elected.
It tells you about facts of common knowledge, those facts that
are so commonly known in the community as to make it
unprofitable to require proof, and so certainly known to as to
make it indisputable among reasonable men. Moreover, though
usually facts of 'common knowledge' will be generally known
throughout the country, it is sufficient as a basis for judicial
notice that they be known in the local community where the trial
court sits." Thats under Section 2.
If it is a matter of common knowledge in a common locality, do
not apply section 1, apply section 2 relating to discretionary
judicial notice.

[Page 15 of 35]
Ad Majorem Dei Gloriam

LAW ON EVIDENCE TSN


From the lectures of Atty. Jess Zachael B. Espejo
Ateneo de Davao College of Law | Tres Manresa SY 2015 2016

Another case is the case of:


STATE PROSECUTORS VS. MURO
September 19, 1994 * JRL *

On August 13, 1992, respondent judge issued an Order


dismissing eleven (11) cases
Respondent Judge issued his Order solely on the basis of
newspaper reports (August 11, 1992 issues of the
Philippine Daily Inquirer and the Daily Globe) concerning
the announcement on August 10, 1992 by the President of
the Philippines of the lifting by the government of all
foreign exchange restrictions and the arrival at such
decision by the Monetary Board as per statement of Central
Bank Governor Jose Cuisia

Issue: W/N the Judge was correct in taking judicial notice of the
supposed lifting of foreign exchange controls which appeared in
a newspaper. NO.
Held:

The doctrine of judicial notice rests on the wisdom and


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

Generally speaking, matters of judicial notice have


three material requisites: (1) the matter must be
one of common and general knowledge; (2) it must
be well and authoritatively settled and not doubtful
or uncertain; and (3) it must be known to be within
the limits of the jurisdiction of the court. The
provincial guide in determining what facts may be
assumed to be judicially known is that of
notoriety. Hence, it can be said that judicial notice is
limited to facts evidenced by public records and
facts of general notoriety.

To say that a court will take judicial notice of a fact


is merely another way of saying that the usual form
of evidence will be dispensed with if knowledge of
the fact can be otherwise acquired. This is because
the court assumes that the matter is so notorious
that it will not be disputed. But judicial notice is not
judicial knowledge. The mere personal knowledge
of the judge is not the judicial knowledge of the
court, and he is not authorized to make his
individual knowledge of a fact, not generally or
professionally known, the basis of his action.
Judicial cognizance is taken only of those matters
which are "commonly" known.

Things of "common knowledge," of which courts take


judicial notice, may be matters coming to the knowledge of
men generally in the course of the ordinary experiences of
life, or they may be matters which are generally accepted
by mankind as true and are capable of ready and
unquestioned demonstration. Thus, facts which are
universally known, and which may be found in
encyclopedias, dictionaries or other publications, are
judicially noticed, provided they are of such universal
notoriety and so generally understood that they may be
regarded as forming part of the common knowledge of
every person.

Respondent judge, in the guise of exercising discretion and


on the basis of a mere newspaper account which is
sometimes even referred to as hearsay evidence twice
removed, took judicial notice of the supposed lifting of
foreign exchange controls, a matter which was not and
cannot be considered of common knowledge or of general
notoriety. Worse, he took cognizance of an administrative
regulation which was not yet in force when the order of

dismissal was issued. Jurisprudence dictates that judicial


notice cannot be taken of a statute before it becomes
effective. The reason is simple. A law which is not yet in
force and hence, still inexistent, cannot be of common
knowledge capable of ready and unquestionable
demonstration, which is one of the requirements before a
court can take judicial notice of a fact.
The Judge in this case dismissed 11 cases for violation of CB
circular 960 relating to foreign exchange against Imelda Marcos.
The Judge dismissed them on the basis of newspaper reports
concerning the announcement of President of the Philippines on
the lifting of all foreign exchange restrictions as embodied in the
circular. The judge said that the announcement of the President
had the effect of repealing the CB 960.
Was the court correct in dismissing the case on the grounds only
that CB 960 and the restrictions on foreign exchange were lifted
by an announcement that appears in a newspaper? What is that?
Is that a matter of judicial notice? Or a matter of judicial
knowledge?
If it is already an official act, then wala nay problema.Its subject
of mandatory judicial notice of fact. The question here is because
the judge said that there was this announcement and that it was
stated in the newspaper. Would that satisfy the requisites of
discretionary judicial notice under Section 2?
Requisites:
1. The matter must be one of common and general
knowledge;
2. It must be well and authoritatively settled and
not doubtful or uncertain; and
3. It must be known to be within the limits of the
jurisdiction of the court
SC said judicial notice is not equivalent to judicial knowledge.
The mere personal knowledge of the judge is not the judicial
knowledge of the court, and he is not authorized to make his
individual knowledge of a fact, not generally or professionally
known, the basis of his action.
Judicial notice cannot be taken of a statute before it becomes
effective. A law not yet enforced and hence, still inexistent
cannot be of common knowledge capable of ready and
unquestionable demonstration. And therefore, tama.Tama
ang State Prosecutors that the dismissal of the case was actually
premature.
What actually happens in section 2 when you apply discretionary
judicial notice? The judge announces his intention. The Judge
tells the parties that I am going to take judicial notice of this.
But the parties cannot object which is the difference between
section 2 and section 3.
JUDICIAL NOTICE,
WHEN HEARING NECESSARY
Rule 129. Section 3. Judicial notice, when hearing necessary.
During the trial, the court, on its own initiative, or on request of
a party, may announce its intention to take judicial notice of
any matter and allow the parties to be heard thereon.
After the trial, and before judgment or on appeal, the proper
court, on its own initiative or on request of a party, may take
judicial notice of any matter and allow the parties to be heard
thereon if such matter is decisive of a material issue in the
case.
In section 3, same thing lang gihapon. The Judge tells the parties
that he is going to take judicial notice of this particular fact.

[Page 16 of 35]
Ad Majorem Dei Gloriam

LAW ON EVIDENCE TSN


From the lectures of Atty. Jess Zachael B. Espejo
Ateneo de Davao College of Law | Tres Manresa SY 2015 2016

In section 2, parties cannot do anything if the Judge already


exercises his discretion. In section 3, it is actually a weird
provision, if you ask me. Why? Because section 3 provides for JN
where hearing is necessary. Is it not a fact that JN by its very
nature dispenses with evidence and therefore dispenses with a
hearing? Section 3 is contrary to the essence of JN.

1st paragraph: So how do you propose something for the court

This is a case for expropriation. The court took JN of the


prevailing market value of agricultural lands in a particular
locality.
According to the SC, actually the court can do so but he cannot
do so under number 1 and 2. He has to do it under number 3.
Allow the parties to be heard thereon. In other words, it will not
entail(?) the presentation of evidence.

to take JN?
I was handling a case of my own cousin (17 years old), a
criminal case before the MTC. But because he was 17, it has to
be referred to a family court. During pre-trial, I ask the court
Your Honor can you take JN that my client was a minor at the
time of the commission of the crime? That is how you propose.
So you dont have to present evidence. So that it can be
dispensed already.

2nd paragraph: Just try to remember how it happens. During trial


or what happens if its already after trial, before judgment or on
appeal because theres a slight variation on how it happens.
LAND BANK OF THE PHILIPPINES VS. WYCOCO
January 13, 2004 * JRL *

Feliciano F. Wycoco is the registered owner of a 94.1690


hectare unirrigated and untenanted rice land
In line with the Comprehensive Agrarian Reform Program
(CARP) of the government, Wycoco voluntarily offered to
sell the land to the Department of Agrarian Reform (DAR)
for P14.9 million
In arriving at the valuation of Wycocos land, the trial
court took judicial notice of the alleged prevailing market
value of agricultural lands in Licab, Nueva Ecija without
apprising the parties of its intention to take judicial notice
thereof.

Issue: W/N the market value should have been taken judicial
notice of without the requirement of hearing. NO
Held:

Inasmuch as the valuation of the property of Wycoco is


the very issue in the case at bar, the trial court should
have allowed the parties to present evidence thereon
instead of practically assuming a valuation without basis.
While market value may be one of the bases of
determining just compensation, the same cannot be
arbitrarily arrived at without considering the factors to be
appreciated in arriving at the fair market value of the
property e.g., the cost of acquisition, the current value of
like properties, its size, shape, location, as well as the tax
declarations thereon. Since these factors were not
considered, a remand of the case for determination of just
compensation is necessary.

The power to take judicial notice is to be exercised


by courts with caution especially where the case
involves a vast tract of land. Care must be taken that
the requisite notoriety exists; and every reasonable doubt
on the subject should be promptly resolved in the
negative. To say that a court will take judicial notice of a
fact is merely another way of saying that the usual form of
evidence will be dispensed with if knowledge of the fact
can be otherwise acquired. This is because the court
assumes that the matter is so notorious that it will not be
disputed. But judicial notice is not judicial knowledge. The
mere personal knowledge of the judge is not the judicial
knowledge of the court, and he is not authorized to make
his individual knowledge of a fact, not generally or
professionally known, the basis of his action

It becomes problematic under Section 3 because it requires


hearing. In pre-trial, let us suppose that I have this class card.
This is documentary evidence. Is there a process by which I can
dispense with the need of presenting this documentary evidnce
during trial without asking the court to take judicial notice? Is
there a way for me to do that? The court will not take JN but my
intention is not to present this at trial anymore, dilinanakoipa
authenticate sa witness. There is a way and we call it
stipulation. You ask the party to stipulate. Why would
stipulation produce the effect that it need not be presented
during trial? Because it falls now within the ambit known as
judicial admission. Gipa admit na nimo sya. That is Section 4.
Can that be considered as evidence? And when would it be
relevant? Appearance. Can it be objectively considered as
evidence? YES. When it is presented for the perusal of the court.
When it is examine to, or viewed by the court ad therefore,
object evidence,
JUDICIAL NOTICE ON APPEARANCE
The extent of bodily injury that you suffered in the hands of an
abuser. You are asking the court to use its sense of sight to
determine the extent of your injury. When the court does that,
can the court actually takes judicial notice of your appearance
and bodily injury? You are not taking JN! What you are
doing is called autoptic proference - using your senses to
observe the physical appearance and condition of an object.
Dean Inigo calls object evidence as autoptic proference.
[Linguistic 101: Coming from the term auto and optic. Auto means self and optic
means pertaining to the eyes or self-evidence or self-appreciation by the use of
your sight. Proference is under Rule 132.]

When you appreciate the physical appearance or condition by the


use of your senses, you are not taking judicial notice but you are
exercising Autoptic Proference.
JUDICIAL NOTICE ON AGE
Nobody has personal knowledge of his or her age. Age becomes
a factor in criminal cases or is an element of an offense. It is the
fact in issue.
When age is an issue? Or what are the legal
consequences of age in criminal cases? Age is important
because it may be an:

Exempting Circumstance
Person under 9 or person over 9 but under 15 who
acted without discernment)

Mitigating Circumstance
Person under 18 or over 17 who commits a criminal
offense, age may be appreciated as mitigating)

Aggravating Circumstance

Qualifying Circumstance
If victim is under 18 and the offender is a relative
or if the victim is child below 7 years old

Element of Crime itself (e.g. Statutory rape If victim is


12 years old or below, statutory rape.)
In civil law?

Custody of the child (Child below 7 years of age, if


parents separate or marriage declared void, custody
shall go to the mother)

[Page 17 of 35]
Ad Majorem Dei Gloriam

LAW ON EVIDENCE TSN


From the lectures of Atty. Jess Zachael B. Espejo
Ateneo de Davao College of Law | Tres Manresa SY 2015 2016

Note: Age is sometimes a fact in issue that has to be


proven for the full appreciation of the court. It has to be
proven because there are certain legal consequences.

c.

AGE AND APPEARANCE/ APPEARANCE IN ORDER TO


DETERMINE AGE
If you want to prove in a case that the offended party in a rape
case is below 12 years old. Can you ask the court to take JN that
this victim is below 12 years old?
Remember when the court take JN or examines the appearance
of the person to determine his or her possible age, the court is
no longer undergoing the process of JN but rather the court is
undergoing the process of autoptic proference which is
presentation of evidence. And therefore, appreciation of age and
appearance as evidence or appreciation of appearance in order
to determine probable age is repugnant to the concept of JN.
The court rather undertakes autoptic proference. So the court
does that militates the very concept of JN, the object of which is
to do away with the presentation of evidence.

The best proof of age is a birth certificate.


PEOPLE VS. PRUNA
October 10, 2002 * JRL *

On 27 January 1995, an information[2] for rape was filed


against accused-appellant Manuel Pruna y Ramirez or
Erman Pruna y Ramirez
Jacqueline, Lizettes mother, declared that at the time of
the alleged rape, LIZETTE was 3 years old, but at the time
Jacqueline testified on 17 October 1995, LIZETTE was 4
years old. LIZETTEs last birthday was on 19 April 1995
Pruna was convicted

Issue: W/N it was sufficiently established that Lizette was 3


years old at the time of the commission of the crime. NO.
Held:

A persons age is best proved by the birth


certificate. But is the presentation of the victims birth
certificate a sine qua non requirement to prove her age
for the appreciation of minority either as an element of
the crime or as a qualifying circumstance? Recent
jurisprudence has conflicting pronouncements.

In order to remove any confusion that may be engendered


by the foregoing cases, we hereby set the following
guidelines in appreciating age, either as an element
of the crime or as a qualifying circumstance.
1. The best evidence to prove the age of the offended
party is an original or certified true copy of the
certificate of live birth of such party.
2. In the absence of a certificate of live birth, similar
authentic documents such as baptismal certificate and
school records which show the date of birth of the
victim would suffice to prove age.
3. If the certificate of live birth or authentic document is
shown to have been lost or destroyed or otherwise
unavailable, the testimony, if clear and credible, of
the victims mother or a member of the family either
by affinity or consanguinity who is qualified to testify
on matters respecting pedigree such as the exact age
or date of birth of the offended party pursuant to
Section 40, Rule 130 of the Rules on Evidence shall
be sufficient under the following circumstances:
a. If the victim is alleged to be below 3 years of age
and what is sought to be proved is that she is
less than 7 years old;
b. If the victim is alleged to be below 7 years of age
and what is sought to be proved is that she is
less than 12 years old;

If the victim is alleged to be below 12 years of


age and what is sought to be proved is that she
is less than 18 years old.
4. In the absence of a certificate of live birth, authentic
document, or the testimony of the victims mother or
relatives concerning the victims age, the complainants
testimony will suffice provided that it is expressly and
clearly admitted by the accused.
5. It is the prosecution that has the burden of proving
the age of the offended party. The failure of the
accused to object to the testimonial evidence
regarding age shall not be taken against him.
The trial court should always make a categorical finding as
to the age of the victim.
In the present case, no birth certificate or any similar
authentic document, such as a baptismal certificate of
LIZETTE, was presented to prove her age.
LIZETTE testified on 20 November 1996, or almost two
years after the incident, that she was 5 years
old. However, when the defense counsel asked her how
old she was on 3 January 1995, or at the time of the rape,
she replied that she was 5 years old. Upon further
question as to the date she was born, she could not
answer.
For PRUNA to be convicted of rape in its qualified form
and meted the supreme penalty of death, it must be
established with certainty that LIZETTE was below 7 years
old at the time of the commission of the crime. It must be
stressed that the severity of the death penalty, especially
its irreversible and final nature once carried out, makes
the decision-making process in capital offenses aptly
subject to the most exacting rules of procedure and
evidence.
In view of the uncertainty of LIZETTEs exact age,
corroborative evidence such as her birth certificate,
baptismal certificate or any other authentic document
should be introduced in evidence in order that the
qualifying circumstance of below seven (7) years old is
appreciated against the appellant. The lack of objection on
the part of the defense as to her age did not excuse the
prosecution from discharging its burden. That the defense
invoked LIZETTEs tender age for purposes of questioning
her competency to testify is not necessarily an admission
that she was below 7 years of age when PRUNA raped her
on 3 January 1995. Such being the case, PRUNA cannot
be convicted of qualified rape, and hence the death
penalty cannot be imposed on him.

This is an old case but still the case that you should remember.
What are the guidelines in the matter of appreciating the age of
victim either as an element of crime or a qualifying
circumstance?
1.

The best evidence to prove the age of the offended


party is an original or certified true copy of the
certificate of live birth of such party.

2.

In the absence of a certificate of live birth, similar


authentic documents such as baptismal certificate
and school records which show the date of birth of the
victim would suffice to prove age.

3.

If the certificate of live birth or authentic document is


shown to have been lost or destroyed or otherwise
unavailable, the testimony, if clear and credible, of
the victims mother or a member of the family
either by affinity or consanguinity who is
qualified to testify on matters respecting pedigree
such as the exact age or date of birth of the offended
party pursuant to Section 40, Rule 130 of the Rules on

[Page 18 of 35]
Ad Majorem Dei Gloriam

LAW ON EVIDENCE TSN


From the lectures of Atty. Jess Zachael B. Espejo
Ateneo de Davao College of Law | Tres Manresa SY 2015 2016

Evidence shall
circumstances:

be

sufficient

under

the

following

a.

If the victim is alleged to be below 3 years of age


and what is sought to be proved is that she is less
than 7 years old;
Atty. Espejo: It means that if testimony tends to
show that the child is below 3, the court may
believe that she is below 7 through the testimony.

b.

If the victim is alleged to be below 7 years of age


and what is sought to be proved is that she is less
than 12 years old;
Atty. Espejo: If the testimony tends to show that
the child is below 7, the court will instead believe
that the testimony is below 12. You will not get that
precision. What you can prove is that she is below
12. That is what the court will believe.

c.

If the victim is alleged to be below 12 years of age


and what is sought to be proved is that she is less
than 18 years old.
Atty. Espejo: If the testimony tends to show that
the child is below 12 years old, the court will
believe that the child is below 18 years old.

These are the conditions kay wala kay birth certificate


and secondary evidences. What you only have is a
testimony.
4.

In the absence of a certificate of live birth, authentic


document, or the testimony of the victims mother or
relatives
concerning
the
victims
age,
the
complainants testimony will suffice provided that it
is expressly and clearly admitted by the accused.

Remember also that base on the definition it must be to a fact


within the parties knowledge. If not within his personal
knowledge and he makes a statement that seems to imply an
admission, then that will not anymore be treated as an admission
because he has no personal knowledge, therefore there cannot
be any admission on a matter that is clearly hearsay statement.
It has to be of a party personal knowledge.
Judicial admission may also mean a formal concession, meaning
you proposed one fact and I concede to it, I do not confess it; I
do not take issue as to that fact. It is a formal concession in the
pleadings or stipulations by a party or counsel that is binding to
the party making them.
Although a judicial admission itself is not evidence, it has the
effect of withdrawing a particular fact from contention. So dili na

nato kinahanglan lalisan, dili na kinahanglan debatihon kay giangkon naman nako. Thats the concept of admission.
The latin maxim applicable is Latin maxim applicable is
confessio facta in judicio omni probatione major est which
means confession made in a trial is stronger than all proof.
Why does a court take a judicial notice of a particular fact
specifically on matter falling under section 1 or section 2 where
judicial notice is discretionary? Because a certain fact may be of
so common in knowledge that it would be unprofitable to require
proof. The same thing applies with respect to a judicial admission
in as much as when you require proof of something that has
already been admitted by the adverse party, then what you are
actually doing is a surplusage. It would already be a waste of
time and resources of the court if you prove something that has
otherwise been admitted already by the adverse party.
Sources of judicial admissions

5.

Atty. Espejo: You dont have any school records.


Can you prove your own age before the court?
General rule : Your testimony cannot prove that
your age. When will it be admitted? Only if the
accused EXPRESSLY AND CLEARLY ADMITS that
you are below 18. If you are the accused, why will
you admit? Haha

In the case of Binarao v. Plus Builders Inc., June 16, 2006,


SC said that a party may make judicial admissions in:

The pleadings

During the trial, either by verbal or written


manifestations or stipulations, or

In other stages of the judicial proceedings.

It is the prosecution that has the burden of


proving the age of the offended party. The failure
of the accused to object to the testimonial evidence
regarding age shall not be taken against him.

Now, lets try to recall the type of admissions that can be made
in civil procedure because Im sure that you know that there are
a lot of instances in civil procedure where there can make
admissions.

July 22, 2015 (ELG)

JUDICIAL ADMISSIONS
Rule 129. Section 4. Judicial admissions. An admission,
verbal or written, made by the party in the course of the
proceedings in the same case, does not require proof. The
admission may be contradicted only by showing that it was
made through palpable mistake or that no such admission was
made.
What is a judicial admission or an admission in judicio?
It is a deliberate, clear and unequivocal statement by a party
about a concrete fact within that partys knowledge.
It must be deliberate because an admission will not bind a party
making it if it was made by mistake. In other words, a party
making the admission must have meant to make an admission. It
must be clear and unequivocal and therefore shall not admit of
two or more interpretations. A supposed admission that is
susceptible of several interpretations cannot be considered an
admission because at most it is a vague statement, it is
equivocal.

One of them is the matter of actionable documents. What is


an actionable document? Under Rule 8, Sec. 8. An actionable
document is one which is the very basis of a partys cause of
action or defense.
In other words, lets say for example you are suing
somebody for a collection of a sum of money based on a
promissory note you need to attach or incorporate or cite
the actionable document which is the promissory note so
that your cause of action may be properly pleaded in the
case. Now that is the very foundation of your cause of
action.
Now what about an actionable document that is a
foundation of the defense? Let us suppose that in the same
example that I gave you earlier on, apart from the
promissory note the defendant also possesses a receipt
proving that he has already paid the obligation that is
embodied in the promissory note. And therefore in order for
him to defend against the charge that he has not yet paid
the debt as evidenced in the promissory note he has this
receipt and he has to properly plead that receipt an

[Page 19 of 35]
Ad Majorem Dei Gloriam

LAW ON EVIDENCE TSN


From the lectures of Atty. Jess Zachael B. Espejo
Ateneo de Davao College of Law | Tres Manresa SY 2015 2016

actionable document the basis of his defense properly in the


pleadings.
Rule 8. Section 8.How to contest such documents. When
an action or defence is founded upon a written instrument,
copied in or attached to the corresponding pleading as
provided in the preceding section, the genuineness and
due execution of the instrument shall be deemed admitted
unless the adverse party, under oath specifically denies
them, and sets forth what he claims to be the facts, but
the requirement of an oath does not apply when the
adverse party does not appear to be a party to the
instrument or when compliance with an order for an
inspection of the original instrument is refused.

denied. Allegations of usury in a complaint to recover


usurious interest are deemed admitted if not denied
under oath.
In other words, if you are going to deny a particular
allegation in the complaint, for example your answer must
clearly spell out you own version of facts, so you have to say
why you are not admitting. If you simply make a general
denial that will have the effect of an admission.

Take note also that allegations of usury in the complaint to


recover usurious interest are deemed admitted if not denied
under oath. Although remember right now there is no such
thing as usury under Phil. law considering that the
contractual interest that would govern the parties in a
monetary obligation or forbearance of money would be
governed by their own freedom to contract. They can
stipulate such terms and conditions that are not contrary to
law. But remember that if the interest is already
unconscionable that can be struck down.

Rule 18, section 4 talking about pre-trial. During pre-trial


that is a valid subject, stipulation of facts, possibility of
making amicable settlement, stipulations of facts and
evidence.

Now, take not in section 8, Rule 8 it states there the effect


of failure to contest properly an actionable document and
the effect is there is deemed an admission of the said
actionable document
How do you contest the genuineness and due execution of
such actionable document? You have to do it under oath,
meaning your answer for example must be verified.
Im sure that you remember also that in civil procedure there
are how many types of pleading is allowed under the rules?
There are only 7 and remember the basic ones would be
complaint, answer and a reply. A reply is supposed to be the
last pleading to be submitted and its purposed is to make
issue as to any new matters that are stated in the answer.
Remember also that the filing of a reply will always be
optional. Why? Because if you dont file a reply all the matter
set forth in the answer are deem to be automatically
controverted.

Take note that admissions can be derived from any stage


proceedings in a case it can be by the filing of initiatory or
responsive pleading, it can be during pre-trial or during trial
and presentation of witnesses let us say for example the
counsel asks question during coss-examination, the party
admits then that is already considered a judicial admission.
Also stipulation and admissions made when you file motions
and other submissions before the court.

Why is it that the law does not mandate that you should file
a reply? Precisely because the law wants everything to be
quick. You are already given 15 days to file an answer and
then when you are supposed to file your reply you are given
an extra 10 days.
Is there an instance under the law where it seems that the
filing of a reply is mandatory rather than optional? Say for
example this is the complaint, it sues for the recovery of
sum of money, specific performance pa bayron ka and then
in the answer the defendant pleads an actionable document
as his defense. Remember that the rule in Sec. 8 of Rule 8 is
that if you do not deny or contest under oath the
genuineness and due execution for example of the receipt,
the genuineness and due execution of the actionable
document is deemed to be admitted, so how do you now
contest that unless you file a reply. Therefore in that
situation it seems that it becomes already mandatory for a
party to make a reply.
This is the ruling in the case of Casent Realty vs.
PhilBanking Corporation, 2007: Here the respondent
failed to file a reply and in effect he had admitted already
the genuineness and due execution of the actionable
document attached in the answer. The SC went on to say
that Rule 129 Section 4 now apply, an admission, verbal or
written, made by the party in the course of the proceedings
in the same case, does not require proof. Take note of that
case where the defense and the action is based on an
actionable document.

Take note also of:


Rule 8. Section 11. Allegations not specifically denied
deemed admitted. Material averment in the complaint,
other than those as to the amount of unliquidated
damages, shall be deemed admitted when not specifically

What are the distinctions between a pleading and a motion?


As to form they are the same. But remember that while
pleadings ask for judicial final determination of facts and
issue. A motion is an application for relief other than by
pleading. In other words, when you file a motion you are
asking for something that is interlocutory you are not asking
for final judgment in your favour. An example a motion to
transfer hearing, a motion for extension of time to file a
pleading, motion to dismiss it a motion but somehow if you
are the defendant is asking for a final judgment in your
favour because if it is dismissed, then final judgment will be
rendered by the court, that is the exception to the rule.

Can you recall the effects of filing a motion to dismiss to the


right of a party to amend his pleading as a matter of right?
Example: A files a complaint and B can file either an answer
or a motion to dismiss or file a motion for bill of particulars
those are the 3 options available to the defendant within the
15 day period to file an answer. The defendant realizes that
the complaint as worded is one that is not in the jurisdiction
of the RTC and so he files a motion to dismiss within the 15
day period to file an answer on the ground that court has no
jurisdiction. The plaintiff realizing his mistake want to amend
his pleading, so he files an amended complaint this time
adopting to the jurisdiction of the court.
Now if you are the judge will you dismiss the case or not?
You should not, even if under the original complaint prior
the amendment the court does not jurisdiction. Why?
Because amendment is still a matter of right because the
parties right to amend his pleading once can be availed of as
a matter of right at any time prior to the filing of a
responsive pleading. A motion to dismiss is not a pleading,
therefore pwede nimo ma-amend to confer jurisdiction to
the court.

[Page 20 of 35]
Ad Majorem Dei Gloriam

LAW ON EVIDENCE TSN


From the lectures of Atty. Jess Zachael B. Espejo
Ateneo de Davao College of Law | Tres Manresa SY 2015 2016

Remember an admission may be verbal or written. Formal


judicial admission can take the form of a manifestation in
court or a testimony in court. As Dean Inigo said less talk
less mistake. So the more you say the more susceptible you
are to making an admission, remember that when you make
it during trial it is already binding and of course you can
contradict it later on.
Written Judicial Admission can be in the pleadings, in
the motions, written manifestation of the parties, brief,
memoranda, affidavits and even in a submission in an
answer for request for admission

extrajudicial admission, you can still use it but you have to


present it in evidence. Thats Bastida vs. Menzi, 58 P 188,
in order to be utilized as extrajudicial admission they must in
order to have such an effect be formally offered in evidence
Ching vs. CA 331 S 16.

Can you be allowed to withdraw the admission? Can you


contravene yourself in the sense that you made a previous
admission? The law provides that there are two exceptions:
1.

Rule to remember: Judicial admissions are conclusive on the


party making them. Why should it be conclusive?

Palpable mistake it means the mistake is obvious to all


sides, these are mistakes that are glaring, that the
judge or the adverse party can see that there was really
no judicial admission was made by the party.

We know this equitable principle known as estoppel, when


you say something clearly and unequivocally you are not to
be permitted to later on contradict it, thats the basic rule of
estoppel. An admission made in the pleadings cannot be
controverted by the party making such admission and are
conclusive as to him and all proofs submitted by him
contrary thereto or inconsistent with the admission should
be ignored whether an objection is interposed by the party.
A good case to read would be the case of Alfelor vs.
Halasan, March 31, 2006: It talks about standing to
intervene in a case. If you already admit that a party who
seems to intervene in the case is an heir of the person
whose estate is under consideration then you are already
estopped from contesting nawala syay right to intervene.
Remember that the of the requirement of intervention would
be that the person must have a legal interest in the subject
matter in litigation or the success of any of the parties or
interest against the parties or when so situated as to be
adversely affected by a distribution or disposition of property
in custody of the court or officer thereof.

THE
JUDICIAL
ADMISSION
MAY
BE
CONRTRADICTED BY SHOWING THAT IT WAS
MADE THROUGH PALPABLE MISTAKE

Under the old rules of evidence this palpable mistake


exception was the only exception that binds the party
making the admission but the new rules they added one
more
2.

AND THAT NO SUCH ADMISSION WAS MADE


What do you mean when no such admission was made?
It means that no admission was made at all by the
parties or the admission was taken out of context or not
in the sense that the admission was made to by the
party.

Now, we already talked about amendments, it can be a


matter of right or judicial discretion.

In Atillo vs. CA Jan. 23, 1997, the SC said that an


admission made out of context the one making the
admission may show that he made no such admission
or that his admission was taken out of context, this is
interpreted to me not in the sense in which the
admission is made to appear. Mao daw nah ang
meaning anang no such admission was made.

What would be the effect of amended pleadings to


admissions already made in the pleading in the original
answer or complaint? Remember that the amended
pleadings precedes the pleading that it amends, however
admission in superseded pleadings may be receive in
evidence against the pleader and claims or defenses alleged
therein not incorporated in the amended pleadings shall be
deemed waived.

You have to read all the cases assigned. The case of Aguenza
vs. Metrobank and Trust Company and Conahap vs. Heirs
of Regana where the SC said that the admissions of the parties
during pre-trial as embodied in the pre-trial order, are binding
and conclusive on them, unless there is a clear showing that the
admission was entered through palpable mistake. Such
admissions cannot be contradicted by the parties reason again
would be estoppels.

First effect: That the amended pleading supersedes the


original one which it amends. So it abrogates it, in legal
contemplation thats no longer a pleading appurtenant to the
case.

If youre a plaintiff in a case, who are allowed to make


admissions in your behalf? Admission made by your lawyer would
be binding on you as a general rule, subject to certain
exceptions.

Second effect: Admissions made in the original pleadings


that is amended cease to be judicial admissions. In other
words in your answer you admitted that you have a liability
to the plaintiff but you realized I should not have admitted it
and so I filed an amended answer as a matter of right this
time contesting the basis of his cause of action saying
nawala ko utang sa imoha.

Example in the case of People vs. Hernandez, a stipulation of


facts proposed during trial by prosecution and admitted by the
defense counsel is tantamount to a judicial admission of the facts
stipulated upon.

Can you now forget about the admission that you made in
the answer saying that he is liable? Remember that the
amended pleadings supersedes the original in legal
contemplation that original no longer exist in that particular
case

Hernandez was charged with the crime of illegal recruitment and


was convicted of crime charged. On appeal, she contended that
the prosecution failed to prove one of the essential elements of
the crime of illegal recruitment that the offender is a nonlicensee or non-holder of authority to lawfully engage in the
recruitment and placement of workers. She questions the
reliance of the lower court in the supposed stipulation proposed
by the prosecution and admitted by the defense during trial
that neither appellant nor her company was licensed or

So wala na to value ang admission naiyahang gibuhat? No,


naa gihapon sya value, it ceases to be a judicial admission
but it can still be presented, pleaded and proved as an

People of the PH vs. Christina Hernandez


July 1996 * digest by KJ *

[Page 21 of 35]
Ad Majorem Dei Gloriam

LAW ON EVIDENCE TSN


From the lectures of Atty. Jess Zachael B. Espejo
Ateneo de Davao College of Law | Tres Manresa SY 2015 2016

authorized to recruit workers as shown by the records of the


POEA. She claims that the stipulation of facts is null and void.
Issue: WON Section 4 of Rule 118 (requiring an agreement or
admission made or entered during the pre-trial conference to be
reduced in writing and signed by the accused and his counsel
before the same may be used in evidence against the accused)
equally applies to a stipulation of facts made during trial. NO.
Held: RE writing A stipulation of facts entered into by the
prosecution and defense counsel during trial in open court is
automatically reduced into WRITING and contained in the official
transcript of the proceedings had in court.
RE signature The conformity of the accused in the form of his
signature affixed thereto is unnecessary in view of the fact that
"...an attorney who is employed to manage a party's
conduct of a lawsuit... has prima facie authority to make
relevant admissions by pleadings, by oral or written
stipulation... which unless allowed to be withdrawn are
conclusive."
We have the case of Fule vs. CA, it became quite doctrinal that
it affected the rules on criminal procedure. The 1985 rules of
criminal procedure specifically with respect to pre-trial
agreement, the rule was no agreement or admissions made or
entered during the pre-trial shall be used in evidence against the
accused unless introduced into writing and signed by him and
counsel. Therefore the omission of the signature the accused and
his counsel as mandatorily required by the rules renders the
stipulation of facts inadmissible as evidence.
Now what if you are the prosecution and you simply rely on the
admission made by the accused during pre-trial? Therefore wala
naka nag present ug evidence, because remember the effect of
an admission, it withdraws a particular fact from contention, no
more need to present any evidence if it is already subject to a
stipulation of facts specifically if made during pre-trial. The SC
said: If that is the case you should not simply rely simply on that
admission which later on was invalidated by the SC. What the
prosecution should have done upon discovering that the accused
did not sign the stipulation of facts as required by rule 118 was
to submit an evidence to establish the element of the crime
instead of relying solely on the supposed admission of the
accused in the stipulation of facts without said evidence
independent of the admission the guilt of the accused cannot be
deemed established beyond reasonable doubt and therefore in
this case Fule was acquitted because of that technicality.
It is sort of unfair because the 1985 rules did not say anything
about the effect if it was not signed. Now it already provides the
effect under:
Rule 118. Section 2.Pre-trial agreement. All agreements or
admissions made or entered during the pre-trial conference
shall be reduced in writing and signed by the accused and
counsel, otherwise, they cannot be used against the accused.
The agreements covering the matters referred to in Section 1 of
this Rule shall be approved by the court.
So kinahanglan ug court approval and also states that otherwise
they cannot be used against the accused if the agreement
entered or made during the pre-trial is not reduced in writing and
signed by the accused and counsel.

RULE 130

RULES OF ADMISSIBILITY
OBJECT EVIDENCE
Rule 130. Section 1. Object as evidence. Objects as
evidence are those addressed to the senses of the court. When
an object is relevant to the fact in issue, it may be exhibited to,
examined or viewed by the court.
Remember that object is synonymous to real evidence.
Why real evidence? Real comes from the word res. What is a
res? It is a Latin term for object. So when we say real evidence
you are talking about a thing or an object as evidence to be
presented before a trier of facts.
It is also called Autoptic Proference which I already discussed
when we were talking about the fact that when the court
examines the appearance of a person or the age of a person for
the purpose of probably taking judicial notice, actually dili lang
na siya judicial notice it becomes Autoptic Proference. Auto
means self; Optic pertains to the eyes.
When Autoptic Evidence is introduced in trial the fact finder will
now decide what way it should be accorded the same, in this
class of evidence the ascertainment of the uncontroverted acts is
made through demonstration involving the direct use of senses
of the presiding magistrate. So when you are presenting an
object in court by itself is the evidence. You are talking here
about a court being asked to appreciate the evidence using the
five senses (sight, smell, touch, hearing, taste).
For example, there is an allegation that the witness was bringing
liquor saiyahang sakyanan at the time he was apprehended, he
was driving drunk, what is found in the car is a flask or lapad of
tanduay. So during trial gipasimhot ang judge, so this uses the
sense of smell.
With respect to object evidence contrasted with documentary
evidence, you are limited to a mere observation. You observe
what is the condition and the appearance of the object that
would now consist the evidence that will now be the one given
weight in a particular case. Later on we will be discussing about
documentary evidence.
When you look at documentary evidence to a certain extent you
are also looking at physical appearance, what is written in that
documentary evidence. But rather than taking stop in the
appearance of the document you are actually trying to appreciate
what the contents of the document are. In order to do that you
use a different sense, thats the sense of intelligence no longer
limited to the five senses. Kailangan man nah nimo basahon and
whatever you understand from what you have read, that will be
the one that will be given weight by the court, so theres that big
difference between a documentary and object evidence.
Remember what we discussed before that in the hierarchy of
evidence in the case of People vs. Lavapie, greater credence is
given to object or real or physical evidence as evidence of the
highest order because it speaks more eloquently than a hundred
witnesses.
Moran (?) classifies object evidence in three:
I.

[Page 22 of 35]
Ad Majorem Dei Gloriam

Those object evidence which consist in the


exhibition or production of the evidence inside
the court room.

LAW ON EVIDENCE TSN


From the lectures of Atty. Jess Zachael B. Espejo
Ateneo de Davao College of Law | Tres Manresa SY 2015 2016

Ex. The effects of the crime or the means to perpetrate


the crime, the murder weapon that is exhibited and
produced inside the court room and appreciated in that
manner.
II.

What else is not covered in the right against selfincrimination? When you are subjected to a paraffin test
thats purely mechanical and because it is purely
mechanical you cannot object to the conduct of the test
on the ground of violation of the right against selfincrimination.

Those object evidence which consist in the


inspection of an object outside of the court room.

DNA test, would the taking of DNA sample from the


body of the accused constitute a violation of the right
against self-incrimination? The correct legal answer
there is NO, because that is purely mechanical.

Does the court do that examine an object outside of the


court room or should it always be placed inside the
court room or the court vicinity?
What you do not know is this is actually a very common
practice where the court examines the object outside
the court room through the process of ocular inspection.

Which brings me to the case of People vs. Joel Yakar


May 19, 2004: Here DNA evidence was taken from the
accused and according to the accused the blood sample
taken from him as well as the DNA test were conducted
in violation of his right to remain silent as well as his
right against self-incrimination under sections 12 and 17
of the 1987 constitution. The contention is untenable
according to the SC the kernel of the right is not against
all compulsion but against testimonial compulsion. The
right against self-incrimination is simply against a legal
process of extracting from the accused own lips an
admission of his guilt, it does not apply where the
evidence sought to be excluded is not an incrimination
but as part of the object evidence.

(Sir talks about a case he handled before respecting a boundary dispute


just because of a mango)

You cannot bring the land to the court but you can
bring the court to the land. So what usually happens is
the court will be there or the clerk of court, remember
you can delegate the inspection of evidence to the clerk
of court, the clerk of court can make objections but he
has no power to rule on the objections, i-note
langniyaang objections and bring it to the attention of
the court the court will make the ruling. The
stenographer will also be there. Then a report about the
ocular inspection. So it can be done.
III.

So pag object, use of the five senses lang dyud nah;


When you use intelligence, no longer. When you
communicate you use your intelligence, when you are
testifying, when you are compelled to say something
that already requires the use of intelligence. Thus a
person may be compelled to submit to finger printing,
photographing, paraffin, blood and DNA test as there is
no testimonial compulsion involved.

Object evidence can also consist in those of


experimentation.
The best example I can give you is the case of OJ
Simpson he used to be a very famous football player
and he is also an occasional actor. Robert Kardashian
was a very famous lawyer and he was the lawyer of OJ.
OJ was accused of double murder of his ex-wife Nicole
Brown and boyfriend niya at that time, theyre estrange.
OJ supposed to be daw wife beater, abuse his wife so
much and then they separated. So one time they were
killed the main suspect was OJ Simpson. At the scene of
the crime nay nabilin na pair of bloody gloves thats one
of the pieces of evidence presented in the court room.
The prosecution are saying to simplify everything to
determine whether or not he had opportunity because
they already established the motive. In American
criminal law remember important ang motive and
opportunity. They already establish the motive that OJ
was angry with Nicole Brown she has already move on
and she has a new boyfriend so you killed both of them
in a fit of jealous rage but you need to put OJ in the
scene of the crime and therefore if the gloves would fit
OJ Simpson it could prove that in all probability he was
there in the crime scene and in all probability if the
gloves were his then he was the one who committed
the double murder.
The defense led by Robert K. objected because that
might violate their right against self-incrimination but
eventually the judge allowed OJ to try on the gloves but
the gloves did not fit and that caused the case to fall.
So that is an object evidence in the form of
experimentation.
Does this not violate OJ Simpsons right against selfincrimination? The right against self-incrimination covers
only compulsion to confess guilt but it does not exclude
purely mechanical acts. Example you wear a gloves that
is purely mechanical and therefore it is not covered.

What about a case where the policemen forcibly took


hair samples from the accused? This is too much. This
case of People vs. Romero actually pubic hair ang
gikuha to analyze the pubic hair left in that area after
the act of sexual intercourse, so i-match ang duh aka
pubic hair and it was a match. According to the SC even
if the hair samples were forcibly taken for forensic
examination the hair samples may be admitted against
him for what is proscribe is the use of testimonial
compulsion or any evidence communicative in nature
acquired from the accused under duress. Thats the
right against self-incrimination in relation to object
evidence.
Take note that in order for object evidence to be
admissible you must pass the test of relevancy and
competency. Not all object evidence would be admissible as in
any other type of evidence it would still be subject to the test of
relevancy and competency, if it excluded by the law or the rules
of court such an object will not be allowed in court or if it not
relevant to the fact in issue or not even collaterally relevant then
it will also not be admitted in court. Thus when an object is
excluded by the law or the rules lets say on the ground that it is
a fruit of a poisonous tree such as search incident to an arrest
and then lifted from your body lets say sachets of shabu. That
cannot be used against you if the arrest in the first place is not
lawful, there was no probable cause to make a stop and frisk.
Remember also that Autoptic Proference must also be relevant
and its relevant only when it makes a pack of consequence more
or less probable than in the absence of Autoptic Proference.
Take note object evidence itself does not establish the factum
probandum, there is no factum probandum solely provable by
object evidence.

[Page 23 of 35]
Ad Majorem Dei Gloriam

LAW ON EVIDENCE TSN


From the lectures of Atty. Jess Zachael B. Espejo
Ateneo de Davao College of Law | Tres Manresa SY 2015 2016

Do you agree? Lets say the factum probandum would be A killed


B. How could object evidence prove that factum probandum?
What are the objects that would be relevant? So the body of the
victim, the stab wound, the murder weapon. Let us suppose that
there all admitted in court there are photographs of the
deceased.
Would that prove all by itself the factum probandum? No, it must
first be supported by other propositions and in the ultimate
analysis it must be proven to have a logical relationship to the
ultimate fact in issue.
How do you that? You can only do that by means of testimonial
evidence. Testimonial evidence is that method by which you are
able to authenticate object evidence to identify object evidence.
While you evidence is consisted of object evidence these
evidence must first be identified and authenticated by competent
witness, sponsored by a witness.
What about money? Is money object or documentary evidence?
Naa bay symbols in money, nay words, characters, figures, and
means of written expression? Yes, so is this 100 peso bill a
document or is it object evidence that is addressed to the senses
of the court when relevant to the fact in issue this money may be
exhibited tot examined or viewed by the court?
If the fact in issue bill appears to be new or any physical
attributes relative to appearance and condition then this is of
course object evidence. So if this is presented that this object is
ube in color then this is object evidence. But if the fact in issue
relates to whatever is written here then it is documentary
evidence.
What if it is a special type of money? Would marked money be
considered object evidence or documentary evidence?
According to the SC in the case of People vs. Reyes, marked
money is actually object evidence. Marked money is the
consideration paid for the sale of illegal drugs transaction. It is
relevant to the fact in issue, it may be exhibited to, examined
and viewed by the court making marked money object evidence
despite the fact that what really identifies a marked money would
be the mark, you simply have to take note of the serial numbers
and that will now be matched during trial. What really matters
there is what you read from the marked money unsay contents
but it is still considered as object evidence.
Another interesting case, the case of People vs. William, June
15, 1992: In a prosecution for possession of marijuana. The
accused was charged under dangerous drugs act and his defense
was the object evidence the marijuana taken from me is not
admissible in evidence on the ground that it is beyond the
commerce of men. If it is beyond the commerce of men it cannot
be a valid object it is illicit subject matter. But would that have a
bearing under the laws of evidence the fact that it was beyond
the commerce of men? The SC said that is absurd the transfer
marijuana was incidental to the arrest of the appellant and a
confiscation of the subject matter of the crime. It is in the same
category as a death certificate or an autopsy report which are
admissible evidence of the subject of the crime. The human
cadaver which is also beyond the commerce of men transfer
goods as a consequence or by virtue of police or state action
such as forfeiture, seizure, confiscation does not fall within the
phrase commerce of men.
July 29, 2015 (DJG)
DOCUMENTARY EVIDENCE
Rule. 130. Section 2. Documentary Evidence. Documents as
evidence consists of writings or any material containing letters,
words, numbers, figures, symbols or other modes of written

expressions offered as proof of their contents.

Section 2 actually covers the two types of documentary


evidence:
1.
2.

Writings per se; and


Any material containing letters, words, numbers,
figures, symbols or other modes of written expressions.

Suppose, evidence consist of a certain inscription at the side of a


building and what you want to prove would be: When was that
building founded? When was it established? Since the inscription
consists of such letters proving the same, then technically
speaking that consists of documentary evidence.
In both types of documentary evidence, the requirement is that
the writing or material must be offered as proof of its contents.
Remember that the subject of inquiry would be what is contained
in such writing. If offered as proof of execution of the document,
it now becomes object evidence.
BQ 1994: How do you characterize marked money in a buy-bust
operation? Can a person, the accused, object to the presentation
of a mere photocopy of the marked money? It being a photocopy
implies there is a greater source. Can you present that secondary
evidence? It depends. Is it offered as proof of their contents?
A: NO. It was offered as an object evidence of the transaction.
Thus, the best evidence rule does not apply it being nondocumentary evidence, but an object evidence.
BQ 2005: A question was asked relating to the multiple
admissibility of evidence application: May a private document be
presented and admitted as both documentary and object
evidence?
A: It can be both object and documentary evidence. Remember,
if the fact in issue here is the content of a document , you apply
the rule relating to documentary evidence, but if the purpose of
presenting the evidence would simply be for the sake of
testifying as to its appearance (other than its contents), as to its
form and then it is an object evidence.
RE: Letters, etc. If youre going to present letters as evidence
you dont present it to prove that the paper is yellow, but in
order to prove something that was written therein.
Can an email be used as a documentary evidence based on its
definition in Section 2?It cant. Is it tangible? How about text
messaging? Is it possible for a contract to be executed and
perfected through text? Yes. What is important is the meeting of
the minds. If you are going to sue for payment, you present the
text message. You are offering the contents of the text message
as proof of their contents but is it documentary evidence? No.
The SC has already pronounced the A.M. No. 01-7-01-SC or
the Rules on Electronic Evidence:
Rule 2. Section 1. An Electronic Document refers to
information or the representation of information, data, figures,
symbols or other modes of written expression, described or
however represented, by which a right is established or an
obligation extinguished, or by which a fact may be proved and
affirmed, which is received, recorded, transmitted, stored,
processed, retrieved or produced electronically. It includes
digitally signed documents and any print-out or output,
readable by sight or other means, which accurately reflects the
electronic data message or electronic document. For purposes
of these Rules, the term electronic document may be used
interchangeably with electronic data message.

[Page 24 of 35]
Ad Majorem Dei Gloriam

LAW ON EVIDENCE TSN


From the lectures of Atty. Jess Zachael B. Espejo
Ateneo de Davao College of Law | Tres Manresa SY 2015 2016

Under these Rules an electronic document is considered, in


certain situations, as functional equivalent of paper-based
documents. The law provides whenever a rule of evidence refers
to the term writing, instrument, document, memorandum or any
form of writing such term shall be deemed to include an
electronic document.

The rule therefore applies only when the purpose is to establish


the terms or contents of a writing. When the evidence produced
concerns some external fact about the writing like its existence,
execution, and delivery, without reference to its terms, the BER
cannot be invoked.
WHEN NOT APPLICABLE

Thus, electronic evidence are now deemed covered under the


Rules of Court pertaining to documentary evidence. So any
reference to a document in the Rules of Court is deemed to
include already electronic evidence.

In Lee vs. People, SC said it does not apply to:


1.

Proof of facts collateral to the issues such as the


nature, appearance or condition of physical objects
(such as when the evidence is presented as an object
and not as a document from which we read);

2.

Evidence relating to a matter which does not come


from the foundation of the cause of action or
defense;

3.

When a party uses a document to prove the


existence of an independent fact, as to which the
writing is merely collated or incidental.

GENERAL REQUISITES FOR THE


ADMISSIBILITY OF DOCUMENTARY EVIDENCE
1.
2.
3.

Documentary evidence must be relevant;


It must be competent and, in addition;
It must be subject to exclusionary rules under the rules
of court such as the hearsay rule, the best evidence rule
and parole evidence rule; and
4. It must be authenticated by a competent witness.
5. Must be formally offered in evidence.
(Note: Those highlighted are those which Atty. Espejo called the
Basic Requisites.)

And so, when the document is merely collaterally in


issue, the rule does not apply. Take not however, that
like any other rule, the BER is subject to waiver when it
is not raised in the trial, or when there is failure to
object.

Best Evidence Rule


Simplest way to articulate the rule: Original document must
be produced. No evidence shall be admissible other than the
original document itself.
Best Evidence Rule (BER) appears to be a misnomer. Why? It
does not purport to be a declaration of the Rules of Court that
the documents are the best or superior evidence but rather
refers to the fact that the original is the best evidence. And so it
should have been Original of the Document Rule or Primary
Evidence Rule. It does not also mean that weaker evidence is
substituted by stronger evidence.
Why does the BER exist? What is its essence? The SC held
that the underlying purpose of the rule is the prevention of fraud
or mistake in the proof of the contents of a document. Requiring
the original of the document would actually prevent that.
Otherwise, if a duplicate or photocopy is allowed, it will pave the
way or will allow an unscrupulous party to present spurious
evidence. It will be easy to perpetrate fraud. [Excuse letter story
in Elementary]
The best case to explain the reasons would be Lee v People,
G.R. No. 159288, October 19, 2004. Also read Solidbank v Del
Monte, G.R. No. 143338, July 29, 2005. [READ]

4.

not

apply

when

the

original

Is there a way to restate the Best Evidence Rule so as to remove


the misnomer?
The original must be presented except when the
proponent can justify the unavailability of the original in
a manner provided by the rules.

Exceptions to the Best Evidence Rule


So the exceptions may be regarded as the justifications for
unavailability. These are the possible justifications:
xxx
(a) When the original has been lost or destroyed, or cannot be
produced in court, without bad faith on the part of the offeror;
xxx

Rule 130. Section 3. Original document must be produced;


exceptions. When the subject of inquiry is the contents of a
document, no evidence shall be admissible other than the
original document itself, except in the following cases:
xxx
Again, the rule was designed to guard against fraud, the
introduction of altered copies and the withholding of the
originals. But the modern justification has expounded the rule to
the recognition that writings occupy a certain position in the law.
WHEN APPLICABLE
Basic requisites for the application of the BER:
1.
2.

Also, it does
disappeared.

The subject matter must involve a document;


The subject of inquiry is the contents of a
document.

[Page 25 of 35]
Ad Majorem Dei Gloriam

Loss
When can we consider a document to be lost?
New Civil Code. Article 1189. It is understood that
the thing is lost when it perishes, or goes out of
commerce, or disappears in such a way that its
existence is unknown or cannot be recovered.
Thats the only definition of loss in all of the law.
So, the original of the document is considered lost if it
perishes, goes out of commerce, or disappears in such a
way that its existence is unknown or it cannot be
recovered.
Destruction
Destruction, as defined in Succession (when
considered destroyed?), simply means
obliteration. Obliteration, meaning, by
shredding or burning. It can also include

is a will
physical
tearing,
acts of

LAW ON EVIDENCE TSN


From the lectures of Atty. Jess Zachael B. Espejo
Ateneo de Davao College of Law | Tres Manresa SY 2015 2016

alteration that would render the contents of the


document unintelligible for the purpose it is offered in
evidence.

Example, you are going to plead an actionable


document. You have two options: you can either attach
it or incorporate it.

If it is no longer readable by sight then it is destroyed; if


it is no longer legible or readable by sight,
(unintelligible) the document is considered, destroyed.

Another example, Land Titles and Deeds, the decree of


registration. Who issues it? The LRA. So, whatever is
stated in your certificate of title is actually a recital of
what a decree of registration contains. Those are
actually identical.

Unavailability
Types of unavailability:
1. physical unavailability. Example: inscription in
the building, instead of bringing the building to
the court, you take a picture of it); and
2. constructive or legal unavailability. This is
beyond the coercive jurisdiction of the court
where the evidence is to be presented.
Example original of contract exists but it was
executed in Nigeria, can it be subpoenaed to
be mailed in the Philippines? It depends if they
cooperate.

xxx
(b) When the original is in the custody or under the control of
the party against whom the evidence is offered, and the latter
fails to produce it after reasonable notice;
xxx
The mere fact that the original is in the possession of
the adverse party does not ipso facto authorize the
introduction of the photocopy or secondary evidence to
prove its contents.
Rule 130. Section 6. When original document is in
adverse party's custody or control. If the document
is in the custody or under the control of adverse party,
he must have reasonable notice to produce it. If after
such notice and after satisfactory proof of its
existence, he fails to produce the document,
secondary evidence may be presented as in the case
of its loss

Rule 130. Section 5. When original document is


unavailable. When the original document has been lost
or destroyed, or cannot be produced in court, the
offeror, upon proof of its execution or existence and
the cause of its unavailability without bad faith on his
part, may prove its contents by a copy, or by a recital
of its contents in some authentic document, or by the
testimony of witnesses in the order stated.

The following must be complied:


1. Must prove that the original exists;
2. Must prove that it is in the custody or control
of the adverse party;
3. There was reasonable notice; and
4. That adverse party failed to produce it.

So under this provision, if the original has been lost,


destroyed or unavailable, you need to prove:
1. The execution or existence of the original;
2. The cause of its unavailability; and
3. That the unavailability was without bad faith
on your part.
Bad faith on the part of the offeror
Why is this important? Because it is possible that you
dont want to produce the original; maybe you
deliberately destroyed or maybe you sent it somewhere
the court does not have coercive jurisdiction. Hence, the
requirement.

xxx
(c) When the original consists of numerous accounts or other
documents which cannot be examined in court without great
loss of time and the fact sought to be established from them is
only the general result of the whole; and
xxx

In the case of Dela Cruz vs CA, the SC held that


before you are able to present secondary evidence, all
originals of the document must be accounted for. Thus,
you have to prove loss, destruction and unavailability
over all those originals first.
The correct order of proof:
1. Existence (that it exists);
2. Execution (that it has been duly executed);
3. Loss (how it was lost); and
4. The contents.
Thus, after proving the above listed, the offeror may
now prove the contents of the documents
through the existence of secondary evidence:
1. By a copy of the original; and
2. By a recital of its contents in some other
documents.
Can you think about a situation under the law where the
original is contained is some other authentic document
that can be admissible as well as a functional equivalent
of the original?

[Page 26 of 35]
Ad Majorem Dei Gloriam

Example, you are engaged in business so in the daily


basis you issue receipts, invoices. Imagine a case where
your documentary evidence constitute voluminous
number of documents that you need to present. You no
longer have to present all of those because it will be a
complete waste of time. You dont really care about the
specifics; you are more interested in the end result.
What you have to remember is that, the only thing you
need to impress upon the court is the general result of
the whole, you can thus present summaries certified by
an independent CPA. Why does the allow you to present
these? Because of simplicity, expediency, judicial
economy.
Read the case Atlas Consolidated Mining
Corporation vs CIR, I ask this case almost every year
in my exams. [READ. IMPT]
The procedure is as follows, that you be allowed to
present:
1. a summary containing, among others, a
chronological listing of the numbers, dates, and
amounts covered by the invoices or receipts
and the amount paid; and
2. certification by a CPA attesting to the
correctness of the contents of the summary

LAW ON EVIDENCE TSN


From the lectures of Atty. Jess Zachael B. Espejo
Ateneo de Davao College of Law | Tres Manresa SY 2015 2016

after making an examination, evaluation, and


audit of the voluminous receipts and invoices.
If you read that case together with the Judicial Affidavit
Rule, you will know that there is a need to attach
everything. The only shortcut there is that you dont
have to testify on every attachment one by one. Also,
you dont have to individually identify all those
attachments during the testimony of the witness.

originals.
A journal (an original), first thing you right on your transactions.
Ledger (entries were all copies from original), where you compile
everything, your journals. Is it correct to assume that whatever
there is in the ledger, it came first from the journal? Yes. So that
is the best example here, ledger and journal. Both are regarded
as originals.
August 5, 2015 (DM)

xxx
(d) When the original is a public record in the custody of a
public officer or is recorded in a public office.

Parol Evidence Rule


The Parol Evidence rule is a very rich source of bar questions.

This is governed by the provision:


Rule 130. Section 7. Evidence admissible when
original document is a public record. When the
original of document is in the custody of public officer
or is recorded in a public office, its contents may be
proved by a certified copy issued by the public officer
in custody thereof.
For example, you are going to take the Bar already, you
are asked to produce a copy of your Birth Certificate.
When you go to the Civil Registrar, are you given the
actual, real copy of your BC which was entered into in
1980s? You are simply issued a NSO certified copies of
your BC. Same with marriage contracts.
Now, when you go to the ROD. The entries there are
public records, are you given the original? Of course
not. You might be given a certified true copy. Why?
Because of:
Rule 132. Section 26. Irremovability of public
record. Any public record, an official copy of which
is admissible in evidence, must not be removed from
the office in which it is kept, except upon order of a
court where the inspection of the record is essential to
the just determination of a pending case.
Thus, where the original document is a public record,
the secondary evidence allowed is a certified true copy
issued by the public officer in custody thereof.

Rule 130. Section 9. When the terms of an agreement have


been reduced to writing it is considered as containing all the
terms agreed upon and there can be, between the parties and
their successors in interest, no evidence of such terms other
than the contents of the written agreement.
xxx
(asks a student) Did you ever entered into a written agreement?
(Yes) Did you read that before you signed? (Yes) Did you add
stipulations to such contract? (No) In other words you just
adhered to the contract?
Have you ever submitted a paper in your life, a recollection
paper? Do you not proofread the paper prior to submission?
Everything you wanted to say was there.
By its phraseology it is hinted there that what Sec. 9 governs
would be how youre going to prove a written agreement if it has
already been reduced into writing. Is it not logical for the
parties to negotiate?
Perfect example Mayweather v Pacquiao. Back and forth, back
and forth. I want 500k No I can only afford 400k So after
oral accords, they finally come up with terms that are mutually
acceptable between them. What usually follows via logical
consequence of the back and forth, they reduced agreement to
writing.
Here comes the other party being sued for breach of that
contracts saying: Thats not all we agreed upon. We agreed on
something else.

Rule 130 Section 4.Original of document.


(a) The original of the document is one the contents of which
are the subject of inquiry.
xxx

That is #1: counter-productive. Why would you reduce


agreement to writing and leave out some agreements and not
integrate them into the agreement youre going to sign. Thats
the reason of the parole evidence rule.

We have no problem with letter (a) noh? But letter (b) needs a
little bit of discussion:

(Linguistics 101: Heres a little word play. The word PAROL. If you read your books,
it means oral. It is oral evidence. What the parole evidence therefore limits, is the
ability of the party to present oral evidence to modify an agreement which has been
reduced into writing by the parties.

xxx
(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.
xxx
Best example are receipts. Triplicate receipts are considered
originals. All docs or sheets are considered originals.
Take note, what section 4 really intended to cover were
documents executed in carbon copies.
xxx
(c) When an entry is repeated in the regular course of business,
one being copied from another at or near the time of the
transaction, all the entries are likewise equally regarded as

What confuses me is the word parole. The TSNers use parole with an e. What is
parole? Under Crim, you know, its a means of modifying criminal liability. A
process that a convict undergoes to secure an earlier release subject to certain
conditions most notably that he will not commit a crime.
The words parol and parole come from the same root word in french: parole.
Meaning word or speech.
What connection do I want you to realize? When you use parol you mean oral,
spoken by word of mouth. When you include the origin of the french word, parole
means word of honor. A prisoner of war would be released by his captors after he
has suffered a sentence if he gives a word of honor to not commit a crime against
his captor after his release.
Another bit: parole french comes from latin parabole. Parable stories in the Bible
related by Christ or his followers orally, iyang gi-sulti, gi-sermon. Parable, naay
connection.
What I cannot find a connection for: parol in Filipino. Farol, murag gipabading lang,
parol. In Spanish, theres a sentecnce farol de viento to lie, or in Bisaya,

[Page 27 of 35]
Ad Majorem Dei Gloriam

LAW ON EVIDENCE TSN


From the lectures of Atty. Jess Zachael B. Espejo
Ateneo de Davao College of Law | Tres Manresa SY 2015 2016
maghambog. So when you say, nag inviento. Or vientelador something tbat
releases air.)

Lets go back to parole evidence rule. Take note that the PER is a
so-called Rule of Integration. Everything we have agreed upon
prior to reducing it into writing, prior to signing, is supposed to
be integrated in the WA. If its not seen in the WA, therefore it is
deed waived. That is the rule of wiaver after integration.
BASIS OF PAROL EVIDENCE RULE
1.

2.

The principle of hierarchy of evidence. Very very basic.


In terms of hierarchy what is the highest? Object,
documentary and last testimonial. And something that is
written and something between testimony, it is
documentary evidence that will prevail, as said in GSIS
vs CA, May 28 1993.
Principle of waiver after integration in Cavenan vs CA
1999. When a jural act is embodied in a single
memorial all other appurtenances of the parties on that
topic are legally immaterial for the purpose of
determining what the terms of their act are.

That is the only thing that matters when you are talking about
PER which is not a limitation for the validity of a contract.
It is simply a requirement that must be taken into
consideration as a condition sine qua non to prove such
contract that seems to be un-integrated in the written
agreement. Majority of contracts are consensual. Once a
contract is created it is binding on the parties.
PER is not a limitation on the validity but it is a limitation on
the provability of an existence of something other than
the written agreement.
When would PER apply? When there is a written agreement.
Does the law define agreement? Is agreement therefore a
technical term that has a definition under the law? NO.
Agreement refers to contracts which are defined under the NCC.
Does the PER applies to all contracts? YES. The resulting written
contract is already covered by the PER.
Now, the last paragraph:

Based on the belief that comparatively, written evidence


would always be more reliable than any other evidence
based on the fleeting memory of man. Therefore if it is
written, that should govern.

xxx
The term "agreement" includes wills.

4.

When it is testimonial, it is most prone to fabrication its


very very easy for party/witness to change testimonies.
Affidavits may be recanted. What would prevail?
Something na pwede bawion or something that is not.

Can a making of will subject to agreement? For example Testator


A agrees with B to make B an heir. They become mutual wills of
the other. (donation capta toria) Will cannot be subject that
agreement.

5.

Based on the rule on the interpretation of contracts that


gives primacy of the intention of the parties as law
between them

You cannot subject the making of a will to an agreement under


the basic principle that the making of a will is a strictly personal
act.

6.

Policy of the law to give stability to written agreements


and to remove the temptation of perjury. If that is
allowed, sayon ra kaayo mag perjure. A party may
simply perjure himself to get what he wants.

Will compared to other contracts

3.

What is the status of a contract that does not follow the


mandate of the PER? Does it make the contract void?
Voidable? Rescissible? Or is it simply an evidentiary rule that
would be allowed?
The contract may still be valid. Suppose the contract is executed
between the parties as the final covenant between them (like
how God wrote 10 Commandments in stone. Are we to assume
theres an 11th?) Does it mean that if God made an 11th
commandment that is not in stone, the 11th rule is invalid?
If truly there is a contract between that is not included in the
wrirtten agremeent, does it necessary mean that its not valid.
Example: A & B entered into MOA. MOA cannot simply be
denominated a contract of sale, etc because it embodies many
sub contracts between the parties. Im going to sell you this land
for this amount, but we will not execute a deed of sale yet. Why
would they do this, enter into a MOA? To avoid immediate tax
consequences. Remember you are given 30 days to pay the
necessary taxes on the transfer of the property? Its capital gains
tax of 6% based on consideration of contract of sale or the zonal
value of the property as per BIR whichever is higher. Not
mention you have to pay 1.5% documentary stamp taxes.
So they dont have a DOS between them yet. Does that mean

walay baligya? What if in addition to that not including in their


MOA to conceal the fact, para si buyer ang magbayad ng CG tax?
Does that mean that the agreement between them not found in
writing is not valid? Remember the only requisites for validity of
the contract? (meeting of minds) But can you prove it in court?

Premise: Agreement includes wills.

Does a will need to be notarized? It depends if it is a notarial will


or holographic will. Ang contract ba pwede notarized? Of course.
When I agree to give you your exam, thats a contract. When I
dont do that, you can declare me in breach.
If a will is not notarized, does it make it any less valid? NO as
long as it follows the formalities of a will. If a contract is not
notarized, will it be binding? It is still binding between the parties
but no to third parties.
Notarization side: If you notarized a DOAS, is the notary public
required to keep a copy? Yes. What about wills? No, notary
public is not required to keep copy.
Why include wills?
Given these background information, should a will be treated as
a contract? Is there a meeting of minds? No. Bawal. Why then, is
it that the law includes the term wills under agreements? You
have to look at the danger that the law seeks to avoid.
We have a contract, this is what we have agreed. Other party
says thats not what we agreed upon. You will perjure yourself if
youre gonna question the contract under PER.
Is that evil of perjury applicable in the making of a will? Testator
instituted 3 heirs, A 1M B 2M C 3M, Favored si C. A and B say C
should not be given. the testator cannot contradict. AB says we
spoke to the testator while he was making the will. Can that
perjurious testimony be contradicted? Definitely not. Dead mans
statute, shuffled down the mortal coil.

[Page 28 of 35]
Ad Majorem Dei Gloriam

LAW ON EVIDENCE TSN


From the lectures of Atty. Jess Zachael B. Espejo
Ateneo de Davao College of Law | Tres Manresa SY 2015 2016

Does it apply to will? YES, with greater reasons that it should


applies to will.

intelligble and at the same time apply to two


different things or subject matters.

But when you consider wills as an agreement, you only do so


under fiction of law. Its only considered an agreement for the
limited purpose of applying PER.

In Kuya Germs will I give to my nephew John


my Mercedes Benz car.
Is it ambiguous on its face? No, theres clear
testamentary intent. But the problem is there
are many nephews named John. In intrinsic
ambiguity we have no problem on how the
devise or legacy is worded but it is the
interpretation that is susceptible to several
meanings: John A, John B or John C.

Exceptions to the Parol Evidence Rule


The situational premise here is the law trying to curb the
pernacious practice of people trying to add to or modify the
agreement after the constitution of the written contract, because
it is more beneficial for them to deny na naa man gud among
gisabutan. The law does not allow that. If you read on there are
many exceptions.

By way of exception, a latent ambiguity may


be explained by parol evidence as the
ambiguity which is brought about by
circumstances that are outside the instrument
or extraneous to the instrument the
explanation must necessary be sought outside
the instrument. It is only outside the will where
the ambiguity exists. Thus it can be cured by
something from the outside, pwede ang PER.

xxx
However, a party may present evidence to modify, explain or
add to the terms of written agreement if he puts in issue in his
pleading:
xxx
What you need to know before reciting all the exceptions is you
cannot claim these exceptions unless you put it as an issue in
your pleading.

MISTAKE
In order for mistake to be an exception: you have to
reckon with requisites of mistake. If you look at Rules of
Court theres no definition of mistake. Thankfully it is
covered by civil law.

It is needed in your pleading before you can raise it. If you plan
to introduce oral evidence to refute a written agreement you
have to state that. Without this requisite, you cannot claim
exception.

a.

BPI vs. fidelity Insurance, October 19 1927:


1. mistake should be of fact ,not law
2. mistake should be proved by clear and
convincing evidence
3. mistake is common to both parties of the
instrument

xxx
An intrinsic ambiguity, mistake or imperfection in the
written agreement
xxx
AMBIGUITY

Therefore applying it to S9, the mistake referred to by


the law should be mutual. Its a mistake to both debtor
and creditor. If it was only your mistake, it cannot
justify the exception under the PER. MAGELLAN
MANU vs. CA, Aug 22 1991 [READ]. It talks about
transshipment act of transferring goods from one
carrier to another. I always ask this.

Ambiguous, di klaro uncertainty of meaning usually


cause by words or phrases that convey more than one
meaning. When you read ambiguity in the context of
PER, ambiguity is susceptible of two or more
interpretations.
Two types:
1.

IMPERFECTION

Patent or extrinsic apparent on the face of


the instrument to anyone reading even if he is
unacquainted with the circumstances of the
parties.
Would this be curable by oral or parole
evidence? Authorities would tell you that while
law is silent on this point, parol evidence may
only be used to explain what is written, not
what was intended to be written. Under PHL,
you cannot cure patent ambiguity.

Writing is incomplete and does not express the whole


agreement of the parties. Agreement insufficiently
describes the exact terms and conditions.

a.

Ex. You give a property through a will.


I bequeathe to A
by way of legacy,
something.
Is it ambiguous? YES. Its a patent ambigutiy.
When you read that, you wouldnt be able to
understand. Can you explain that that
something is 2 billion pesos. You cant
because it will violate the PER. It will render
the witness and party susceptible to perjury.
2.

Latent or intrinsic where the wording of an


instrument is on the face of it clear and
[Page 29 of 35]
Ad Majorem Dei Gloriam

xxx
The failure of the written agreement to express the
true intent and agreement of the parties thereto
xxx
Poor guy who owns land needs money to buy fertilizer,
pay utang after harvest. Usually parties enter into
contract of loan with mortgage. If debtor does not pay
you need to foreclose. Or a deed of sale I will tear
this deed of sale if you do not pay.
Whats the true intention of the parties? To secure the
loan.
But the agreement was a sale.
There was failure of the agreement to express the true
agreement of the parties. If youre farmer you can
object and put in issue in your pleading that the
agreement did not express true intent of the parties.
later on during trial you are not allowed to present oral

LAW ON EVIDENCE TSN


From the lectures of Atty. Jess Zachael B. Espejo
Ateneo de Davao College of Law | Tres Manresa SY 2015 2016

evidence to prove the contract is not a sale but an


equitable mortgage.

ensure the credibility/believability/weight given to such


testimony.

Recall: lease with option to buy vs. deed of sale

So, ALLOWABLE EXCEPTION: Subsequent oral


agreements even if such agreements have the
effect of adding, modifying or altogether
abrogating the contract of the parties as evidence
by the PER. Admissible na sya.

TRUTH IS SACRED BUT SAFEGUARD IT WITH BODYGUARD OF LIES.

Whats the remedy under civil law to make an


agreement to reflect the true intent of the parties
remedy of reformation. Can a will be subject to
reformation on this ground? NO Article 1366.

b.

xxx
The validity of the written agreement
xxx
If you want to apply the exception under PER, youre
trying to present parole evidence to say the contract
was not valid in the first place. You only apply the rule
of integration to contracts which have been properly
integrated. But if void ab intiio, no need to apply PER.
In all probability it is the oral contract that is valid.
You need to raise the invalidity of the contract in your
pleading.
Example: Contract where consideration was never really
paid. Sale of property for 1M. COS drawn up, etc. Can
the seller prove that he never got the consideration of
the contract when in fact the deed of sale already said
consideration was already received. YES, this is covered
by this exception. You raised it as an issue in his
pleading.
If the agreement is alleged to be forged, that is also an
exception ALORIA vs CLEMENTE, Feb 23 3006.
Evidence to established illegality or fraud BEAU vs
Hontiveros 1919 and Woodhouse vs Halili, July 31
1958

c.

xxx
The existence of other terms to by the parties or their
successors in interest after the execution of the written
agreement.
xxx
Subsequent (an exception, not covered by PER)
Other than the written agreement we executed, we had
a subsequent oral agreement. These agreements are
not covered under the PER and they are considered as
exceptions.
Ex. B borrowed money from A. To evidence the loan, B
signed a PROMISSORY NOTE, maturity date Dec 1
2015, but B defaulted. A sued.
B contends, amount is not due because A agreed to
extend period of payment until Dec 17. What is Bs
defense? Extension of payment, So he has to put that in
his pleading that they entered into another subsequent
agreement which novated the original obligation. If he
does not plead, PER exception does not apply.
Why does the law allow this exception? Simple logic. We
cannot put in an agreement something that we have
not yet agreed upon.
What section 9 guarantees provided there is proper
pleading of this exception is the admissibility of
evidence. You can testify for sure, but it DOES NOT
[Page 30 of 35]
Ad Majorem Dei Gloriam

Ex: A contract of loan where B will repay 100k. After


the contract, the creditor said, you dont have to pay,
consider it a donation. Will that be a valid provable
agreement? Yes.
Only prior and contemporaneous agreements which are
DEEMED TO HAVE BEEN MERGED to the writing
conformably to the integration of the agreement is
covered by the PER.
Prior or contemporaneous (covered by PER)
Now, if an agreement was prior or contemporaneous to
the agreement. Can you plead that as an exception?
Ex: We negotiated. Right at the time we agreed to put it
into writing, we had side agreements. Covered by the
PER or not? Covered. Thus you cannot prove them if
they are contrary to the written agreement.
Reason: waiver by integration. If it was not stated in
the agreement and it was prior or contemporaneous, it
is deemed waived.
Not of the same subject in the written agreement
or collateral matters (not covered)
What about agreements which are not of the same
subject as the written agreement? Agreements which
are collateral to the written agreement made prior,
contemporaneous oral agreements are not covered by
the PER because they are not related to the written
agreement.
A & B contact of sale
B told A you wash my car
Is it a provable agreement or is deemed covered by the
PER? NO because its only collateral.
Agreements
involving
fraud
representation (not covered)

and

false

All
other
agreements
whether
prior
and
contemporaneous, subsequent or collateral if the issue
revolves around fraud and false representation because
they are incidental to the execution and not to the
integration of the agreement is not covered by the PER.
Thats Woodhouse versus Halili 1958.
Agreements where 3rd parties are involved
All
other
agreements
whether
prior
and
contemporaneous, subsequent or collateral when 3rd
parties who are not privy thereto are involved are not
covered by the PER. That is in LECHUGAS versus CA
GR l-3992.
RECAP: WHAT IS COVERED? Only prior and
contemporaneous agreements which are deemed to
have been merged to the writing conformably to the
integration of the written agreement.

LAW ON EVIDENCE TSN


From the lectures of Atty. Jess Zachael B. Espejo
Ateneo de Davao College of Law | Tres Manresa SY 2015 2016

WHAT IS NOT COVERED?


1. Subsequent agreements
2. Collateral agreements or those not of the same
subject as the written agreement
3. All other agreements if the issue involves
around fraud and false representation since
they are incidental to the execution and
integration of WA
4. All
other
agreements
whether
prior,
contemporaneous or subsequent or collateral
when 3rd parties who are not privy thereto are
involved.
August 7, 2015 (JJA)
I guess the last time, we already discussed the different types of
agreement covered and not covered by the PER.
When you say covered it means that the rule applies. You cannot
present oral or parole evidence to change, modify, add to the
term of the written agreement with respect to prior and
contemporaneous agreement which are deemed to have been
merged into writing. But there are certain classes of agreement
that are not covered by the parole evidence rule.
And we have also identified the four types of agreements that
are not so covered. For example, side agreements, collateral
agreements which although are oral and contemporaneous with
the writing are actually considered separate and distinct. Thats
why we call them contemporaneous oral agreements. We will
discuss a little bit of that later on.
Oral agreements whether prior or contemporaneous, subsequent
man o collateral to the issue, if it revolves around fraud and false
representation, since they are incident to the execution and not
the integration to the agreement and all other agreements when
third parties who are not privy thereto are involved.
Now lets try to define contemporaneous agreement. We dont
have problem with prior agreements because they are
agreements deemed to be integrated already in the written
agreement. Contemporaneous agreement is one entered into at
the same time as the agreement which was already been
reduced into writing.
The question therefore is if it was an oral agreement entered into
at the time when the parties already reduced their agreement
into writing, automatic ba na sya that its no longer covered by
PER? Remember that if a contemporaneous oral agreement is
separate and distinct from the written agreement, such oral
agreement is curable by parole evidence.
Perfect example is where A sells land to B. of course, there was
payment already and turnover of certificate of title over the land
but what the agreement that they signed failed to include was
their contemporaneous agreement which was executed at the
same time that I have the right to repurchase or right to
reconveyance of property. And that is one of the inducement for
A to sell his land to B. Can you not prove by parole evidence the
fact that you have agreed to sell the land because there was also
contemporaneous agreement of repurchase or reconveyance? If
you are barred from doing so then that would lead to a very
unfair situation. And therefore in such a situation, the law allows
a party to prove by parole evidence the existence of such
contemporaneous oral agreement because it is deemed to be
separate and distinct from the agreement that was reduced into
writing.

What we need to remember therefore, with respect to


contemporaneous oral agreements would be two tests:
1) If the subject matter of the written agreement is
different from that of the contemporaneous oral
agreement, then the COA is deemed to be separate and
distinct as an agreement and therefore is provable by
parol evidence. There are two different contracts
therefore contemporaneous contracts are provable by
parole evidence.
2) Or it could be that while the agreement refers to the
same subject matter (land), one for the sale of the land
and the other is for the reconveyance of the land,
therefore even if they actually refer to the same subject
matter you need to determine whether or not they are
separate. Can the COA be separable from the written
agreement? If COA is separable then it is already
considered as separate and distinct and therefore
provable by parole evidence. That is a very important
doctrine that you need to remember. (Laureano v
Kilayco)
In the case of Woodhouse vs. Halili, SC also ruled that
inducements and representations which led to the execution of
the written agreement in the first place may also be proven by
parole evidence because they actually do not vary the terms of
the agreement. They speak of the intent of the parties. Intent is
not normally included in the agreement. And therefore, what we
can expect with respect to inducement and representations, they
are not integrated into the written agreement. That is the reason
why in this case, you can prove inducement and representations
by parole evidence.
Parole evidence is also admissible to prove an independent and
collateral agreement which constitutes an inducement to the
making of the sale or part of the consideration thereof. For
example is the 1billion sale of GMA. There are collateral
agreements.
Condition precedent not stipulated in the written agreement is
also provable by oral evidence. For example in a contract to sell,
what are the condition of obligation of the parties full payment
of the price or securing title of the property. The SC said that a
condition precedent is provable by parole evidence because
before the happening of the condition there is no written
agreement yet to which the parole evidence rule may apply. So
in a conditional sale where transfer of ownership is subordinated
to full payment of purchase price, there is no deed of sale to
speak of. And therefore that condition precedent even if it is not
provided in the written agreement, it is provable by parole
evidence. (Land Settlement Corporation vs. Garcia)
Remember that one of the exception of PER is when there is
failure of the written agreement to express the true intent and
agreement of the parties thereto.
Take note of the quantum of proof required in order to contradict
the terms of the written agreement, whether by parol or any
other evidence. In Manzano vs. Perez: In order to contradict
the fact contained in a notarial document for example as well the
presumption of regularity of the execution thereof, there must
clear and convincing evidence that is more than merely
preponderance of evidence. Why I am saying that? because you
need to remember that in the hierarchy of evidence, oral
testimony cannot, as a general rule,
prevail over written
agreements of the parties.
Favorite part daw ni Sir: Now how do you distinguish best
evidence rule from parole evidence rule?

[Page 31 of 35]
Ad Majorem Dei Gloriam

LAW ON EVIDENCE TSN


From the lectures of Atty. Jess Zachael B. Espejo
Ateneo de Davao College of Law | Tres Manresa SY 2015 2016

Best Evidence rule


The contents of the writing

Secondary evidence is Offered


to prove the contents of the
writing which is not allowed if
it falls in any of the
exceptions. E.g. loss,
destruction, physical
unavailability

Parole evidence rule


WON to allow a party to
contradict the terms of written
agreement by means of oral
testimony
Purpose of the offer of the oral
testimony is to change,
modify the terms of the
complete written agreement
which is not allowed unless the
case falls under the
exceptions.
Only the parties and their
successors may invoke the
protection of the PER.
Remember PER does not apply
if there are 3rd parties involve.

note or memorandum, thereof, be in writing, and


subscribed by the party charged, or by his agent;
evidence, therefore, of the agreement cannot be
received without the writing, or a secondary evidence
of its contents:
(a) An agreement that by its terms is not to
be performed within a year from the making
thereof;
(b) A special promise to answer for the debt,
default, or miscarriage of another;
(c) An agreement made in consideration of
marriage, other than a mutual promise to
marry;
(d) An agreement for the sale of goods,
chattels or things in action, at a price not less
than five hundred pesos, unless the buyer
accept and receive part of such goods and
chattels, or the evidences, or some of them,
of such things in action or pay at the time
some part of the purchase money; but when
a sale is made by auction and entry is made
by the auctioneer in his sales book, at the
time of the sale, of the amount and kind of
property sold, terms of sale, price, names of
the purchasers and person on whose account
the sale is made, it is a sufficient
memorandum;
(e) An agreement for the leasing for a longer
period than one year, or for the sale of real
property or of an interest therein;
(f) A representation as to the credit of a third
person.
xxx

As in any evidentiary rule, PER is waived by failure to timely


object.
What would be the effect of novation to the applicability of PER?
[not answered, just read the case of Market Developers vs.
IAC].

STATUTE OF FRAUDS
Interestingly enough when we talk about exclusion the main law
is:
New Civil Code. Article 1356. contracts are obligatory in
whatever form they may have been entered into provided all
the requisites are present
Contracts are perfected by mere consent. Form is important only
if a law mandates that it be written. We know that a contract to
sell is a consensual contract. Delivery is an obligation, a condition
precedent for the transfer of ownership. But a contract to sell is a
consensual contract perfected by mere consent. Contract of sale
can be in writing or word of mouth or partly in writing or partly
of word of mouth or even inferred from the conduct of the
parties. E.g. auction sale, sinyas sinyas lng bisan wala words.
In contracts of sale, it is delivery that consummates the contract.
Consummation is not required to its validity. It is valid in
whatever form they may be entered into. In other words, a
contract of sale if valid gisulat man nimo o wala.
For validity However, there are provisions of the law which
provides for formalities of a contract. Examples are:
1)
2)
3)
4)

Antichresis the only contract that is required to be


written to be valid.
Sales by an agent thru special power of attorney
Donations of personal property 5000 and up.; if real
property must be in public instrument
Stipulations on interest

For greater efficacy/ convenience Under Statute of


Frauds, not all contracts are covered. Not the entire Article 1403
is Statute of Frauds. It is only Section 2 of Article 1403 is the
Statute of Frauds.
New Civil Code. Article 1403. The following contracts are
unenforceable, unless they are ratified:
xxx
(2) Those that do not comply with the Statute of
Frauds as set forth in this number. In the following
cases an agreement hereafter made shall be
unenforceable by action, unless the same, or some

ROD will never accommodate transfer of ownership if there is no


contract in writing. This is only for purposes of convenience and
not for validity.
1)

2)

3)

You cannot enforce in court an action relating to


contract if you do not comply with SoF. Evidence will
not be received if not reduced to writing. (not
necessarily notarized.)
Application of SoF, without note or memorandum does
not foreclose the application of Best Evidence rule or
substitutionary evidence.
Any note or memorandum would do. E.g. tissue paper
will suffice.

Originally the Statute of Frauds is not found in the Civil Code. It


is found in the Rules of Evidence because originally it was
intended to be a requirement of provability and because it is a
requirement of provability, it is an evidentiary rule. But later on it
was migrated to civil code from rules of evidence in order to
reflect its true nature, that it is substantive law.
Claudel vs. CA, July 12, 1991: The purpose of the Statute of
Frauds is to prevent fraud and perjury in the enforcement of
obligations depending for their evidence upon the unassisted
memory of witnesses by requiring certain enumerated contracts
and transactions to be evidenced in Writing.
The provisions of the Statute of Frauds originally appeared
under the old Rules of Evidence. However when the Civil Code
was re-written in 1949 (to take effect in 1950), the provisions of
the Statute of Frauds were taken out of the Rules of Evidence in
order to be included under the title on Unenforceable Contracts
in the Civil Code. The transfer was not only a matter of style but
to show that the Statute of Frauds is also a substantive law.
So whats the requirement here, there are certain enumerated
contracts you have to have some written evidence of the
contract. If you dont have written evidence, if the contract is

[Page 32 of 35]
Ad Majorem Dei Gloriam

LAW ON EVIDENCE TSN


From the lectures of Atty. Jess Zachael B. Espejo
Ateneo de Davao College of Law | Tres Manresa SY 2015 2016

breached and you are aggrieved, you cannot prove that contract
to obtain relief. In a nutshell, that is the Statute of Frauds.
One thing you need to remember also, when you talk about
Statute of Frauds, not all contracts are covered by SoF. When
you go outside to buy from Manang Luchi or Manong
Paningkamot sa una nagapangutang ko og sigarilyo o candy sa
tindahan sa gawas. Does it have to be covered by SoF? With
respect to the framing of the SoF, it was the tasks of the writers
of the law to identify certain contracts to be subject to strict
scrutiny. So that they can be enforceable. They already
enumerated it and can be found in # 2 Section 1403 of the civil
code.
So what are the unenforceable contracts under Statute of
Frauds: Unenforceable by action means you cannot sue on
the contract. You cannot prove that a contract exists in court.
That is what is meant by that unless a note or memorandum is
made. Again evidence cannot be received without the writing.
We are not talking here of formal notarized contract. It is not
necessary that it be reduced by a notary public in a contract.
Why? Because the law simply requires a note or memorandum
that is of course in writing. Dili kinahanglan nga notarized. Note
or memorandum is enough.
Take note that SoF does not foreclose the application of the Best
Evidence Rule, the substitutionary evidence. The exception to
BER. So this requirement of note or memorandum would do. E.g.
a tissue paper will do.

outside the coverage or application of SoF. So both parties must


actually perform the contracts otherwise not covered by SoF.
B.

This is all about guaranty. A contract of personal security or


guaranty. It is not a formal contract but must comply with SoF
because it is provided in SoF. Surety is not covered because the
latter is primarily liable of the debt hence may be proved by
parole evidence.
C.

What is the shortest will ever? There was this case. A German made a will using
very short words. all my properties will go to my wife. It was probated. And was
admitted into probate. Everything went well.

Pwede ba na siya in a note or memorandum requirement under


SoF? Actually No! Why? Because kinahanglang ang name sa
parties, terms and conditions and description of the property
sufficient to render it capable of identification.
At least man lang it is required that the note or memo must
contain the essential elements of contract expressed with
certainty that may be ascertained from the note or memo itself
or some other writing which it refers or within which it is
connected without resorting to parole evidence. Pwede kung you
can deduced the existence of the contract from what is written in
the note or memo.
Can a receipt be sufficient? Let us say CDRking namalit ka didto.
That is already sufficient as a contract of sale because there are
names of the parties. Name of CDRking, name of the buyer, the
description of items. Terms of conditions is also there.
Warranties are also there. So that would be enough note or
memo. No need for contract of sale.
Now lets go to the specific contracts:
A.

An agreement that by its terms is not to be performed


within a year from the making thereof;

My observation here is that when you talk about a contract which


must not be performed within one year it refers to both parties.
By both parties. Why? Because if it is to be performed by only
one party, the contract is already partially fulfilled and therefore

An agreement made in consideration of marriage,


other than a mutual promise to marry;

What are possible agreements here? There must be


consideration of marriage. Meaning there can be no transaction
without marriage. Example is Pre-nuptial agreeements, donation
propter nuptias.
[Chika mode about Kris Aquino, James Yap and baby James]

Breach of promise to marry whether unilateral or mutual is not


actionable. So not covered under SoF. E.g. Pe vs. Pe case.
D.

Torcuator vs. Bernabe (2005): It is required that


memorandum or note should require atleast the name of the
parties, the terms and conditions of the contract, the description
of the property that are capable of identification.
It is not like will that it has to be either a notarial will or
holographic will. Notarial daghan kaayo formalities. Holographic
naa pud formalities. Lisod giyahapon.

A special promise to answer for the debt, default, or


miscarriage of another;

An agreement for the sale of goods, chattels or things


in action, at a price not less than five hundred pesos,
unless the buyer accept and receive part of such
goods and chattels, or the evidences, or some of
them, of such things in action or pay at the time some
part of the purchase money; but when a sale is made
by auction and entry is made by the auctioneer in his
sales book, at the time of the sale, of the amount and
kind of property sold, terms of sale, price, names of
the purchasers and person on whose account the sale
is made, it is a sufficient memorandum;

To my mind this is already antiquated because p500 as a


parameter here is in 1950s. Today, p500 is very small already.
(talking about banana que).
A has debt to B amounting to 1000. A tells B he cant pay B
because he is liquid. A tells B to accept cellphone hoping that this
will stand as payment (dacion en pago). There is already
novation. Instead of money, obligation now is to deliver
something as form of payment. Money now becomes a thing.
This novation is called objective novation. Changing of an object
of contract. This is a sale in reverse. In contract of sale, you give
me money I give the thing. In dacion en pago you give a thing
and I give you money.
The law specifically provides that dacion en pago where property
is alienated to the creditor, the payment of debt is governed by
law on sales. If sales is governed by SoF, would dacion en pago
be covered by SoF? Because remember it is governed by law on
sales. What is the answer here?
In the case of DAO HENG BANK, INC v SPS. LILIA and
REYNALDO LAIGO (2008): Being likened to that of a contract
of sale, dacion en pago is governed by the law on sales. The
partial execution of a contract of sale takes the
transaction out of the provisions of the Statute of Frauds
so long as the essential requisites of consent of the
contracting parties, object and cause of the obligation concur
and are clearly established to be present.
What are the other contract governed by Law on Sales? We have
barter governed by law on sales. Except for two rules:
1) If there is doubt whether it is a sale or barter, you look
at the intention of the parties.

[Page 33 of 35]
Ad Majorem Dei Gloriam

LAW ON EVIDENCE TSN


From the lectures of Atty. Jess Zachael B. Espejo
Ateneo de Davao College of Law | Tres Manresa SY 2015 2016

2)

If the intention does not appear, you look at the


monetary equivalent of the thing given. (mas dako ang
thing, its barter, if dako ang money, its sales.

Thats the only special rule that applies to barter.


What else? Contract for piece of work, in certain situations.
Like warranties, governed by law on sales.
In the case of COMMISSIONER OF INTERNAL REVENUE
vs. THE COURT OF APPEALS, THE COURT OF TAX
APPEALS and ATENEO DE MANILA UNIVERSITY: The
contract of sale and contract of piece of work, they are
practically the same. Why? Again a party necessarily walks away
with a thing.
Now, if dacion en pago being governed by law on sales, is it
actually covered by the statues of fraud? Would a contract of
barter be covered by SoF? Second, would a contract of piece of
work be covered by SoF? Find out your own. I will tell you
the answer next meeting. Find out first.
E.

An agreement for the leasing for a longer period than


one year, or for the sale of real property or of an
interest therein;

Nothing much there. It is self-explanatory.


CONSOLACION DUQUE SALONGA, vs. JULITA B.
FARRALES, 1981: this provision according to the SC includes
compromise agreement on the sale of land.
F.

A representation as to the credit of a third person.

What is a representation as to the credit of a third person?


Meaning you are vouching for somebody else. What is an
example? According to Dean Inigo, it is similar to a guaranty.
Thats all I remember he is saying.
What is a contract similar to a guaranty? Surety! But based on
what Dean Inigo was saying also, Suretyship is not included in
SoF. Only guaranty lang diay. So it only covers guaranty.
What if you are an accommodation party without signing or
writing anything? Pero dili man diba. mao gani nga ginatawag ka
party kay party ka sa negotiable instrument whether
accommodation endorser ka or maker and so on? Pero murag
dili.
What else ang possible nga ing-ana? In credit transaction you
will come across a contract known as contract of letter of credit
transaction. There are 3 parties. Buyer, seller and bank. The
undertaking of a bank is to ensure payment of the sales price
provided the seller present to the bank the bill of lading or a
warehouse receipt proving nga napadala na. Can you become a
guaranteeing bank in letter of credit transaction without writing
anything? Walay contract? Suppose the bank did not pay and
there was letter of credit issued? Nothing is in writing? Is it
covered under representation as to the credit of a third person?
Somehow it is covered. I am not saying for sure ha. There is no
ruling of SC to that effect specifically talking about letter of credit
accommodation. Mogawas na karon na bar. Usually mogawas
akong predictions 5 years from now.
LIMITATIONS

E.g. oral contract between A and B. later on nagbayad si A and


later on si B nag-ingon am not in contract with you. Can A sue B?
Yes, because B already benefited from the contract. To avoid
unjust enrichment.
So that is why SoF does not apply to partially performed or
executed contracts.
Read the case of ANTHONY ORDUA vs. EDUARDO J.
FUENTEBELLA: There is this land bought by virtue of oral
contract of sale by instalments for how many years until the
seller decided to sell it somebody else to someone in full all the
while receiving partial payments. And seller sold it to another and
the present buyer wants the first buyer to be evicted.
Would SoF defeat those buyers in instalments? According to SC:
No! The contract was already executed and therefore can be
proved by oral evidence that there is such a contract. It is not
unenforceable.
August 7, 2015 (KJ)
ANUNCIACION VDA. DE OUANO vs.THE REPUBLIC OF THE
PHILIPPINES, 2011: Heres this land in Lahug City which the
National Airport Authority wants to expropriate. What usually
happens when a property is expropriated, can you not contest
that anymore because its the govt youre fighting? Of course
not. Number 1 question, proper taking, and then number 2 if the
taking was proper, you can question the compensation.
And so the NAA to induce property owners to sell their lands
voluntarily, or to not oppose the expropriation anymore, said that
ok anyway if we dont want to use the property anymore you
can have it back just pay back what we paid you as just
compensation.
So they did not appeal the judgment on the expropriation of their
properties anymore.
So it was supposed to be made as an airport, in Lahug. But now
where is the airport in Cebu? Is it in Lahug? Of course not. It is
in Mactan in Lapu-lapu City. So they actually abandoned the
Lahug area and made an airport a city away!
And so now, the families of the persons from whom the
properties where taken by way of expropriation wanted to buy
back the properties by saying that orally the govt told us that
we are allowed to buy back or redeem the property in a sense if
the govt is no longer using it. The govt said No, it is barred by
the statute of frauds, thus you cannot but it back.
So can the former owners buy them back by proving through
testimonial
evidence
the
promises,
assurances
and
representations of the govt when the property was bought from
them? Saying pede na ninyo paliton balik! but nothing was
reduced into writing. Would that be proper?
What contract is involved here? Consummated contract. So,
because of the promise that they can buy it back, that was the
reason why they did not appeal the judgment of expropriation.
So according to the SC: The statute of frauds is not applicable.

(1) DOES NOT APPLY TO PARTIALLY PERFORMED OR


EXECUTED CONTRACTS

Besides, it appeared to be an after-thought on the part of the


govt because they did not object immediately to the admissibility
of evidence on the basis of statute of frauds. It has to be timely
raised otherwise it is deemed waived.

Remember again that it does not apply to partially performed or


executed contracts. Why? Because of the possibility of unjust
enrichment.

Now, take note that execution or partial performance is not


limited to the act of paying, na bayad ka partially sa purchase
price. Even if there is no partial payment, partial performance

[Page 34 of 35]
Ad Majorem Dei Gloriam

LAW ON EVIDENCE TSN


From the lectures of Atty. Jess Zachael B. Espejo
Ateneo de Davao College of Law | Tres Manresa SY 2015 2016

can mean possession of property under a contract of sale, the


making of improvements, the rendition of services, the payment
of taxes, relinquishment of rights and all other acts of ***. So
these can be partial execution or partial performance.

In a demurrer of evidence. Remember that if it is


unenforceable supposedly you cannot present any
evidence to prove it. But lets assume that the judge still
admitted the oral contract, erroneously. So the other
party has finished presenting his evidence-in-chief.
What can you do being the defendant? File a demurrer
of evidence stating that theres violation of SOF under
Rule 33. Why, because there can never be a prima facie
case unless there is admissible evidence to support the
claim.

How else? By objecting to the reception of such oral


evidence when it is presented in court.

(2) DOES NOT APPLY TO ORAL PARTITION OF


PROPERTY
Take note that SOF does not apply to oral partition of property.
You havent taken up Rules 74, so I will not yet explain it further.
(3) DOES NOT APPLY TO WILLS
Would the SOF apply to wills? Can there be oral wills in the PH?
Of course not but anyway just to make an academic distinction:
if a parol evidence rule by fiction of law considers a will an
agreement for the application of Section 9 Rule 130, under the
statute of frauds it is not considered an agreement. It does not
cover wills. Although anyway, we dont have oral wills here so
that is for academic purpose only; because the effect is the
same. You cannot allege that the testator told you that his will
give you all the property he has at the time of his death. You
cannot do that.
(4) APPLIES ONLY TO ACTIONS FOR VIOLATIONS OF
CONTRACTS OR ACTIONS FOR SPECIFIC
PERFORMANCE
(5) DOES NOT APPLY WHEN PARTY OFFER PAROL
EVIDENCE TO PROVE TRUE INTENT
The SOF does not apply when the party offers to prove through
parol evidence that the agreement does not express the true
intent of the parties. Dili na siya mao ang applicable, what is
applicable? The parol evidence rule. Because the action there is
to make the contract express the true agreement of the parties.
It is an imperfection in the written agreement.
(6) CANNOT BE INVOKED BY A PERSON NOT PRIVY
TO THE CONTRACT

Remember that failure to object in any of these occasions is


tantamount to a waiver of the right to object based on the
ground of SOF. That is why you really need to memorize the
SOF. For your sake, as future barristers and as future lawyers. Be
familiar with it.
(Chika minute: Prof in obli before never told us to memo SOF but I just memorized
it for the heck to it. Question number 1 during that examination, aguy! Also, chika
about teaching obli for half a sem).

Also, when you cross-examine, that is tantamount to waiver of


objections. Please remember that.

STATUTE OF FRAUDS versus PAROL EVIDENCE


Similarities: They are similar in the sense that both rules limit the
ability of a party to present oral evidence in certain contractual
situations. Same type of evidence, which is parol or oral evidence
is prohibited in both.
Distinctions between SoF and PER:
Law
Object

HOW TO RAISE SOF AS A DEFENSE


How do you use the SOF to prevent the introduction of parol or
oral evidence during trial of the contract? There are many ways
to skin the cat so to speak:
-

Use it as a ground as a motion to dismiss within the


time required for you to file your answer. Remember
under Rule 16 Section 1, SOF is a ground for motion to
dismiss.

RE:
Wills

Clearly, does not


apply to wills

When
invoked

Cannot be invoked
by a stranger to the
contract

Question: So your motion to dismiss based on SOT was


granted, can the plaintiff refile the complaint this time
attaching the written contract? So SOF, with prejudice.
Such order ordering the dismissal of the case based on
SOT shall bar the refiling of the same action or claim.
That is Rule 16, Section 5.
-

File an Answer and use SOF as an affirmative defense.


An advantage to that (instead of filing motion to
dismiss) is because a motion to dismiss is NOT a
pleading, it does not affect the other parties right to
amend his pleading as a matter of right. So you would
rather file an Answer and use SOF as a ground as an
affirmative defense then ask a preliminary hearing as if
a motion for dismissal was made. (review about
affirmative defense, being a confession and avoidance
defense, hello, CivPro all over the place)

New Civil Code.


Article 1403 (2)
Certain agreement
must be proved by
some writing, note
or memorandum in
order to be
enforceable

Rules of Court.
Rule 130, Section 9
Nothing to do with the
manner of proving
agreements. Its object is to
prohibit alteration, change,
modification, variation or
contradiction of the terms
of a written agreement
By fiction of law, treats
wills as agreement and
thus it made applicable to
wills
Cannot be invoked by
either party to the litigation
against the other where at
least one of the parties to
the suit is not a party or a
privy of a party to the
written instrument.
Simply stated: This does
not apply where third
parties are affected (?)

[Tip: Do not answer in a table. Do not answer in one big paragraph without any
white space whatsoever. Answer in proper essay form. Also, do not limit with
contrast. Write down the similarity as well. Try to answer just like in enumeration
questions. That, for me, will result to topnotch answers. Provided your answers are
also correct.]

End of first exam coverage. KJ


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